Gambling itself is an illegal and criminal act. According to the amount and circumstances, it should be given administrative punishment or investigated for criminal responsibility.
In practice, it is not uncommon for state officials to take bribes and collect money through gambling.
In 2007, the "Two Highs" "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Accepting Bribery" (hereinafter referred to as "Opinions") clarified that accepting property from clients through gambling is a crime of accepting bribes.
However, due to the particularity of gambling, there are some problems and difficulties in identifying bribery in gambling.
For those who conspire with other gamblers in advance and intentionally lose property to state officials during gambling, the nature of bribery is relatively clear, relatively easy to verify, and there is little controversy. It can be called "collusive gambling bribery" .
Under the guise of "entertainment", state employees gamble with bosses and other personnel with specific requests for a long time. The gamblers are independent of each other, and there is no intentional collusion between each other to lose money, but the result is almost always the state. When the staff wins, due to the large number of gambling times and the long duration, the state staff finally gains huge profits. In exchange, the state staff uses their powers to seek benefits for the gamblers. This kind of situation is essentially a power-for-money transaction, which can be called It is called "gambling and bribery without collusion".
Since there is no collusion between other gamblers in the "non-collusion type gambling bribery", how to determine that the trustee has the intention to gamble and bribe, and the state staff has the intention to gamble and accept bribes, how to view the certainty of the transfer of benefits through gambling , and how to grasp the standard of evidence collection in specific cases are the three difficulties in identifying "non-colluding gambling and bribery".
1. Regarding several different types of "gambling bribery without collusion", how to determine the subjective intent of the gamblers to commit gambling bribery
1. The trustees who participated in the gambling had the same mentality, and they all admitted that they deliberately lost money to the state staff.
In such cases, the facts are relatively simple, and the evidence is relatively good. All the clients who participated in the gambling admitted that they deliberately did not win in the gambling and let the state staff win alone.
Although there is no collusion between the trustees, but because they all have the same intention to lose money, and they know each other well, all the lost money also flows to the state staff, so the subjectivity of asking the trustees to gamble and bribe and state staff to gamble and accept bribes is subjective. Intentionality is relatively clear, and there is not much controversy in determining the crime of bribery.
For example, Xu Huiliang, the former secretary of the Xiangyun County Party Committee in Yunnan Province, invited businessmen to play poker many times. The businessmen knew that Xu Huiliang "can only win but not lose" in playing cards, so they would deliberately lose money during the game. In the end, the court found that Xu Huiliang accepted bribes in this way totaling 6.41 million yuan.
2. The mentality of the trustees who participate in gambling is not completely consistent, and some gamblers do not admit to "intentionally" losing money.
In practice, sometimes the mentality of the gamblers in the "non-collusive gambling and bribery" is more complicated. Some gamblers have important matters and need help from the state staff, so they hope to lose money intentionally, and the more they lose, the better; The gamblers ask for minor matters, hoping to lose money but not too much; some gamblers hope to neither lose nor win, and so on.
In addition, since the determination of the subjective aspect is relatively more dependent on verbal evidence, it is relatively clear that the bribery is intentional for the client who admits that he lost money intentionally, but for the client who insists that he did not lose money intentionally but actually lost money, can it be determined Deliberate transfer of interests?
Is it possible to infer the subjective intention of the state staff to accept bribes based on this?
In this regard, it is necessary to fully understand and grasp the meaning of intentional loss. Intention can be either a direct intention of actively pursuing or an indirect intention of laissez-faire. Money, but generally have the cognition of "don't let the leader lose money". In gambling, once the state staff loses money, the temporary winner will unconsciously "release the water" to ensure that the leader does not lose.
Since gambling is a zero-sum game, as long as the trustee has the mentality of "not letting the leader lose money", he will subjectively at least have a knowing and laissez-faire attitude towards the possible loss of his own property and the possible gain of the leader. The transfer of benefits is an indirect intention.
In the same way, as long as the state staff has the cognition that "other gamblers will not let me lose money", it can be inferred that they have the subjective intention of gambling and accepting bribes.
3. The trustee who participates in the gambling allows the state staff to break the gambling rules, in a disguised way to increase the probability of winning.
In some cases, the gamblers did not admit that they intentionally lost money or "discharged", but admitted that they allowed state officials to "play tricks" and did not abide by the gambling rules.
For example, in the case of Feng Jun, the former party secretary and director of the Standing Committee of the People's Congress of Mianzhu City, Sichuan Province, who took 3.96 million yuan in bribes in the form of gambling, "Feng Jun stole, changed, and looked at the cards while playing cards, and the boss who played mahjong with him turned a blind eye." one eye".
If the trustee who participates in the gambling knows that state staff breaking the rules will change the nature of gambling, thereby increasing the probability of winning, leading to the result that the state staff wins and the person loses money, but still allows the state staff to break the rules, then they are subjectively , the transfer of benefits through gambling is an indirect intentional attitude; state functionaries hold the same understanding of this, and still implement the above-mentioned behaviors, subjectively accepting benefits through gambling is direct intention.
2. From the overall analysis and grasp, the benefit transmission of "non-colluding gambling and bribery" is certain
In gambling, since the gamblers are in a state of non-cooperative game, if the other gamblers do not collude, it is theoretically difficult for the trustee to accurately realize the transfer of benefits to state employees according to their own will.
Taking playing mahjong as an example, even if a trustee wants to deliberately lose money to the state staff and fails every time, there is no guarantee that all the lost money will be won by the state staff. Under the premise, even if the state staff and the client both admit to having the intention to commit the crime of bribery through gambling, they cannot be deemed as accepting bribes.
In addition, since the mentality of the participants in the "non-collusion gambling bribery" is not completely consistent, it cannot be guaranteed that the result of each game will be that one state worker wins and the other three trustees lose. There may be a situation where state staff win, other individual trustees also win, or even win more than state staff. How should we understand and grasp this?
When analyzing this problem, we must jump out of the thinking mode of "one-to-one", "point-to-point" and "single field, single" benefit delivery.
Due to the "non-collusion type gambling bribery", it presents the characteristics of long-term, multiple times, and relatively fixed personnel. Therefore, it is not a single game or a single game that determines the final participant's winning or losing. They will win money, but from a long-term and overall perspective, the final result must be that one state worker wins, and everyone else loses.
Objectively speaking, if the client who participates in the gambling is fixed, the time for determining the gambling will be lengthened, and the money that the client must lose is equal to the money won by the state staff.
Subjectively, all the trustees who participate in the gambling are well aware of each other's mentality of "don't let the leader lose money". The trustees know that even if the money they lose is occasionally won by other gamblers, it will definitely be won in the end. into the hands of state officials.
Therefore, even if there is no collusion between the trustees, on the whole, the transfer of benefits is also deterministic.
3. Seeking truth from facts to determine the standard of proof and ideas for obtaining evidence in "non-colluding gambling and bribery"
Different from "collusive gambling bribery", "non-collusive gambling bribery" is generally under the guise of "entertainment". The amount of single winning or losing is relatively limited, but the duration is long and the frequency is high. The time, place, participants, winning and losing amount are more difficult to realize.
As for the proof of "gambling bribery without collusion", how to conform to the objective reality and meet the proof standards of criminal offenses, the author believes that the following points should be paid attention to.
1. Adhere to seeking truth from facts and avoid idealization in the concept of proof.
Facts are the cornerstone for determining the nature of a case, and the basis for discipline enforcement and justice.
For "gambling bribery without collusion", seeking truth from facts means two aspects. On the one hand, due to the lack of objective evidence such as documentary evidence and physical evidence in such cases, the facts are more dependent on the verbal evidence of the parties and are prone to change. Therefore, the evidence must be strictly checked.
On the other hand, based on the objective reality of "non-collusion gambling bribery" that lasts for a long time, has many times, and few witnesses, and people's memory has amnesia and deviations, respect the law, and cannot unrealistically require the perpetrator to report every time he gambles. The specific circumstances of each case are recalled in detail, and mutually confirmed, proving that the standard is too idealistic.
Otherwise, almost all "non-colluding gambling bribery" cannot be identified.
2. In terms of fact determination and amount calculation, the minimum value shall be taken in accordance with the principle of benefiting the investigation object.
As mentioned above, due to the characteristics of "non-colluding gambling bribery", there may be some differences among the evidence, especially the verbal evidence about the number of times of gambling and the amount of winning or losing.
In order to solve the problem of not indulging in crimes and satisfying the standards of criminal proof, when determining facts, the principle of benefiting the object of investigation must be adhered to, and the least part of the facts proved by the evidence shall be determined, and the minimum value shall be adopted as the determined amount.
3. In terms of proof methods, on the premise of fixing the number of participants, adopt a proof method that combines the overall and specific, general and precise.
First of all, it is necessary to choose the gambling games participated by fixed gamblers, and take these gambling games as the recognized facts of gambling and bribery, so as to ensure that the gambling funds are always in a state of internal closed loop, that is, the amount of money lost by other gamblers must be equal to the amount of money won by state staff. amount of money.
For example, state staff generally play cards with three entrusted persons, A, B, and C, about 40 games. In addition, because occasionally C is busy, boss D replaces C, and plays cards with state staff and A and B for about 3 games. , the determination scope of gambling and bribery should be limited to the poker games in which only state staff and A, B, and C participate, so as to ensure that the money lost by A, B, and C in the above 40 games is exactly equal to the money won by the state staff.
For the three games played by Ding, due to the existence of Ding, the money lost by A and B is not exactly equal to the money won by the state staff, so this game is not included in the calculation of the amount of bribes.
Secondly, state staff, other gamblers, and witnesses will give an overall account of the gamblers, gambling methods, approximate time, place, frequency, overall wins and losses, and the approximate duration of a single gamble, winning or losing situation, etc. , These verbal evidences are often relatively general and generalized, not precise enough, and lack specific details.
On the basis of the above-mentioned evidence, the gamblers will describe in detail the time and place of the specific games around several single games that the players can recall (such as the time of playing cards is a special node, there are emergencies in the gambling, etc.) , Participants, the size of the bet and the amount of a single win or loss, and try to call other relevant witnesses and external objective evidence for reinforcement.
Finally, in terms of evidence, a system of evidence is formed that combines and supports each other, including the whole and the individual, generality and precision, generalization and specificity, as well as gamblers' confession and witness testimony, verbal evidence and objective evidence.
Then, according to the principle of "taking the minimum value", the fact and specific amount of gambling bribery are determined. This method not only meets the minimum standard of criminal proof, but also most conforms to the objective reality of "gambling bribery without collusion".
(Ai Ping)
(Website of Central Commission for Discipline Inspection and State Supervision Commission)