(Approved by the Judicial Committee of the Supreme People's Court on December 29, 2020)

　　keyword Criminal/Crime of opening a casino/" binary options "/ gambling website

　　Points of judgment

　　In the name of "binary options" trading，Use of the Internet to solicit "investors" outside the legal futures trading venue，The price trend of foreign exchange varieties in the future is the trading object，Determine profit and loss according to "buy up" and "buy down"，"Investors" who buy in the right direction will benefit，The principal of the wrong purchase belongs to the website (the banker)，The result of profit or loss is not linked to the actual rise or fall of the price，The essence is "bet on size, bet on win or lose"，It's gambling disguised as options trading。The relevant websites shall be identified as gambling websites。

　　Relevant law

　　Article 303 of Criminal Law of the People's Republic of China

　　Basic case

　　In June 2016, Beijing Longhui Lianchuang Education Technology Co., LTD. (hereinafter referred to as "Longhui Company") was established, responsible for providing customer training, customer maintenance and customer development services for the operation of Longhui website, and the actual controller behind the scenes is Zhou Xikun。Zhou Xikun used Shanghai Maxi Business Consulting Co., Ltd. to hire lecturers, managers, customer service and other staff, and impersonate the payment accounts of Shanghai Zhili Network Technology Co., Ltd. in Zhipay Electronic Payment Co., Ltd. to receive registered transaction funds from members across the country。

　　Longhui website to operate "binary options" trading for the business, by attracting members to "buy up" or "buy down" to participate in gambling。After registration and recharge on the website, members download and install the market market receiving software and self-made plug-in on the website, select a certain forex trading variety, select the expiration time ranging from 1M (minutes) to 60M, place an order, and click the "buy up" or "buy down" button to complete the transaction。After the purchase is set to leave the hand, the trading content cannot be changed, and the loss and profit cannot be stopped. If the purchase is in the right direction, the profit of the transaction amount can be 76% to 78%. If the purchase is in the wrong direction, the principal will be completely lost。Longhui website has established a grade broker system and the corresponding commission system, grade brokers include SB silver to PB Platinum three star six grades。At the time of the incident, the Longhui website had about 100,000 members across the country。

　　In January 2017, Chen Qinghao was hired by Zhou Xikun as consultant and marketing director, engaged in daily affairs coordination and management, maintained the relationship between Longhui website and senior brokers, attended the "training meeting" and "explanation meeting" and carried out publicity, developed members and expanded the market。In January 2016, Chen Shujuan registered an account on the Longhui website, and once became a PB platinum one-star broker through the development of members, with more than 17,000 member accounts。In February 2016, Zhao Yanhai registered an account on the Longhui website and once became a PB platinum-level broker through membership development, with more than 8,000 member accounts。According to the judicial accounting appraisal of Jiangxi Public Judicial Appraisal Center, from January 1, 2017 to July 5, 2017, Chen Shujuan withdrew 180 975 from Longhui website.$04, Zhao Yanhai withdrew 11598 from the Longhui website.11美元。On July 5, 2017, Chen Qinghao, Chen Shujuan and Zhao Yanhai were arrested。After Chen Qinghao was arrested, he returned 350,000 yuan of illegal gains on August 8, 2017。

　　verdict

　　On March 22, 2019, the Intermediate People's Court of Ji 'an City, Jiangxi Province issued criminal judgment No. 21 of (2018) Gan 08，The defendant Chen Qinghao committed the crime of opening a casino，Sentenced to three years' imprisonment，He was also fined 500,000 yuan，Expulsion from the country;The defendant Chen Shujuan is guilty of gambling，Sentenced to fixed-term imprisonment of two years，A fine of RMB 300,000 yuan is also imposed;The defendant Zhao Yanhai committed gambling crimes，Sentenced to one year and ten months in prison，Shall also be fined RMB 200,000 yuan;Continue to recover the illegal gains of defendants Chen Shujuan and Zhao Yanhai。After the verdict, Chen Qinghao and Chen Shujuan appealed。The Higher People's Court of Jiangxi Province issued criminal judgment No. 93 (2019) on September 26, 2019，To the appellant Chen Qinghao committed the crime of opening a casino，The sentence was commuted to fixed-term imprisonment of two years and six months，He was also fined 500,000 yuan，Expulsion from the country;The appellant Chen Shujuan was convicted of setting up a casino，Sentenced to fixed-term imprisonment of two years，A fine of RMB 300,000 yuan is also imposed;The defendant Zhao Yanhai is guilty of opening a casino，Sentenced to one year and ten months in prison，Shall also be fined RMB 200,000 yuan;We will continue to recover the illegal gains of Chen Shujuan and Zhao Yanhai。

　　Reason for judgment

　　The effective judgment of the court held that according to the provisions of Article 1, Article 4 and Article 6 of the Regulations on the Administration of Futures Trading amended by The State Council in 2017, option contracts refer to standardized contracts uniformly formulated by futures trading venues that provide that the buyer has the right to buy or sell the agreed subject matter at a specific price at a certain time in the future。Futures trading shall be conducted in legal futures trading venues such as futures exchanges, and futures trading outside of futures trading venues is prohibited。Without the approval of The State Council or the futures regulatory body under The State Council, no unit or individual may organize futures trading in any form。In short, option is a kind of financial product that takes the price of stocks, futures and other varieties as its target and is traded in legal futures trading venues. In the process of trading, the rights of both buyers and sellers need to be transferred, which has the function of avoiding price risks and serving the real economy。

　　Longhui "binary options" trading method is to download the market information receiving software and Longhui website homemade plug-in，Members choose foreign exchange varieties and time periods，Click the "Buy up" or "Buy Down" button to complete the trade，Buying the right direction can make 76% to 78% of the value of the trade，If you buy the wrong direction, the principal will return to the website (the banker)，The result of profit and loss has nothing to do with the fluctuation of foreign exchange trading instruments，In fact, it is the price trend of foreign exchange, stocks and other varieties in the future for a certain period of time，The rise and fall of the underlying price trend determines the trader's property profit or loss，The trading price and margin of profit and loss are determined in advance，Profit and loss results are not linked to the actual price rise or fall，Traders have no rights to exercise and transfer links，The result of the transaction is accidental, speculative and aggressive。Therefore, the "binary options" of Longhui is essentially the same as the gambling behavior of "betting size, betting win or lose", which is actually a gambling behavior between the network platform and investors, and it is a gambling behavior under the cloak of options。

　　The defendant, Chen Qinghao, worked for Longhui as the regional marketing director for China，Engaged in daily affairs coordination and management，Maintain the relationship between the company and the broker，Participate in local briefings, training sessions and promote Longhui "binary Options"，Develop new members and new markets，In line with the Supreme People's Court Supreme People's Procuratorate Public Security Opinions on Several Issues relating to the Application of Law in Handling Online Gambling Crime Cases (hereinafter referred to as the "Opinions"), Article 2 of the knowingly gambling website，To provide them with advertising, membership development and other services，Constitute the crime of opening a casino，Its illegal income has reached more than five times the "amount of service fees charged above 20,000 yuan" stipulated in Article 2 of the Opinions，Should be deemed "serious" for opening a casino。However, taking into account the facts of his crime, the nature of his behavior, his position and role in the joint crime and the circumstances of his lighter sentence, the term of his fixed-term imprisonment shall be reduced and the fine shall be maintained according to law。Chen Shujuan and Zhao Yanhai recruited gamblers to participate in gambling for the public, which is an act of acting as an agent for a gambling website and accepting bets, and the behavior is organized, sustained and open, constituting the crime of opening a casino, and reaching "serious circumstances".。The original judgment found that Chen Shujuan and Zhao Yanhai's charges were improper, and the second trial changed their charges according to law, but according to the principle of no additional punishment on appeal, the first trial upheld their sentencing。

　　(Effective judges: Chen Jianping, Tang Yuanyuan, Yao Yuhua)