CONTENTS
- 1. Gambling | Definition
- - Key Elements of Establishment
- - Exceptions
- - Differences Between the Crime of Gambling and Violation of the National Sports Promotion Act
- 2. Gambling | Special Cases
- - Level of Punishment
- - Sentencing Guidelines
- 3. Gambling | If You Are Implicated in a Charge
- - Confirming the Facts and Securing Evidence
- - Active Defense at the Investigation Stage
- - Use of Sentencing Factors
- 4. Gambling | If It Is Difficult to Respond on Your Own?
1. Gambling | Definition
The crime of gambling applies to a person who has unlawfully engaged in gambling.
The Criminal Act defines gambling as "the act of playing a game by predicting the outcome with money or other property value at stake."
Key Elements of Establishment
② The property or financial benefit is not an economically legitimate benefit
③ Chance is recognized for all parties participating in the gambling act
④ The gambling act does not amount to no more than mere temporary recreation
※ According to Supreme Court precedent, chance is sufficient where the matter cannot be subjectively predicted or controlled, so the crime of gambling may be established even where some degree of skill is involved.
[Supreme Court Decision 2006Do736, rendered October 23, 2008]
Exceptions
If property is placed at stake on a sporting event or game and the gain or loss is determined by its outcome, the crime of gambling may be established depending on the case.
However, not all gambling is unlawful and subject to criminal punishment.
Because lotteries, horse racing, and the like are forms of gambling legally recognized by the government, the crime of gambling is not established, and temporary recreation also does not constitute the crime of gambling.
Differences Between the Crime of Gambling and Violation of the National Sports Promotion Act
Both the crime of gambling and a violation of the National Sports Promotion Act are crimes related to gambling, but they differ in the applicable law and the content of punishment.
The crime of gambling is provided for in the Criminal Act, while a violation of the National Sports Promotion Act is, as the name suggests, punished under the National Sports Promotion Act.
In particular, the National Sports Promotion Act strictly regulates speculative gambling acts such as illegal sports betting, so it may be punished more heavily than an ordinary crime of gambling.
2. Gambling | Special Cases
Habitual Gambling
The crime of habitual gambling is a crime that provides for aggravated punishment due to repeated acts of gambling.
Opening a Gambling Place, etc.
The crime of opening a gambling place, etc., is a crime that is established when a person, for the purpose of profit, opens a place or space where gambling takes place.
▷ Criteria for Determining the Purpose of Profit
Sale of Lottery Tickets
The act of gathering money or valuables from many persons and, through a method such as a drawing, providing financial gain to the winners while causing loss to the other participants is referred to as a lottery.
Level of Punishment
Criminal Act Article 246 (Gambling) | A fine not exceeding 10 million won (provided that this does not apply where it amounts to no more than temporary recreation) |
Criminal Act Article 246 (Habitual Gambling) | Imprisonment for not more than 3 years or a fine not exceeding 20 million won |
Criminal Act Article 247 (Opening a Gambling Place, etc.) | Imprisonment for not more than 5 years or a fine not exceeding 30 million won |
Criminal Act Article 248 (Sale of Lottery Tickets, etc.)
A person who sells a lottery ticket | Imprisonment for not more than 5 years or a fine not exceeding 30 million won |
A person who brokers a lottery ticket | Imprisonment for not more than 3 years or a fine not exceeding 20 million won |
A person who acquires a lottery ticket | A fine not exceeding 10 million won |
Sentencing Guidelines
Opening a Gambling Place, etc.
▷ Simple participation
▷ Where it is not the main business
▷ Mental and physical weakness (without the defendant's fault)
▷ Voluntary surrender or internal whistleblowing
▷ Where the actual gain is minor
▷ Where the person brokered the sale of lottery tickets
▷ Genuine remorse
▷ No prior criminal punishment
3. Gambling | If You Are Implicated in a Charge
The crime of gambling is not a matter that ends merely with the act of participating in gambling; various legal elements may be intertwined.
Because the crime of gambling encompasses various types of offenses, such as the act of gambling, the crime of opening a gambling place, and brokerage, it is advisable to analyze the specific facts of the case in order to narrow the scope of punishment and to prepare every possible legal means of defense.
Confirming the Facts and Securing Evidence
The first priority is to clearly ascertain whether one's own conduct constitutes the crime of gambling and the specific facts of the allegation.
In addition, it is important to secure evidence that can prove that the conduct in question was not gambling but amounted to no more than mere temporary recreation.
Examples of Usable Evidence:
Monetary transaction records (account deposits and withdrawals, remittance history, receipts)
Records of the gambling place and time (photographs, video, entry records)
Game records and logs (server records related to online gambling)
Active Defense at the Investigation Stage
In the early stage of a gambling investigation, such as police questioning, the consistency of statements and accurate confirmation of the facts are most important.
Before undergoing questioning, it is necessary to organize on one's own the facts related to the allegation one faces.
During the statement process, it is advantageous not to make forced assertions about matters one remembers uncertainly, and to honestly answer that one does not know what one does not know.
Maintaining a consistent flow of statements from beginning to endalso helps in gaining the trust of the investigative agency.
In addition, care must be taken during the investigation to ensure that one's statements are not distorted or incorrectly recorded in the protocol.
Use of Sentencing Factors
Showing an attitude of genuine remorse for one's own conduct can have a positive influence on the judgment of the investigative agency or the court.
✅ Tips for Writing a Letter of Apology
Acknowledge the facts and express a sincere attitude of remorse.
Rather than simply saying "I am sorry," describe in concrete terms whether one understands why it was wrong and what efforts one will make going forward.
✅ How to Obtain a Petition
One may ask family members, acquaintances, colleagues, and others in a relationship of social trust to write a petition.
The content should include one's usual diligent attitude toward life, the absence of a risk of reoffending, and the fact that one is remorseful.
4. Gambling | If It Is Difficult to Respond on Your Own?
Daeryun Law Firm has many criminal defense attorneys with experience in the police, the prosecution, and the judiciary, and it thoroughly analyzes gambling-related cases to assist clients.
We present a tailored strategy suited to each situation, such as responding to statements in the early stage of a case, reviewing materials submitted to investigative agencies, advising on the preparation of letters of apology and petitions, and organizing sentencing materials.
In addition, working in cooperation with our in-house Evidence Investigation and Digital Forensics groups, we collect evidence favorable to the case, anticipate situations that may arise, and develop a tailored strategy.
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