Looking into Court Precedents... The Key Requirement is 'Randomness'
Repeated Offenses Lead to Increased Punishment
Higher Possibility and Severity of Punishment for Fraudulent Golf Cases
[Asia Economy Reporter Lee Seohee] It is common to enjoy betting with acquaintances on the field. Small bets, such as buying lunch, also add to the fun of the round. The problem arises when the stakes rise to hundreds of thousands or even millions of won. In such cases, gambling charges may be applied, so the legal requirements must be carefully examined. We look into the judgment of whether betting golf on the field constitutes 'gambling' through court precedents.
The key requirement for gambling charges is ‘chance’
The key requirement that determines gambling charges is ‘chance’. According to the Supreme Court’s judgment, gambling is defined as ‘staking property and determining the gain or loss of property by chance’. Here, chance means circumstances that the parties cannot subjectively predict or influence with certainty. Article 246 of the Criminal Act punishes those who gamble with a fine of up to 10 million won. However, it stipulates an exception for cases that are merely temporary amusement.
So, can betting golf be classified as gambling? Generally, in sports such as billiards, tennis, and baseball, the prevailing view has been that since the outcome is determined by the players’ physical and mental abilities, concentration, and skill rather than chance, it does not constitute gambling. Accordingly, lower courts have sometimes acquitted defendants who played betting golf with stakes worth hundreds of millions of won.
However, the trend changed when the Supreme Court overturned a first-instance ruling in 2008 on a similar case. Although golf heavily depends on the player’s skill, the Supreme Court at the time judged that it is difficult to assume that the player’s skill is consistently demonstrated in every hole or game, making it impossible to predict the outcome with certainty. Similarly, there was a ruling that gambling charges could be established against defendants who played betting billiards with stakes of hundreds of thousands of won.
The Supreme Court explained, “The reason for punishing gambling is to prohibit acquiring property by chance and to uphold the moral principle of the economy that money should be earned through legitimate labor. Since the prize money in betting golf is not property earned through legitimate labor, allowing betting golf could undermine the moral foundation of the economy.”
Heavier penalties if ‘habituality’ is recognized
Another requirement that determines gambling charges along with chance is ‘habituality’. Article 246, Paragraph 2 of the Criminal Act stipulates that if gambling is not temporary but habitual, the offender may be punished with imprisonment of up to three years or a fine of up to 20 million won. This means that habitual gambling is subject to heavier penalties.
However, the criteria distinguishing gambling from temporary amusement are not clearly defined. Experts explain that the amount and frequency of bets, as well as the relationship with the participants, are comprehensively considered.
Attorney Kim Hangyu of Law Firm Gonggan said, “There is no clear standard to distinguish gambling from temporary amusement,” but added, “The determination of whether to punish gambling charges is made by comprehensively considering how large the bet amount is, how frequent the bets are, and how close the relationships among the participants are.”
Fraudulent golf increases likelihood of punishment and sentence severity
If someone secretly drugs the opponent or deliberately cheats on strokes to win bets by deception and acquire property, they are highly likely to be charged with fraud. According to Article 347 of the Criminal Act, a person who deceives another and obtains property delivery or other economic benefits by exploiting the other’s mistaken intention may be punished by imprisonment of up to 10 years or a fine of up to 20 million won.
In fact, last July, a group that drugged an acquaintance with the psychotropic drug Ativan and then played betting golf to swindle about 300 million won was indicted on fraud charges and sentenced to two years and four months in prison. They reportedly lured an acquaintance they knew to a screen golf center, secretly put a tranquilizer in the victim’s coffee, and gradually raised the stakes to swindle money.
In such cases, regardless of whether gambling charges apply, the possibility of fraud charges is very high. Also, since fraud involves deceiving others with lies, it is regarded as a more serious crime than gambling, and the sentences are much heavier.
© The Asia Business Daily(www.asiae.co.kr). All rights reserved.
