刑法中赌债的认定

Identification of Gambling Debts in Criminal Law

刑法中的赌债行使时与合法债权一样构成排除一定刑事责任的正当化事由,具有合法债权消极意义上的功能,不同于民法上赌债不具有债的法律关系,即赌债非债的性质。刑法中赌债的认定应从赌博射悻法律行为的性质出发,必须具有参与赌博的意思表示,符合赌博本身的偶然性质,方才构成赌博,成立赌债。

When the gamble debts is exercised in criminal law, it forms legitimate ground excluding particular crimi- nal liability like legitimate claims and has the negative function of legitimate claims. It is different from that gam- bling debts doesn＇ t have legal relationship of debts in civil law, which means gambling debt isn＇ t debt. In criminal law, the identification of gambling debts should start with the nature of legal gambling luck. It should contain the de- claration of will in taking part in gamble and be in accordance with the accidental nature of gamble;then it could constitute gamble and eatablish gambling debts.