Legitimacy of Gambling and Its Legally Protected Interest (Article 266 of the Criminal Code)

　　Whether gambling should be punished has become a controversial issue during the past few years. Gambling is a popular activity enjoyed by many. The process of gambling generates interests, and thus encourages indulgence and laziness, which may negatively influence social conventions, causing more social problems and crimes. Article 266 of the Criminal Code therefore prohibits people from gambling in a public place or a place open to the public. However, as there are other types of speculation (such as betting, investments, and other financial activities), how to distinguish them from gambling becomes an important issue
　　In recent years, a lot of countries begin to decriminalize gambling activities and utilize control of the governments in advance, administrative fines afterwards, or control of establishing casinos. From a psychological point of view, gambling is a natural human instinct. Compared to legal prohibition, partly allowing such activities for the public is not only more preferable, but also increases tax revenue for the government. From a criminological point of view, gambling is classified as crime without victim or immoral crime. It means that, instead of infringing anyone’s interest, gambling can only infringes the social moral. Is gambling so harmful that we should use the method of punishment? The legitimacy of such punishment is thus controversial.
　　From the view of the Criminal Code, a law which protects interests, if a conduct is not harmful to any interest, it cannot be controlled by the Criminal Code. The protected interests from gambling crime are social conventions, lifestyle of hardworking, avoidance of subsequent crime, and personal property interests. Therefore, this thesis will discuss the relationship between gambling and the protected interests, as well as verify whether the means and purpose are beyond the principle of proportionality. In the end, we will realize that the legitimacy of gambling does not exist. It should be decriminalized.
　　The policy of gambling gradually loosens in our country. There are lottery and even the Tourist Casino Management Act proposed by the Executive Yuan. It shows that decriminalize gambling and use the method of administrative control is a proper way.