1. What constitutes committing a crime by exceeding the limits of legitimate self-defense?
As guided by Clause 3, Article 2 of Resolution 04/2025/NQ-HĐTP, committing a crime by exceeding the limits of legitimate self-defense occurs when the offender, in order to protect their own legitimate rights and interests, those of others, or the interests of the State, an agency, or an organization, performs an act of counterattack that is clearly excessive, disproportionate to the nature and social danger of the infringing act.
An act of counterattack that is clearly excessive is an act of counterattack that is disproportionate, with a significant disparity compared to the nature and social danger of the infringing act. To determine whether a counterattack is “clearly excessive,” it is necessary to consider and objectively, comprehensively, and fully evaluate all circumstances and events related to the infringing act and the counterattack, such as: the object to be protected; the extent of damage that the infringing act could cause; weapons, means, methods used; the personal background of the aggressor; the relative strength, intensity, and extent of the infringing act and the self-defense act; the context, circumstances, and location of the incident, etc.
Example: Pham Van T used a knife to threaten and punch Nguyen Van A in the face. To protect himself, A struggled with T, snatched the knife, and threw it into the river. When T fled, A still chased after him and repeatedly hit T with a stone, resulting in a 25% body injury. A’s act of causing injury exceeded the limits of legitimate self-defense. In this case, Nguyen Van A is subject to the mitigating circumstance for criminal liability stipulated in point c, Clause 1, Article 51 of the Criminal Code.
2. Is committing a crime by exceeding the limits of legitimate self-defense a mitigating circumstance for criminal liability?
The mitigating circumstances for criminal liability are stipulated in Article 51 of the Criminal Code of Vietnam 2015 (amended by Points a, b, Clause 6, Article 1 of the 2017 Law amending the Criminal Code) as follows:
– The offender has prevented or minimized the harm caused by the crime;
– The offender voluntarily remedies, compensates for damages, or overcomes the consequences;
– Committing a crime by exceeding the limits of legitimate self-defense;
– Committing a crime by exceeding the requirements of a state of emergency;
– Committing a crime by exceeding the necessary level when arresting an offender;
– Committing a crime due to mental provocation caused by the victim’s unlawful act;
– Committing a crime due to particularly difficult circumstances not self-inflicted;
– Committing a crime but causing no damage or insignificant damage;
– Committing a crime for the first time and being a minor offense;
– Committing a crime due to being threatened or coerced by another person;
– Committing a crime while having limited cognitive ability not caused by one’s own fault;
– Committing a crime due to backwardness;
– The offender is a pregnant woman;
– The offender is 70 years old or older;
– The offender is a person with a severe or extremely severe disability;
– The offender has a disease that limits their cognitive ability or ability to control their behavior;
– The offender surrenders;
– The offender makes a sincere declaration and shows remorse;
– The offender actively cooperates with the competent authority in detecting crimes or in the process of resolving the case;
– The offender has performed meritorious services to atone for their crime;
– The offender has outstanding achievements in production, combat, study, or work;
– The offender is a person with contributions to the revolution or is the father, mother, spouse, or child of a martyr.
Thus, committing a crime by exceeding the limits of legitimate self-defense is considered a mitigating circumstance for criminal liability.
3. Some notes when applying mitigating circumstances for criminal liability
– When deciding on a penalty, the Court shall base its decision on the provisions of the Criminal Code, considering the nature and social danger of the criminal act, the personal background of the offender, the mitigating circumstances, and aggravating circumstances for criminal liability.
– The Court may decide a penalty below the minimum level of the applicable penalty bracket but within the next lighter penalty bracket of the law when the offender has at least two mitigating circumstances stipulated in Clause 1, Article 51 of the Criminal Code of Vietnam 2015.
– Mitigating circumstances related to a specific accomplice shall only be applied to that accomplice.
– Mitigating circumstances that have been stipulated in this Code as elements defining a crime or defining a penalty bracket shall not be considered as mitigating circumstances when deciding on a penalty.
– When imposing a prison sentence not exceeding 03 years, based on the personal background of the offender and the mitigating circumstances, if it is deemed unnecessary to enforce the prison sentence, the Court shall grant a suspended sentence and set a probation period from 01 year to 05 years, and impose obligations during the probation period according to the provisions of the Law on Execution of Criminal Judgments.
