1. What does it mean for an offender to have prevented or mitigated the harm of a crime?
According to the guidance in Clause 1, Article 2 of Resolution 04/2025/NQ-HĐTP, an offender who has prevented or mitigated the harm of a crime falls into one of the following cases:
– Preventing the harm of a crime means that after the crime has been committed, the offender, either by themselves or due to objective impact, has used all possible means to prevent the harm of the crime from occurring;
– Mitigating the harm of a crime means that after the crime has been committed and the harm is occurring, the offender, either by themselves or due to objective impact, has used all possible means to prevent the harm from continuing or escalating.
When applying this mitigating circumstance, the extent of the reduction in criminal liability depends on the offender’s attitude (whether by themselves or influenced by others, other objective factors) and the actual harm of the crime that has been prevented or mitigated.
Example: Immediately after causing a traffic accident, Nguyen Van A promptly took the victim to the emergency room, thereby reducing the victim’s body injury rate. In this case, Nguyen Van A is subject to the mitigating circumstance stipulated in Point a, Clause 1, Article 51 of the Criminal Code.
2. Is an offender who has prevented or mitigated the harm of a crime considered a mitigating circumstance for criminal liability?
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:
– An offender has prevented or mitigated the harm of a crime;
– An offender has voluntarily repaired, compensated for damage, or remedied the consequences;
– Committing a crime in self-defense exceeding the legitimate limit;
– Committing a crime exceeding the requirements of an emergency;
– Committing a crime exceeding the necessary extent when arresting an offender;
– Committing a crime under mental provocation caused by the victim’s unlawful act;
– Committing a crime due to extremely difficult circumstances not caused by oneself;
– Committing a crime but not causing damage or causing minor damage;
– Committing a crime for the first time and belonging to a less serious case;
– Committing a crime due to being threatened or coerced by another person;
– Committing a crime with 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 of age or older;
– The offender is a severely disabled person or a person with especially severe disabilities;
– The offender has a disease that limits their cognitive ability or ability to control their behavior;
– The offender has confessed;
– The offender has sincerely declared, repented, and shown remorse;
– The offender has actively cooperated with responsible agencies in detecting crime or during the resolution of the case;
– The offender has rendered meritorious services to atone for their crime;
– The offender has outstanding achievements in production, combat, study, or work;
– The offender is a person with meritorious service to the revolution or is the parent, spouse, or child of a martyr.
Thus, an offender who has prevented or mitigated the harm of a crime is considered a mitigating circumstance for criminal liability.
3. Some notes when applying mitigating circumstances
– When deciding on a penalty, the Court shall base its decision on the provisions of the Criminal Code, considering the nature and degree of social danger of the criminal act, the offender’s personal background, mitigating circumstances, and aggravating circumstances for criminal liability.
– The Court may impose a penalty below the lowest level of the applicable penalty framework but within the immediately lighter penalty framework of the article if the offender has at least two mitigating circumstances specified in Clause 1, Article 51 of the Criminal Code of Vietnam 2015.
– Mitigating circumstances belonging to a particular accomplice shall only apply to that accomplice.
– Mitigating circumstances that are already stipulated by this Code as elements of the crime or part of the penalty framework shall not be considered 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 mitigating circumstances, if it is deemed unnecessary to enforce the prison sentence, the Court shall grant a suspended sentence and set a probationary period from 01 year to 05 years, and impose obligations during the probationary period in accordance with the Law on Execution of Criminal Judgments.
