1. What constitutes committing a crime in circumstances exceeding the requirements of an urgent situation?
As guided by Clause 4, Article 2 of Resolution 04/2025/NQ-HĐTP, committing a crime in circumstances exceeding the requirements of an urgent situation is when the offender, in order to avoid causing harm to their own or others’ legitimate rights and interests, or to the interests of the State, agencies, or organizations, has no other choice but to cause damage smaller than the damage to be prevented, but the actual damage caused clearly exceeds the requirements of the urgent situation (the actual damage is equal to or greater than the damage to be prevented).
Example: When a fire occurred at a store, even though the fire was controlled, a large amount of smoke remained. Nguyen Van A, an employee, thought the fire would spread to the garage, so he broke down the door and wall to retrieve his motorbike, valued at 20,000,000 VND. A’s action caused actual damage of 100,000,000 VND, which is greater than the damage to be prevented. Therefore, A’s action exceeded the requirements of the urgent situation. In this case, Nguyen Van A will have the mitigating circumstance of criminal liability applied as stipulated in Point d, Clause 1, Article 51 of the Criminal Code.
2. Is committing a crime in circumstances exceeding the requirements of an urgent situation 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 Law amending the Criminal Code 2017) 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 in circumstances exceeding the limits of legitimate defense;
– Committing a crime in circumstances exceeding the requirements of an urgent situation;
– Committing a crime in circumstances exceeding the necessary level when apprehending an offender;
– Committing a crime under mental provocation caused by the victim’s unlawful conduct;
– Committing a crime due to extremely difficult circumstances not self-inflicted;
– Committing a crime but causing no damage or minor 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 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 severely or extremely severely disabled;
– The offender has a disease that limits their cognitive ability or their ability to control their behavior;
– The offender voluntarily surrenders;
– The offender truthfully confesses 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 meritorious services to the revolution or is the parent, spouse, or child of a martyr.
Thus, committing a crime in circumstances exceeding the requirements of an urgent situation 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 degree of social danger of the criminal act, the offender’s personal background, mitigating circumstances, and aggravating circumstances for criminal liability.
– The Court may decide on a penalty below the lowest level of the applicable penalty framework but must be within the next lighter penalty framework of the law when 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 any accomplice shall only be applied to that accomplice.
– Mitigating circumstances already stipulated by this Code as elements for defining a crime or penalty framework shall not be considered mitigating circumstances when deciding on the penalty.
– When imposing a prison sentence of not more than 03 years, based on the offender’s personal background and mitigating circumstances, if it is deemed unnecessary for the offender to serve 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 as prescribed by the Law on Execution of Criminal Judgments.
