1. What does it mean to commit a crime for the first time and fall under the less serious category?
According to the guidance in Clause 9, Article 2 of Resolution 04/2025/NQ-HDTP, committing a crime for the first time and falling under the less serious category is when the crime meets both of the following two conditions:
– Committing a crime for the first time means that the person has never committed a crime before, or has previously committed a criminal act but was exempted from criminal liability; or has previously committed a criminal act but was subject to judicial education measures at a reform school; or falls under the category of having no criminal record; or was previously convicted but had their criminal record expunged;
– Committing a crime belonging to the less serious category means that the offender committed a criminal act with a minor nature and level of social danger, where the maximum penalty for the crime is a fine, non-custodial reform, or imprisonment for up to 03 years, or where the offender played a secondary, insignificant role in a serious, very serious, or especially serious accomplice case.
The Court shall only apply the mitigating circumstance of criminal liability specified in Point i, Clause 1, Article 51 of the Criminal Code when both conditions “committing a crime for the first time” and “falling under the less serious category” are met. If the defendant commits a crime for the first time but it does not fall under the less serious category, or conversely, commits a crime belonging to the less serious category but it is not the first time, then the mitigating circumstance specified in Point i, Clause 1, Article 51 of the Criminal Code shall not be applied. If the defendant has committed a criminal act but the statute of limitations for criminal prosecution has expired, has not been convicted, or the statute of limitations for criminal prosecution has not expired but the defendant is prosecuted for a subsequent crime, this mitigating circumstance shall not be applied.
Example: Nguyen Van A has never committed a crime before and is now being prosecuted for the crime of molestation of a person under 16 years old as stipulated in Clause 1, Article 146 of the Criminal Code (a less serious crime). In this case, Nguyen Van A will be applied the mitigating circumstance of criminal liability specified in Point i, Clause 1, Article 51 of the Criminal Code.
2. Is committing a crime for the first time and falling under the less serious category 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 Point a, Point b, Clause 6, Article 1 of the Law amending the Criminal Code 2017) as follows:
– The offender has prevented or reduced the harm caused by the crime;
– The offender voluntarily rectified, compensated for damages, or remedied the consequences;
– Committing a crime in excess of the limits of legitimate self-defense;
– Committing a crime in excess of the requirements of an emergency;
– Committing a crime in excess of 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 that has not caused damage or has caused minor damage;
– Committing a crime for the first time and falling under the less serious category;
– 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 old or older;
– The offender is a severely disabled person or a person with especially severe disability;
– The offender is a person with an illness that limits their cognitive ability or their ability to control their behavior;
– The offender confessed;
– The offender made a sincere declaration, repented and showed remorse;
– The offender actively cooperated with competent agencies in detecting crimes or during the resolution of the case;
– The offender rendered meritorious service to atone for their crime;
– The offender is a person with outstanding achievements in production, combat, study, or work;
– The offender is a person who rendered services to the revolution or is the parent, spouse, or child of a martyr.
Thus, committing a crime for the first time and falling under the less serious category is considered a mitigating circumstance for criminal liability.
3. Some notes when applying mitigating circumstances for criminal liability
– When deciding on a sentence, the Court shall base its decision on the provisions of the Criminal Code, considering the nature and level 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 sentence below the minimum level of the applicable penalty framework but within the immediately 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 a specific accomplice shall only be applied to that individual.
– Mitigating circumstances that have been stipulated in this Code as elements for defining a crime or its framework shall not be considered as mitigating circumstances when deciding on a sentence.
– When imposing a prison sentence of no more than 03 years, based on the offender’s personal background and mitigating circumstances, if it is deemed unnecessary to enforce the prison sentence, the Court may grant a suspended sentence and set a probation period from 01 year to 05 years, with the fulfillment of obligations during the probation period as prescribed by the Law on Execution of Criminal Judgments.
