The difference between the mitigating circumstance of "Committing a crime in a state of mental agitation caused by the victim's illegal act" and the independent crime of "Committing a crime in a state of strong mental agitation"

The difference between the mitigating circumstance of the TNHS “Committing a crime in a state of mental agitation due to the victim’s illegal act” and the independent crime component “Committing a crime in a state of strong mental agitation”
11/10/2025 15:07 |19 hours ago

(LSVN) - The Vietnamese criminal law system reflects a humane policy but is also determined to prevent and combat crime. It is very important to consider psychological factors and circumstances leading to criminal acts, especially those due to provocation. However, practice shows that the ability to distinguish and apply the mitigating circumstance of the TNHS “Committing a crime in a state of mental agitation due to the victim’s illegal act” with the two independent crime components that stipulate “strong mental agitation” still faces many difficulties, leading to many cases of wrongful conviction, not ensuring the strictness of the law. Therefore, it is very necessary to clearly distinguish the above two cases.

1. Legal provisions
Current criminal law stipulates 02 main cases related to the state of mental agitation:
- One is the mitigating circumstance of the TNHS "Committing a crime in a state of mental agitation due to the illegal act of the victim" at Point e, Clause 1, Article 51 of the 2015 Penal Code;
- Two are independent crimes: the crime of "Murder in a state of strong mental agitation" and the crime of "Intentionally causing injury or harm to the health of another person in a state of strong mental agitation" stipulated in Article 125, Article 135 of the 2015 Penal Code (amended and supplemented in 2025).
To be considered as mental agitation or strong agitation, the following 3 elements must be present: First, there must be an illegal act of the victim; Second, the illegal act of the victim must be committed against the offender or against the offender's relatives; Third, the illegal act of the victim must be the cause of the offender's mental agitation. To apply these two cases correctly, according to the author, it is necessary to clarify the level of "mental agitation" and the nature of "the victim's illegal act".

2. Distinguishing the mitigating circumstance of the Criminal Code “Committing a crime in a state of mental agitation due to the victim’s illegal act” and constituting an independent crime in Article 125, Article 135 of the Penal Code
Regarding the mitigating circumstance “Committing a crime in a state of mental agitation due to the victim’s illegal act”
- Regarding the level of mental agitation: This is an abnormal psychological state that affects the offender’s ability to control emotions and behavior. The offender may feel angry, or even scared, worried. However, this “agitation” is not to the extent of completely losing the ability to perceive and control behavior. The offender is still partially aware of the nature of his behavior, still has the ability to control behavior to a certain extent, but this ability has been significantly reduced due to psychological pressure. This state is the reaction of a normal person when faced with negative, unacceptable behavior from the victim.
- Regarding the victim's illegal behavior: The scope of this behavior is quite wide, not limited to a specific type of violation, it can be a violation of criminal law (less serious) prescribed in the Penal Code with a penalty of up to 03 years in prison...; violations of administrative and civil relations. The important point is that this behavior must be enough to cause agitation for the offender, and there must be a direct, immediate causal relationship between the victim's behavior and the offender's agitation leading to the crime.
Practical situation 1
At about 9:00 a.m. on December 8, 2024, Nguyen Van T had a conflict with Nguyen Thanh Ph about cockfighting cable. At about 6:30 p.m. the same day, T returned to Ph's house to talk about reconciliation, but Ph thought T was there to cause trouble, so Ph chased and beat T with a 1.08m long iron pipe. When Ph chased about 100m, about 20m from the PL intersection and 06m from Le Van Ng's coffee shop, Ph caught up with T and used the iron pipe to hit T, causing T to fall. Then T picked up two pieces of wood from the side of the road, held them in both hands, stood up and hit Ph in the head, face and left eye, causing injuries, causing Ph to fall unconscious on the spot. After beating Ph, T threw the two pieces of wood at the scene and left. Afterwards, Ph was taken to the emergency room, and the results of the examination showed that Ph suffered 61% of his body damage. According to this author, in this case, T committed the crime of intentionally causing injury under Article 134 of the Penal Code. Because, in the condition of being chased by Ph and hitting T, causing T to fall, T could still choose another way of acting such as running away, but T chose to directly turn back to confront Ph, which shows that T's spirit was agitated but not to the point of completely losing the ability to perceive and control behavior. Therefore, in this case, T is only entitled to the mitigating circumstance according to point e, clause 1, Article 51 of the Penal Code.
For, constituting an independent crime: "In a state of strong agitation" (Article 125 and Article 135 of the Penal Code)
Different from the mitigating circumstance according to point e, clause 1, Article 51 of the Penal Code, "strong agitation" in Article 125, Article 135 is a sign of conviction, changing the level of danger to society of the criminal act.
- Regarding the level of mental agitation: In the two crimes above, the level of mental agitation must be at the level of "strong" or "very strong", making the offender unable to control his/her criminal behavior, without a time gap to calmly consider and resolve the matter.
- Regarding the illegal behavior of the victim: This case requires the illegal behavior of the victim to be at the level of "serious" towards the offender or their relatives, causing the offender to be strongly agitated but not to the extent of committing a crime. In individual cases where the serious illegal behavior of the victim constitutes a crime but is a less serious crime (such as the crime of humiliating others, the crime of slander), it is also considered murder in a state of strong mental agitation.
Practical situation 2
At about 4:15 p.m. on July 16, 2024, at the grocery store of Ms. Tran Thi Huyen T in village A, commune H, district H, province K, due to a conflict in paying for beer together, Tran Kim N2 used a glass cup to hit Le Bao D on the left temple, causing injury with a body injury rate of 10%. Immediately after being beaten by Mr. N2, Le Bao D picked up a glass cup available on the table and hit Mr. N2 on the head. When Mr. N2 fell on his back on the floor, Le Bao D continued to use the glass cup to hit Mr. N2 4 to 5 times in the face and head, but was stopped by other people. Afterwards, Mr. Tran Kim N2 was taken to the emergency room and treated at Hospital H2, Hanoi. As a result, Mr. N2 died shortly after, due to a traumatic brain injury.

According to the author, in the above situation, Le Bao D committed the crime of "Murder in a state of strong mental agitation". Because the victim Tran Kim N2 used a glass cup to hit Le Bao D's temple first, causing N to be strongly mentally agitated; N2 committed a serious illegal act against the defendant by using a glass cup to hit the head, causing injury to the offender; D committed the above act without any time interval from the victim's act. Therefore, there are enough elements to determine that Le Bao D committed the crime of "Murder in a state of strong mental agitation" according to Article 125 of the Penal Code. Based on the above analysis, it can be seen that the distinction between the mitigating circumstances of the criminal liability “Committing a crime in a state of mental agitation due to the illegal act of the victim” and the independent crime of “Committing a crime in a state of strong mental agitation” plays a particularly important role in ensuring the resolution of cases with the right person, the right crime, and the right law.

According to Vietnam Lawyers Magazine

The difference between the mitigating circumstance of "Committing a crime in a state of mental agitation caused by the victim's illegal act" and the independent crime of "Committing a crime in a state of strong mental agitation"

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The difference between the mitigating circumstance of "Committing a crime in a state of mental agitation caused by the victim's illegal act" and the independent crime of "Committing a crime in a state of strong mental agitation"

Practices

Team of Lawyer

RIGHT TO INVITE LAWYERS AND RIGHT TO VISIT THE DEFENDANT DURING DETENTION: LEGAL BASIS, ...

NOTARIZATION OF CONTRACTS AND TRANSACTIONS INVOLVING FOREIGN ELEMENTS ACCORDING TO ...

RESOLVING LABOR DISPUTES INCLUDES FOREIGN ELEMENTS UNDER CURRENT LAW

REGULATIONS ON PERMANENT AND TEMPORARY RESIDENCE UNDER CURRENT RESIDENCE LAW

SCOPE OF LAWSUIT AND RIGHT TO CHANGE AND SUPPLEMENT REQUESTS OF THE LICENSEE UNDER THE ...

RELEASE IN CRIMINAL CASES UNDER CURRENT LAW

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