Following Part 1, which analysed the group of mitigating circumstances relating to the offender’s positive post-offence conduct, the subsequent section of the Resolution provides guidance on the group of mitigating circumstances arising from situations of exceeding the permissible limits or other exceptional circumstances (points c, d, and đ of Clause 1 Article 51 of the Criminal Code).
Firstly, the mitigating circumstance that “the offender committed the offence in a situation exceeding the limits of lawful self-defence” is provided in Clause 3, Article 2 of Resolution No. 04/2025/NQ-HĐTP, corresponding to Point c, Clause 1, Article 51 of the Criminal Code:
"3. “The offender committed the offence in a situation exceeding the limits of lawful self-defence”, as provided in Point c, Clause 1, Article 51 of the Criminal Code, refers to cases where the offender, for the purpose of protecting the lawful rights and interests of himself/herself, those of another person, or the interests of the State, agencies, or organisations, engages in a defensive act that clearly exceeds what is necessary and is inconsistent with the nature and degree of social danger posed by the infringing act.
A defensive act is considered manifestly beyond the necessary limit when it is clearly disproportionate and demonstrates a substantial disparity in comparison with the nature and degree of social danger posed by the infringing act. In determining whether a defensive act is “manifestly beyond the necessary limit”, the assessment must be conducted in an objective, comprehensive, and thorough manner, taking into account all relevant circumstances and facts concerning both the infringing act and the defensive response, including but not limited to: the protected legal interest; the level of harm that the assault could have caused; the weapons, means, and methods used; the personal background of the assailant; the relative strength, intensity, and degree of both the assault and the defensive action; as well as the context, circumstances, and location of the incident.
Example: Pham Van T used a knife to threaten Nguyen Van A and punched him in the face. In order to protect himself, A struggled with T, seized the knife, and threw it into the river. As T attempted to flee, A nevertheless chased after him and struck him repeatedly with a stone, causing bodily injury assessed at 25%. A’s act of inflicting injury exceeded the limits of lawful self-defence. Accordingly, Nguyen Van A is entitled to the application of the mitigating circumstance prescribed in Point c, Clause 1, Article 51 of the Criminal Code.”
Secondly, regarding the factor that “committing the offence in a situation exceeding the requirements of necessity” as provided in Clause 4, Article 2 of Resolution No. 04/2025/NQ-HĐTP, corresponding to Point d, Clause 1, Article 51 of the Criminal Code:
"4. “The mitigating circumstance of “committing an offence in a situation exceeding the requirements of necessity”, as prescribed in Point d, Clause 1, Article 51 of the Criminal Code, refers to cases where the offender, in order to avert harm to the lawful rights and interests of himself/herself, those of another person, or the interests of the State, agencies, or organisations, had no alternative but to cause a lesser harm than the harm sought to be prevented; however, the harm actually caused was manifestly greater than what was necessary (equal to or greater than the harm to be prevented).
Example: When a fire occurred at a shop, although the fire had been brought under control, a large amount of smoke remained. Believing that the fire might spread to the parking area, Nguyen Van A broke doors and walls to retrieve his motorbike worth 200.000.000 VND. A’s conduct caused actual damage of 100.000.000 VND, which was greater than the harm sought to be prevented. Accordingly, A’s conduct constituted an offence committed in a situation exceeding the requirements of necessity and is entitled to the mitigating factor under Point d, Clause 1, Article 51 of the Criminal Code.”
Thirdly, regarding the factor that “committing an offence in a situation exceeding the necessary level when apprehending an offender” as provided in Clause 5, Article 2 of Resolution No. 04/2025/NQ-HĐTP, corresponds to Point đ, Clause 1, Article 51 of the Criminal Code:
"5. “The mitigating circumstance of “committing an offence in a situation exceeding the necessary level when apprehending an offender”, as prescribed in Point đ, Clause 1, Article 51 of the Criminal Code, refers to cases where, for the purpose of apprehending a person committing a criminal act, there was no alternative but to use necessary force, thereby causing harm to the person being apprehended; however, the force actually used clearly exceeded the necessary level, resulting in harm to that person.
Example: Nguyen Van A apprehended Nguyen Van B, who had snatched a handbag from a passerby. Although B had been subdued, A continued to punch and kick him repeatedly, despite being stopped by other individuals. As a result, B suffered fractures to his arm and leg, with a bodily injury rate of 65%. A’s conduct exceeded the necessary level in apprehending an offender. Therefore, Nguyen Van A is entitled to the application of the mitigating circumstance prescribed in Point đ, Clause 1, Article 51 of the Criminal Code.”
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