Article 125 of the Criminal Code 2015 provides for the crime of murder in a state of intense mental agitation as follows:
"Article 125. Manslaughter under provocation
1. Any person who commits manslaughter under provocation because of the victim's serious illegal actions against the perpetrator or the perpetrator’s family shall face a penalty of 06 - 36 months' imprisonment.
2. The manslaughter of 02 or more people under provocation carries a penalty of 03 - 07 years' imprisonment."
Thus, it can be seen that if the crime of murder is considered in a state of intense mental agitation, the sentence will be much less than the ordinary crime of murder as prescribed in Article 123 of the Criminal Code 2015 of Vietnam today.
However, the current problem is that there is no document guiding the determination of "strongly agitated mental state" in the Criminal Code 2015 but only the spirit of Resolution 04-HDTPTANDTC/NQ dated November 29, 1986 guiding the Criminal Code 1985, specifically as follows:
"- The agitated mental state is the situation where the offender is not completely self-contained or self-contained in his/her criminal behavior. In general, that strong agitation must be instantaneous because the victim's serious unlawful acts provoked the reaction that led to the murder. But in particular, there are cases where the illegal acts of the victim are repressive, oppressive, repetitive, the agitation has been negative, lasting, until then the illegal acts of the victim continue to make the agitated person unable to self-contain; if separating this new agitation, it is not considered strong agitation, but if considering the development process of the event, it is considered strong or very strong.
Serious illegal acts of the victim against the offender or his/her next of kin do cause the offender to be greatly agitated, but in general not to the point of being a criminal. If the unlawful act directly infringes upon the life, health or legitimate interests of the offender or his/her relatives or of society and constitutes a crime, the act of retaliation against a lethal person may be regarded as a legitimate defence case (according to Article 13) or as exceeding the legitimate defence limit (according to Article 102).
In special cases, serious illegal acts of victims constitute crimes but are less serious crimes (such as crimes of humiliating others, slander), they are also considered as murder in a strongly agitated mental state and are dealt with in accordance with Article 101, paragraph 3. For example: the two brothers spent time together at the parents' house, the brother often brutally and blatantly insulted and slandered the brother, to some point insulted the brother, so the brother was killed.
For people who take intoxicated substances (drinking alcohol) or other strong stimulants but get intoxicated, victims of illegal acts not serious of the victims who commit murder acts, they shall not be considered as criminal cases due to strong agitation. Depending on the circumstances, the nature and extent of the wrongdoing committed by the victim as well as other circumstances of the case, the handling shall be according to Article 101 of the murder.
- To be able to determine whether the spirit of the offender is strongly agitated or not and to distinguish between "agitation" and "strong agitation", it is necessary to consider in a different and comprehensive manner: the time, circumstances, place, developments, deep and direct causes of the incident; the relationship between the victim and the offender, the cultural, political, sexual and personality level of each party: the seriousness of the illegal acts of the victim, the causal relationship between the serious illegal acts of the victim and the strongly agitated mental condition of the offender."
In addition, it is possible to refer to the Law No. 28/2019/AL on "Murder in a state of strong mental agitation" with the content of the sentence:"The injured is the person who causes the incident, attacking the defendant first.
Attacking behavior of the injured person occurs continuously with increasing levels. The acts of the defendants are unlawful and infringe upon the physical safety of the defendants. In a state of agitation leading to loss of self-control, not fully aware of the nature and dangerousness of his behavior, the defendant used a knife to stab the injured chest to escape the attack. In this case, the defendant must be examined for criminal responsibility for "Intensely agitated murder"."