This issue in the Criminal Code was first guided at Point b, Section 1, Chapter 2, Resolution No. 04/HDTP/NQ dated November 29, 1986 of the Council of Judges of the Supreme People's Court, guiding the application of a number of provisions in the crimes section of the Penal Code, according to which:
“Aggressed mental state is a state in which the offender is not fully self-controlled and self-restraint in his criminal behavior. In general, that strong arousal must be immediate due to the victim's serious unlawful behavior leading to the murder. But in the case of the victim's illegal acts of repression and oppression are relatively heavy and repetitive, leading to the incitement that has been latent, prolonged, up to a certain point in time. If the victim's illegal behavior causes the agitated person to become unable to control himself, this new agitation is not considered strong agitation, however, when considering the whole development of the incident, it is considered is a strong or very strong agitation”.
According to the provisions of Article 135 of the Criminal Code 2015 on the crime of Deliberate infliction of bodily harm upon others under provocation and the guidance in the above resolution to determine the case where the offender is mentally agitated due to the victim's illegal acts must be based on the following factors:
+ First, there must be illegal acts of the victim
+ Second, the illegal acts of the victim must act towards the offender or his/her relatives or against another person who has a close relationship with the offender.
+ Third, the illegal acts of the victim must be the cause for the offender to be mentally agitated.
+ Four, the offender's mental state must be an excited state.
The judgment 08/2018/HS-PT dated February 5, 2018 on the crime of Deliberate infliction of bodily harm upon others under provocation by the People's Court of Lang Son province at first instance trial has the following contents:
Mr. Hoang Van L1, born in 1968, residing in Xom C, Hoa T commune, L district, Lang Son province, is the father of Hoang Cong M. He often comes home from drinking, beating his wife and children and breaking things many times. Around 14:00 on August 24, 2017, Hoang Cong M came home from work and saw that the furniture in the house was broken by Mr. L1, so he was angry, then he saw that Mr. L1 told his daughter Hoang Thi T2 to dry clothes, M refused to let her go, so Mr. L1 punched M in the head with his right hand. Being beaten by his father, M ran to the door, then Mr. L1 chased him out to the porch, M ran out to the yard and saw a piece of white-yellow bamboo stick with 1.27m long and diameter is 4.2cm on one end and 4.4cm on the other end next to the fence, so he grabbed it with his right hand and turned around to see Mr. L1 standing in the yard, he immediately stepped up and hit him with a stick. A shot from above hit his head, causing Mr. L1 to fall to the floor, then M hits the second relay, M hit the second shot, Mr. L1 raised his right hand to support and got up and ran into the room at the top of the house, M chased him with a stick and hit his legs several times, causing Mr. L1 to fall at the door of the room.Then, Mr. L1 crawled into the room, still angry, so he went in and beat a few more times on Mr. L1's legs. Mr. L1 asked for forgiveness and was prevented by everyone, so M stopped to let everyone take Mr. L1 to the emergency room. Finally, Mr. L1 was then taken to the L district Medical Center for treatment of injuries".
The case occurred due to the fault of the victim, who is the defendant's biological father, who often drank alcohol, cursed at his wife and children, destroyed property and also sold off the family's assets for personal use, then beat the defendant; That caused anger and agitation of the defendant's spirit, so the defendant used a stick to beat his father.
Therefore, the Trial Panel sentenced the defendant Hoang Cong M 24 (Twenty-four) months of non-custodial reform for the crime of "Deliberate infliction of bodily harm upon others under provocation".
For this type of crime, many people often confuse it with cases that are considered to be mentally agitated, such as the offender who has used alcohol or drugs when committing acts of causing injury to others. But in fact, this case is not considered a crime in a state of strong agitation, it still depends on many factors, circumstances and law violations of the victim in the case.