Introduction to Thailand

Thai Legal System
The Thai legal system has already been established for a long time, dating from the reign of King Chulalongkorn (Rama 5th) in 1868. There is an independent judiciary that provides a forum for fair settlement of disputes. A high status is attached to being a judge, and the examinations to enter the judiciary are very difficult. The judiciary jealously guards its independence. Government agencies may be sued in the courts, and can not raise a defense of sovereign immunity. However, state property is not subject to execution. There is a Thai civil service that administers laws and regulations with a high degree of consistency, and is largely free from political influences. There are four basic codes Civil and Commercial code, Criminal Code, Civil Procedure Code, Criminal Procedure Code. In adopting these codes early in this century, Thailand selected features from the two Western legal systems (common law and civil law), and adapted them to circumstances in Thailand. Decisions and rulings of the judiciary and civil service are not binding but have considerable force as precedents. In additions, there are the Land Code, the Revenue Code and hundreds of special laws and regulations governing most areas of commercial activity. The legal and accounting professions are regulated under professional licensing systems, which encourage high standards of service.

The Main Core
The Thai judiciary has a three-tier system; The Supreme Court (Sarn Dika) at the top of the hierarchical pyramid, followed by the Appeal Courts of first instance and the Courts of First Instance below this.

There is only one Supreme Court, the highest and the final court of the realm, and only one Appeal Court.

With regards to the Courts of First Instance, classification is to be made in accordance with the nature of their jurisdiction:

• The first category of the Courts of First Instance consists of the Civil Court, the Criminal Court and the Minburi Provincial Court, all of which are situated in Bangkok. Each has civil or criminal jurisdiction according to the name given. The first two posses a high status, in that not only do they have original jurisdiction over parts of Bangkok, but also discretionary power to accept for trial those cases outside Bangkok.

• The second category are the Provincial Courts. Each province outside Bangkok has at least one Provincial Court whose jurisdiction is both Civil and Criminal. There may be more than one Provincial Court in some provinces owning to their sizeable population and vest area of land.

• The third category are the District Courts. District Courts are additional courts with jurisdiction over small cases i.e. civil cases in which the value of the claim does not exceed 300,000 Baht and criminal cases in which the offense carries a maximum punishment of no more than 6 months imprisonment and/or a fine not exceeding 10,000 Baht.

The Government of Thailand
The Kingdom of Thailand is a constitutional monarchy. The King, who ascended to the throne in1948, is the Head of State. A new Constitution became effective upon the signature by His Majesty the King on October 11, 1997, but full implementation of its provisions requires the enactment of new organic laws. In the meantime, a new government was formed on November 9, 1997, led by Prime Minister Chuan Leekpai.

Executive powers are vested in the Cabinet or “Council of Ministers” which is charged with administration of the affairs of State. The Cabinet is composed of the Prime Minister and up to 49 ministers (to be reduced to 35 under the new Constitution). The Prime Minister is appointed by the King upon the recommendation of the National Assembly, which usually the head of the coalition of political parties controlling the House of Representatives.

Legislative power within the Thai government is exercised by the bicameral National Assembly. It is currently comprised of a Senate with 260 members who were appointed, and House of Representatives with 393 elected members. Under the new Constitution, it will be comprised of a Senate with 200 members, and a House of Representatives with 500 members. The members of both legislative bodies will be elected, but members of the Senate may not belong to political parties.

Specialized Courts
Apart from those courts mentioned above there are other types of specialized courts. They are:

• The Family and Juvenile Courts
  The Central Family and Juvenile Court is situated in Bangkok. The remainder is in the larger provinces and under the supervisory administrative power of the Central Family and Juvenile Court. Their jurisdiction covers all cases in which a minor is involved.

• The Labour Court was formed to deal with all labor-related issues. The Central Labour Court situated in Bangkok is the only Labour Court. It has jurisdiction over the entire nation. If a provincial labor case is brought to the Provincial Court in a province, the case will be referred to the Central Labour Court. The provincial judges will attend in order to hear the case and enter judgement. The system of moving the judges around the country is comparatively inexpensive.

• The Taxation Court
  There is only one central Taxation Court with jurisdiction over the entire nation. The majority of cases involve disputes between an individual and the Tax Department or the Custom and Excise Department, based in Bangkok. Hence the Central Taxation Court is in Bangkok.

• The Intellectual Property and International Trade Court
  The central IPIT Court is situated in Bangkok. The new court has jurisdiction over all civil and criminal cases regarding intellectual property and international trade, including claims under foreign loans.

• The Bankruptcy Court
  The new court is situated in Bangkok. Their jurisdiction covers all cases arising under the Bankruptcy Act.

The Quorum
The Supreme Court requires a quorum of not less than three judges. As regards the Appeal Court, the Civil Court, the Criminal Court and the Minburi Provincial Court, at least two judges are required to form a quorum in determining and adjudging cases but, in practice, the Appeal Court sits with three judges. The District Court requires one judge. There are a number of detailed rules in the District Court which need not be examined in this overview.

As for the specialized courts, the Juvenile Court’s quorum consists of two professional judges plus two associated judges, at least one of which must be a woman. The underlying idea here is that feminine maternal instincts are a prerequisite when dealing with juvenile matters. The Labor Court has a different kind of forum. It usually comprises of one professional judge and at least one associate judge, drawn from those having employer status. As a matter of course, the employers’ associations and the employees’ unions will submit lists of eligible candidates for the Labor Court from which to make selections and nominations.

The Taxation Court quorum is two professional judges, standard practice for courts of first instance. It is worth mentioning that the original Draft Law for establishing the Taxation Courts was to set up the Commercial and Taxation Courts but, in the process of legislation the commercial jurisdiction was cut out, allowing only jurisdiction over tax cases. One salient feature is that the Taxation Court can summon an expert to advice during trial. The expert will receive special remuneration, comparatively higher than those called in by ordinary courts.

The IPIT Court quorum also consists of three professional judges plus one associated judge. It is worth that this court has more modern rules of procedure than the civil court, and will accept claims by foreign lenders to enforce loans and security.

Judges
The method of recruiting judges is via competitive examination, known as “The Judge Trainee Examination”. A candidate is only eligible if possessing a “First” class degree in law, having passed the Bar examination, having practical experience for at least two years and being at least 25 years of age. Success in the examination will only entitle to attain the status of “A judge Trainee”. Also, there are approximately two years training under the supervision and observation of senior Judges. A newly appointed Judge will be sent to various provinces. He will gradually move up to Bangkok as he becomes more senior, to the Appeal Court and ultimately to the Supreme Court. In other words, promotion is mainly by seniority. The retirement age is 60 years.

Civil Procedure
This can be dealt with by examining firstly the governing principles which form the basis of the civil procedural rules, and secondly, the sequence of civil proceedings in court.

• The Principles
  The civil procedure is regulated by the Code of Civil Procedure which postulates four main principles, that is to say, the requirement of trial in open court, the rule of natural justice, the paramount importance of compromise, and the hybrid system between the adversarial and the inquisitorial rules on examination of witnesses.
  
  The first principle is common and self-explanatory. The second concerning the rule of natural justice, is two fold. In the first place, one cannot be a Judge of his own cause; a Judge will be precluded from trial if he has some vested interest in the case before him. In the second place, both sides must be heard and it is necessary to give the defendant, at the outset, notice of such action allowing him sufficient time to answer the plaintiff’s claim, and both sides must be permitted to state their own case. The third principle, the paramount importance of compromise is very much adhered to since it has almost always been the best solution. Finally, the system of examining witnesses is hybrid between the adversarial and the inquisitorial systems. The court may take an active role or a passive one at the trial.

• The Sequence of Civil Proceedings
  Having dealt with the main underlying notions, the sequence of civil proceedings can now be examined, For the sake of convenience, proceedings may be divided into three stages: the pleadings themselves, the trial and judgment, and the appeal (if any). The first two take place in the Court of First Instance and the third in the Appeal Court of Supreme Court as the case may be.

• Pleadings
  Actions are divided according to whether they are instituted as contested actions or uncontested actions.
  
  In a contested action, the plaintiff begins by lodging a plaint, embodying the statement of claims directed against a specific person or group of persons, known in legal terms as the defendant. The question as to which court the plaint has to be lodged depends upon the nature of the claim itself: if it relates to property, then it is lodged at the court within the jurisdiction where the property is located. If otherwise, the defendant’s residence is the deciding factor for the venue of the court. Having accepted the plaint, the court will then issue a summons to the defendant giving notice of the action so that the defendant may submit an answer to the plaint. The defendant may also counter claim and reply “are parties’ pleas”. After the pleadings are closed, but prior to the commencement of trial, the court has discretionary power to hold a session for what is known as ”settlement of issues” in which the court will try to draw agreement or admission on certain facts between the parties thus attempting to narrow the issues in dispute. This will also provide an opportunity for the court to seek to reconcile the differences between the plaintiff and the defendant, since this is the first time they will have come face to face in court. If a compromise is reached in the process of reconciliation, the court will enter a judgement accordingly. No appeal is allowed against this judgement except on the grounds of fraud, irregularity and/or disparity in substance between the compromise and the judgement. On the other hand in the event that no compromise is achieved, then the court will proceed to trial by appointing the first hearing date. The parties wishing to cite evidence will then submit their “lists of evidence” three clear days beforehand. Failure to do so leads to the risk of losing the right to cite the evidence.
  
  As regards uncontested cases, a petitioner proceeds by lodging an ex-parte petition to request a declarative judgement or an order over his particular right or state of affairs. Such petition is made public by an advertisement in the newspapers as ordered by the court, at the petitioner’s own expense, thereby allowing any member of the public who is interested in the action to object. If no objection is made, the court will hear the petitioner’s case ex-parte. On the other hand, if an objection is lodged, then the case will clearly be contested and the objection will be deemed to be answer to the petition. The case will proceed in exactly the same way as a contested case from then on.

• Appeal
  Subject to certain conditions, as a general rule, if either party who does not agree with the Trail Court’s judgement they are entitled to appeal to the Appeal Court and then to the Supreme Court. Appeal to the Appeal Court must be made within one month of the date of the decision of the Court of First Instance, a further appeal to the Supreme Court must be made within one month from the date of decision of the Appeal Court, if neither side appeals within the time limit, then the decision of the Trial Court or the Appeal Court, as the case may be, becomes final. During the appeal process, the unsuccessful party can apply for a stay of execution via separate motion.
  
  Since the Supreme Court is the highest and final appellate court in civil cases, there is no further appeal in any form. In contrast, in criminal cases the defendant may make a final appeal by seeking a Royal Pardon.

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