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“A LIFE IS LIVED LIKE A COURT CASE TRIAL. YOU END UP DEFENDING EVERY VALUE YOU EVER STOOD FOR”
― Vineet Raj Kapoor
Thai Legal System
The Judicial Branch of the Government of Thailand
This branch consists of all the courts, which are independent bodies that perform the crucial check-and-balance function of those of the executive and legislative branches. These courts try cases or suits filed with them between or among individuals, and individuals against private or public entities. The courts render judgment based on the law they interpret and on the merits of the cases. When a certain court sees that the law being appealed to falls under, is more relevant to or in conflict with a Constitutional provision, it will apply the enacted law. From an appreciation of the facts that unfold during the actual hearing of the evidence and testimonies, the court decides how the law applies or affects these evidence and testimonies. These courts also review executive acts and may decide against violations against the law by this branch.
The Basic Courts
These are trial courts, i.e., courts of first instance, appellate courts, and the Supreme Court. The Supreme Court in Thailand is called the Dika Court. The Constitutional Courts, the Administrative Courts and the Military Courts are recent additions to the judicial branch.
The Trial Courts
These are the district courts, provincial courts, the Central Courts – also called the Central Criminal Court or the Central Civil Court, located in Bangkok – the military courts, labor courts, family and juvenile courts, and the new International Trade and Intellectual Property Court. They are all courts of first instance. Losing parties in verdicts rendered by these courts very often file for an overturn at the appeals court. The decisions of trial courts and appeals courts – as well as other courts – proceed to the Supreme or Dika Court, although some decisions made by the trial courts may proceed directly to the Supreme Court for a review and a reverse decision. Supreme Courts are final and can no longer be appealed or reviewed further, except those rendered by the Constitutional Court. Trial Courts or Courts of First Instance are also called Courts of Justice.
Section 188 of the Constitution provides that trial courts shall try cases not only according to law and the Constitution but also in the name of the King. They shall perform this esteemed duty independently, fairly and swiftly in alignment with the rights of the accused to a fair and speedy trial and independence. Royal acts establish courts. Creating a new court, adjudicating a case and prescribing a procedure beyond what is existing in the law are forbidden.
The Constitutional Court
Section 255 to 268 of the new Constitution created this Court. Section 268 specifically states that the decisions made by this court shall be final and binding in all cases involving the National Assembly, the Council of Ministers, and, in fact, all courts and other state entities. Its decisions cannot be appealed and its rules are absolutely final. These bodies must comply with its decxisions. The National Assembly consists of the Senate and the House of Representatives. And the Council of Ministers consists of all the ministers of all the ministries. The power of this Court is that broad. It decides on the legality of all the bills and laws, whether already adopted or considered, by the National Assembly, and that of their provisions and acts. It determines if a bill or law is consistent with or contrary to the Constitution and can declare it or any part of it as valid or void and enforceable or not. It can, moreover, review the application of any law in any case and in any court. It can invoke by its sheer jurisdiction in any court where any case is pending. This can be done through any party’s raising an objection on the consistency of the law applied to the Constitution. Such an objection shall compel the court hearing the case to delay its decision by referring the objection to the Constitutional Court.
Duties and Powers
- To consider and rule on the constitutionality or unconstitutionality of a law or bill;
- To consider and rule on issues involving the duties and powers of the members of the House of Representatives, the Senate, the National Assembly, the Council of Ministers or independent entities;
- Other duties imposed by the Constitution.
Section 197 provides for these courts to try and adjudicate cases involving the exercise of administrative powers. They perform this duty by applying the precise administrative act provided by law. These Courts shall consist of a Supreme Administrative Court and Administrative Courts of First Instance. The Judicial Commission of Administrative Courts shall choose and supervise the judges of these Courts. The Commission shall consist of the President of the Supreme Administrative Court as the Chair. Its members are judges of the Administrative Courts who qualify. They shall not be more than two and have not or never been judges of Administrative Courts and elected by officers of those courts.
Section 199 of Part 4 provides for the creation of these courts. They are endowed with the power to perform acts pertinent to, and to try and adjudicate offenses, within the jurisdiction of military courts. These include the establishment of procedures and implementation of operations of these Courts and the appointment of their judges as specifically provided by law. The King has the sole prerogative in appointing or removing judges and justices. When a given judicial office is vacated because of removal, retirement or death, the King shall be informed and will make a decision or appointment.
When there arise disputes as to the jurisdiction of the right Court over a given case, a Committee shall be formed to make the decision. The Committee shall consist of the President of the Supreme as Chair, the President of the Supreme Administrative Court, the Chief if Military Judicial Office and up to four qualified members as provided by law. The Committee shall strictly and completely apply the precise rules and procedures on reaching a verdict on the disputes as to which Court has the precise jurisdiction according to law.
A Hybrid Legal System, Sources of Law
Thailand’s legal system is a merger of foreign influences that is traditionally civil in nature and adapted from the age-old Hindu Code of Manu. It later took after the civil system in the 19th century and began to take the shape of the civil law systems of Europe, which are statute-based. Common-law aspects, however, have remained, such as the separation of powers, as the lingering influence of the Hindu Code of Manu.
The current legal system is statutory in that it consists of laws passed by the law-making body. Chief sources of laws are the Constitution as the supreme law of the land, codes and acts, decrees and custom. These prevail. Judicial verdicts are not binding but are persuasive and set precedents. They only become secondary sources of law.
Types of Thai Courts
Unlike US courts, Thailand does not have juries. Judges try cases and disputes. It has special courts that handle disputes just like the British legal system although it still differs from the British legal system. The general courts of Thailand are the civil courts, criminal courts, municipal courts, and provincial courts.
Every province has provincial and municipal courts. Bangkok is a large city where the Bangkok court hears all cases. A Minburi provincial court hears cases in the northern part of the city. Arrests in Silom, for example, are handled by the Bangkok provincial court and the Mimburi court handles arrests in Bangkapi as another example.
Municipal courts, on the other hand, try smaller or minor cases. A case is considered small or minor when a civil claim is no more than 300,000 baht, imprisonment of no more than three years, or a fine of no more than 60,000 baht.
One more difference between these two types of courts is that every general court must have two judges while only one judge is necessary to try cases in a municipal court.
These are courts of justice, courts of first instance, general courts, municipal courts, juvenile and family courts, specialized courts, central bankruptcy courts, international property and trade courts, labor courts, tax and duty courts and supreme or Dika court. There are also military courts, administrative courts, and a constitutional tribunal.
The courts of justice require a varying number of judges possessing different levels of special judicial fields of expertise as called for by the level and type of court. The levels are one lower and two appellate.
The first level of the court system is the court of first instance where cases are tried or heard and has three divisions.
The Juvenile and Family Court handles criminal cases involving children aged seven to 14, young people aged 15 to 18 and those under 20 or minors in cases covered by the Civil and Commercial Code.
This Court also tries family disputes and cases, such as divorce, family support and custody and all other matters that affect children or young people. Thai law does not penalize children younger than seven or sentence those below 14 with imprisonment. Two professional judges and two lay judges hear cases in this court. And one of them must be female.
All these courts are situated in Bangkok but only the labor court has provincial branches. Decisions by these courts may be appealed directly with the Supreme Court, i.e., not needing to pass the appeals court. Their procedures differ from those of regular courts. A pretrial conference is required before evidence is presented. At that conference, all the parties themselves agree on the procedures and the time, dates, proceedings and possible mediation. The purpose of the conference is to shorten and hasten the resolution. The court may allow the parties to present their respective evidence immediately so as to preserve or allow access to it.
Central Bankruptcy Court
Established in 1999, it was recently amended to provide two mechanisms in cases of bankruptcy, liquidation, and reorganization, which either the debtor or creditor can initiate. In some cases, it accepts hearsay evidence or recorded or long-distance but live testimonies when submitting a deposition. It can also hear testimonies through video conference or computerized records as evidence.
Intellectual Property and International Trade Court or IP & IT
This was established in 1997 as a court of first instance in disputes on such matters. It decides civil and criminal cases involving trademarks, copyrights, civil or criminal patents, technology transfer agreements, civil licensing, international sale, exchanges of goods, financial instruments, services, carriage, insurance and related civil legal actions.
One career judge, one lay judge from employer federations and another from labor federations hear cases in this court. The Central Labor Court resolves cases within four or six months upon the filing of complaints and will tolerate only a few delays.
Tax and Duty Court
This court handles disputes in these areas through a quorum of two judges, one lay and the other possessing career expertise.
Court of Appeal
A party may appeal on the basis of a point of fact or of law. Of the 10 such courts, nine are regional that try appeals from provincial courts and one is in Bangkok that tries appeals from the civil and criminal courts. A quorum of no less than three judges is required to hear appeals.
Supreme or”Dika” Court
Located in Bangkok, it hears appeals on questions of law and, at times, on questions of fact, elevated from the courts of appeal. It also hears direct appeals from specialized courts. Of its 60-70 justices is the President himself as Chief Justice and the Vice Presidents. It has 17 divisions, each consisting of three justices, the required number for a quorum. Exceptionally important cases require a quorum of no less than half of all the judges of the Court.
How Thai Courts Operate
They do not discriminate against any litigant. Nationals, foreigners, individuals and corporate entities can expect fair trials in Thailand. Cases brought against any government agency, official or employee have a 60% chance of winning a case. In general, these courts observe and protect basic universal rights and freedoms but do not recognize any individual’s inalienable constitutional rights acknowledged and respected in other countries.
Trying to conduct your own trial in Thailand where all the proceedings are in Thai would be the same as a surgeon trying to remove his own appendix. Always seek professional legal advice and assistance - above all a firm or law firm who has the right of appearance in a Thai court. At Law Firm in Thailand we have been noted in many Thai newspapers for our excellent defense is well known criminal and civil matters. We are cost effective and do from time to time act as correspondent attorneys in Thailand for foreign law firms. Contact us today on our main website for more information.Offices located in Thailand Bangkok : Head Office Interchange 21 Building, 23rd Floor., 399 Sukhumvit Road, North Klongtoey,Wattana, Bangkok 10110 Tel : 662-253-8100 Fax : 662-253-8010 Phuket 123/27-28 Moo 5, Bangtao Place T. Cherngtalay, A. Thalang, Phuket 83110, Thailand Tel : 66 06-326-322 Pattaya 6/56 Moo 6, North Pattaya Road, Banglamung, Chonburi 20150 Thailand Tel :66 38-370-786 Koh Samui 142/17 Maret, IT Complex, Building Suite 309, Lamai Beach, Koh Samui, 84310 Thailand Tel : 66 77-230-291 Hua Hin 41/223 Hua Hin Huay Mongkol Rd Petchkasem Road, Hua Hin, Prachuabkirikhan, 77110 Thailand Tel : 663-251-6375 Chiang Mai Changkran Plaza- Suite 7, 191 Changkran Road Muang Chiang Mai, Chiang Mai, 50100 Thailand Tel : 66 53-818-306
Trial procedures in Thailand are not the same again as say the British or American system. It is more of a mixture of the British system and a rather unique Thai system which is used. Note that this website does not dispense advice but attempts to give you a very broad overview of the legal system used in Thailand compared to a more Western legal system. Trials in Thailand can run for more than 5 years which is not uncommon and most attempt to settle matters early. On average a labor trial with delays can run 2-3 years before a verdict is given. If you are considering litigation in Thailand it is always best to speak to an attorney in Thailand first!
1. You sign a power of attorney for your attorney to act;
2. The complaint is filed with the court;
3. If the claim is accepted the court will issue the summons and the plaintiff must deliver it;
4. There is a 7 day period - if it is not collected and served the court takes the action as abandoned.
5. The defendant then answers the court by submitting a counter argument within 15 days;
6. Plaintiff then counter argues and also gets 15 days;
7. After the pleadings are filed, the parties may, by agreement or with the Court’s help, establish a list of issues in dispute. The Court then fixes a date for the settlement of issues, a pre-trial conference specifying which issues must be and which need not be proved in the Court through introduction of evidence.
8. The Court asks each party whether or not he/she will agree with the other on all or some of the disputed issues, and then sets the trial date on the issues still in dispute
The system is a bit unique as it avoids what one could in the West consider minor matters making it to trial. Hence legal costs are also much lower and most times matters are settled without an real legal battle. If you do find yourself in need of an attorney, it is always best to contact a reputable attorney for assistance as most matters are done in Thai. Very rarely is a matter ever conducted in English.
The courts system in Thailand when it comes to Appeal courts or if it is a Supreme Court matter is rather interesting as it is waywardly different from any other legal system in the West. In order to hear an appeal there has to be three judges. Bangkok has an Appeals Court however there are also 9 regional courts of Appeal. The appeal courts hear both criminal and civil matters. The Supreme court (Dika) is the one court in Thailand that is very interesting as it is the final court. That meaning that any matter than came from the court of appeals can end up before the Supreme Court on the bases that a law or even a fact is being called into question. Safe to say there is only one Supreme Court in Thailand and it is located in Bangkok.
The Dika Court has about 60 to 70 justices, including the President (Chief Justice) and Vice Presidents. It operates with 17 divisions, each composed of three justices, the number necessary for a quorum. When hearing an exceptionally important case, the quorum is not less than half the number of judges sitting on the Court.
We have already listed special courts in Thailand, the appeals court however more needs to be explained with regards to expats and foreigners and trials. If you do find yourself on the wrong side of the law, always speak to a qualified lawyer who is able to assist you when needed. Contact our 24 hour telephone number on our main website for urgent assistance. If you are considering working in Thailand for a short while to understand the legal system then consider being an intern to the see the legal system first hand.
Special courts have been established in Thailand for persons under the age of 20. This however has been further subdivided into age groups as we will explain further as to youth civil and criminal courts. Speak to a local lawyer in Thailand about being an intern for 2-3 months to see the workings of the legal systems in Asia first hand. With Asia growing economically their laws will become more important as time passes so best to start understanding the workings of the system today. Here is a good article on how Customary Law in Thailand became the basis for the modern divorce laws today.
Juvenile & Family Courts
The Juvenile and Family Court has jurisdiction in any criminal case involving children (aged 7 to 14) and youths (15 to 18) and any civil action under the Civil and Commercial Code involving proceedings concerning any minor (under 20). This is however also the same court (Family Court) that hears matters such as divorce or any proceedings which involves children.
Much like the British system a child under the age of 7 with regards to Thai law cannot be held accountable for their actions and any child under the age of 14 cannot be imprisoned. The family court however has to have 4 judges. Two of these judges would be career judges and 2 would be lay judges. The law also dictates that of the 4 persons on the bench at least 1 of them has to be female.
We will look further at special courts in Thailand.
Tax and Duty Courts in Thailand
This courts listerns to tax issues and customs duty matters. There are Four judges. Two Judges, one lay judge and a career judge.
Labour disputes are heard here and on average a labout matter takes 4-6 months to be completed. This is a bit of a twist compared to other legal systems as there is one career judge, one lay judge representing industry and one lay judge representing a labour federation. Hence this court has 3 judges hearing the matter.
Central Bankruptcy Court
This court was established in 1999 and oddly enough allows evidence under certain circumstances, permit hearsay evidence and allow recorded and/or long-distance live testimony by submission of a deposition, or by hearing witnesses via video conference or computer record admission as evidence.