UPDATE: Introduction to the Legal System and Legal Research of the Kingdom of Thailand

 

By Joe Leeds

 

This summary of Thailand law was prepared by Joe Leeds, managing partner of Chaninat & Leeds, a Thailand Law firm comprised of US and Thailand lawyers. Mr. Leeds has been working as a legal consultant and managing partner in Thailand since 1995 and is licensed to practice law in the State of Hawaii and the U.S. Federal District.

 

Published November/December 2016

(Previously updated in April 2011)

See the Archive Version!

 

Table of Contents

1. Background

2. Government

2.1. Legislative Branch

2.2. Executive Branch

2.3. Judicial Branch

                  2.3.1. The Constitutional Court

                  2.3.2. The Courts of Justice

         2.3.2.1. The Supreme Court of Justice

                         2.3.2.2. The Courts of Appeal

                         2.3.2.3. The Courts of First Instance

                  2.3.3. The Administrative Courts

                  2.3.4. The Military Courts

2.4. Constitutional Organs

3. Sources of Thai Law

3.1 The Constitution

3.2 Codified Laws

3.3 Acts, Treaties and Administration of Laws

3.4 Judicial Decisions

4. Primary Sources

5. Treatises and Law Reviews

6. Other Internet Sources

7. 2011 Updates

 

1. Background

The Nation of Thailand is a constitutional monarchy that has a legal system based primarily on the civil law system. Nevertheless, Thailand’s legal system is also influenced by the common law tradition. Common law tradition is most notable in the Thai legal system’s use of Supreme Court decisions as persuasive authority in lower court cases. Modern Thai law dates back to the reign of King Rama V (1868-1910) (also known as King Chulalongkorn), who enacted many reforms of the Thai legal system, such as the elimination of trial by ordeal, and the establishment of the Ministry of Justice and the first law school in Thailand. King Rama V also began the process of codifying Thai law, and the Thai Penal Code was enacted in 1908.  Many of these reforms were overseen by King Rama V's fourteenth son, Prince Rapee Pattanasak, who is considered to be a founder of the modern Thai legal system.  The codification and modernization/westernization of Thai law were continued under the reigns of King Rama VI (1910-1925) and King Rama VII (1925-1935). 

 

An analysis of the social changes influencing the Reformation of Thailand Law can be found on the Thailand Law Forum website. Thailand law is comprised of primarily statutory law and regulations promulgated by the various government ministries. Although Thailand law is a civil law country, Supreme Court opinions are recorded and published and form an important basis for the development of Thailand law.

 

2. Government

Thailand has been a constitutional monarchy since 1932. There have been nineteen constitutions. Pursuant to a Coup D’etat in 2014, Thailand has been operating under a temporary constitution with the Thai military being in charge of the executive branch.  Under the constitutions, the King is the head of state and exercises his sovereign powers through the National Assembly, the Council of Ministers and the Courts. An article summarizing the basic structure of the Thailand government is available online.

 

2.1. Legislative Branch

Legislative power is exercised by the National Assembly, which consists of the House of Representatives and the Senate. The House of Representatives has 480 members who serve four-year terms. 400 members are elected directly from 157 multi-representative constituencies. The remaining 80 members are elected from party lists, and are chosen on the basis of the proportion of votes cast by constituents in eight groupings of provinces. The Senate has 150 members who serve six year terms. Each of 76 provinces elects one member. The remaining 74 members are selected by the Senators Selective Committee from persons nominated by organizations in the academic, public, private and other sectors.

 

The constitution provides for the enactment of the following organic acts:

(1)   Organic Acton Election of Members of the House of Representatives and Obtaining Senators;

(2)  Organic Acton Election Commission;

(3)  Organic Acton Political Parties;

(4)  Organic Acton Referendum;

(5)   Organic Acton Rules and Procedures of the Constitutional Court;

(6)  Organic Acton Criminal Proceedings Against Persons Holding Political Positions;

(7)   Organic Acton Ombudsmen;

(8)  Organic Acton Counter Corruption; and

(9)  Organic Acton State Audit.

 

An organic law bill may be introduced only by:

(1)   the Council of Ministers;

(2)  at least one-tenth of the members of the House of Representatives or one-tenth of the members of the National Assembly; or

(3)  the Constitutional Court, the Supreme Court of Justice or an independent constitutional organ, where the President of such Court or independent organ has charge and control of the execution of such organic act.

 

A vote of the majority of members of each House of the National Assembly is required for the promulgation of any organic law.

 

A bill other than an organic law bill may be introduced by:

(1)   the Council of Ministers;

(2)  at least twenty members of the House of Representatives;

(3)  a Court or an independent constitutional organ, but only in respect of a law that is concerned with institutional organization or a law the execution of which the President of such Court or such organ has charge and control; or

(4)  persons having the right to vote of not less than ten thousand in number, on matters relating to rights and liberties or fundamental state policies;

 

Provided that bills introduced under (2), (3) or (4) that are money bills are also endorsed by the Prime Minister.

 

A vote of a majority of a quorum of each House of the National Assembly is required for the promulgation of any law other than an organic law.

 

The King's approval is required to promulgate any law; however, if the King does not approve a law, it may still be promulgated with the votes of at least two-thirds of the members of the National Assembly.

 

2.2. Executive Branch

The head of the government is the Prime Minister. The Prime Minister and the Council of Ministers are responsible for the administration of state affairs and establishing government policies. The Council of Ministers may propose legislation for consideration by the National Assembly, and the endorsement of the Prime Minister is required for the introduction of money bills.

 

The King appoints the Prime Minister and up to thirty-five additional Ministers, who comprise the Council of Ministers. The Prime Minister must be a member of the House of Representatives and must have the approval of a majority of members of the House of Representatives. The Prime Minister my not hold office for more than eight consecutive years.

 

The King may, with the approval of the Council of Ministers, issue emergency decrees having the force of law, for the purpose of maintaining national or public safety, maintaining national economic security, or averting public calamity. The King may also issue emergency decrees if a law on taxes, duties or currency, requiring urgent and confidential consideration, is necessary. Emergency decrees must be submitted to the National Assembly for consideration without delay.

 

The King may also, inter alia, issue royal decrees not contrary with law, declare and lift martial law in accordance with the Martial Law, declare war (with the approval of at least two-thirds of the members of the National Assembly) and enter into treaties (with the approval of the National Assembly in the case of material treaties).

 

2.3. Judicial Branch

The Courts have responsibility for trying and adjudicating cases. The constitution expressly provides for four types of courts: the Constitutional Court, the Courts of Justice, the Administrative Courts and the Military Courts.

 

2.3.1. The Constitutional Court

The Constitutional Court has eight members, who are appointed by the King with the advice of the Senate, and serve one nine-year term. The members of the Constitutional Court consist of three judges of the Supreme Court of Justice, elected by the general assembly of the Supreme Court of Justice, two judges from the Supreme Administrative Court, elected at a general assembly of the Supreme Administrative Court, and four individuals (two experts in the field of law and two experts in a field of social science) nominated by a selection committee and approved either by a two-thirds vote of the Senate or, if not approved by the Senate, by the unanimous vote of a selection committee. The judges of the Constitutional Court elect one of their members to be the President of the Constitutional Court. The Constitutional court has an independent secretariat with autonomy in personnel administration, budgeting and other activities.

 

The Constitutional Court has jurisdiction to determine whether the provisions of any law, rule or regulation are contrary to or inconsistent with the Constitution. Decisions of the Constitutional Court are not subject to appeal by any other court.

 

2.3.2. The Courts of Justice

Courts of Justice adjudicate all cases except where otherwise specified in the Constitution or other laws. There are three levels of Courts of Justice: Courts of First Instance, Courts of Appeal and the Supreme Court of Justice. The Courts of Justice have an independent secretariat with autonomy in personnel administration, budgeting and other activities. Judges in the Courts of Justice are appointed and removed by the King with the approval of the Judicial Commission of the Courts of Justice. Full description of the Thailand court system can be found on the Court of Justice website.

 

2.3.2.1. The Supreme Court of Justice

The Supreme Court of Justice has jurisdiction to hear and adjudicate appeals from the Courts of Appeal and from the specialized courts of the Courts of First Instance. The Supreme Court can hear appeals on questions of law and, in certain cases, on questions of fact. The Supreme Court of Justice has original jurisdiction in cases involving the removal or revocation of the right to vote of members of the National Assembly.

 

The Constitution provides that the Supreme Court of Justice shall have a Criminal Division for Persons Holding Political Positions to hear cases brought by, or against, members of the National Counter Corruption Commission. The Supreme Court of Justice also has original jurisdiction in those cases.

 

The Supreme Court of Justice has many other divisions dealing with specific types of cases. A quorum consists of three judges, but for exceptional cases, a plenary session (with a quorum consisting of a majority of the judges of the Supreme Court) may be called.

 

2.3.2.2. The Courts of Appeal

The Courts of Appeal consist of the Court of Appeal and nine regional Courts of Appeal. They have jurisdiction to hear and adjudicate appeals from judgments and orders of the Courts of First Instance, and can hear appeals on both questions of law and fact. In addition, the Courts of Appeal have original jurisdiction in cases involving the removal or revocation of the right to vote of any member of a local assembly or any local administrator, and the judgment of the Courts of Appeal in such cases is final. A quorum of three judges generally hears each appeal.

 

2.3.2.3. The Courts of First Instance

The Courts of First Instance are the trial courts. There are three types of Courts of First Instance: general courts, juvenile and family courts, and specialized courts. General courts have jurisdiction over criminal and civil cases, and are divided into Civil Courts, Criminal Courts, Provincial Courts and Kwaeng Courts. The juvenile and family courts hear and adjudicate cases involving a minor, and consist of the Central Juvenile and Family Court, the Provincial Juvenile and Family Courts, and the Division of Juvenile and Family Court in the Provincial Courts. The specialized courts consist of the Labour Court, the Tax Court, the Intellectual Property and International Trade Court, and the Bankruptcy Court. Juries are not used in trials.

 

2.3.3. The Administrative Courts

The Administrative Courts have jurisdiction to try and adjudicate cases between (i) a government entity or official and (ii) a private individual or another government entity or official. Such cases must be a consequence of the exercise of an administrative power under the law or a consequence of a pursuit of an administrative Act by a government entity or official. Administrative Courts do not have jurisdiction over the direct exercise by a constitutional organ of powers granted to it under the Constitution. The Administrative Courts have an independent secretariat with autonomy in personnel administration, budgeting and other activities.

 

2.3.4. The Military Courts

The Military Courts have jurisdiction to try and adjudicate criminal cases against persons subject to the jurisdiction of the Military Courts.

 

2.4. Constitutional Organs

The Constitution provides for the following independent constitutional organs:

(1)   the Election Commission;

(2)  the Ombudsmen;

(3)  the National Counter Corruption Commission; and

(4)  the State Audit Commission.

 

The Constitution also provides for the following additional constitutional organs:

(1)   Public Prosecutors;

(2)  the National Human Rights Commission; and

(3)  the National Economic and Social Council.

 

Constitutional organs have autonomy in personnel, budgeting and other activities as provided by applicable law.

 

3. Sources of Thai Law

 

3.1. The Constitution

Thailand is a constitutional monarchy, and the Constitution is the supreme law of the country. The Constitution is a lengthy document and provides for the powers of the King, the National Assembly, the Council of Ministers, the Courts, and Constitutional Organs. The Constitution also includes provisions outlining the rights, liberties and duties of the people, and enumerates directive principles of fundamental state policies relating to e.g. national security, social and cultural affairs, foreign affairs, the economy and the environment. The Constitution may be amended by vote of more than one-half of the members of the National Assembly, with the approval of the King, or if the King shall not approve the amendment, by vote of not less than two-thirds of the members of the National Assembly. Amendments changing the form of government are not permitted. A discussion of the Thailand Constitution of 1997) can be found on the Thailand Law Forum website. Nevertheless, as of 2016, Thailand is operating under a military government and the Thailand Parliament is attempting to finalize a new constitution. The earlier Constitution of Thailand was suspended pursuant to a Coup D’état on May 22, 2014.

 

3.2. Codified Laws

The fundamental laws that form the backbone of Thai law have been codified into four codes: the Civil and Commercial Code, the Penal Code, the Civil Procedure Code and the Criminal Procedure Code.

 

The Civil and Commercial Code includes provisions relating to general principles, obligations, contract law, property law, family law and the law of succession. The provisions relating to general principles are particularly significant because they are often applied to laws outside the Civil and Commercial Code.

 

3.2.1 Thailand Family Law:

Thailand Family Law is composed of codified laws as found in Thailand Civil and Commercial Code as well as being highly influenced by Thailand Supreme Court decisions. The Thailand Family Law as found in the Thailand Civil and Commercial Code and has specific sections devoted to Thailand Divorce Law and Parental Rights and paternity.

 

Thailand Marriage Law is based on a community property system where assets acquired during marriage are presumed to marital assets shared equally by the couple. Nevertheless, spouses can elect to enter into Prenuptial Agreements to opt out of the statutory Thailand Civil and Commercial Code from Section1435 to Section 1530. A separate section of the Thailand Civil and Commercial Code is devoted to Prenuptial Agreements in Thailand.

 

Thailand has been a party to the CEDAW Convention. Under The Thai Constitution Law Section 30, 40, and 52. Women and men have equal rights in The Thai Constitution Law Section 30.  Women were granted the right to keep their   maiden name after marriage by The Women's Title Act 2008 effective June 4, 2008.           

 

On August 1, 2015, Thailand enacted a Surrogacy Act that limits commercial surrogacy and sets ethical limits on the surrogacy process.

 

Abortion without medical necessity is illegal in Thailand pursuant to the criminal code section 301-305.

 

3.2.2 Thailand Land Law:

Thailand Land Law is based primarily on the Thailand Land Law Code. The Thailand Land Law Code (1954) (also available on Thailand Law Forum website) was the first major legislation systemizing land laws in Thailand. However, the Land law of Thailand is also comprised of sections of the Thailand Civil and Commercial Code, rules and regulations of the Ministry overseeing the Land Departments and further modified by Thailand Supreme Court Judicial decisions.

 

Land law by the Thailand Civil and Commercial Code are in Section 1298-1434. Thailand’s land law provides for several different categories and classes of title deeds and possession certificates.

 

Types or Title Deeds

The Chanote (or Nor Sor 4) category, found in more developed parts of Thailand, offers private ownership (similar to freehold land)

 

3.3. Acts, Treaties and Administration of Laws

Many important social and economic laws are embodied in Acts, which are laws adopted by the National Assembly, either with the approval of the King or, in the event, the King does not approve a bill, with the approval of at least two-thirds of the members of the National Assembly.

 

Under the current Constitution, the King may enter into treaties with other countries and international organizations, but treaties that change the territories over which the Kingdom of Thailand has sovereignty or jurisdiction require the enactment of an Act for their implementation. Any other material treaties must be approved by the National Assembly. These provisions do not affect the implementation of treaties entered into before August 24, 2007.

 

Arbitration provisions are permitted by the Arbitration Act B.E. 2530 (1987). A research paper on arbitration in Thailand can be found on the Thailand Law Forum website.

 

Bankruptcies are governed by, inter alia, the Bankruptcy Act B.E. 2483 (1940), as amended by the Bankruptcy Act (No. 7) B.E. 2547 (2004). An article explaining the unique role of Thailand’s Bankruptcy Courts is published in the Thailand Law Forum website.

 

The protection of the environment is governed by, inter alia, the National Environmental Protection and Promotion Act B.E. 2535 (1992). This Ac is administered by the Ministry of Natural Resources and Environment.

 

Intellectual Property Law

Intellectual property rights are governed by, inter alia, the Thailand Copyright Act B.E. 2537 (1994), the Patent Act B.E. 2522 (1979) , as amended by the Patent Act(No. 2) B.E. 2535 (1992) and the Patent Act(No. 3) B.E. 2542 (1999), and the Thailand Trademark Act, B.E. 2534 (1991), as amended by the Trademark Act(No. 2) B.E. 2543 (2000). The Thai parliament approved amendments to The Thailand Copyright Act of 2015  in 2014 which became effective on January 31, 2015. (Copyright Act (No. 3) 2015).

 

The Kingdom of Thailand is a signatory of the Berne Convention for the Protection of Literary and Artistic Works (with certain reservations) and the Paris Convention for the Protection of Industrial Property and the Patent Cooperation Treaty, but is not a signatory of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations or the Universal Copyright Convention. These laws are administered by the Department of Intellectual Property under the Ministry of Commerce. Wipo also provides list of Thailand IP laws and treaties.

 

The Thai parliament approved amendments to The Thailand Copyright Act of 2015 in 2014 which became effective on January 31, 2015. (Copyright Act (No.3) 2015). Thailand enacted a new Trademarks Act (No. 3) 2016 effective April 26, 2016.

 

Labor laws are provided by, inter alia, the Labor Relations Act1975, the Act of Establishment of Labor Courts and Labor Court Procedure 1979, the Provident Fund Act1987, the Social Security Act1990, the Compensation Fund Act1994 and the Labor Protection Act 1998.

 

Laws Relating to Foreigners

Financial institutions are regulated by, inter alia, Financial Institutions Businesses Act B.E. 2551(2008), as amended, the Life Insurance Act B.E. 2535 (1992) and the Casualty Insurance Act B.E. 2535 (1992), the Act Forbidding the Charging of Interest at Excessive Rates B.E. 2475 (1932), and the Interest on Loans by Financial Institutions Act B.E. 2523 (1980). Financial institutions are also subject to regulation by the Ministry of Finance and the Bank of Thailand.

 

The issuance and trading of securities is governed by, inter alia, the Securities and Exchange Act B.E. 2535 (1992), which provides for the creation of the Securities and Exchange Commission. Derivatives contracts and markets are governed by, inter alia, the Derivatives Act B.E. 2546 (2003) and are also subject to regulation by the Securities and Exchange Commission.

 

The business operations of foreigners in Thailand are governed by the Foreign Business Act B.E. 2542 (1999).

 

Foreigner Employment Act is The Alien Working Act 2008 effective on February 13, 2008. The Immigration Act of 1979 provides for different classes of Visas for foreigners including business visas, retirement visas and marriage visas.

 

A foreign person seeking to work in Thailand require a separate work permit process in addition to a Non-Immigrant “B” visa is necessary.

 

International Treaties

Thailand has entered into hundreds of international treaties and conventions. Treaties and Conventions are entered into by the Ministry of Foreign Affairs and then incorporated into Thailand domestic law by parliamentary approval and finally signed by the King. Some notable treaties are as follows:

 

Other nations that have Double Taxation Treaties with Thailand include: 59 countries (as of May 2006), such as Australia, Canada, China, France, Germany, Italy, Japan, Korea, Netherlands and Spain.

 

3.4. Judicial Decisions

In the Kingdom of Thailand, judicial precedent is not binding on lower courts. The Supreme Court of Justice is not bound to follow its own decisions, and lower courts are not bound to follow precedents set by higher courts. In practice, however, the decisions of the Supreme Court of Justice do have significant influence on the Supreme Court of Justice itself and on lower courts.

 

4. Primary Sources

Government Gazette – All Acts, Royal Decrees, Ministerial Orders, Regulations and official government notices are published in the Government Gazette.

 

Codes, Acts, Treaties and Judgments–a website of the Thailand Council of State offers access to Constitution, and unofficial translations of Thailand Laws:

 

Constitutional Court – The website for the Constitutional Court provides Court Rulings for 1998 and summaries of rulings for 1999-2003 in English.

 

Courts of Justice – Selected Acts and Rules relating to the Courts of Justice are available from the Courts of Justice website (browse under law and resource).

 

Various Thailand Acts and Regulations are available in the database section of Thailand Law Forum website.

 

5. Treatises and Law Reviews

 

6. Other Internet Sources

 

7. 2016 updates since the original publication of this Thailand Law Summary the following legislation has been either been amended or enacted in Thailand:

 

Child Adoption Act 2553 (No.3): Publication Date: November 11, 2010:

·       This Act regulates the right and duty of persons who want to apply for the right to adopt a child. There are changes in Section 5 and Section 34, as well as the new additions of Section 5/1, Section 18/, Section 21 (paragraph 2), Section 29 (paragraph 2), Section 31/1, Section 34/1 and Section 38/1 all of which concern how to adopt children in Thailand. If persons want to adopt children, they have to prepare the necessary items that are regulated in the law before the adoption can take place. Concurrently, the necessary items have to be prepared for the children, as well, prior to adoption. Adoption in foreign countries will be acceptable under this law if that adoption is made in a participant country and under the law of that country.

 

There are additional punishments for people who violate this law: The National Education Act (No. 3) Act2553: Publication date: July 12, 2010.

·       There are changes in Section 37 of the law that separate the area of Education into two parts for management purposes: primary school and secondary school.

 

National Culture Act, BE 2553: Publication date: Nov 4, 2010:

·       This Act regulates the duties of the National Culture Committee and National Culture Council, when determining the qualifications of a National artist. This Act has been revised, as the previous Act was too antiquated and not relevant to the current time.

 

Elderly Act (No. 2) Act2553: Publication date: Sep 7 2010:

·       There are small changes in Section 11(11) and Section 20(2) about consideration for monthly payment to the elderly, which state that monthly payment to provide support to the elderly should be paid and be impartial. The considerations for this payment have to be stipulated in the law.

 

National Health Act (No. 2) Act2553: Publication date: March 24, 2010:

·       This recently promulgated Act concerns the rights of patients to get standard treatment under consideration for human rights.

 

Computer Crime Act, called the Computer Crime Act 2007 implemented on July 19, 2007.

 

The Guarantor law was amended in the Civil and Commercial Code on February 11, 2015:

·       This Act provides for a greater range of securitization options for lenders and debtors.

 

The Criminal Code was amended in 2015 to increase the penalty for Abduction of Children by using a weapon and the new maximum penalty is life imprisonment. The amendment came into force on February 13, 2015.