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Supreme Court Opinions Summaries
(2005)

 
Note concerning Thailand Supreme court opinions: Thailand is a civil law jurisdiction that also has elements of the common law system. Accordingly, the principle law sources are acts, statutes and regulations. However, published Supreme court decisions are an important part of the legal development of Thailand and are frequently used as a secondary authority. (Summaries sponsored by Chaninat & Leeds)

 

Supreme Court Opinion No. 3739/2548
Srichan v. Hudchawinyou

Re: Consent in Marriage, Consent in Adoption

The prosecutor is representing the ex-wife of the first defendant and the mother of the second and third defendants. She is claiming that the adoption of her children by the deceased second wife of the first defendant was not legal. The grounds for her claim are an incomplete the Thailand marriage certificate between the first defendant and his second wife and a lack of consent from the biological mother.

The first page of the defendant's marriage certificate is not signed by the defendant. It is signed only by the wife of the defendant who is deceased. However, a Memorandum with the same date and time as the marriage certificate lists the opinion of an officer that both members of the couple intended to register their marriage. Therefore, the courts rule that the defendant's missing signature on the first page of the marriage certificate does not invalidate the marriage.

After the defendant and his first wife were divorced, his first wife gave the custody of the children to the defendant in the Thailand divorce court. Later, the second wife of the defendant adopted the children of the defendant's first wife. According to the Section 22 of the Act of Family Registration, the consent of the parents is required for the adoption of a minor. It is not specified that this consent must be made in writing or that a signature of the parent must be obtained. Although the mother of the children claims that she did not give her consent, she did not voice an objection for 29 years. Therefore the court upholds the legality of the adoptions of the first defendant's children by his second wife.


 

Supreme Court Opinion No. 2733/2548
Requisitionist: Teibkrang

Re: Inheritance

The petitioner is the descendent of the nephew of the deceased and is requesting the right to be the administrator of the deceased's estate.

According to Section 1629 of the Thailand Civil and Commercial Code, the full blooded brothers and sisters of a deceased person inherit the decedent's estate. The great aunt of the deceased, who was the sibling of the deceased, preceded the deceased in death and was therefore unable to claim her share of the inheritance. Section 1639 of the Thailand Civil and Commercial Code specifies that if the inheritor dies before receiving their heritage, then the heritage is the estate of their descendent. In this case, the descendent of the decedent's sister also preceded the decedent in death, therefore the inheritance becomes the estate of the decedent's descendent. Therefore the petitioner has a right to request to be an administrator of the decedent's estate according to Section 1713 of the Thailand Civil and Commercial Code.


 

Supreme Court Opinion No. 2500/2548
Castle Ridge Ltd. v. Department of Intellectual Property

Re: Trademarks and Intellectual Property

The plaintiff is suing the Department of Intellectual Property for the revocation of the trademark "Choanpoypeepekor".

The plaintiff filed a court order for the revocation of the trademark "Choanpoypeepekor". The plaintiff did not base his petition on a claim to the trademark, but rather on the premise that no one should be able to claim this phrase as a trademark. The plaintiff did not sue the company with the registered trademark, but rather sued the Department of Intellectual the leased Property in Thailand for the revocation of the trademark.

This is the second time the plaintiff's petition has been heard by the court. However, individuals may be given permission by the court to file more than one petition if they can prove valid cause. The plaintiff submitted satisfactory supplementary lists and evidence therefore the court heard the plaintiff's petition.

"Choanpoy" and "Peepe" are the names of Chinese herbs which can be used to remedy coughs and abate phlegm. These two words were combined with the word, "Kor" which means cough for the name of the trademark, "Choanpoypeepekor". Because the name of this trademark is only the name of the herbs and the word cough with no modification, it is illegal. Therefore the trademark registration is revoked.


 

Supreme Court Opinion No. 3285/2548
The Public Attorney of Khoanken Province v. Nai Chalermchai Krachaim and Company

Re: Copyright Violation

The defendants were charged with violating a copyright on a computer program.

According to Section 4 of the Copyright Act, the unauthorized showing, distribution and publication of copyrighted computer programs is a violation of copyright law. The plaintiff filed an order against the four defendants for uploading a computer program created by violating a copyright law onto a computer that is used for making a profit. In other words, the four defendants uploaded the computer program onto a computer which is used by the public. Therefore the defendants are not publicly disseminating an illegal copy of a copyrighted computer program for profit and commercial business, a crime according to Section 70 Paragraph 2 Section 31 (2) of the Copyright Act. Even if the plaintiff had the evidence supporting his claim, the four defendants could not be guilty.


 


Supreme Court Opinion No. 3635/2548
Tongkom v. Department of Revenue

Re: Code of Revenue; Business Tax on Sale of Property

The Plaintiff is claiming she should not have to pay taxes on the sale of commercial property based on a five year time period set forth in Clause 5 of the Code of Revenue.

The Plaintiff sold land to Por within five years of the date the land was transferred to her from her father. According to section three of the Royal Decree under the Code of Revenue (Issue No. 244) dealing with the sale of immovable property that is to be used for commercial purposes or to make a profit, the following types of transactions are liable to taxation:

(5) the sale of immovable property used for commercial purposes, but not including agriculture (6) the sale of immovable property that is not with regard to (1) (2) (3) (4) or (5) that was carried out within 5 years of receiving the immoveable property.

According to Clause 6, taxes must be paid if the transaction was carried out within a five year period. While the plaintiff is holding the land for commercial purposes, she is already exempted from paying taxes in clause five. Therefore Clause 6 does not need to be taken into consideration.


 

Supreme Court Opinion No. 1529/2548

Koarobtum v. Credit Swiss First Boston (Thailand) Co. Ltd.

Re: Employment

The defendant is suing Credit Swiss First Boston (Thailand) Co. Ltd. for terminating an employment contract.

Credit Swiss First Boston (Hong Kong) Co. Ltd., Credit Swiss First Boston (Singapore) Co. Ltd and the defendant, Credit Swiss First Boston (Hong Kong) Co. Ltd., are branches of one company that were incorporated in different countries. The plaintiff was formerly employed by Credit Swiss First Boston (Hong Kong) Co. Ltd. and was later transferred to work with Credit Swiss First Boston (Singapore) Co. Ltd. The plaintiff signed a contract with Credit Swiss First Boston (Singapore) Co. Ltd. dictating the plaintiff's place of employment, position, salary, bonuses, expenses, vacation, other welfare and provisions for termination of the contract. This is a written employment contract between the plaintiff's employers, Credit Swiss First Boston (Singapore) Co. Ltd., and the plaintiff. Although the three companies are subsidiaries of the same parent corporation, each company is a juristic person with its own authority, duty and responsibility. In this case, Credit Swiss First Boston (Singapore) Co. Ltd. has terminated the employees' contract. The plaintiff is not the defendant's employee. There is no evidence that Credit Swiss First Boston (Thailand) Co. Ltd. has acted on the behalf of Credit Swiss First Boston (Singapore). The plaintiff therefore has no right to sue the defendant.

 

 
 
 
 
 
 
 
 
 
 
 
     

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