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Supreme Court Opinion Summaries (6/2550)

 
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)

 

6/2550 Thailand Supreme Court Opinion 101 (No. 4132) 2007
Public Prosecutor of Trat Province vs. Mr. Somlerng Kaoeem

Re:
Trespassing Violation, Land Possession

The aggrieved party purchased the disputed land located in a national park and owned by the government from a seller. The aggrieved party therefore had no legal ownership rights of the land and a portion of the disputed land was thereafter designated as reformed land according to section 26 (4) of the Land Reform for Agriculture Act. The Act prescribes that once the Cabinet approves a resolution to proceed with land reform for agriculture on a portion of National Park land, and the Agricultural Land Reform Office apportions a plot of the land for agricultural reformation, an ordinance is to stipulate that the aforementioned plot will no longer be National Park land.

The Agricultural Land Reform Office is authorized to designate the land for use as reformed land for agriculture. Section 36 bis specifies that any land or immovable property that the Office comes to possess according to this Act, or comes to possess through other means for the purpose of land reform for agriculture, will not be considered Treasury Land and the Office is to have ownership of the land for agricultural reform.

Consequently, because the disputed land was in the zone of reformed land, the aggrieved party would be entitled to possess the land if the party received a document of rights authorization from the Office. Yet the Office had not yet given authority to the aggrieved party to occupy the disputed land for a beneficial purpose and the aggrieved party had no possessory rights over the disputed land.

After the aggrieved party submitted a petition to occupy the land for a beneficial purpose, yet the aggrieved party did not occupy the disputed land as requested. Therefore the aggrieved party is not entitled to possess the disputed land. However, the aggrieved party claims that he leveled the land. A year after this the land was examined and it was found that the defendant had occupied the land for a beneficial purpose.

The fact that the aggrieved party leveled the land and had not used the land for a beneficial purpose for a lengthy period of 1 year indicates that the aggrieved party had not possessed the disputed land for himself at the same time as the occupation for a beneficial purpose of the defendant.

The disputed Thailand land continues to be owned by the Agricultural Land Reform Office. The aggrieved party is not the aggrieved party, in a legal sense, to submit a motion for a personal offense against the defendant for trespassing. The inquiry officer has no authority to inquire based on paragraph 2, section 121, of the Criminal Procedure Code. The plaintiff has no authority to file a legal proceeding. The legal problem relates to peace and order and the Supreme Court has authority to consider this matter even though no mention was made in the Court of First Instance or the District 2 Appellate Court.

 

 

6/2550 Thailand Supreme Court Opinion 141 (No. 5184) 2007
Mr. Vicharn Jakravittumrong vs. Booronchat Tile Factory Limited Partnership et. al

Re:
Dissolution of Ordinary Partnership, Liquidator

The first defendant, a limited partnership, comprised 2 partners, namely the plantiff and the second defendant. These two individuals mistrusted each other and experienced strong disagreements and were therefore unable to continue their joint business activities. The second defendant was the only partner with unlimited liability for the obligation of the partnership, and the shares of the managing director could not be transferred to any others. Consequently, the first defendant as a limited partnership could no longer continue in that capacity, according to section 1057 (3) of the Civil and Commercial Code.

When an incident causing damage occurs during the operations of a limited partnership, the plaintiff, a partner of the partnership (the plaintiff) is entitled to request the court to order the dissolution of the limited partnership (the first defendant). This action is not a dishonest employment of rights or the case of a partner wishing to discontinue the partnership without reason in a partnership with a specified period of operation. A notice of dissolution must be given not less than 6 months before the end of year balance sheet of the limited partnership, according to section 1056 of the Civil and Commercial Code.

The plaintiff and the second defendant were the only 2 partners of the first defendant (limited partnership). These two partners were in conflict with each other and unable to make joint account payments. Additionally, the limited partnership did not designate a liquidator for the partnership, therefore the plaintiff is entitled to request a liquidator according to paragraph 2, section 1251, of the Civil and Commercial Code. Once the limited partnership is dissolved, it is reasonable to appoint a neutral mediator as a liquidator, by stipulating that the executing officer be the liquidator for the first defendant as a limited partnership.

 

 

6/2550 Thailand Supreme Court Opinion 130 (No. 4785) 2007
Public Prosecutor of Prachuab Kirikhan vs. Mr. Sumrit Chanthamaneee

Re:
Building Control Act

The Building Control Act, paragraph 1, section 77, states that once the Royal Decree requires that improvement be made to buildings in an area unsafe for residence, situated on public land before this Act takes effect, the building owner must make a contract for rental of land with the local officer according to the rules, the methods, conditions, and rental rate as required by the Ministry of Interior. The land rental contract must require a rental period as agreed but not to exceed 10 years. Extension of rental time is not permitted once the land rental period expires. The owner or possessor of the building who does not dismantle his building or construction from the specified area based on the Royal Decree may be imprisoned for not exceeding 3 years or fined not exceeding 30,000 baht or both imprisoned and fined and punished with a fine of 1,000 baht per day during the entire period of violation or until the person allows the local officer to dismantle the building. In the last instance, paragraph 4 and 5 of section 42 is to be applied. The Royal Decree applies to numerous buildings with a condition or potential inappropriate condition, or condition unsafe for residence, lacking fire safety safeguards, public health safeguards, environmental quality control, a city plan, or efficient traffic control.

The plaintiff explained that on 1 June 2534 B.E. (1991 A.D.), Hua Hin municipality, as local officer, agreed to lease public land encompassing 26.80 square meters situated in the vicinity of the building improvement area, according to the Royal Decree, which required that the area in Hua Hin Sub-district, Hua Hin District, Prachuab Kirikhan Province, be reserved for building improvement. The rental period of 10 years expired on 31 May 2544 B.E. (2001 A.D.). The defendant had occupied the land for building construction and had benefited from the land. On 1 June 2544 B.E. (2001 A.D.), the date the rental contract expired, until the date of the lawsuit, totaling 852 continuous days, the defendant had not dismantled the building or his own construction from the area. When the defendant pleaded guilty, the facts appeared that the defendant leased public land of 26.80 square meters, situated in a building improvement area. A period of 10 years is permitted for occupation. Once the period expired, the defendant had not dismantled the building or construction from the area. The defendant committed a wrongful act according to paragraph 4, section 77, of the Act as stated. In this instance, the local officer does not need to notify the defendant of the order to dismantle the building beforehand as the defendant claimed the local officer should have done in his Supreme Court appeal.

 
 
 
 
 
 
 
 
 
 
 
 
     

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