Litigation

The courts are responsible for adjudicating and adjudicating cases. The constitution specifically provides for four types of courts: the constitutional court, courts of justice, administrative courts and military courts.

The Constitutional Court consists of eight members, who are appointed by the King on the advice of the Senate, and who serve for a term of nine years. 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 of the Supreme Administrative Court, elected at a general assembly of the Supreme Administrative Court, and four persons (two experts in the field of law and two experts in a field of social sciences) appointed 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 number to be the Chief Justice of the Constitutional Court. The Constitutional Court has an independent secretariat, autonomous in personnel administration, budgeting and other activities.

The Constitutional Court is competent to determine whether the provisions of any law, rule or regulation are contrary to or inconsistent with the Constitution. Decisions of the Constitutional Court may not be appealed to any other court.

Administrative litigation is any dispute between the administration and an individual or any dispute within the administration itself concerning any act or decision issued by the administration.

Administrative courts have jurisdiction to hear and decide cases between a government entity or official and an individual or another government entity or official. These cases must be a consequence of the exercise of an administrative power under the law or a consequence of the prosecution of an administrative act by a government entity or official. Administrative tribunals have an independent secretariat that is autonomous in personnel administration, budgeting and other activities.

Military courts are competent to try and adjudicate criminal cases against persons under the jurisdiction of military courts. It is not necessarily necessary for the accused to be a member of the Thai military to have a case before the military courts of Thailand. It depends on the charges against the defendant. For example, charges related to explosives, bombs and other such items may be classified as a military case and brought before the military court. Charges relating to weapons, particularly the possession, importation or sale of weapons considered to be military grade weapons, fall within the jurisdiction of the military court.

The courts of justice are classified into three levels, namely the courts of first instance, the courts of appeal and the Supreme Court. They have developed efficiency in handling cases in four ways, namely increasing the number of courts, creating new divisions and branches of courts, creating specialized courts, and making efforts to promote alternative dispute resolution.

Within the courts of first instance, a distinction must be made between the different types of courts: general, family and children’s, municipal and specialized for particular cases.

Courts of general jurisdiction

General courts are ordinary courts that have the power to try and decide criminal and civil cases. These courts are the Civil Courts, the Criminal Courts, the Provincial Courts and the Municipal Courts (Kwaeng Courts). In the general courts, with the exception of the municipal courts, at least two judges constitute a quorum to hear any case. Judgments may be appealed depending on the circumstances of the decision.

Municipal courts for smaller cases

There are 5 municipal courts in Bangkok Metropolis: Bangkok North Municipal Court, Bangkok South Municipal Court, Thon Buri Municipal Court, Dusit Municipal Court and Pathumwan Municipal Court. The main function of the Municipal Courts is to settle small cases quickly with a minimum of formality and expense. The jurisdiction of these courts covers both criminal and civil cases. Criminal cases under its jurisdiction must involve a criminal offense punishable by up to three years imprisonment or a fine not exceeding 60,000 baht, or both. For civil cases, the amount of claims shall not exceed 300,000 baht. The procedure in the Municipal Courts is focused on speedy trial; therefore, the trial is simpler and an oral judgment or summary judgment can be given.

Juvenile and Family Court

The Juvenile and Family Courts consist of the Central Juvenile and Family Court, the Provincial Juvenile and Family Courts, the Juvenile and Family Divisions. Two professional judges and two lay judges, one of whom must be a woman, constitute a quorum of the Juvenile and Family Courts. An appeal from a judgment or order of the juvenile and family courts shall be taken to the courts of appeals. This court has jurisdiction to deal with any matter or offence relating to juveniles and family law.

Specialized Courts

There are four specialized courts in Thailand, namely the Tax Court, the Intellectual Property and International Trade Court, the Bankruptcy Court and the equivalent of the Industrial Tribunal. The establishment of the specialized courts is intended to ensure that specific or technical problems are resolved by appropriate and competent judges. A judge of the specialized courts is appointed from among judges who have competent knowledge of the specific issues. The quorum of two specialized courts, namely the Court of Intellectual Property and International Trade and the Industrial Tribunals, consists of professional and lay judges. The lay judges are lay persons recruited separately to work with the professional judges in considering cases. Appeals from the judgments or orders of certain specialized courts must be made directly to the Supreme Court, where several specialized divisions have been established to deal specifically with such cases, namely the Labor Division, the Intellectual Property and International Trade Division, the Tax Division and the Bankruptcy Division of the Supreme Court.

The Courts of Appeal are composed of the Court of Appeals and nine regional courts of appeal. Most of the regional courts of appeal are located in Bangkok. The Court of Appeal deals with appeals against judgments or orders of the civil and criminal courts made at first instance. The Court of Appeal allows for a retrial of a case on both the facts and the applicable rule of law. Regional Courts of Appeal handle appeals against judgments or orders of other courts of first instance located in their region. Each Court of Appeal is headed by the President of the Court, assisted by the Vice-Presidents of the Court. A quorum shall consist of at least three judges per court. Each Court of Appeals has a Research Justice Division composed of research judges. The primary function of the Division is to assist the judges of the Courts of Appeals by reviewing all relevant factual and legal issues of the cases, conducting legal research, and conferring with those judges to ensure consistency and fairness of results.

The Supreme Court is the final court of appeal for all civil and criminal cases throughout the Kingdom. Its decisions are not subject to appeal.

The Court consists of the President, up to six Vice-Presidents, the Secretary and a number of judges. The President of the Supreme Court is also the head of the courts of justice. In the current system of courts of justice, the Chief Justice sits at the top of the judicial and administrative structures. Like the courts of appeal, the Supreme Court also has a research justice division composed of research judges. At least three justices of the Supreme Court form a quorum. The Court may, however, sit in plenary session to decide cases of exceptional importance and cases in which there is reason to reconsider or overturn its own precedents.
It also has exclusive jurisdiction to judge the commission of a misdemeanor or felony by any politician. This includes the Prime Minister, a minister, a member of the House of Representatives, a senator or any other politician to be accused of being exceptionally wealthy, committing a crime in the performance of his duties in accordance with the Penal Code, performing dishonest duties or being corrupt in accordance with other laws.

A civil case is a private matter in which one person sues another. This is called a lawsuit or action. This is the case of unsettled disputes concerning the rights of the individual in general. An example is a complaint requiring the borrower and guarantor to perform their obligations under the loan and bond agreement, or a request to evict a tenant from the rented premises for non-payment of rent. It is intended to compel the defendant to perform its obligation, to take or refrain from taking certain actions for the benefit of the plaintiff, or to impose a monetary penalty on the defendant’s property, such as a fine or forfeiture of property. However, there will be no penalty such as imprisonment in a civil case. The civil courts are competent to settle disputes between private persons regarding various problems: housing, neighborhood disputes, divorce, labor, contracts… Some are specialized. They do not impose prison sentences or fines, but can decide on measures such as financial compensation. The judge may require the parties at any stage of the proceedings to meet with a mediator that he or she designates.

The organization of the Thai judicial system has already been described. There are different specialized courts according to the subject matter of the dispute and courts with jurisdiction according to the amount of the dispute. With regard to these two criteria, it is advisable to check each time and before seizing a jurisdiction to check first the nature and the object of the dispute. Thus, if the dispute concerns an employment contract, the competent court is the court specialized in labor law. It is therefore advisable to first check whether a specialized court exists and then to address your case to the court that is materially competent. If there is no specific court, you should check the amount of the dispute in question in order to address the case to the competent court.

Under Thai law, the plaintiff must bring a civil case to the court with territorial jurisdiction. It is not possible to bring your case before any court in Thailand. You must file your lawsuit in the court of the defendant’s domicile. In the case of real estate, the plaintiff must bring the case to the court where the property is located or where the defendant is domiciled. The territorial jurisdiction varies according to the subject matter of the dispute or contract.

The documents necessary to prepare for filing a civil case are the following:

Court fees are the fees charged by the Court when filing complaints or applications filed or applied by the person whose rights and duties under the civil law are challenged. The fees differ depending on the subject matter of the claim.

In cases where the claim is based on a calculable monetary value, the court fee for an amount not exceeding fifty million baht is THB 2 per one hundred baht of the amount in dispute, but not exceeding two hundred thousand baht. For the amount exceeding fifty million baht, the court fee is THB 0.1 per hundred baht of the amount claimed.

On the other hand, regarding non-monetary claims, for example, it is the case of a claim to compel the defendant to take certain actions or to refrain from taking certain actions for the benefit of the plaintiff without any claim or demand for a sum of money or certain property. In cases of non-pecuniary claim, the plaintiff will be charged at the rate of THB 200 per case. The fee for the case where the relief sought is partly calculable in monetary terms and partly non-calculable shall be at the same rate as that applied for cases where the claim has a calculable monetary value but not less than THB 200.

If the Court is of the opinion that the applicant does not have sufficient assets to pay the court fees, or if the applicant’s circumstances would cause undue hardship if an application for exemption from court fees is denied, the Court may make an order for full or partial exemption from court fees. Where the plaintiff is the complainant or applicant, the reasonable registration of a complaint or appeal is also considered by the Court before making an order.

Petty cases are small cases that meet the following criteria:

A small case is subject to the same court fees as ordinary civil cases, but the total amount of such fees shall not exceed THB 1,000. The plaintiff may file a small case with the Court either by filing a written complaint or by appearing in person to state his or her claims orally before the Court. If the plaintiff appears before the Court to state his or her claims orally, the Court shall prepare a detailed memorandum of those claims.

Upon acceptance of the case, the Court shall promptly set a hearing date and issue a summons setting forth the issues in the case. This summons shall include a statement requesting the defendant to appear before the Court on that date to reconcile, answer and take evidence, and the Court shall order the plaintiff to appear on that date. If the defendant fails to respond, the Court may, in its discretion, proceed to judgment on the case, at which time the defendant shall be deemed to be in default of response.

On the date set for the hearing, the Court shall proceed, in the presence of the plaintiff and defendant, to the first conciliation of the parties. During the hearing, the Court may call a witness for the hearing itself. The Court shall first question this witness and the parties or their lawyers may question him further. In taking the minutes of the witness’ testimony, the Court may record it summarily.

Criminal procedure refers to all the rules that organize the procedure for finding the perpetrators of an offence and punishing them. The application of criminal law is in fact subject to very strict procedural rules, defined in the Code of Criminal Procedure. Criminal procedure defines the different phases or stages of the procedure from the filing of a complaint to the trial. It is possible to distinguish three main successive stages: the filing of a complaint, the investigation and the trial. From a legal point of view, criminal proceedings involve two parties: the public prosecutor, i.e. the public prosecutor or the public defender. The public prosecutor is responsible for defending the interests of society and brings the charge. The alleged offender. This person is called the “accused” in the case of a misdemeanor or infraction, and the “defendant” in the case of a crime.

According to the Courts of Justice Act, BE 2543 (2000), the Criminal Court has jurisdiction ratione materiae over all criminal offenses committed or alleged to have been committed within its territory. With criminal cases concentrated in Thailand, the prosecution process is the responsibility of several government organizations: the Royal Thai Police, the Attorney General’s Office, the courts of justice and the Ministry of Justice. Almost all criminal cases are filed by the state, the prosecution, or a person or organization that violates the criminal law.

The reason why the prosecution and not the injured private person or the victim prosecutes the perpetrator, is that the crimes are considered as breaches of peace and order in society. The victim is considered only as a witness for the state to prove the guilt of the criminal. This lengthy process begins with the victim’s obligation to obtain a report of the criminal incident from the police. The police then proceed to investigate the alleged crime and forward the results of the investigation to the prosecutor’s office.

The court with territorial jurisdiction to hear a criminal case is the court in the place where the offense was committed, is alleged to have been committed or is supposed to have been committed, or where an accused resides or is arrested, or where an investigating officer conducts an investigation, has jurisdiction over the cases. The courts have jurisdiction in the district where the offense was committed, alleged or supposed to have been committed, or where the accused resides or is arrested, or where an official investigation is being conducted.

Only the following persons are entitled to initiate criminal proceedings in a court of law, i.e. the prosecution or the victim.

After hearing witnesses for the prosecution and the defense, the court renders its judgment. Since the victim of the crime is also affected by the perpetrator and the huge number of reports, the Criminal Procedure Code allows the victim of the crime, a private citizen, to hire lawyers to file the criminal case directly to the court, instead of reporting it to the police. In the Thai judicial system, only judges decide criminal cases; the jury system does not apply in this country.

The charge is brought before any court of competent jurisdiction and the indictment must contain the following information:

The Thai criminal justice system recognizes the right of the victim to be compensated by the perpetrator. According to Section 43 of the Criminal Procedure Code, public prosecutors – only in cases of theft, snatching, robbery, piracy, extortion, cheating and fraud, criminal embezzlement and receiving stolen goods – can seek restitution on behalf of victims. In 2005, the Criminal Procedure Code was amended; Article 44/1 gives the prosecutor the right to seek compensation for loss of life, bodily or mental injury, injury to the person, damage to reputation or property damage from the perpetrators of the crime on behalf of the victims of the crime or injured persons. Prior to this amendment, victims of crime had to file complaints with the civil court to obtain such compensation at their own expense; therefore, many of them were not entitled to assert their rights.

In recent years, the length of a court case in Thailand has been difficult to predict. However, the Chief Justice of the Supreme Court has introduced a continuous trial method to facilitate trial proceedings. In this regard, at the problem-solving conference, the Court, depending on the availability of judges and parties, will endeavor to schedule consecutive court dates for the presentation of both parties’ cases to create a continuous trial. Typically, one or two witnesses will be presented on each day of the trial. In a reasonably simple case, judgment will be rendered within two months of the last court date.

There are two courts of appeal in Thailand: the Court of Appeal and the Supreme Court. Judgments rendered by a court of first instance may be appealed to the Court of Appeals on sufficient grounds, provided that, where the appeal is on a question of fact, the claim exceeds THB 50,000. Although new evidence is not normally heard, an appeal may take from one to three years to be finalized. There is a final appeal to the Supreme Court, provided that when the appeal is on a question of fact, the claim on appeal exceeds THB 200,000. There is no limit to appeals based on questions of law.

The filing of an appeal does not suspend the execution of a judgment of the lower court, unless the Court decides otherwise. Any judgment or order on appeal shall have effect only as to the parties involved in the appeal, unless the judgment requires the inclusion of other parties or unless it concerns the status or capacity of a person, the enforcement of the dissolution of a legal entity, bankruptcy orders or the granting of a judgment determining the right to or ownership of property in favour of a party.

Once the judgment is rendered, it is necessary to ensure that the judgments are enforced.

Thai law does not specifically provide for the direct enforcement or recognition of a foreign judgment in Thailand. Indeed, Thailand is not a party to any treaty or agreement under which a foreign judgment can be recognized and enforced in Thailand. Therefore, a new trial on the merits must be initiated in Thailand. However, foreign judgments and documentary evidence produced in foreign court proceedings, including settlement negotiations, may be admissible as evidence in Thailand.

Themis Partner assists and represents you in all your disputes. Do not hesitate to contact us for information on the procedure before the Thai courts.