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THAILAND'S LEGAL SYSTEM: REQUIREMENTS, PRACTICE, AND ETHICAL CONDUCT
By Charunun Sathitsuksomboon
Thailand, with its King as Head of State, bases its judicial and legal systems on the democratic nation's Constitution(1), which recognizes four courts: the Constitutional Court, the Courts of Justice, the Administrative Court, and the Military Court.
The responsibilities of each court vary. The Constitutional Court renders judgment or decision on the constitutionality of the provisions of law and other powers as provided for in the Constitution and other laws. The Administrative Court tries and adjudicates administrative disputes between the private sector and State organs(2) concerning the issue of abuse of power by such State organs. The Military Court tries and adjudicates cases involving persons within its jurisdiction as prescribed by the Act for the Organization of the Military Court B.E. 2498 (AD 1955). The Courts of Justice try and adjudicate all cases except those specified by the Constitution or other laws to be within the jurisdiction of other courts.
The Courts of Justice are classified into three levels: the Courts of First Instance, the Courts of Appeal, and the Dika Court (Thailand's Supreme Court). The Courts of First Instance are trial courts that consist of general courts,(3) juvenile and family courts, and specialized courts.(4) All cases commence at a Court of First Instance. Appeals against Court of First Instance judgments shall be filed with the Court of Appeals, subject to certain restrictions. The Supreme (Dika) Court has jurisdiction over cases appealed from the Court of Appeals, subject to certain restrictions provided by the Civil Procedure Code, Criminal Procedure Code,(5) and other procedural laws/codes applicable for proceedings carried out in the specialized courts, i.e. in the Labor Court, the Tax Court, the Intellectual Property and International Trade Court, and the Bankruptcy Court.
Thailand generally follows the civil law system. However, one must realize that Thailand belongs to the civil law system only by the fact of its codification. The contents of the codes are as varied as the major legal systems of the world.(6)
This article is divided into three sections: (1) a brief overview of Thailand's courts and legal system, (2) the Practice of Law in Thailand, which looks at the prerequisites a person must achieve before applying to be licensed and registered as a lawyer,(7) judge or public prosecutor in Thailand, and (3) Legal Education: The Institute of Legal Education of Thai Bar Association, which summarizes the requirements and the roles of the Institute of Legal Education of the Thai Bar Association.
(1) The present Constitution, the Constitution of the Kingdom of Thailand B.E. 2540 (AD 1997), was drafted by the Constitution Drafting Assembly composed of members selected from each province throughout the country as well as academics in public law, politics, and public administration, for a total of 99 members. It was the first time the Thai people had an opportunity to draft the entire Constitution on their own.
(2) The establishment of the Constitutional Court and the Administrative Court resulted from the provisions of the current Constitution of the Kingdom of Thailand B.E. 2540 (AD 1997).
(3) The general court is an ordinary court which has the duty to try and adjudicate criminal and civil cases and consists of Civil Courts, Criminal Courts, Provincial Courts, and Kwang Courts.
(4) At present, there are four types of specialized courts: the Labor Court, the Tax Court, the Intellectual Property and International Trade Court, and the Bankruptcy Court.
(5) The Courts of Appeal and the Supreme (Dika) Court are not trial courts and, as a general rule, no new evidence can be introduced after a trial in a Court of First Instance has been completed unless these courts so order. Appeal Court and Dika (Supreme) Court appeals are based on questions of law and, to a limited extent, questions of fact. In civil actions involving Baht 50,000 or less, no appeal can be made on a question of fact, unless one of the Court of First Instance judges dissents or certifies that reasonable grounds exist for the Appeal Court to consider questions of fact. In civil actions involving Baht 200,000 or less, no Dika (Supreme) Court appeal can be made on a question of fact, unless one of the Appeal Court judges dissents or certifies that reasonable grounds exist for the Dika (Supreme) Court to consider questions of fact.
(6) See David Lyman, "An Insight into the Functioning of the Thai Legal System", Thai-American Business Magazine, Jan-Feb 1975). The following is a quotation from the said article: "Most of the Thai lawyers of the time had been trained in England but they recognized the disadvantages of the Common Law system for their country. So Thailand picked the best of both systems and began the process of adapting them to the Thai situation. The result is that the penal law is Italian, Indian, French, and Japanese inspired; the Civil Law greatly influenced by French, German, and Swiss law; the Commercial Law primarily British; the Law of Evidence founded on an English model; the Civil and Criminal Procedure Codes being taken from their English and French counterparts; while the courts were organized along the lines of French courts of law. All of these Codes were also influenced by Thai customs and heritage of the period but were also quite democratic in tenor."
(7) Please see Section II (A) for definition of "lawyer" under the Lawyers Act B.E. 2528 (AD 1985). To appear in court and to prepare any plaint, motion , petition, or appeal for the Court, a license to become a lawyer from the Law Society of Thailand must be obtained.