Understanding the distinction between civil and criminal cases in Thailand is essential for anyone with a stake in the country’s legal system. While civil law focuses on resolving disputes and compensating victims, criminal law punishes wrongdoers to support justice and social order.
Judges preside over trials in Thailand, but there is no jury system and specialized courts (e.g., tax, intellectual property, labor) have their own appeals processes.
Dispute Resolution
The legal system in Thailand offers an array of Thailand dispute resolution mechanisms tailored to the country’s legal framework. Alternative Dispute Resolution (ADR) is often more cost-effective and discreet than traditional litigation.
Civil cases commonly involve property and commercial disputes, employment actions, divorces, and torts (wrongful acts). Civil disputes can be settled outside of the courts through arbitration or conciliation, and judgments in such cases bind only the parties to the case.
Judges encourage mediation and out-of-court settlements and frequently order that the disputing parties attend court-annexed mediation before commencing a full hearing of the case. During out-of-court mediation, the conflicting parties will either designate their own mediator or make use of the services of the Thai Mediation Center. The process takes on average one year to resolve a dispute and, if successful, results in an enforceable compromise agreement.
At trial, witnesses will be called to affirm their statements, be subject to cross-examination, and may be re-examined at the judge’s discretion. Parties can also choose to call experts to examine the evidence presented. Experts must be qualified and familiar with the subject matter of the testimony. At the judge’s discretion or the parties’ request, hearings or trials can be conducted via videoconference. However, remote participants must have a stable connection and are not permitted to record or broadcast the proceedings.
Preliminary Hearings
The judiciary encourages civil cases to settle through a court-supervised mediation. If the parties indicate a willingness to compromise, the court may postpone the hearing. Otherwise, the court will identify the issues in dispute and set in motion a continuous trial should it determine that no settlement is likely.
In criminal cases, the public prosecutor reviews police evidence to decide whether or not to formally file a case in court. If the public prosecutor concludes that there is sufficient evidence to charge an accused, he or she will do so. Alternatively, the public prosecutor may decline to file charges if they consider that the evidence is insufficient or that the case would not serve the public interest – in which case the accused will be released.
A defendant’s lawyer will attempt to cast doubt on the prosecution’s proof in order to acquit the accused. Defendants in Thailand are entitled to an effective defence and the courts are required to provide them with appropriate legal assistance.
Once the trial is complete, a judge will deliver a verdict and impose a sentence (in the case of a guilty conviction). If the defendant wishes to appeal the conviction and/or sentence they may do so within a specified timeframe. If they fail to appeal within the allowed time, the conviction and/or sentence becomes final.
Trial
In Thailand, the courts conduct the trial of a case by examining evidence submitted by each party. The court may also consider evidence presented by expert witnesses. The court will determine the facts of the case and render its judgment based on these findings.
The court system in Thailand operates on a civil law basis, rather than a common law one. Thus, it does not adhere to the principle of stare decisis, and judges have broad discretion in interpreting and adjudicating cases. However, the court system does rely on previous Supreme Court decisions as precedent references for adjudicating cases.
For civil cases, the plaintiff bears the burden of proving their claims, including liability and damages. For this reason, it is important to carefully draft the statement of claim. The court’s judgment will typically include the amount of compensation awarded, interest (including late payment interest), litigation costs and attorneys’ fees.
A court may, at its discretion or on a party’s request, allow for remote hearings to be conducted via videoconference. However, the parties must be physically located in Thailand to attend electronically conducted proceedings. Failure to do so could result in a contempt of court prosecution and/or expulsion from the premises of the court. For a claimant who is unable to afford legal representation, a volunteer lawyer council of Thailand has the capacity to provide free legal advice and assistance in the case of a civil dispute.
Appeals
For individuals and businesses, navigating the Thai legal system can be complex. The country’s civil and criminal cases are influenced by a combination of both common law and statute, while court proceedings are judge-led and do not involve a jury. Additionally, the process can be lengthy. As a result, litigation can be costly and distracting for business operators.
In general, all civil actions are filed with the courts within the jurisdiction in which the cause of action arises or where the defendant has a domicile. In addition, there are kwaeng courts which can hear cases where the claim amount is below a certain threshold.
If a case is not resolved at the first instance level, appeals are heard by the Court of Appeal and the Supreme Court. The court will consider the grounds for an appeal and determine whether or not to dismiss the appeal or transfer the case to another forum.
In the case of criminal prosecution, a complainant can bypass the police and prosecutor and file a private criminal action directly with the courts. In this scenario, the court will hold a preliminary “investigative” hearing to assess whether or not the case has merit. If the court determines that it does, the accused will be convicted by the judges of the Criminal Court. For corruption and misconduct cases, the government established the Central Criminal Court for Corruption and Misconduct Cases in Bangkok and nine regional criminal courts to expedite the adjudication of these types of matters.