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Civil and criminal litigation in Thailand has a distinct set of procedures that differ from the West. Understanding the key differences can help you navigate and minimize any consequences if you find yourself facing a legal dispute in Thailand.
Defamation, breach of contract, debt collection and medical malpractice are some common types of civil lawsuits in Thailand. In addition, a person can file a private criminal action directly to the courts.
The legal system in Thailand is based on the Constitution of Thailand which prevails over all other laws passed by parliament and royal decrees. The legal framework is regulated by the Civil and Commercial Code, Penal Code, Criminal Procedure Code and numerous other statutes. The Constitutional Court has jurisdiction to rule on the constitutionality of parliamentary acts, royal decrees, draft legislation, appointments and removal of public officials, and issues regarding political parties and civil liberties. Judges must operate independently of the parties in a case, adhering to strict rules and laws governing judicial impartiality. The constitution and numerous laws also provide for the right to challenge a judge if there are concerns about their independence or impartiality.
Civil actions are lawsuits filed for the enforcement or protection of a right, or prevention or redress of a wrong. These can include property disputes, inheritance proceedings, personal domestic controversies or torts. Courts of first instance will typically handle civil cases unless they are designated as a specialized court. A specialized court could be the Civil Administrative Court, Central Labour Court or Central Bankruptcy Court. A court will not entertain a case where it is already being considered in another forum, unless the foreign judgment or proceeding can be adduced as evidence and there are valid grounds to continue the Thai proceedings.
The Thai judiciary is continuously enhancing courtroom procedures to improve efficiency. This includes using online platforms for filing and submitting claims, petitions, and other documents. These new systems reduce the burden on judicial officers and help streamline processes.
In criminal cases, the first step is for the public prosecutor to submit a complaint to the court. The prosecution and the defendant then meet with a judge to officially enter their pleas and discuss witnesses and evidence. Once this meeting is concluded, the court will set dates for witness hearings and will then schedule a date for the trial to begin.
If either party is not happy with the ruling of a lower court, they can file an appeal to the appropriate appellate court. Generally, this is done within 30 days of the court’s judgment. Appeals are not retrials; they simply involve a review of the trial proceedings and judgment.
In civil matters, courts may also encourage parties to participate in a process of court-supervised mediation before a case proceeds to trial. This is often the case in labour disputes and some general civil matters. Additionally, it has become common for witnesses who cannot attend a trial in person to testify via video conference. This allows cross-examination and re-direct examination to take place without the need for witnesses to travel to Thailand.
The burden of proof in a civil case lies with the claimant, who must prove that they have suffered damages. Depending on the nature of the claim, damages can be awarded for breach of contract, loss of profit or goodwill, wrongful act or negligence. The court has the discretion to award punitive damages. In cases where the defendant’s liability arises from ‘strict liability’ under specific laws (such as product or consumer law) the claimant does not have to prove damage, but merely that they suffered a loss.
The examination of evidence begins with the filing of a list by each party, with descriptions of witnesses and documents that are to be adduced in support of the parties’ allegations or contentions. The parties must also provide copies of the described documents to the opposing parties. During the trial, each party may question the witnesses on their statements and if appropriate, submit a closing statement.
The legal system in Thailand is based on civil law, which is different from common law systems. Consequently, the rules governing civil litigation in Thailand differ significantly from those of Western countries, with judges having broader discretion in interpreting the law and in determining guilt or innocence. In addition, foreign judgments do not typically have any reciprocal enforcement in Thailand, although the courts can consider whether to give a foreign judgment some evidentiary weight in its proceedings.
In Thailand, judges preside over all cases, and there are no juries. The Constitution of Thailand provides that accused persons are entitled to legal representation. In practice, however, only wealthy defendants can afford legal counsel. This lack of resources is a significant barrier to justice in the country, especially for those who are not well connected and able to pay for their own legal fees. The courts have ruled that litigation funding is not permitted in Thailand because of Supreme Court precedents that suggest that seeking benefits from the lawsuits of others would be considered a violation of morals and public order.
Civil matters in Thailand are decided by courts of first instance, which are further divided into general courts, juvenile and family courts and specialized courts. The latter include the Labour Court, Tax Court and Intellectual Property and International Trade Court. The Court of Appeal is the proper forum to raise issues on decisions from these courts.
The Thai judicial system does not require prospective litigants to adopt alternative methods of Thailand dispute resolution before filing a case (save where stipulated in a contract). In the event of a successful civil claim, costs are usually awarded to the prevailing party.
The country does not have a law on taking evidence abroad, but it has entered into bilateral agreements with several countries concerning judicial cooperation in criminal cases, which provide for the serving of judicial documents and obtaining of statements. In addition, testimony from a foreign court can be obtained through the use of letters rogatory.
