The right to prosecute minor: extent and limitation of the civil and commercial code section 1562

Abstract

Currently, Thai society is experiencing an increasing trend of conflict and violence within families. Statistics show that a large number of children and juveniles are affected. However, the number of cases entering the justice system is disproportionately low compared to the actual number of cases that occur. This reflects limitations in children’s access to legal action. Although Section 1562 of the Civil and Commercial Code allows children to sue their parents through public prosecutors, relatives, or those with legal guardianship who are not in conflict with the child, in practice this mechanism is hindered, especially when the person with legal guardianship is a party to the dispute with the minor child. This prevents minor children from exercising their rights under Section 56 of the Civil Procedure Code. Furthermore, the principle of Section 1562 was enshrined in the concept of filial piety, and changing societal perspectives on this concept will impact its continued existence.

In this article, the author aims to study issues related to the enforcement of Section 1562, with a focus on the right of minor children to sue their parents. This is because minor children are protected under the Convention on the Rights of the Child, and the litigation right is subordinate to the right of participation. Therefore, the best interests of the child should be considered in order to find appropriate ways to protect their litigation right.

This study found that principles of foreign law can be used as justification for amending Section 1562 in Thailand. Although the principle of filial piety in Thai society has been somewhat diminished due to societal changes, it remains an important principle which is still accepted as a cherished tradition. Therefore, the author proposes retaining the original principles of Section 1562 while adding exceptions allowing children to sue their parents in certain types of cases. Regarding the litigation right of minor children, it was found that this right must be protected with the child’s perspective as paramount. Therefore, minor children should be able to file lawsuits themselves, but they should have a person to protect their rights as a ‘child-trusted person’.