INTEGRATE THE ROLE OF JUDGE IN FACT FINDING IN THAI CRIMINAL PROCEEDING

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รณชัย ชูสุวรรณประทีป

Abstract

Abstract
The system of Thai criminal proceedings, regarding the Code of Laws, criminal procedure, is a combination between the accusation system and inquiry system, of which both have been developed in European countries by using the code of laws and criminal procedure of South Africa as a prototype. But the empirical and social fact is that for the practical investigation of the case, the court brings about the accusation as main, as for the investigation system has exception to only the necessity. This leads to the problem, “The confusion in the law system in particular to the part of prosecution and investigation of the fact” and the Code of Thai Criminal Laws is the investigation system or accusation or combined system. Regarding this confusion, there are many researches giving the same views that it is about morality of the judge that takes place from the draftsman of British law, which has influenced Thai Court System for a long time. This defines the legal action in practice that makes the judge’s attitude towards to the role of one own investigation in responsive role more than proactive role. It is possible that the court is not in the proactive role according to the legislation is wide as such. This can be accused of the non-neutralization, which leads to the complaint of breaking discipline later.
From researches, the cause of confusion in law system as stated is the criminal prosecution system and investigation system of the fact is applied and explained in the same case. The prosecution and investigation of the fact are just theoretical views in the form of the past tradition. At present, there is no country in this world, using either the accusation system or investigation system alone and in the same reasons there is no other country in the world, completely assigning the role of investigation of the fact to the duty
of the court or each party or complete division. But the system adjusts to the combined system, namely using criminal prosecution in form of accusation by dividing prosecution from judgment. As for the system of investigation of the fact depends on the context of each country that the role of investigation of the fact, giving the court or accusatory party, as taking a role in investigating the fact as main or secondary.
The Code of Thai Criminal Laws from this study concludes that the criminal prosecution is the accusation system, which separates organization of investigation and prosecution by police officer and attorney. Their duty is separated and verified mutually from the adjudicative organization. While the investigation of the fact becomes the combined system between the accusation and investigation by prescribing the party and the court, which take a role of investigation of the case in the court, namely giving a main opportunity to the litigant in bringing out the evidence of each party to be investigated in the neutralized court according to the views of the litigation system of the parties before investigating the evidence and testifying the complete wrongness of a defendant for an accuser. Then the rights are given to the defendant to bring about the evidence to be investigated later. As for the role of the court, even the law is assigned as proactive in the wide investigation by itself. But this is secondary that takes place after litigant investigated the evidence and this role is not compulsory. That is because the draftsmen of the laws have the aim to investigate the fact according to the agreement of the government in that time, which Thai laws were fully legalized and accords to the laws and social context in Thailand. However, the integration of the investigation of the court of this research is to bring the main management called ‘8 M”s’: 1. Man 2. Money 3. Material 4. Management 5. Manual 6. Morality 7. Motive 8. Mindset. These are significantly used in order to adjust the attitude of the judge by modifying the Moral Code (No. 3 and No. 9), including the Code of Criminal Laws (Act. 174, 161/1, 162, 173/1, 173/2, 175, 176) that is to qualify the investigation of the court during consideration role as appropriate as possible.
Key Words : Role, Mindset, Fact-Finding

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