FAMILY TORTS UNDER SECTION 420 OF THE THAI CIVIL AND COMMERCIAL CODE : A STUDY OF INTRAFAMILY LIABILITY

Abstract

Family torts which are normally resolved by the Civil and Commercial Code (Book 5) in Thailand this code is the main collection of family laws, with a legal provision related to the intrafamily right violation, including family tort remedies. Nevertheless, family law provisions do not cover every possible damage occurring by family tort action. This article will focus on family tort under section 420 of the Civil and Commercial Code by studying intrafamily liability between spouses about the rights of the relationship, property rights and parent’s relationship. An international comparative legal study will be made between statues in Thailand, the states of California and Texas in the United States of America (USA), Germany and Japan in adopting tort law to require a remedy from intrafamily right violation.

As a comparative study, it was found that if any damage could be curable under provision of family law, therefore a tort law could not be applied. In combination with the statement in the judicial decision’s the President of the Appeal Court stated that “the case which is related to the rights, duties and relationship between spouse must be enforced under the Civil and Commercial Code, Book 5, is not a general tort case” even though that decision are rulings merely on the jurisdiction, could it be deduced from the previous decision that a tort law absolutely could not apply to the family tort or not.

The difference between Thai law and statue in the aforementioned places are due to dissimilarities in the family and tort law provision in matter of claims for damages including court discretion. Therefore, if there are any damages arises from family tort which has not yet been remedied under family law, accordingly a tort law should be enforce with those losses as a general law. In accordance with the Thai juristic method