Chulalongkorn Law Journal

Tax Deduction for Commuting Expense

Harit Siriwannaporn — 2024-07-27

Commuting between home and work is an essential expense for daily employment, but Thailand lacks concrete tax measures for this expense. This article explores the feasibility of establishing individual income tax measures for commuting expenses in Thailand by comparing the approaches of the United States and Finland. In the United States, commuting expenses are considered personal and are not tax-deductible, whereas Finland provides tax relief for such expenses to reduce the burden on taxpayers. Therefore, the article suggests that Thailand could adopt measures such as setting maximum commuting rates and reasonable travel times to support tax policies that alleviate taxpayer burdens and improve the quality of life.

The Continuity of the House of Representatives : Designing a Constitution to Solve the Crisis of Democracy in Thailand

Supanut Boonsod — 2024-07-27

This academic article focuses on studying the problems related to the criteria for assuming and vacating the position of representatives in the legislature after completing their mandated term as stipulated by the constitution, particularly during the period of parliamentary dissolution. This situation often results in a prolonged vacancy in the house of representatives without any organization stepping in to ensure the continued functioning of the legislative body. The study relies on the theory of the continuity of the state to examine these issues.

The research reveals that these problems lead to significant constitutional issues, namely the lack of continuity in the execution of state duties and crises in constitutional principles during these periods. Consequently, there is a need to revise the existing criteria to ensure the smooth transition between the outgoing and incoming sets of representatives. Specifically, in cases where the incumbent representatives complete their term as mandated by the constitution, it is proposed that new elections should be conducted before the outgoing representatives vacate their positions. In the event of parliamentary dissolution, it is suggested that the outgoing representatives should continue to serve until the new representatives assume office, preventing a legislative vacuum. This approach aims to safeguard the democratic system during these critical periods, similar to the situations in the years 2006 and 2014.

Case Against Adultery which is Contrary to the Constitution (Section 1523 alinea 2 of the Thai Civil and Commercial Code)

Pairojana Kampusiri — 2024-07-27

China’s Rules on Cross-border Data Transfers : A Case Study from International Economic Law Perspective

Arm Tungnirun — 2024-07-27

From 2016, China has tightened control over cross-border data flow by implementing strict rules in which entities that meet certain conditions must seek approval from the Cyberspace Administration of China for outbound data transfer. From our research on international economic agreements that China has joined including the WTO framework (especially GATS) and the RCEP or on international economic agreements that China has requested to join including the CPTPP and the DEPA, we found that these agreements are unable to regulate or incentivize China to readjust its stringent domestic policies on cross-border data transfers. This finding points to the divergence between China’s approach on cross-border data regulation that puts emphasis on national security and cyber sovereignty and the emergent international approach led by the US that seeks to encourage free flow of data across borders.

Consideration Regarding Liability of Operator of Electronic Marketplace under Thailand’s Product Liability Law

Sasipim Supapa — 2024-07-27

The Product Liability Act B.E. 2551 lacks clarity regarding the liability of operators of electronic marketplaces. It remains ambiguous whether the definition of “business operator” in Section 4 of the Act encompasses electronic marketplace operators, potentially leaving consumers in Thailand vulnerable. Consequently, this article endeavors to examine the scope of “business operator” under the Product Liability Act B.E. 2551. This examination involves an analysis of legal principles, the concept of a business operator, and the liability of electronic marketplace operators under the Act. Additionally, it considers recent judicial and legislative developments in other jurisdictions such as the United States of America and the European Union. The aim is to explain why it's important for electronic marketplace operators to be held responsible for their products, and to find an appropriate approach for Thailand.

Limitations on Using Fair Use Defenses in User-Derived Content and Proposals for Copyright Law Amendment

Ponkarun Lertthanapanit — 2024-07-27

Due to the internet and rapid technological development, internet users and individuals create their own contents, especially contents which derive from other’s copyrighted materials called user-derived content (“UDC”), and upload them on internet. In creating UDC, the creators usually use copyright materials without copyright owner’s authorization which can be considered as copyright infringement. Despite the large number of UDC, the exceptions of copyright infringement, which are stipulated in Copyright Act B.E. 2537 (1994) (Copyright Act), cannot be used to protect most of UDC creators from copyright infringement. Thus, the research for law amendment should be conducted to find appropriate measures to protect UDC creators.

The exceptions of copyright infringement in Copyright law of the United States, Canada, and South Korea are selected to be studied. It is found that the United States and South Korea have general exceptions of copyright infringement, which can be claimed to protect each UDC creators in the case of which the usage of copyrighted materials is fair use. On the other hand, it is found that Canada has a specific exception of copyright infringement for user-generated content (“UGC”), which can protect UDC creators from copyright infringement if they comply with the conditions set in law.

Therefore, this article proposes that Thailand should amend provisions relating to the exception of copyright infringement in Copyright Act for protecting UDC creators by using Canada's exception of copyright infringement as a model. Furthermore, Thailand should amend Article 32 of Copyright Act to be the general exception of copyright infringement by using the United States and South Korea exception of copyright infringement as a model. These proposed amendments would promote creator’s creative ideas to achieve the objectives of copyright law and support rapid technological advancement.

Evolution of Property Offences Committed Against Low-Value Properties

Natcha Changkep — 2024-07-27

Property offences are prevalent in Thailand, but the characteristics of the commission and the harm inflicted on society differ, particularly between offences committed against low-value properties and those involving high-value or large-scale properties. The latter category causes significant harm, and the perpetrators often have different motives or intended objects. However, it has been observed that Thailand’s Penal Code does not specifically differentiate between offences committed against low-value properties, resulting in perpetrators who commit such offences, which are not considered serious crimes, being subjected to the same punishment as those who commit offences against other types of property. This practice does not adhere to the principle of proportionality.

The study findings regarding offences committed against low-value properties in Thai law, Roman Empire law, Indian law, English law, and Chinese law, spanning from the past to the present, suggest that legislation of these offences should be applied to the offence of theft. The reason is that the pattern of committing theft is relatively straightforward, lacking elements of force or deception that would imply the perpetrator’s mens rea (criminal intent). To ensure clear enforcement, legislators must establish precise criteria for determining what constitutes “low-value” property. The mitigating factor related to commission against one’s will or due to unbearable poverty should also be eliminated as it leads to interpretation issues and contradicts the historical development of offences committed against low-value properties, as this factor has not been present in such offences. During the legislative process for offences committed against low-value properties, legislators should consider all relevant factors, including proportionality and concepts from criminology.

Mediation Before Filing a Lawsuit with the Administrative Court

Kantima Sriwoha — 2024-07-27

This article study is to 1) examine the concepts and stories concerning dispute mediation and dispute mediation of an administrative case, 2) examine laws concerning dispute mediation of an administrative case in accordance with the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542, and dispute mediation prior to prosecution in connection with Thai laws and International laws including the laws of the French Republic and the Commonwealth of Australia 3) study the issues relating to the appropriateness of the application of dispute mediation prior to filing a case to the Administrative Court of Thailand, and 4) propose legal measures regarding the prescription of principles and approaches of dispute mediation prior to filing a case with the Administrative Court.

In accordance with the findings, it was discovered that 1) The concepts and theories concerning dispute mediation of an administrative case pay attention to dispute mediation, which is regarded as alternative dispute resolution. Considering dispute mediation with respect to an administrative case, it is necessary to consider the legality of an administrative act and the protection of public interest, all of which are the administrative law foundation. Dispute mediation of an administrative case shall be considered in terms of authority limitations of the Administration, along with the effects on public interests., 2) International laws include the laws of the French Republic and the Commonwealth of Australia, consisting of apparent provisions with reference to dispute mediation prior to filing a case with the Administrative Court., 3) The Thai laws contain provisions concerning administrative case dispute mediation. Regardless, the existing provisions cannot be mediated prior to filing a case with the Administrative Court. 4) The laws of the French Republic prescribe that disputes can be mediated prior to filing a case with the Administrative Court. That is, the litigants shall initiate mediation and choose the mediator themselves or request the Chief of the Administrative Court of First Instance who has jurisdiction to appoint a mediator for the dispute. The laws of the Commonwealth of Australia, meanwhile, prescribe that the litigants shall request the court for an order, delivering the trial to a mediator in an effort to resolve the dispute via mediation. Such a force is regarded as dispute mediation prior to filing an administrative case. Above all, and 5) The additional amendment with respect to the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542, shall be conducted in order to allow for the application of dispute mediation for an administrative case prior to filing a case with the Administrative Court.

Legal Restrictions on and Impediments to Enforcement of Protection of a Child Born by Medically Assisted Reproductive Technology Act B.E. 2558

Rinyapath Na Songkhla — 2024-07-27

This article aims to study the restrictions and impediments on the protection of children born through Assisted Reproductive Technology (ART) in Thailand. There are limitations on the rights of individuals to obtain services and impediments in assisted reproductive technology in order to achieve the objectives of creating a family for a person experiencing infertility.

The results have found that currently, the law on the protection of born children through Assisted Reproductive Technology (ART), the aforementioned law provided that it has limited the right of individuals who are infertile and would like to have children through the use of Assisted Reproductive Technology, it can only be used by legal spouses. Moreover, in the case of the legal spouses that one of them does not have Thai nationality, their marriage shall have been registered for not less than 3 years. Furthermore, there is a legal impediment in choosing the gender of children who may take risk for genetically transmitted diseases that leads to inequality and discrimination which reproductive technology does not comply with international standards clearly by the constitution in every country. However, this study suggests a guideline for Thai society to provide the amended provision related to legal limitations and obstacles to the Assisted Reproductive Technology in order to ensure maximum benefits for children born by Assisted Reproductive Technology. In addition, to make the measures for Assisted Reproductive Technology to be beneficial and proper with basic respect for the right of individuals.