Chulalongkorn Law Journal

Detention: A Study of the Legal Drafting Process and Obstacles to Enforcement

Pramote Sermsilatham — 2024-11-29

Detention was introduced as a new penalty when Thailand announced the enactment of Penal Code B.E. 2499 with the aim to avoid of unnecessary imprisonment for offenders of minor offences, which was considered a modern concept at that time. However, from the study, it was found that even though the penalty of detention was a new penalty in the Penal Code, the penalty of detention was not studied under scrutiny or enforced as much as other types of penalties at present. Furthermore, since the Cabinet resolved to consider the amendment of the Penal Code B.E. 2481 until the Penal Code came into effect on January 1, B.E. 2500, it took Thailand almost 20 years to draft this law. If we study the development throughout the period of drafting the Penal Code, we will find that the penalty of detention did not exist since the drafting of the Penal Code in the early stages. It was in fact a concept that was introduced at the latter period of drafting. Before the current penalty of detention had come into effect, it had been amended at each level of considerations. By studying the reasons discussed at each level will provide a better understanding of the true intention of the provisions and is worth studying in order to improve its efficiency in future implementation.

Protection of ‘Clue of the Novel’ Under Trade Secret Law

Pongkiat Kulratanasinsuk — 2024-11-29

A clue is an object or piece used to find a solution. It has three elements: a hint, the condition of the answer, and the answer itself. The clue in a novel consists of complicated data used to deduce the answer and the condition of that answer. For a novel’s clue to be protected as a trade secret, it must not reveal the condition of the answer in order to maintain its secrecy. This secrecy piques the reader’s interest by keeping elements undisclosed and is supported by a secrecy policy that makes it difficult to deduce the answer. Under the Trade Secret Act B.E. 2545, Article 6, infringement occurs when the clue’s answer is revealed before the right holder has resolved it. However, guessing the answer to the novel’s clue without undermining the right holder’s intended solution does not constitute infringement, preserving freedom of expression and allowing for independent discovery as stipulated in Article 7 of the Trade Secret Act B.E. 2545.

Abolition of Criminal Offenses in Case Employers Fail to Pay Money under the Labor Protection Act B.E. 2541 to Employees

Chonnathee Nooboon — 2024-11-29

The labor contract, fundamentally a civil law agreement, is governed by Sections 575 to 586 of the Civil and Commercial Code. This contract obligates the employee to work for the employer, who in return agrees to compensate the employee for all hours worked. Compensation may include wages or salaries, as well as overtime, holiday pay, holiday overtime, and other monetary benefits mandated by the Labor Protection Act B.E. 2541, which must be paid accurately and punctually. In this article, the compensation received by the employee is referred to as “Compensation for work.” Failure by the employer to pay this remuneration appropriately or on time constitutes a breach of the labor contract. Although this is considered a civil offense, under the Labor Protection Act B.E. 2541, it is also subject to criminal penalties including imprisonment for a term not exceeding six months, a fine not exceeding one hundred thousand baht, or both. Typically, employees do not seek criminal prosecution of the employer; instead, they prefer to claim their wages as per their legal rights. Even if the employer is subject to criminal penalties, employees must still pursue their claims through conventional processes, such as filing a lawsuit in labor court or submitting a request to the labor inspector – all of these are independent of the criminal proceedings. It is crucial to note that these offenses aim not primarily at imposing punishment or serving as criminal penalties. Furthermore, these practices may contravene the principles of the 2017 Constitution of the Kingdom of Thailand, potentially leading to an overinflation of criminal law and various adverse outcomes. Therefore, the objective of this article is to propose the abolition of criminal penalties for failing to pay remuneration properly or within the designated timeframe, and to explore alternative methods of addressing such offenses, such as non-criminal (Pinai) fines.

Right to Disconnect of Employees Outside Working Hours under Thai Labor Law

Pattamanas Paibulsiri — 2024-11-29

The problem of communication outside working hours is a significant issue in today’s workforce. As communication becomes more convenient and faster, there is an increase in work-related interactions during non-working hours. Employees are often required to work beyond their scheduled work times. Employers can contact and instruct employees via telephone, email, and various mobile applications. Particularly during the Coronavirus Disease 2019 (COVID-19) epidemic, working from home, which is different from normal operations, has made it more difficult to disconnect from work-related communications. This situation impacts employees’ rights to privacy, rest, and occupational health and safety. Moreover, while the Labor Protection Act B.E. 2541 does guarantee and protect the right to disconnect, it does not adequately cover all employees. Other labor laws also lack guarantees and protections regarding this right. The purpose of this article is to assess whether the right to disconnect is appropriate and sufficient, and to explore ways, forms, or suitable methods for developing laws that adequately guarantee and protect such rights. One proposed solution is the issuance of ministerial regulations under the Occupational Safety, Health, and Environment Act B.E. 2554 to establish standards that balance work time and personal time for both employees and employers, without unduly infringing on the rights of either party.

A Critical and Comparative Analysis of the Legal Framework of Special Economic Zones (SEZs) of Pakistan with the Legal Framework of the Special Economic Zones in Malaysia and Thailand - Proposing a Sustainable Legislative Framework for Effective Solutions

Rabia Akram — 2024-11-29

The study aims to analyze the laws related to Special Economic Zones (SEZs) in Pakistan in order to identify and address gaps, as well as to suggest improvement to the system. It proposes amendments to the legal framework and policy reforms to achieve both dynamic and static gains from SEZs. The study offers recommendations inspired by the incentives provided by the successful SEZ programs in Malaysia and Thailand Around the world, the SEZs have been game changers in terms of economic boosts. However, despite its sufficient natural resources and significant geographical position, Pakistan still encounters challenges in establishing a lucrative SEZs design. It still requires reforms in the legal framework of SEZs in order to establish successful SEZs in Pakistan. In addition, one of the major issues with the laws of SEZs laws in Pakistan is their inconsistency with other existing laws. Pakistan enacted the SEZ Act 2012 and SEZs (Amendment 2016) Act to foster an environment conducive to investment. Nonetheless, the Act contains various legal gaps. By comparing the SEZ models of Malaysia and Thailand, which have prosperous SEZs, this study identifies crucial amendments required in Pakistan’s legal framework to ensure efficient outcomes. The findings of this research paper contribute to a better understanding of the legal framework of SEZs in Pakistan and provide practical recommendations for legal and policy reforms by drawing comparisons with the SEZs of Thailand and Malaysia, which Pakistan can adopt to enhance its SEZ legal framework.

Same-Sex Marriage Law in Thailand (B.E. 2568)

Pairojana Kampusiri — 2024-11-29

The LGBT community’s demand for equal rights to establish a family has come to a success after more than decade of advocacy in Thailand with the announcement of the law on same-sex marriage in the Government Gazette on September 24, 2024. The law will come into effect from January 22, 2025, making Thailand the first country in Southeast Asia, and the third place in Asia after Taiwan and Nepal, to enact such legislation. This article will detail the contents of the above-mentioned laws and explore its implications for the Civil and Commercial Code Book I (General Principles), Book VI (Succession), and especially Book V (Family).

The Recognition of Same Sex Marriage Law in Asia: Case Studies in Taiwan and Nepal compared to Thailand

Chaipat Thumchutinun — 2024-11-29

The “right to found a family” is a fundamental human right. Many countries have recognized the importance of legislating “Same-Sex Marriage Laws” under the influence of various social factors, such as public protests, political support, and the role of judicial organizations through judgments that have spurred the enactment of same-sex marriage laws. Asia is a region that has also experienced this phenomenon, leading to efforts to find legal measures to recognize the “right to found a family” for same-sex couples. This article explores the factors leading to the enactment of “same-sex marriage laws” in Taiwan and Nepal as successful case studies in Asia that recognize the rights of same-sex couples to found a family by law, compared to Thailand where the 24th Amendment of the Civil and Commercial Code Act B.E. 2567 (Equality Marriage Act) was passed by Parliament.

Understanding the Basic Legal Concept of Administrative Litigation in South Korea

Wasin Yimyam — 2024-11-29

The constitutional framework of South Korea safeguards the fundamental rights of its citizens within a liberal democratic governance structure, ensuring adherence to the rule of law. Empowered as a check on state authority, the judiciary plays a pivotal role in assessing the legality of administrative actions. While administrative courts exist as specialized entities within the Court of Justice rather than as a separate system, South Korea has implemented specific procedural laws governing administrative cases. Consequently, the standards and outcomes of administrative cases, rulings, and directives align with those of nations that maintain a distinct administrative court system.