Tag: Penalty

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Proposed Repeal of the Act Governing Offenses Arising from the Use of Cheques B.E. 2534 (1991): Reasons and Potential Consequences

In response to the growing popularity of internet and mobile banking, the Ministry of Justice has proposed the repeal of the Act on Offenses Arising from the Use of Cheques, B.E. 2534 (1991) (“the Act”). This proposal, actively soliciting public feedback since 2022, aims to assess the necessity and potential implications of repealing the Act.

Explanatory and Summary Memorandums

The proposal to repeal the Act is driven by its inconsistency with Section 77 of the Thai Constitution, which reserves criminal penalties for serious offenses, and Article 11 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits imprisonment solely on the ground of inability to fulfill a contractual obligation.

Initial Purpose of the Act

The Act was originally intended to promote the use of cheques and ensure payment assurance for cheques creditors. However, the imposition of criminal penalties for civil defaults is inconsistent with constitutional and international principles.

Reasons for Repealing the Act

Inconsistencies and Limitations: The Act’s criminal sanctions contradict the Thai Constitution and impose unnecessary burdens on individuals, hindering their freedom to live and pursue careers. The proposed repeal aligns with international legal principles enshrined in Article 11 of the ICCPR, which prohibits imprisonment solely for failing to fulfill a civil contractual obligation.

Misuse Concerns: The Act imposes criminal penalties even in cases where individuals lack fraudulent intent or the funds to settle debts, raising concerns about its potential misuse as a tool of extortion.

low section of man against sky

Potential Consequences after Repealing the Act

Impact on the Economy: Repealing the Act may lead to an increase in bounced cheques, prompting banks to implement stricter due diligence and verification processes. This could mitigate risks but might also raise transaction costs for both banks and customers.

Impact on Society: Shifting from criminal penalties to civil remedies for bounced cheques could reduce the social and economic burden on financially struggling debtors, positively impacting their ability to live and pursue careers freely.

Impact on the National Budget: The repeal could decrease government spending on prosecutions related to cheque matters, potentially freeing up resources for other areas of the judicial system. Additionally, the number of individuals imprisoned for cheque matters might decline, reducing associated costs for maintaining incarceration facilities and providing prisoner care.

Conclusion

The proposed repeal of the Act aims to address inconsistencies and limitations, align with constitutional and international principles, and create a fairer approach to debt issues. While potential economic and budgetary considerations exist, the overall benefits of repeal seem to outweigh the drawbacks.

Author: Panisa Suwanmatajarn, Managing Partner.

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Disciplinary Fine in Thailand

As the Constitution of the Kingdom of Thailand, Section 77, stipulates that the state should prescribe criminal penalties only for serious offences. Therefore, the Council of Ministers deems it appropriate to prescribe offences in a manner that violates or fails to comply with the laws in the case that they are not considered as serious offences and, under their nature, those do not cause serious effects on public order or good morals or have no widespread impact on the public, to be deemed as disciplinary offences. Those disciplinary offences will not be considered as criminal offences and disciplinary fines shall be imposed.

With the reasons and principles aforementioned, the Disciplinary Fine Act, B.E. 2565 (2022) (“Act”) has been enacted and published in the Government Gazette on October 25th, 2565 (2022) and will come into force on June 3rd, 2565 (2023), except for Section 37 and Section 38 Paragraph One which came into force on the date of its publication in the Government Gazette. It stipulates the rights and duties of relevant government agencies and competent officers to take actions in order to be ready to implement the provisions of this Act to meet its objectives upon the date this Act shall come into force.

man in black crew neck t shirt covering his face with his hand

Generally, criminal penalties for inflicting upon the offenders are death, imprisonment, confinement, fine and forfeiture of properties. However, subject to this Act, any criminal offences to be penalized in a form of fine only as stipulated in 204 different laws will be changed to disciplinary offences and no longer be considered as criminal offences except for:

1. Criminal offences to be penalized by imprisonment or higher penalty if such offences are committed by a natural person, but to be penalized in a form of fine only if a juristic person commits the same offences;

2. Criminal offences to be penalized in a form of fine only, provided that a higher penalty has been applied when the offences repeatedly commit the same or when there are other grounds impose that offenders shall be penalized with a higher penalty as prescribed by any other applicable laws; and

3. Criminal offences to be penalized in a form of fine only as stipulated in List no. 2 of this Act. However, such offences are entitled to be applied to be disciplinary offences in case that royal decrees for such offences have been enacted.

a no smoking signage on a tree

The 204 different laws as mentioned above are such as Land Transport Act, B.E. 2522 (1979), Highways Act, B.E. 2535 (1992), Alcoholic Beverage Control Act, B.E. 2551 (2008), Public Assembly Act, B.E. 2558 (2015), Accounting Act, B.E. 2543 (2000). In addition, examples of minor offences in which those will be changed from criminal penalties to disciplinary fines are as follows:

1. Failure to show a driver’s license, a fine not exceeding 1,000 Baht;

2. Smoking in a non-smoking area, a fine not exceeding 2,000 Baht; or

3. By any means, cause a child not to study in an educational institution without reasonable cause, a fine not exceeding 10,000 Baht.

low section of man against sky

The change of penalties from non-serious offences, i.e. no imprisonment, to disciplinary fines has benefits in many ways including

1. The offenders will not have criminal records nor fingerprints kept in their record to discredit, dishonor, defame and affect their career and reputation.

2. The offenders will be fined only without detention during the trial and therefore it does not cause the burden of bail.

3. Disciplinary fines can be either paid in installments or chosen to work in social services instead of paying disciplinary fines.

4. The court will always take the behavior of the offenders and economic situation into consideration and may consider reducing disciplinary fines or just admonishing without collecting disciplinary fines if any crime was committed due to an offender’s poverty.

Author: Panisa Suwanmatajarn, Managing Partner