Abstract
Criminal law has long been an area of interest within other fields including political sciences, ethics, anthropology, sociology, and psychology as a starting point. Traditionally, criminal law is regarded both by practitioners and legal personnel as one of the most attractive portions of their work. It has of course a great practical importance. This branch of study is rendered attractive to all individuals by its direct relation with the most urgent social difficulties of our time and on the deepest ethical problems of all times. And almost any individual is fascinated by its dramatic character – the vivid and violent nature of the events which criminal courts notice and repress, as well as of those by which they effect the repression. Forcible interferences with property and liberty, with person and life, are the causes which bring criminal law into operation, and its operations are themselves directed to the infliction of similar acts of seizure, suffering, and slaughter. Thus, of all branches of legal study there is no other which captures people’s imaginations and sympathies so readily and so deeply.
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Notes
- 1.
Extraterritorial jurisdiction means that a more powerful State applies its law over legal disputes involving its nationals even if the dispute arises abroad.
- 2.
Interestingly, the Penal Code was drafted in English first and then translated into Thai.
- 3.
The Royal Society of Thailand, formerly known as the Royal Society of Siam, is an independent government agency in charge of academic works of the government.
- 4.
As a matter of actual history, this phrase was not suggested originally by the rule that any member of the public can prosecute a criminal but by the fact that in early Rome all charges of crimes were tried by the public itself, i.e., by the whole Roman people assembled in comitia centuriata.
- 5.
Hence, to speak of crimes as those forms of legal wrong, which are regarded by the law as being especially injurious to the public at large, may be an instructive general description of them, but is not an accurate definition.
- 6.
For example, Article 1 of the French Code d’Instruction Criminelle provides that ‘L’action pour l’application des peines n’appartient qu’aux fonctionnaires auxquels elle est confiée par la loi’. In Scotland, though it is theoretically possible for an injured person to prosecute, such private prosecutions, except in mere petty complaints, have long been obsolete.
- 7.
It is important to add that according to Section 36 of the Penal Procedural Code, a criminal prosecution, which has been withdrawn from the court, cannot be re-instituted unless it falls under the following exception:
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1.
If the public prosecutor institutes a criminal prosecution relating to a non-compoundable offense , and then withdraws the prosecution, such withdrawal shall not debar the injured person from re-instituting prosecution.
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2.
If the public prosecutor withdraws criminal prosecution relating to a compoundable offense without the consent in writing of the injured person, such withdrawal shall not debar the latter from reinstituting prosecution.
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3.
If the injured person institutes a criminal prosecution and then withdraws the prosecution, such withdrawal shall not prohibit the public prosecutor from re-instituting prosecution, except in case of a compoundable offense .
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1.
- 8.
Also a significant distinction can be drawn when analyzing the concepts of good faith and bad faith under the Penal Code and the Civil and Commercial Code. More precisely, Section 1 of the Penal Code states “To commit an act dishonestly means to do an act in order to procure, for himself or the other person, any advantage to which he/she is not entitled by law,” while Section 5 of the Civil and Commercial Code provides “in the exercise of the rights or the performance of the obligations, every person shall act in good faith.” In the light of these sections, it is possible to draw a distinction between criminal action and civil claim analyzing the concepts of “honesty” as well as the one of bona fide.
- 9.
On this point Stasi (2015) remarks “The distinction between criminal law and civil law lies in the difference of the corresponding objects which the law seeks to pursue. The main object of criminal law is the prevention of socially undesirable behavior through the punishment of the offenders. In other words, the criminal justice system uses punishment as a prevention tool. On the other hand, in the case of civil law, the object of the law is mainly to redress private wrongs and compensate the victim under less morally charged circumstances. The wrongdoer is not punished. The purpose of the civil law is to compensate the injured party. For example, a customer who slips on the wet floor of a supermarket where there is no warning of the danger might sue the supermarket for damages.”
- 10.
It has sometimes wrongly been thought to be quite easy to distinguish civil proceedings from criminal ones, by saying that punishment is always the purpose of the latter but never the purpose of the former.
- 11.
Section 1 of the Penal Code defines acts of violence as follows: “To commit an act of violence” means to do an act of violence against the body or mind of a person, whether it is by physical force or by any other means, and includes any act causing any person to be in a state of being unable to resist, whether it is by using drug causing intoxication, by hypnotism or by any other similar means.
- 12.
This is almost precisely true, but not quite. For among the “penal actions” there are some in which no private person can act as informer, the State alone being permitted to sue and recover the penalty; and yet there is high authority for ranking even these as merely civil proceedings. And, conversely, mere civil actions for debt used often to end not in enriching the plaintiff, but merely in declaring the debtor bankrupt; for if the defendant had no property out of which the amount for which judgment had been given could be realized, his/her person could generally be seized in execution. Until the revision of the book V of the Thai Civil and Commercial Code of 1935, a woman could become slave (mia glang thasi or slave wife) in connection with a debt of bondage (Stasi 2016b).
- 13.
“Tort” is a term not known in Thai language. The Civil and Commercial Code uses instead the expression “wrongful acts” (in Thai: lá-mêrt) in the heading of Title V of Book II of the Civil and Commercial Code to indicate the violation of a legally protected absolute right (Stasi 2015).
- 14.
Although most criminals are thus liable to be sued, in civil proceedings, for pecuniary compensation for the harm which they have done, such proceedings are not often brought as crimes are usually committed by persons from whom no compensation could be obtained.
- 15.
If the law in force at the time of committing the offense is different from that in force after the time of committing the offense, the law which is, in any way, more favorable to the offender, will be applied, unless the case is final (Section 3, Penal Code).
- 16.
It must be pointed out that if the seizure of property paying the fine or confinement in lieu of fine has been made within five years as from the date of final judgment, neither seizure of property nor confinement shall be made (Section 99, Penal Code).
- 17.
Prosecution will be precluded by prescription: (1). After twenty years in case of a sentence to death, to imprisonment for life or to imprisonment of twenty years; (2). After fifteen years in case of a sentence to imprisonment of over seven years but not up to twenty years; (3). After ten years in case of a sentence to imprisonment of over one year up to seven years; (4). After five years in case of a sentence to imprisonment of one year downward or any other punishment.
- 18.
Some crimes provide that the period shall not begin to run until the commission of the crime has been discovered.
- 19.
In criminal matters, it cannot always exercise jurisdiction over an offender even though he/she actually be within its territory as it is forbidden by international law to try foreigners for any offenses which they committed outside its territorial jurisdiction contrary to the laws of a foreign government.
- 20.
According to Section 11 of the Penal Code “Whoever commits an offence within the kingdom, or commits an offence deemed by this Code as being committed within the kingdom, and, if such person has suffered the punishment in whole or in part for such act according to the judgment of the foreign court, the court may inflict a less severe punishment to any extent than that provided by the law for such offence, or may not inflict any punishment at all, by having regard to the punishment already suffered by such person.”
- 21.
In case of preparation or attempt to commit any act provided by the law to be an offense, even though it is done outside the kingdom, if the consequence of the doing of such act, when carried through to the stage of accomplishment of the offense, will occur within the kingdom, it is deemed that the preparation or attempt to commit such offense is done within the kingdom.
- 22.
By the weight of opinion, there is no obligation upon a sovereign State under the law of nations, in the absence of a treaty provision, to surrender fugitives charged with crime upon the demand of the State from which they have fled. This is regulated by treaties between the nations, in which are enumerated the specific offenses for which each will surrender fugitives upon the demand of the other.
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Stasi, A. (2021). Basic Concepts and Principles of Criminal Law. In: General Principles of Thai Criminal Law. Springer, Singapore. https://doi.org/10.1007/978-981-15-8708-5_1
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