Thammasat Business Law Journal

Legal Transplant on the Thai Civil and Commercial Code: A Case Study of Definition of Things and Property

Wiriya Kongsiriwong — 2024-12-09

Despite being perceived as one of the fundamental concepts in the Thai Civil and Commercial Code (TCCC), the definition of ‘things’ (Sap) and ‘property’ (Sapsin) remains a subject of controversy in current Thai law.

A key factor contributing to this controversy is the codification process of the TCCC. In this process, drafters adopted foreign private law from various countries, influencing the definitions and concepts of ‘things’ and ‘property’ in the TCCC. Unfortunately, this approach has led to problematic consequences and inconsistencies within the Thai legal framework.

This research addresses why the reception of foreign private law into the TCCC poses challenges for Thai scholars and continues to be a source of controversy, where the study focuses specifically on the definitions of ‘things’ and ‘property.’

The findings of the study underscore that the reception of legal principles on the same issue but from different countries has resulted in inconsistencies within the Civil Code system. This inconsistency arises from each country’s diverse backgrounds, concepts, aspects, and legal developments. Consequently, the research emphasizes the importance of Thai lawyers, particularly those involved in drafting the Civil Code or any law, thoroughly investigating the background, concepts, relations, and applications of foreign legal concepts before transplantation. This precautionary measure is crucial to prevent undesirable outcomes and maintain consistency within the Thai legal system.

Possibility of Arbitration Processes In the Contract Farming System

Wannakit Jitjaroendee — 2024-12-09

This article endeavors to address the problem of significant bargaining power imbalance between farmers and agricultural business operators under the contract farming system. In Thailand, it is clear that the majority of farmers face economic challenges, limited access to knowledge, and limited financial resources, whereas agricultural business operators are financially powerful capitalists and businessmen with extensive expertise and substantial capital.
As a result, there is a clear power imbalance between farmers and agricultural business operators, which increases the likelihood of disputes in the contract farming system. When disputes arise, agricultural business operators generally exploit such a comparative advantage during dispute resolution, especially in negotiation and mediation processes because there is no involvement of a neutral third party with the authority to resolve such disputes effectively. Although the Thai Contract Farming Promotion and Development Act B.E. 2560 (2017) ('Thai Contract Farming Act') has been enacted to address these problems, the majority of farmers still face the aforementioned challenges. These underline the need for effective dispute resolutions for all parties involved.
To achieve a more equitable balance of bargaining power among disputing parties, the author thoroughly examines the legal frameworks of India, Vietnam, the United States of America, and China, where arbitration is currently employed for dispute resolution in the contract farming system. The objectives are to identify and explore methods that can redress the prevailing power imbalance and foster farmers’ fairness.
The results assert that dispute resolution through mediation under the Thai Contract Farming Act necessitates updating and improvement to align with the complexities and vulnerabilities of the agricultural business environment. In the end, this article provides recommendations to ensure a just and effective framework for the dispute resolution process for agricultural businesses in Thailand.

Genetic Data in Insurance Underwriting: Considerations in the Thai Context

Punnathorn Noramut — 2024-12-09

Whole-genome sequences contribute significantly to our understanding of human development and functions. Various abnormalities can result in diseases or reduce individuals' life expectancy. Utilizing genetic data for predicting an individual's health status is a consideration in insurance underwriting assessments. However, there is an ongoing debate about the appropriateness of using this information, given its unchangeable nature since birth. Discussions often center around the principles of the insurance premium setting and underwriting, which vary based on the applicant's health status and risk assessment.

There are two potential approaches. The first option is enacting laws. This would ensure that individuals are not discriminated against based on their genetic data. One consequence of this approach might be a significant increase in premium pricing for the overall portfolio. This could be due to the increased uncertainty for insurers when they cannot use genetic data to assess risks. Another option is discussion and agreement among concerned parties. This approach involves engaging in open discussions and reaching agreements among the relevant stakeholders. It allows for a more flexible and adaptable approach, where policies can be revised based on outcomes and experiences, especially if adverse events occur during a trial period.

Both options have their advantages and disadvantages. The best choice for Thailand will depend on what is considered most important and what aligns best with the country's specific circumstances and priorities. It's crucial to carefully weigh the implications and make a decision that serves the interests of all stakeholders involved.

The Problems of Legality of Blind Boxes under the Gambling Act B.E. 2478 (1935)

Tunrada Wiangket — 2024-12-09

Blind boxes—surprise packages containing a variety of goods—have become a popular trend in Thailand. However, their legal status remains uncertain. This article explores this ambiguity by examining the definition and current state of the blind box industry in Thailand. The analysis then transcends national borders, providing a comparative overview of foreign regulations in Belgium, Japan, and China. This international perspective sheds light on different approaches to regulating similar practices. For Thailand, the article examines the potential application of existing gambling laws, particularly the Gambling Act B.E. 2478 (1935), to regulate blind boxes. The lack of specific regulations for blind boxes in Thailand is highlighted, alongside the possibility of using existing legal frameworks, including licensing, to manage them. The article concludes by emphasizing the need for further clarity in the legal landscape surrounding blind boxes in Thailand, particularly the potential to utilize existing control measures outlined under the Gambling Act B.E. 2478 (1935).

The Redefinition of “Publication” in Thai Copyright Law: Analysis and Potential Consequences

Pisawat Sukonthapan — 2024-12-09

This concise article examines the proposed redefinition of “publication” in Thai copyright law that is intended to cover internet publishing and to switch one of the criteria for publication from “consent of the author” to “consent of the copyright owner.” The article briefly provides background on the existing definition of “publication” in the Berne Convention and Thai copyright law. It analyzes the three criteria for publication under the Berne Convention: (1) distribution of copies, (2) satisfying reasonable public requirements, and (3) consent of the author.

The article argues that the criteria concerning “copies” and “satisfying reasonable public requirements” could become problematic in the digital age due to the nature of internet publishing. It also argues that the redefinition’s switch from “consent of the author” to “consent of the copyright owner” could cause Thai copyright law to deviate from the Berne Convention’s requirement related to “consent of the author”.

For more completeness in this article, it also touches upon the concept of “simultaneous publication” and that of a “country of origin” which are related to each other. Additionally, it points out that the provision on a “country of origin” is absent from the current Thai copyright law and thereby could impact legal proceedings in Thailand.

The article addresses both potential benefits and unintended consequences of adopting the redefinition. It urges careful refinement thereof, if adopted, to ensure that the new definition meets international norms and digital realities. The author encourages policymakers to consider concerns and comments from stakeholders in refining the redefinition despite the public hearing previously held by the Ministry of Commerce’s Department of Intellectual Property.

Front pages

Thammasat Business Law Journal — 2024-12-09