การตกลงสมคบกันระหว่างบุคคลธรรมดาและนิติบุคคล เพื่อกระทำความผิดเกี่ยวกับยาเสพติด

Abstract

                  The Act on the Measures for the Suppression of Offenders in an Offence Relating to Narcotics B.E.2534, Section 8, established an offence of, and a punishment for, conspiracy to commit an offence relating to narcotics. However, it did not provide a specific punishment for a juristic person. This is different from the Anti-Money Laundering Act B.E.2542, which provided an offence of conspiring to commit the offence of money laundering and imposed a penalty for any juristic person who conspired to commit a money laundering offence under Section 9, 61. Moreover, other countries’ laws criminalizing the conspiracy to commit an offence relating to narcotics are also applied to a juristic person who conspires to commit an offence. These laws include legislation such as Title 18 of the United States Code, dealing with crimes and criminal procedure, Section 371 and Title 21 Food and Drugs, Section 848 (C) (2) (A), and Section 1907 (3); the Criminal Law Act 1977 of the United Kingdom, Section 2; as well as the United Nations Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, Article 3 c) iv). Even though it is possible, at present, to prosecute and convict a juristic person of jointly committing an offence relating to narcotics, it remains impossible to prosecute a juristic person on the offence of conspiracy to commit an offence relating to narcotics. This is because there are both legal and factual arguments regarding whether a juristic person can conspire with a natural person to commit an offence or not. Generally, a principal who is both a natural person and a representative of a juristic person would express an intention on behalf of a juristic person. Therefore, a natural person is a conspirator in the commission of the offence, not a juristic person. Nevertheless, in United States v. Superior Growers Supply Co., 982 F.2d 173 (6^th Cir. 1992), the defendant was indicted of the offence of conspiring with a juristic person to commit an offence relating to narcotics. In the cases ofUnited States v. Sain, 141 F.3d 463, 474-75 (3d Cir. 1998), and United States v. Stevens, 909 F.2d 431, 432-33 (11^th Cir. 1990), the Court has set precedent that a juristic person can be guilty of conspiring with a natural person to commit an offence. In United Kingdom, Regina v. Mcdonnell [1996] 1 QB 233, (1966) 50 Cr App R 5, the Court rendered a similar judgement that a juristic person can be convicted of conspiring with a natural person to commit an offence if it does not conspire with a representative of the juristic person since a representative of the juristic person has already expressed intent on behalf of the juristic person. Thus, to make it clear that a juristic person can commit an offence of conspiracy to commit an offence relating to narcotics, the Act on the Measures for the Suppression of Offenders in an Offence Relating to Narcotics B.E.2534 should establish a punishment for a juristic person who conspires to commit an offence relating to narcotics in the same way that is provided in the Anti-Money Laundering Act B.E.2542 in order to prevent a natural person from committing a crime through a juristic person, and to suppress a juristic person who conspires with a natural person in committing an offence relating to narcotics.