Problems on Who Is Authorized to Appoint a Fact Finding Committee on Wrongful Act Liabilities and to Make an Order to Pay Compensation in Case the Chief of a State Agency Committed a Wrongful act

Abstract

            This Thesis aims to study and analyze who will be a person who is authorized to appoint a fact finding committee on wrongful act or tortious liability and to make an order to pay compensation in case the chief of a state agency committed a wrongful act or tort by studying relevant concepts, theories and principles under Thai law comparative with foreign laws. According to the findings, the criteria on determination of a person who is authorized to appoint the fact finding committee on the wrongful act liability and to make an order to pay compensation in case the chief of a state agency committed a wrongful act, are unclear. Practically, the state agency will consult with the Office of the Council of State if there is any question thereon. The Office of the Council of State always rules that the General-Director of the Ministry or Bureau or the Minister who is the superintendent of the chief of the stage agency who committed the wrongful act is authorized to appoint the fact finding committee by adopting Clause 12 of the Notification of the Office of Prime Minister Governing Practical Criteria on Wrongful Act Liability of the Officials B.E. 2539, mutatis mutandis. In respect of an authorized person who is entitled to make an order to pay the compensation, both the Act on Wrongful Act Liability of Officials B.E. 2539 and such Notification previously did not clearly specify such matters. Formerly Section 12 of the Act on Wrongful Act Liability of Officials B.E. 2539 provided only that in the case where an officer is bound to pay compensatory damages due to committing a wrongful act against the state agency, the state agency shall be entitled to issue an order demanding him to make the payment thereof within the specific period. When I started conducting the research, Clauses 12 and 18 of the Notification of the Office of Prime Minister Governing Practical Criteria on Wrongful Act Liability of the Officials B.E. 2539 had not been amended. As a result, there were confusion and problems on application and interpretation of applicable law. Subsequently, the Notification of the Office of Prime Minister Governing Practical Criteria on Wrongful Act Liability of the Officials B.E. 2539 has been amended by the Notification of the Office of Prime Minister Governing Practical Criteria on Wrongful Act Liability of the Officials (No. 2) B.E. 2539 as follows:
          Clause 12 of the Notification of the Office of Prime Minister Governing Practical Criteria on Wrongful Act Liability of the Officials B.E. 2539 was cancelled and replaced by the following:
          “Clause 12 If the person who is authorized to appoint the committee under Clause 8 or Clause 10 or Clause 11 is of the view that there is no reason to appoint the committee, such person shall notify his superintendent or supervisor or regulator for reviewing the correctness of his view on whether the appointment of such committee is necessary. If it is incorrect, the order must be given to him for revision of his view.
         If the authorized person under Clause 8 or Clause 10 or Clause 11 does not revise his view according to the order under paragraph one within reasonable period, his superintendent or supervisor or regulator shall be entitled to appoint or change the committee or change in place of the authorized person as appropriate.”
         Clause 12/1 of the Notification of the Office of Prime Minister Governing Practical Criteria on Wrongful Act Liability of the Officials B.E. 2539 has been inserted to read as follows:
         “Clause 12/1 Should there be any reasonable doubt that the chief of the state agency committed damage or is a part of such damage to the state agency, his superintendent or supervisor or regulator shall be entitled to appoint the committee.”
        Clause 18 of the Notification of the Office of Prime Minister Governing Practical Criteria on Wrongful Act Liability of the Officials B.E. 2539 was cancelled and replaced by the following:
        “Clause 18 If the Ministry of Finance completes the consideration, the authorized person shall issue an order according to the decision of the Ministry of Finance and notify the relevant person including a local administration or state enterprise established under the Act or Royal Decree or other state agencies under the law governing the wrongful act liability of officials thereof and give instruction in accordance with the decision of the Ministry of Finance.
        After the injured state agent has given the instruction in compliance with the decision of the Ministry of Finance per paragraph one, the authorized person shall make the order instructing the wrongdoer to pay the compensation or take action against him within the prescription period.
         If it appears that according to the decision of the Ministry of Finance, there are additional persons who are required to pay the compensation or a responsible person is difference from those appeared in the case file given by the authorized person and the investigation on such persons has never been conducted, the authorized person shall notify the fact finding committee to investigate the fact on their liabilities for rendering further order. If the decision of the authorized person is the same as the Ministry of Finance, the authorized person shall order the wrongdoer to take responsibilities and then report to the Ministry of Finance. If the decision of the authorized person is different from those of the Ministry of Finance, the authorized person shall revise his decision. In this regard, Clause 17 paragraphs four and five shall apply, mutatis mutandis.”
         Even though Clauses 12, 12/1 and 18 of the Notification of the Office of Prime Minister Governing Practical Criteria on Wrongful Act Liability of the Officials B.E. 2539 have been amended, such amendment does not comply with the hierarchy of laws. It is considered as the amendment to the subordinate legislation which may beyond the scope of the Act on Wrongful Act Liability of Officials B.E. 2539 which is the primary law.
         In order to comply with the principle of the hierarchy of laws, I recommend that Sections 12 and 13 of the Act on Wrongful Act Liability of Officials B.E. 2539 be amended as follows:
         “Section 12 In the case where the official is bound to pay compensatory damages which the state agency has already paid to the injured person under Section 8 or in the case where the official is bound to pay compensatory damages because such official has committed a wrongful act to the state agency under Section 10 and Section 8, the state agency that suffers such damages shall have the power to issue an order to such official for payment with a fix period of time provided that the superintendent or supervisor or regulator of such state agency has been empowered to issue such order instead of the state agency if the chief of the state agency ignores or delays in doing so.”
         Section 13 the Council of Ministers shall set up rules for the liable official under Section 8 and Section 10 to be allowed to pay instalments the amount of damages due by considering his income, wealth, family status and the relevant circumstances, and any regulations authorizing the chief of the state agency or a competent chief to call or order or do any action in  order for the official to make the payment of compensation to the state agency. The above suggestion would be clear and protect the superintendent or supervisor or regulator of the injured state agency for the appointment of the fact finding committee for the wrongful act and giving an order to pay compensation in case the chief of such state agency committed a wrongful act in an effective and efficient way which would benefit to the administration of the State.