LEGAL PROBLEMS ON TORT LIABILITY OF THE COUNCIL OF PRIVATE INSTITUTE OF HIGHER EDUCATION : A CASE STUDY OF THE COUNCIL OF PRIVATE INSTITUTE OF HIGHER EDUCATION MAKE A RESOLUTION THAT EFFECT OF DISAPPROVING AND ACADEMIC POSITION

Abstract

          This research presents a study of the legal issues regarding the civil liability of the council of private institutions of higher education in case of a resolution to deny an academic title request of a lecturer. Said act by private universities is an exercise of public authority in accordance with the Private Institution of Higher Education Act B.E. 2546 (2003), whose purpose is to increase the efficiency of public educational services offered by private universities. Lecturers play a direct role in conducting or contributing to the public educational services with private universities.                            In cases where a personnel of a private institution of higher education has committed a tort against a lecturer by issuing an order or a resolution that denies an academic title to the lecturer who has filed a request, based on the “administrative liability” principle, each country must issue a law to determine which state agency is liable to pay compensation to the lecturer. Recourse must then be made to personnel of the private university to pay the compensation back to the state agency, which is a legal relation upon the public law between state agencies and personnel of private institutions of higher education. The state agency may not request for a full amount of compensation by considering the fairness for private university personnel as the tort may have been caused by many factors, e.g., heavy workload, inadequacy of the support system, etc. Case studies have been taken of private institutions of higher education in foreign countries, both where common law is practiced, namely the United Kingdom and India, and where civil law is practiced, namely Germany, in which personnel of such institutions, which have been established by law as a place of work, have committed a tort against a lecturer by denying a request for an academic title. The study found that the legal systems in said countries stipulate the civil liability of personnel which corresponds with the aforementioned “administrative liability” principle.

          Nevertheless, in Thailand, when the council of a private higher education institution has committed a tort against a lecturer by passing a resolution to deny an academic title request of said lecturer, the council of the private higher education institution is liable to pay compensation to the lecturer. The lecturer can exercise their right to file a lawsuit against the university council directly pursuant to the Thailand Civil and Commercial Code Section 420, or if the private university has already paid compensation to the lecturer, a right to recourse can then be exercised to the council of the private higher education institution for the compensation pursuant to Section 76 of the same code. This is because the legal provisions regarding the civil liability of officers do not classify the council of a private higher education institution as “officers,” causing the liability against said tort to fall under the “personal liability” as stipulated in the Thailand Civil and Commercial Code. Such cases will lead to the anxiety of the council of higher education institutions during the deliberation on an academic title request for fear of a lawsuit and liability to pay compensation to the lecturer. Consequently, the quality of the academic work by lecturers of private universities will be lower. The efficiency of public educational services will also be affected as lecturers play an important role in providing such public services.                                                             Considering the reasons and legislation mentioned above, it was found that a solution to the issue of the tortious liability of the council of private institutions of higher education in a case where a resolution to deny an academic title request is passed could be in the form of an amendment to the Royal Decree Prescribing State Agencies under Civil Liability of Officers Act B.E. 2539 (1996) (No.…)B.E… This amendment should prescribe private institutions of higher education as “state agencies” under the Civil Liability of Officers Act B.E. 2539 (1996), which will classify the council of private universities as “officers” pursuant to the law regarding civil liability of officers and protect their deliberation on academic title requests, as well as correspond with the “administrative liability” principles.