การรับและจำหน่ายทรัพย์มรดกของพระภิกษุ: ความสัมพันธ์กับพระวินัยและปัญหาในทางปฏิบัติ

Abstract

This article aims to analyze the Buddhist monk’s right of acquisition and disposal of inherited property which is specifically related to Sections 1622 and 1623 of the Thai Civil and Commercial Code that entitle a Buddhist monk to be legatee, who may dispose of his private property or leave the rest of the property to his domicile monastery after his death. The analysis consists of two issues: the correlation between the right and the monastic laws (Vinaya), the regulatory framework for Sangha related to the acceptance and management of his property, and the problems on its enforcement being addressed in a number of decisions of the Supreme Court of Thailand. This study has found that the monk’s statutory right of heritance does, by law, allow a testator to donate his/her property to any monks deemed appropriate to make it best out of the disposal. In practice, the monk can actually own the property by title documents and exercise the right of ownership without breaking the monastic laws (Nissaggiya Pacittiya Rules), which forbid a monk to accept and spend money as well as exchange things. That to be said, through the document, he may enter into a juristic act and return the property to other legitimate heirs of the testator, allow the creditor actions, or donate to Sangha or other foundations.  According to the study, the cases involved in the Supreme Court’s decisions are repeatedly found to be caused by the misconduct of local monks in the monastic laws and dishonesty of private litigants, where its original cause is likely because of the legal validity of the juristic transactions done by monks in spite of their monastic misconduct. Having considered the aforementioned analysis, the author is thus not of the idea to limit the heirship as suggested by some jurists To solve the problems, the juristic transactions concerning the property executed by monks and Sangha according to the Thai Civil and Commercial Code should be revised and interpreted to conform to the monastic disciplines. Furthermore, National Office of Buddhism should be entitled to represent a monastery in court.