The The Legal Problem Concerning Applying Justification Clauses into the Case which the Defendant Is Charged with Section 112 of the Criminal Code by Analogy

Abstract

An important legal problem regarding applying section 112 of the criminal code is the problem that whether in the Thai legal system, the court is eligible to employ section 329, justification of the general defamation charge with criticism in good faith, by analogy, to acquit the defendant charged with section 112 of the criminal code or not. Concerning this problem, Thai jurists has been divided. Moreover, when analyzing this problem with the analogy legal framework laid out by Somyot Chueathai, viz., considering whether either it is a general principle provision or an exception one, contemplating rationale for and against analogy and considering essence of the considered provision, the author finds that the core of the problem involving analogy of section 329 of the criminal code to section 112 is the inviolable status of the king stated in section 6 of the constitutions of Thailand that whether this status is the determining factor when considering applying section 329 to the case the defendant charged with section 112. In order to answer the above question distinctively, finding spirit or objective of section 329 of the criminal code is necessary. Furthermore, the author proposes that it is required to do research on jurisprudence, legal history, comparative legal studies between relevant democratic states, socio-legal studies, Buddhist legal investigation and philosophical approaches and consider all of these aspects of the targeted law and its spirit comprehensively. If a related case is brought to the court, the court is competent to decide relevant legal issues by itself since they are sub-problems of the main problem of whether the defendant is guilty or not. For legal history, comparative legal studies, philosophy of law and socio-legal investigation including Buddhism legal studies, they are primary factual problems leading to the mentioned legal problem, and in criminal cases, the burden of proof bears on the plaintiff's shoulders. If the plaintiff is unable to prove beyond reasonable doubt that the social and cultural circumstances of Thailand indicate that section 329 is not supposed to be used by analogy in the case of section 112 when considering together with other legal factors, the court must give the benefit of the doubt to the defendant and deems the fact beneficial to him or her, leading to applying section 329 in the case of section 112 by analogy and acquits the defendant.