Volume 9 Issue 2
April - June 2007       
SGA Bulletin
Government Drops Draft Publishing Bill
Supreme Court Opinions  
Re: Trademark (T.C. Pharmaceutical Industrial vs. Vinai Kongkiatepaiboon)
Re: Loan Contract (Managing Capital Sukhumvit Company vs. United Grand Company)
Re: Loan Contract (Jidorn Thongon vs. Sing/Kumsing Doksutud)
Re: Rental Contract (Veerachai Narkwatchara vs. Yupa Rutthanasanghirun)
Re: Separate Offenses (Public Prosecutor of Chantaburee vs. Daowrung Intaraseabwong)
Re: Fraud (Plalom Kleangklao (Requesting Party) Sawai Midkuntod (Plaintiff)
Lod Pochai (Defendant)
Re: Inheritance (Winai Chaipanit, Ratchanee Kijprayoon and Requestioning parties)
Re:Unregistered Land Contracts(Chareonrattanakul vs. Srikloy)
Re: Mortgage Agreement; Resubmission of Plaint (Arkarnsongkrao Bank vs. Siam Lago Group., Co. Ltd.)
Re: Double Marriage Registration (Samerchit v. Phaporn)
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Revised Amendments to Foreign Business Act Approved by Cabinet

According to media sources the Cabinet endorsed revised amendments to the Foreign Business Act on 10 April 2007. These most recent FBA amendments, like the January version, await approval by the National Legislative Assembly. An earlier alternative to the January amendments, generally regarded to be more lenient to foreign investors, was rejected by the Cabinet. The 10 April Amendments incorporate aspects from both previous sets of FBA amendments, including the controversial provision that would define a business entity in which the majority of shareholders or voting rights are held by foreign nationals as foreign.  Also like the previous two versions, Thai companies that would become foreign companies operating in Restricted List Three would reportedly be grandfathered in under the existing legislation.  Thai companies that would become foreign companies operating in Restricted Lists One and Two would be given three years to adjust shareholding structure instead of two years as in the January amendments.  As in the rejected version of the amendments, a committee would be formed to oversee provisions of the Foreign Business Act.  However the committee would not have the power to consider issues such as nominee shareholders and voting rights on a case by case basis but would serve to determine if the ownership of a company is Thai or Foreign in the case of a dispute.

NLA Votes for Ministry of Commerce FBA

The National Legislative Assembly voted on 26 April 2007 to amend the Ministry of Commerce's version of the Foreign Business Act at yesterday's meeting according to media sources.  The Ministry of Commerce version of the Foreign Business Act, passed by the Cabinet in early January was considered alongside a revised version of the FBA amendments passed by the Cabinet in early April.  The National Legislative Assembly established a panel to revise the draft to create protections for some local industries.  The revised version of the Ministry of Commerce's amendments is scheduled to be presented to the National Legislative Assembly on 2 May.

Surayud Signs Japan-Thailand FTA

Prime Minister Surayud Chulanont signed the Japan-Thailand Economic Partnership Agreement (JTEPA) in Tokyo on 3 April 2007 according to media sources.  The agreement, for which negotiations began under the Thaksin administration 5 years ago, is controversial and media sources have reported protests from non-governmental organizations. Non-governmental organizations opposed to the FTA claim that the agreement would allow Japan to control micro-organism patents and may allow toxic wastes to be dumped in Thailand.  According to media reports, representative from the shipping and exporting industry are in favor of the Free Trade Agreement as safe-guard measures will still apply to imported products threatening local industries.  Further either party could cancel the agreement if it does not prove advantageous as long as they provide one year advance notice.  Under the agreement Japanese import tariffs will be reduced on Thailand textiles, leather and agricultural products.  In turn Thailand will open its market for imports of Japanese steel, automotive parts and some types of fruit.

SGA Bulletin
Page 2

Retail Business Law Approved by Cabinet

The cabinet approved a draft retail business law on 8 may 2007 which according to media sources was introduced to by the Ministry of Commerce to stop the expansion of mega-retailers.  The draft would reportedly give the Ministry of Interior the power to control the construction of new retail stores through zoning regulations specifying the size of retail buildings and their location.

New Measures Proposed For Elite Card

Tourism and Sports Minister Suvit Yodmani reportedly proposed new regulations to keep the Thailand Privilege Card (TPC) competitive in early june 2007.  The program was created by former prime minister Thaksin Shinawatra to increase tourism revenue.  Cardholders receive perks including preferential visas, fast-track immigration clearance and discounts and selected venues.  Although the program aimed to attract one million cardholders by 2008, only 2,130 persons have become members.  Dr. Suvit has proposed to invite the private sector to control 70-75% of the company or overhaul the management of the Thailand Privilege Card.

NLA to Consider Public Broadcasting Organization

According to media reports on 7 June 2007, the NLA will soon consider a public broadcasting bill passed by the cabinet in May.  The bill would authorize the state broadcasting organization to turn Thailand Independent Television (TITV) into a public broadcaster.  The public broadcasting organization would run shows with an educational benefit including news and documentaries.  The broadcaster would receive 1.5% of operating funds from tax revenues on alcohol and tobacco.

New Draft Privatization Law to Be Consider by NLA

The National Legislative Assembly is to consider a new draft privatization law within 60 days according to media reports on 6 June 2007,.  The act will prohibit any single foreign investor from holding more than 5 percent in a state enterprise after its privatization.  It will also specify the terms and conditions for privatization.  Legal experts believe the bill needs revision citing that it does not require private regulators and does not list state industries which may be subject to privatization.  Critics also believe the draft law should include requirements for fair share prices to ensure everyone has access to shares.

Academics Urge Public to Reject Draft Constitution

Academics from across the country have joined together in a campaign to encourage the public to reject the Draft Constitution.  Wearing green, the color of the campaign to promote the 1997 constitution, they ask the public to call for the return of the 1997 charter which should later be amended.  Academics have stated that the new draft redistributes power from the people to technocrats.

Compulsory License for Efavirenz May Be Revoked

According to media sources Public Health Minister Mongkol na Songkhla announced at the end of may 2007 that compulsory licensing for Efavirenz may be revoked after preliminary talks with patent holder Merck & Co.  Although Dr Mongkol did not disclose the details of Merck & Co. offers he reportedly asked the Thai media in a teleconference from the U.S., “Who wants to buy generic drugs for treating patients if the original drug is more affordable?”

Minister to Resign if Community Bill Dropped

Social Development and Human Security Minister Poldej Pinprateep reportedly announced that the would resign from the Cabinet if a community bill did not become law in early June 2007.  The bill was initiated by community networks throughout the country and would allow local communities to have a voice in any projects that would affect their livelihood.  The power that the bill would give local communities has apparently been considerably lessened after a Senate member made adjustments to the bill before submitting it to the Cabinet.  Clauses that gave communities the power to suspend any inappropriate judgments have reportedly been cut lessening community leaders roles to that of consultants.  Critics of the bill state that it will confuse local level administration.

Annual Alien Labor Registration to End

The Ministry of Labor announced on 24 April 2007 that they will be doing away with the annual registration system which undocumented workers from Cambodia, Laos, and Burma to legalize their status.  Undocumented workers, whose nationalities are verified by officials from their countries, will be allowed to continue to work in Thailand.  Verifications centers have been established in Khon Kaen, Chonburi, Chiang Rai, Songkhla, Surat Thani and Bangkok and verified workers will receive a certificate of identity.  The Ministry of Labor plans to begin the repatriation of undocumented workers next year.  If a draft amendment is passed, labor placement agencies will be authorized to import legal alien workers.

SGA Bulletin
Page 3

Ministry of Culture Proposes New Film Bill

The Ministry of Culture will submit a new film bill to the National Legislative Assembly for review according to media reports on 22 April 2007.  If the bill passes it will replace the Thai Film Act which is over 70 years old.  Ministry sources say the greatest change that the new bill will introduce is a film-rating system.  Film critics worry that the system could stifle artistic freedom.  Film-makers, film-lovers and film critics have been campaigning for a new film act with heightened intensity since "Saeng Sattawat" was censored by the Thai Board of Censors.  Activists would like to see a new bill without a Board of Censors, however, some worry that the Ministry of Culture bill may not include the wished for reforms.

Vehicle Regulations to be Strengthened in Response to Recent Crash

According to media sources the director of the Department of Land Transport, Engineering and Safety Office is planning to tighten restrictions of public buses after a 20 March 2007 highway accident in which 29 bus passengers were killed in Saraburi Province.  New regulations would require public buses to undergo inspections twice a year as opposed to the current requirement of one time a year.  The Department is also considering limiting the number of years for which public buses are served.  Another program the Department is contemplating is establishing a professional training center for public bus drivers.

Cabinet Approves Local Administration Act Amendment

The cabinet voted on 15 May 2007 on an amendment to the Local Administration Act that would allow government officials to select candidates permitted to run for the village headmen and kamnan positions.  The current act does not allow government officials to shortlist candidates and allows elected kamnan and headmen to hold their position for 5 years.  The amendments would allow village headmen and kamnan to remain in office until age 60 with their performance assessed by government officials every five years.  The amendments also reportedly allow the electorate in their jurisdiction to impeach the kamnan and headmen in certain circumstances.

Government Drops Draft Publishing Bill

According to media reports on 16 May 2007, a government spokesperson has announced they are dropping their own draft publishing bill.  The draft bill was reportedly modeled on the 1941 Printing Act which allows the government to control print media, prohibit distribution of print media and confiscate publications of questionable morality.  Media activists support the government's decision and members of the media sitting on the National Legislative Assembly will ask the Assembly to consider their own bill.

Supreme Court Opinion 115 (No. 6580) 2548
T.C. Pharmaceutical Industrial vs. Vinai Kongkiatepaiboon

Re: Trademark

The word “sponsor” means support in the English language, therefore it is a natural word and not a word that was created. As for the word “sponsor” in the Thai, it was spelled in the Thai alphabet according to the pronunciation of the English word “sponsor”. The plaintiff registered a trade-mark under the words "sponsor" and “sponsor” (in Thai) in 1983. Products and commercials have been made under this trademark, but they were not successful. The plaintiff registered the trade-mark to produce mineral and other types of drinks, which are products under Category 42. The defendant, however, requested to register a trademark for flip flops under Category 25. Although the defendant and the plaintiff use the same trademark, they are creating different products; therefore the plaintiff can not sue the defendant.

Supreme Court Opinion 32 (No. 4464)/2548
Managing Capital Sukhumvit Company vs. United Grand Company

Re: Loan Contract

In a previous court case, the defendant was charged with breaching a loan contract with the plaintiff and was forced to mortgage. The defendant counterclaimed that a bank had breached their contract with the defendant therefore causing the company Kor to be unable to manufacture products and pay of their debt. The counterclaim of the defendant, however, was not related to the claim and therefore could not be considered in court.

Supreme Court Opinion 140 (No. 7062)/2548
Jidorn Thongon vs. Sing/Kumsing Doksutud

Re: Loan Contract

OR took out a loan from the Bor Agriculture Cooperation in the amount of 500,000 baht on behalf of the plaintiff and used the land of the plaintiff as collateral. OR borrowed money on behalf of the plaintiff because the plaintiff was not a member of the Agriculture Cooperation and could not borrow the money himself. OR received money in the amount of 431,928 baht after deducting debt and share. The plaintiff alleges that OR gave money to the defendant for the plaintiff, but that the plaintiff never received the money. However as OR was the principle debtor who signed the loan agreement and the loan was not taken out in the name of the plaintiff and the plaintiff did not formerly engage the defendant as an agent to receive money on his behalf, the plaintiff has no claim against the defendant. If OR wished to give money to the defendant for giving to the plaintiff, then this is an issue between the defendant an OR. The plaintiff can not sue the defendant in this case.

SGA Bulletin
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Supreme Court Opinion No. (No. 7386)/2548
Veerachai Narkwatchara vs. Yupa Rutthanasanghirun

Re: Rental Contract

The plaintiff agreed verbally to allow the defendant to continue to rent a building after the rental term in their written contract had elapsed. However the new agreement was not written in the old contract. Although the plaintiff consented to their new agreement before the old contract ended and created a new contract, the consent was not given as a written contract therefore the defendant can not force the plaintiff to allow her to continue to rent the building. Therefore the plaintiff had the right to evict the tenant after their written contract had ended.

Supreme Court Opinion 19 (No. 268)/2548
Public Prosecutor of Chantaburee vs. Daowrung

Re: Separate Offenses

The defendant and friend brought a foreigner into the Kingdom which is an offense. Next the defendant and friends helped to hide the foreigner to escape from arrest.  This constitutes a second offense in addition to the first offense.  Therefore the defendants' offenses are separate.

Supreme Court Opinion 86 (No. 992)/2548
Plalom Kleangklao (Requesting Party) Sawai Midkuntod (Plaintiff)
Lod Pochai (Defendant)

Re: Fraud

According to their marriage certificate the defendant married Sor on 6 January 1981 and government officials issued Title Deed Number 26526 to Sor on 16 August 1999.  It is not apparent how Sor acquired the land.  The land is marital property between Sor and the defendant according to Section 1474 (1) and Paragraph 2 of the Civil and Commercial Code.  The Plaintiff is a creditor of the defendant and has the right to consider the land as an asset according to Section 278 and Section 282 of Civil and Commercial Code when pursuing payment of debt.

The requisitioning party and Sor both have domiciles at Moo 1. Defendant and Sor have been married for about 30 years and the requisitioning party knew from Kor, Bor, and Por before entering into a contract to purchase the land that Kor, Bor, Por and their party are currently involved in criminal and civil proceedings against the defendant.  It appears that the requisitioning party bought the land from Sor as part of a fraud conspiracy with the defendant.  The debtor is at a disadvantage according to Section 237 of the Civil and Commercial Code and does not have the right to requisition for relief from land seizure.

Winai Chaipanit, Ratchanee Kijprayoon and Requestioning parties

Re: Inheritance

The will of the decedent is void because the deceased did not sign the will in the presence of two witnesses. Also the two witnesses did not sign the will at the same time in the presence of each other as is stipulated in Section 1656 of the Civil and Commercial Code. Therefore the person submitting the requisition cannot receive and manage the estate of the deceased.

While the decedent was still alive he told persons in his village that the fourth person contesting the requisition is his son.  The villagers knew that the fourth person contesting the requisition is his son. The decedent took the fourth person to travel and gave him money for his support; the deceased openly acted as the father of the fourth person.  The fourth person contesting the requisition is the decedent's illegitimate child and according to Section 1672 of the Civil and Commercial Code will inherit the same as the decedent's legitimate children.  The fourth person has the rights to petition that his mother be the administrator of the decedent's estate.

Supreme Court Opinion 111 (No. 2539)/2548
Chareonrattanakul vs. Srikloy

Re:Unregistered Land Contracts

According to the first paragraph of Section 1299 of the Civil and Commercial Code when a proprietary interest is transferred without registering the transfer with the appropriate officials it may not be used to make a claim against a person not party to the contract.  However it is not invalid rather it applies to the parties of the agreement.  Although the agreement between the two plaintiffs and defendant was not registered as the defendant stated in his plaint to the Supreme Court it is still applicable to the two plaintiffs and defendant.

Supreme Court Opinion 141 (No. 2869)/2548
Arkarnsongkrao Bank vs. Siam Lago Group., Co. Ltd.

Re: Mortgage Agreement; Resubmission of Plaint

In a previous case the plaintiff sued Por and Wing Lieutenant Commander Por. to pay their debt and enforce a mortgage agreement at the Court of First Instance (Red Case Number 16255/2536) and the case was concluded. According to the judgment of Red Case 5957/2537 auctioned goods purchased by the defendant were seized and the property was sold by auction.  The Plaintiff had mortgage rights on the property purchased by the defendant.  The Plaintiff has a right to enforce the mortgage agreement with the defendant however the defendant only purchased the land and did not enter into the mortgage agreement with the plaintiff therefore the plaintiff's rights to enforce the mortgage agreement are not the same as those with the original owner.  The plaintiff can not use the judgment ordered in the last case against the defendant in this case because the defendant was not a party in the last case.  The last case and the current case are separate issues.  This is not a case where the same two parties are disputing over an already settled incident.  Therefore the Plaintiff's complaint is not a resubmission of the same plaint as in Red Case Number 16255/2536 of the Court of First Instance.  The plaintiff is therefore not barred by Section 148 of Civil Procedure Code.

The plaintiff appealed to the Supreme Court only on the grounds of legal procedure. A Judge of the Supreme Court has determined that the plaintiff is not resubmitting the same plaint. The case must be returned to the Court of First Instance for consideration and judgment on the other issues in the case.  The court fees for this cases of this type can not be calculated however the plaintiff must pay a court entrance fee of 200 baht according to Section 1(2 Kor) of the Schedule of the Civil Procedure Code.

Supreme Court Opinion 161 (No. 3192)/2548
Samerchit v. Phaporn

Re: Double Marriage Registration

Ms. Samerchit (Plaintiff) and Mr.Watthana registered their marriage in 1966.  In 1970 Mr.Watthana registered his marriage to Mrs.Thanaphan and then registered their divorce in 1993. Afterwards Mr. Watthana registered his marriage to Ms.Phaporn (Defendant) in 1998.  At the time of his death, Mr. Watthana had 2 marriage certificates. The first certificate is lawful and the latter one is void according to sections 1452 and 1495 of the Civil and Commercial Code. Both Ms.Samerchit and Ms.Phaporn wish to be the heirs of Mr. Watthana but only Ms. Samerchit has the right to an inheritance.

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