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Civil Law and Criminal Law
Differences and similarities. How to distinguish and protect our self according to the Thai Law.
An extract from the presentation of a lesson of Dr. CF Ciambrelli for the Mahidol International University, Bangkok.
In our modern times we have drawn a clear distinction between Civil and Criminal Law. Comforted by and bombarded with a plethora of thriller-movies, crime novels and TV series, most of us give for granted to have clear in mind the difference between Criminal and Civil cases.. Simply put, we think: breaking the criminal law will send you to jail while breaking the civil law will force you to pay. But, even though this very simplified distinction is not totally wrong, it is not quite the entire truth either, as the difference is sometimes very thin and difficult to determine to the point that several prominent jurists and philosophers of law deny the existence of a clear distinction between Civil and Criminal law at all especially when it comes to economical damages.
What is sure is that the two branches of the law very often intersect and intertwine as two railways going in the same direction, but ending in different stations or, right the opposite, running on different rails and ending at the same post! In Thailand, due to the peculiarity of the judicial system, I would venture to say that the “cut-off”, this dividing line, is even thinner than in the West.
Leaving alone (for now) the most blatant and striking situations where the distinction between criminal actions and a civil defaults appears clear and obvious, as in the cases of murder, robbery, violence, just to make some examples, let’s see what happens when the offence or the default causes an economical damage to another person. You will be surprise how thin is the distinction in many cases and how most of the people have got it wrong.
The Thai Civil and Criminal Codes.
The civil law in Thailand is regulated by the Civil and Commercial Code, while the criminal law is disciplined by the Criminal code. The distinction though appears to be clear and definite, not just apparent or theoretical. More precisely in the Book one, Title one, Section 5 of the Civil and Commercial Code we read: in the exercise of the rights or in the performance of the obligations, every person shall act in good faith, bona fide.
On the other hand, in the Book one, Title one, Chapter one, Section one of the Criminal Code we read “According to this Code Dishonesty means to acquire any advantages, for himself or herself or for other persons to which he or she is not entitled to by law.”
By the letter of the law then, it appears that the distinction between civil default and a criminal action lies in the concepts of “bona and mala fide” and in the one of “honesty”.
So, if somebody asks you a loan promising to give it back to you, but he doesn’t, is it criminal or civil? Or if you sell goods to somebody who promises to pay you in several installments, then he damages the goods and doesn’t pay you, is it civil or criminal?
And in these cases should you seek the assistance of a civil lawyer or a criminal lawyer?
Shall you report the facts to the police or directly to the court?
You might say: it depends if he was in good faith or in mala fide, if he was honest or dishonest. But how can we prove it?
How can we prove for example that the person to whom you generously conceded a loan had never had the slightest intention to give it back, in which case, it would be clearly mala fide and he should be sentenced to jail?
Compoundable and non-compoundable offences.
The first watershed, the distinction between compoundable and non compoundable offences, will certainly help us to start dispelling some doubts. While a civil action or infraction is always compoundable and can be punished only upon an action of the damaged part, called plaintiff (jot in Thai) a criminal offence can be compoundable or not compoundable. By the letter of the law and by definition a compoundable criminal offence is an offence that we can “forgive” renouncing demanding any punishments of the perpetrator and giving up any compensation. If, for instance, somebody deceives you and misappropriate your assets, you can decide whether to prosecute him/her or not or you can renounce to the action even after a trial has started.
To make a more blatant example, according to the Thai Criminal Code, the crime of “rape” which can be punished with 4 to 20 years of imprisonment, if it is not committed in public or causing grievous body harm or death, “it shall be a compoundable offence” (section 281 of the Thai Criminal Code).
Let’s see then what happens in real life. What are the effects and the consequences of our actions, how to protect ourselves and where we should seek help.
While in the first part of this article we have tried to clarify the differences between Civil and Criminal Law and between a criminal and a civil offence or a default, today - as promised - we will try to understand what are "the effects and the consequences of our actions and how to best protect ourselves.
"The choice of the proceedings: criminal or civil?
Whether we might be the "victims" of the most obnoxious crime or simply the “victim” of the breach of a contract; to obtain a just compensation we shall in any case recur to a court of law. In fact nobody can take the law into his own hands. But, even though I believe that most of us, in theory, totally agree with this fundamental principle, yet you would be surprised to see how the majority of people have not this concept clearly in mind when it directly affects them. We feel likevictims and we believe that we have the right to justice, but only a court of Law (very rarely the police and only in case of serious and evident crimes), can oblige the offender to respect the law, never the "presumed" victim.All this implies that the first choice we are called upon to make is about the right course of proceeding: shall we recur to a civil or to a criminal court? It might seem a rhetorical question, but in many circumstances and in everyday life it may be not so easy to answer, nevertheless our choice will indeed be of paramount importance, (especially in Thailand), due to the legal and practical consequences of the proposed action.
If it is true, as we have emphasized in the first part of this article, that sometimes the dividing line between Civil and Criminal Law is very thin and difficult to determine, in practice it can make an enormous difference especially for the following main reasons:
- A criminal proceeding (trial) is usually faster then a civil one-
The fear to be sentenced to prison can be a huge leverage to oblige the defendant to compensate the damage caused to the victim.
- The Thai legal system contemplates a constant research of mediation between the parties, defendant (supposed offender) and plaintiff (supposed victim). The defendant's acceptance of guiltand the compensation of the caused damage can drastically reduce the penalty even in the most serious, non-compoundable charges.*
At the other end:
- A Civil lawsuit can literally last years (even though it is true that nowadays the works of the court is much faster than in the past)
- A Civil sentence doesn't automatically guarantee that the plaintiff will get compensation without a separate (often difficult and costly) action for the reinforcement of it and, most importantly, he/she won't get anything at all if the defendant has no assets to be seized!In other words, apart from our moral scruples, it might often be preferable to seek criminal chargesagainst the perpetrator anytime he/she would have had committed a crime causing the other part an economical damage, provided we can show a solid balance of evidence. What we should imperatively keep in mind before deciding what it might be the most effective and appropriate action.
- A sentence of guilt against the perpetrator of a crime that has caused damage to his victim doesn'tnecessarily imply an economic compensation for the victim. From a civil point of view the two matters are completely and profoundly distinguishably: a verdict of guilt in a criminal trial will ethically punish the perpetrator for his misdoing, but not necessarily assure any compensation for the victim which shall be established separately by a civilcourt unless a civil lawsuit has been contemporarily "brought into the criminal proceeding".
- A criminal proceeding will, by law, suspend and interrupt any proposed civil lawsuit.- A criminal complaint can be proposed directly to the court or at a police station.In the first case the proceeding would be much quicker and the plaintiff will be required to present evidence against the defendant. In case of acquaintance, the defendant could legitimately counter-propose a complaint for defamation demanding in turn criminal punishment and compensation.
- A criminal complaint can be proposed to the police station as well. Reporting a crime at the police authorities would, in the majority of the cases, eliminate the risk of a counter-suit for slandering unless the "presumed" victims would have counterfeit or forged evidence or lied to the police officers. However, reporting a crime at the police station, won't always guarantee a speedy court trial against the offender.
- A criminal complaint will not exclude the possibility of a civil action even in case of acquittal of the defendant, but it will definitely slow down the process.On the other hand:
- A civil lawsuit can only be filed directly to the court, not at the police station.
- A civil lawsuit will not entail the possibility of a criminal counter-suit for defamation.
- A verdict of guilt will not restrict the freedom of the defendant; he/she will respond only with his/her assets. The choice of the right lawyer. In conclusion we might say that, in most cases, only a competent lawyer can guide you through the choices for the appropriate proceedings. In fact, if it is true that pressing criminal charges - when and where possible - can speed up the proceedings and compel the perpetrator to quickly compensate for damages, it is also true that it will not necessarily entail the obligation to compensate the victim and, as we wish to underline again, in case of lack of or insufficient evidence, it can entail the risk of a counter action by the defendant for defamation.
Everybody is equal before the law but...
Committing a crime in thailand, a passage to hell.
Extract from an article of Dr. Carlo Filippo Ciambrelli
Let me start by the end or, as we may say, let's grasp the bull by the horns. Thailand, the so called "Land of Smiles", it's definitely one of the worst places in the world to commit a crime.
The laws governing a country are divided into two major legal systems: Common Law and Statutory Law.
In countries, as Thailand, governed by the "statutory law system" the laws are clearly "codified" or "listed" in a sort of legal-Bibles : the penal (criminal) Code and the civil Code.
In the Penal Code, (link to Thai Penal Code) practically every possible crime is well described and "equipped" with the indication of the relative minimum and maximum applicable penalty. The difference between the minimum and the maximum penalty is the only feasible discretion conceded to judges and juries.
Consequently in the majorities of the countries adopting the "rigid-although-clear" statutory law system, (S.L.S.) the judge will apply the law and impose the penalty in relation of the circumstances, including a possible admission of guilt given to the court by the defendant, within the limits clearly written in the Code. And here we find the first huge difference between the Thai and the European S.L.S.: In Thailand a confession will practically, even though not automatically, in most of the cases cut the penalty by half. Including the "minimum applicable penalty". Furthermore, in Thailand, as in the Common Law countries, it is possible to ask (apply) for a bail bond and remain free at least until the first degree sentence. At this point you might think "the title of this article must be a mistake", but ...I'm afraid that it is not so, not at all!
To make thinks a bit more clear, let's "go back" to the beginning and see what happens in real life if you are accused of a crime. Let's see how things can be drastically different then in the Western world.
The first authority called to "judge" upon the receiving of a crime-report is the police. No coroner, no investigating judge. The police will decide, for instance, if an autopsy is necessary and, more important, if the proves or the clues against the suspect of a crime are enough to arrest him, to transmit the case to the court and if it is possible to release him or her upon the payment of a bail.
Should the police deny the bail, the "defendant" will be transferred to a remand awaiting the judgement. He/her can therefore apply for a new release on bail directly to the court with uncertain results.
I don't know if you have ever had the chance to visit a remand. In my experience as court interpreter and "volunteer upon request of the embassies", I often had such a privilege and I can tell you that they are not exactly holidays-resorts! To say the least, you would not enjoy being there.
Furthermore, not to scare you, rather to warn you (a man forewarned is a man forearmed) you would better consider that there are a considerable number of crimes that do not foreseen the possibility to be released on bail at all, regardless the "solidity" of the accusations.
The main criteria adopted to deem if a suspected-culprit can benefit of a release on bail are : the possibilities of his/her escape, (obviously much higher if accused is a foreign national), the possibility of evidence-tampering and the alleged social dangerousness of the suspect. Basically all crimes against the society, the governments (not only the Thai government), the state-institutions etc. as, for instance, currency counterfeiting, credit cards forgery, to not mention lease-majesty, leave very little space to achieve a temporary release on bail. Furthermore such kind of crimes are very seriously punished in Thailand.
Out of metaphor and just to clarify the concept, we can say that it would be easier to be released on bail for somebody accused of an "attempted murder" rather then of one of the crimes above mentioned.
I suppose (and hope) that whatever we have written today will never regard our readers, but what happen if you are falsely or wrongly accused by someone? What about if you are the victim of a fraud or of an error? How long does a trial will last?
Answers coming soon...