Codifying the Civil and Commercial Code of Thailand

Codifying the Civil and Commercial Code of Thailand:
The Structure of Thai Civil Law

Article by Sarun Pimngam

INTRODUCTION

Although legal principles and practices from common law countries, especially English and American laws, have partly influenced many Thai laws, Thailand’s legal system is civil law. In other words, Thailand is a member of civil law countries. 

Civil law system has its origin in the Roman legal system. It originated in Continental Europe and may be called the Romano-Germanic family. The legal science in civil law countries has developed and are based on ‘ius civile‘ in Roman legal tradition.¹ Similarly, Thailand legal system, especially private law, is mainly based on Roman law through the legal transplant and codification of Thailand’s Civil and Commercial Code. 

1. Choosing and Codifying Civil Law

King Rama V initiated great reform of administrative organs and the judicial system, around 1868-1960. Such reform included the improvement to Thailand’s legal system in order to ensure Siam’s survival in the face of Western colonialism. Thailand, at that time, needed a modern legal system and laws to bargain with other countries for amending the treaty and solving problems, such as extraterritoriality. Although there was some opinions in favor of common law from the Prince Rapee Pattanasak, who is later the Father of Thai legal system, King Rama V selected civil law tradition. 

During the great reform, Thailand enacted specific laws for regulating and solving specific cases. Thai courts at that time used English law for adjudicating and applying to the cases. Also, English law and cases was an approach to teaching law in the school under the Ministry of Justice.² Therefore, English law influenced Thai law profoundly, and its legal principles were adopted in various fields of law, such as evidence, partnerships, negotiable instruments, and bankruptcy.³

However, the legal tradition of English law, which is common law, is different from the civil law tradition that Thailand’s legal system selected. Civil law is quite distinct from common law in various ways, including legal methods, modes of reasoning, and approaches to legal problem-solving.

Common law tradition is based upon legal precedents in which a historical judicial decision obligates courts to follow when making a ruling on a similar case. Common law, often called ‘case law’ or ‘judge-made-law system,’ relies on particular cases of similar situations and precedents set by higher courts, which can bind and apply to cases tried in lower courts.

By contrast, the court’s judgments and decisions are examples of the application of laws in civil law tradition. Written laws, including acts, codes, or statutes, are primary sources of law in the civil law system. There is no precedent doctrine in civil law, and the higher court does not obligate to the previous judgments, and the higher court’ decisions do not bind lower courts.

After King Rama V reformed and decided that Thailand should be the civil law country, Thailand’s legal system needed to be overhauled in order to be the civil law country, including developing private law based on Roman law, making the written laws as primary sources of law, and establishing codes.

2. Selecting the Germanist Style

Given codifying the Civil and Commercial Code, Thailand used the Germanist style (German Civil Code) through the Japanese Civil Code, which is the main source used for the codification of Thailand’s Civil and Commercial Code, especially Book I and Book II.⁴ Also, English law, French Civil Code, Swiss Code of Obligations, Italian Civil Code (1842), Belgian civil law, Civil Code of the Netherlands, legal principles in some states in the United States, and others, are used for considering the appropriate provisions and laws for Thai civil law.

It should be noted that at first Thailand drafted the Civil and Commercial Code by considering the French Civil Code and French legal principles. Thailand’s Civil and Commercial Code Book I and II (1923) adopted the contract law as a core and cornerstone of the Code similar to the French Civil Code and the Italian Civil Code. Nonetheless, this version did not become effective. The reason is that Thailand’s Civil and Commercial Code (1925) was enacted later.

Thailand’s Civil and Commercial Code (1925) adopted the Germanist model in which juristic acts (Rechtsgeschäft), which was developed by the Pandectists, are the cornerstone of the Code. Juristic act concept is the abstract manner developed by academic⁵ and usually do not be stipulated in any provision. For example, the German Civil Code does not have the provision stating the definition of the juristic act and let academic and law professors enhance its concept continuously. In contrast, Thailand’s Civil and Commercial Code stipulates the notion of juristic acts in Section 149.

Section 149 “juristic acts are voluntary lawful acts, the immediate purpose of which is to establish between persons juristic relations, to create, modify, transfer, preserve or extinguish rights.”

The provisions and principles of juristic acts apply to almost laws in the Code. Law on obligations, contracts, property, family, and succession, are subjected to the concept of the juristic act. For example, a contract is regarded as bilateral juristic act. All the concept of the juristic act must apply to the contract if there is no particular provision clearly stating the specific rule applying to contract.

Conclusion

Thailand is a civil law country, and its Civil and Commercial Code (1925) is on the basis of the Roman law, adopting the Germanist style through the copying and re. However, Thai civil law (or private law) is derived from many sources of law. English law, the French Civil Code, and others influence the formation of the Code in order to find out the best and proper laws for Thailand’s legal system.