General Principles of Thai Criminal Law Alessandro Stasi General Principles of Thai Criminal Law Alessandro Stasi Mahidol University International College Nakhonpathom, Thailand ISBN 978-981-15-8707-8 ISBN 978-981-15-8708-5 (eBook) https://doi.org/10.1007/978-981-15-8708-5 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifcally the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microflms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. 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The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore Preface This book is not intended to be a complete and analytical treatise of the Thai legal system, but rather to present what its title says: the general principles of Thai crimi- nal law. Its primary purpose is to introduce and explain the essential characteristics of the Thai criminal law to an Anglophone audience, answering the fundamental question: what is a crime under Thai law? Criminal law (in Thai got maai aa-yaa) is an intriguing area of great practical signifcance, performing a crucial role in the protection of the rights of individuals within the justice system. Even individuals who have no professional interest in legal education often realize the overall role and importance of criminal law to their personal life. In fact, our society is not yet so developed that an individual can be certain that adopting the wisest and most reasonable conduct will be suffcient to avoid dealing with criminal matters. General Principles of Thai Criminal Law is designed as a traditional textbook of criminal law which provides a succinct focused coverage of all the relevant aspects of Thai laws, judgments, and legal reforms in a manageable, concise, and reader- friendly manner. It presents the salient features of the Thai criminal law to a wide readership of academics, researchers, students, and practitioners concerned with Thai law. Each of the 12 chapters in this book is derived from a lecture given at the Ramkhamhaeng University and aims to present a detailed analysis of a particular area of Thai criminal law. To some extent, each chapter is designed to stand alone and none require reading any other part of the book for easy understand of the topic in one sitting. The book begins with the elementary legal concepts to be learned by the reader, by defning the fundamental principles underlying the Thai criminal system and outlining its objectives. It then extensively describes the main offences under the Thai Penal Code and classifes those breaches of law that are crimes from those that are merely illegal without being criminal. The frst chapter is devoted to the analysis of the origins of the Thai legal system. It explores the history of the codifcation of the Penal Code and examines some of the major perspectives and defnitions of crime. The second chapter investigates, discusses, and problematizes the nature, purpose, and function of the criminal law. This chapter is guided by the following v vi Preface questions and issues: What is the function of criminal law in society? Must a penalty be proportionate to the gravity of the offence and the degree of responsibility of the offender? When do principles of justice and fairness restrict how punishment can be applied? What is the purpose of criminal punishment? The third chapter discusses the notion of imputability under Thai criminal law. More precisely, it discusses the concepts of mens rea and actus reus required in general criminal law. It also consid- ers some particular categories of crimes, usually grave ones, in which a greater degree of mens rea is necessary as well as other types of crimes, usually of a petty character, in which a lower degree of mens rea is required. The fourth chapter encompasses excusatory and justifcatory defenses to criminal liability. It discusses the fve groups of cases of exemption which in point of law exclude the presence of a guilty mind (i.e., mental illness, minority, necessity, constraint, mistake of fact, and other extenuating circumstances) and the three cases of justifcatory defenses involving no legal penalty (i.e., order of a legitimate authority, necessity, and legiti- mate defense). The ffth chapter of the book covers the crime of attempt in particular instances. It also analyzes impossible attempts and those instances where the wrong- ful purpose of the offender is voluntarily abandoned before the act is put in process for fnal execution. Chapter 6 focuses on the fundamental principles of criminal responsibility, concurrence, and causation. Four ways of taking part in a crime are considered: principal in the frst degree, principal in the second degree, accessory before the fact, and accessory after the fact. The seventh chapter of the book focuses on crimes against the person and more specifcally on offences causing death. It presents a lengthy treatment of murder and the two different forms of manslaughter: the so-called gaan kâat-dtà-gam doi jàyt-dtà-naa (i.e., voluntary manslaughter) and the so-called gaan kâat-dtà-gam doi bprà-màat (i.e., involuntary manslaughter). It also covers other offences related to death such as suicide, euthanasia, and abortion. Chapter 8 focuses on non-fatal offences against the person and explains how in Thailand crimes of this class have been minutely particularized by statutory enact- ment according to the varying circumstances, degree, and character of the injury inficted. The frst fve sections of this chapter will attempt to defne those crimes that are unconnected with sexual relations while section six will deal with those offences relating to sexuality. In consideration of the lèse-majesté laws which are in force in the kingdom of Thailand, Chap. 9 will only provide an overview of the most relevant legal provisions relating to the security of the kingdom rather than a com- plete and uniformly comprehensive disquisition on the subject. Chapters 10 and 11 cover offences against property. Chapter 10 discusses the various offences which violate rights of ownership and specifcally those groups which center round two crimes of peculiar heinousness—gaan kà-moi (i.e., theft) and gaan kà-moi sòp (i.e., snatching)—whose importance can be traced to the peculiar sacredness which the law attaches to individuals’ property. Chapter 11 deals with other crimes against property, including robbery, gang robbery, extortion, blackmail, and fraud. The con- cluding twelfth chapter of the book deals with the law of evidence. The initial over- view of the obligatory presumptions of law and the discretionary presumptions of fact is followed by a discussion of the rules of evidence which are applied in Thai courts. Preface vii Before proceeding to a discussion of the Thai criminal system, it may be useful to make some considerations regarding the genealogy of this book. Much of the material presented in this book is loosely based on the studies of Professor Courtney Stanhope Kenny. His monumental work Outlines of Criminal Law has exerted a profound infuence on the drafters of the Thai Penal Code and still constitutes today an essential reference for most scholars, students, and researcher focusing on the Thai criminal system. This choice has been dictated not only by the various points of contact between English law and the law of Thailand, but also by the pressing need to provide students with a coherent, readable, and accessible introduction to criminal law in English language. Inspired by the engagement of my students and driven by the responsibility to bring more clarity to this area of Thai law, I started a research project which took almost 4 years to complete, undergoing various improvements, and consuming liter- ally thousands of hours of work. This initial project has fnally grown into the frst, and so far the only, book-length work in the English language about Thai criminal law. The present book will undoubtedly provide a reference for all those who want, now and in the future, to gain some knowledge in this feld. During the long period of conception, development, and writing of this book, I have received constructive suggestions from a number of friends, colleagues, and legal practitioners. These include, in particular, Alexei Blanc, Nazim Foury, Jing- woean Chuang, Parisa Mahakantha, Pariya Patchimnan,