Duty Performance of Public Prosecutor in the Price Determination Committee and the Considerations in Administrative Law

Abstract

Public prosecutor is stipulated to be a member of the Price Determination Committee according to the Ministerial Regulation. In case where there is an authorisation of another public prosecutor to perform duty on behalf of the grantor, it is required to be in accordance with the criteria under the Rules of the State Attorney Commission Re: the Acting in, for and on behalf of the Position of Public Prosecutors, B.E. 2554 (2011) on the Authorisation of Power in order that the duty performance of the public prosecutor is lawful pursuant to the law. When performing the duties of public prosecutor in the Price Determination Committee, the public prosecutor should emphasise on providing the opinion as an expert on law and proceedings, such as the review of legality of the duty and authority scope of the Price Determination Committee according to the Ministerial Regulation, the protection of the stakeholders’ rights in the legal execution so that they obtain appropriate fairness, including the hearing of the facts for the consideration which should be according to the standard and reliability. The resolution of the Price Determination Committee will be considered and specified as a starting price of the public auction by the legal execution officers. The procedure between the officers from two agencies is an internal matter to prepare for and prior to the public auction and it is a part of the civil case enforcement after the Court of Justice makes a judgement or order. Thus, the resolution of the Price Determination Committee is not an administrative order as it is not an exercise of administrative power according to any Act. However, it is a part of the procedure which is significantly proximate and related to adjudicative power, based on specific criteria according to the Civil Procedure Code and the Ministerial Regulation. Also, this procedure does not fall under the criteria of the Administrative Procedure Act, B.E. 2539 (1996) of which Section 4 (4) explicitly provides the exception. When the resolution of the Price Determination Committee is not the administrative order, the stakeholders in the legal execution who are not satisfied with the resolution cannot exercise the right to appeal under such Act. Nonetheless, such persons can exercise any rights according to the rules and criteria under the Civil Procedure Code, especially pursuant to Section 295 regarding the annulment or rectification of irregular execution proceedings by submitting a motion to the Court of Justice. Since the dispute regarding the resolution of the Price Determination Committee is not considered an administrative case pursuant to Section 9 Paragraph 1 of the Act on Establishment of Administrative Courts and Administrative Court Procedure B.E., 2542 (1999), its legality thus cannot be reviewed by the Administrative Court.