COMPARATIVE STUDY OF THE INVESTIGATIVE POWERS OF SECURITIES AND EXCHANGE COMMISSIONS IN THAILAND, THE UNITED STATES, AND GERMANY: A CRITICAL ANALYSIS BASED ON THE RULE OF LAW AND THE PRINCIPLE OF CHECKS AND BALANCES

Abstract

This academic article aims to comparatively analyze the structural changes in the investigative authority of the Securities and Exchange Commission of Thailand under the new draft law, which enables the Commission to directly conduct criminal investigations in high-impact cases affecting the capital market. This issue has generated widespread criticism, as it may risk undermining the rule of law, the principle of checks and balances, and the protection of the rights of the accused. To establish a clear framework for assessing legal alternatives, this study employs documentary analysis and a systematic comparison with international regulatory models, namely the United States Securities and Exchange Commission (U.S. SEC) and the Federal Financial Supervisory Authority of the Federal Republic of Germany (BaFin). The findings show that both the U.S. SEC and BaFin adhere strictly to the principle of functional separation. BaFin in Germany immediately transfers criminal cases to public prosecutors, while the U.S. SEC focuses on enforcing civil and administrative laws but refers cases with criminal implications to the Department of Justice (DOJ) under a parallel investigation mechanism. This separation of roles functions as a system of institutional checks and balances, ensuring neutrality, verifiability, and a reduced risk of power centralization. In contrast, the Thai model emphasizes increasing efficiency and procedural speed but faces risks related to unclear jurisdictional boundaries and the potential for excessive exercise of authority if adequate oversight mechanisms are absent. Therefore, this article proposes concrete measures that focus on institutional balance across legal and policy dimensions, such as defining the criteria and jurisdiction for High-Impact cases, requiring judicial authorization for orders that affect fundamental rights, establishing an independent committee to review case files before submission to public prosecutors, and creating robust internal firewalls to separate investigative functions from supervisory functions. These measures are essential for maintaining transparency, fairness, and investor confidence in the stability of Thailand’s capital market.