Right of Retention in Execution of Civil Judgements and Bankruptcy Proceedings: A Comparative Study of Thai and Japanese Laws
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Abstract
Under the Thai Civil and Commercial Code, Civil Procedure Code, and Bankruptcy Act, there has been no coherence as to whether a holder of the right of retention has any priority over ordinary creditors, holders of preferential rights, and secured creditors. In particular, according to the Civil and Commercial Code, it is
generally treated in the same way as an ordinary creditor in terms of priority unless it is also considered a preferential right’s holder. However, under the Civil Procedure Code, the holder of such right is entitled to obtain the value of the property it retains realized to satisfy the relevant obligation in preference to ordinary creditors in case of execution of the court’s judgements. Moreover, in case of bankruptcy, a holder of the right of retention is considered a secured creditor who seems to be superior to a holder of preferential rights under the Bankruptcy Act which are also considered a holder of preferential rights under the Civil and Commercial Code. Therefore, the paper aims to analyze the legal provisions, supreme court cases, and all relevant theories to eliminate in inconsistency in the aforesaid provisions and properly protect all interested party involved in execution of civil judgements and in bankruptcy proceedings.
To achieve the goal, the paper scrutinizes the incoherence of the relevant provisions of Thai laws. Moreover, because the provisions of Thai Civil and Commercial Code regarding right of retention was derived from Japanese law, the provisions on right of retention of the Japanese Civil Code and Commercial Code are investigated. Furthermore, the relevant provisions on Japanese Civil Execution Act and Bankruptcy Act are synthesized as they provide some guidance on how to treat a right of retention in case of execution of civil judgements and in bankruptcy proceedings. In addition, by learning from the case study of Japan, amendments of the Thai Civil Procedure Code and Bankruptcy Act are proposed.
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