Legal Problems Relating to the Wrongful Liability of Officers : A Case Study of the State Audit Commission

Abstract

The State Audit Commission is a constitutional independent organ as provided in the Constitution of the Kingdom of Thailand B.E.2550 Chapter XI Part 1 in which 4 constitutional independent organs are established including (1) The Election Commission (2) The Ombudsmen (3) The National Counter Corruption Commission and (4) The State Audit Commission. In particular, the State Audit Commission is not subject to supervision or regulation of any person or organization. The power is exercised in mixing nature, that is, governing power for administration and semi-judicial power for adjudicating dispute. Most acts are in the same manner as those conducted by the administrative organs in the course of their administrative act. The State Audit Commission may constitute legal relationship between state agency and other person and if any administrative act has caused damage to any person’s life, body, health, liberty, property or any kind of right, it may be held a tortuous act that can subject the State Audit Commission to the obligation to indemnify the injured person. However, the Tort Liability by Officer Act B.E. 2539 and the Regulation of the Office of the Prime Minister regarding Guideline for Tort Liability by the Officer B.E.2539 does not clearly state that the constitutional independent organs are considered as the government agency that may be held liable under such Act. It is then interesting that whether and to what extent the Tort Liability of the Officer Act B.E.2539 should be applied to the tort liability of the State Audit Commission. Findings from the study suggest that the State Audit Commission, in their course of operation, is required to comply with the Organic Act on State Audit B.E. 2542 and if any act done in their course of operation has caused damage to any person, the State Audit Commission will be considered and categorized as other kind of operating person pursuant to the provision of Section 4 of the Tort Liability of the Officer Act B.E. 2539. According to the said Act, the organ under which the State Audit Commission is subordinated shall be liable for the tortuous act done by the State Audit Commission. However, it is not definitely concluded that under whom the State Audit Commission is subordinated, the author has proposed that the injured person suffered from tortuous act done by the State Audit Commission shall have the right to demand the Ministry of Finance for compensation pursuant to Section 5 paragraph two of the Tort Liability of the Officer Act B.E. 2539 or otherwise to submit a request to the Ministry of Finance to claim for compensation as per Section 11 of the Tort Liability of the Officer Act B.E. 2539.