Naresuan University Law Journal

Legal Problems under the Land and Buildings Act 2019: Study of Problems from Provisions in Section 5 Paragraph Two and Section 37 (1), (4)

2022-12-15T14:43:55+07:00

Tax collection for land and buildings under the Land and Buildings Tax Act B.E. 2562, effective January 1, 2020. After the enforcement, it can be seen that there were two problems. The first problem states in section 5 paragraph 4, that the meaning of “buildings” of this section is not included machine, component part or inside equipments. The secound problem points out at section 37 (1) and (4), it sets up the waste or raw land taxation fee higher rate than tax of plantation. The study found that the calculation of the tax base under Section 5, paragraph 4, does not reflect the actual value of the property based on the principle of ability to pay tax, causing unfairness and disparity in tax collection. Regarding the land or building taxation issue under Section 37 (1) and (4), it was found that the criteria used in assessing agricultural land use needed to be more detailed. People take advantage of the gaps in the law by converting fallow or underutilized land into agricultural land. But they don’t have the intention of farming. Therefore, it is proposed to amend the provisions in Section 5, Paragraph 4, of the Land and Building Tax Act, B.E. 2562, and add additional criteria in the relevant notifications of the Ministry of Finance and the Ministry of Interior.

Scientific Whaling in International Law Limitation and Development

2023-02-21T18:47:10+07:00

The objective of this paper is to study problems that may arise from the ambiguity of Scientific Whaling under international law. There is still some ambiguity around the meaning of Scientific Whaling while considering the relevant provisions of the 1946 International Convention for the Regulation of Whaling and the interpretation and application of the Convention by the International Court of Justice (“ICJ”) in the case of Whaling in the Antarctic (Australia v Japan; New Zealand intervening). In this regard, the author is of the view that the rules on this matter are still unclear. Likely, States Parties to the 1946 International Convention for the Regulation of Whaling may claim that they hunt whales on the pretext of whaling for scientific research, despite the real intent being to hunt whales for commercial whaling. The author argues that such problems may be solved by defining Scientific Whaling in soft law to clarify the concept.

Problems and Guidelines Concerning the Application of Water Justice Principle in Thai Legal System for the Sustainable Development

2022-07-07T22:45:05+07:00

Water justice is a principle that aims to encourage stakeholders in water management to consider various issues in a comprehensive manner. This will result in the allocation of water and other expenses fairly to all parties, including humans, animals, plants and people in the next generation. Studies indicated that the current water law of Thailand has some part of the water justice principle such as the principles of water users pay, polluters pay. However, water law of Thailand lacks criteria for considering water justice in all levels of water organization, clear quota of water usage right of each province, real public participation in water management and legal academic work relating to the principle of water justice. Furthermore, politics in water management and people’s attitudes towards water resources are causes of water injustice in Thailand. Therefore, this research proposes as following (1) incorporate the concept of water justice to the goals and missions of water organizations in Thailand, as well as providing the criteria and decision-making principles for all level of water organizations as working guideline (taking at least 5 dimensions of water justice as criteria for consideration [Fair distribution of benefits and burdens, recognition of all stakeholders in water management and water utilization, public participation, ecological protection and Non-discrimination due to cultural differences]), (2) providing clear public participation principles as an aim of water organizations and process for recruiting stakeholder and hearing stakeholders for water planning and management in laws and regulations, (3) establishing the provincial proportion of water usage management system and (4) increasing studies, researches and teachings on water justice issues, in particular, in dubio pro aqua principle.

Gender Recognition and Marriage under The Civil and Commercial Code, Book 5

2022-09-19T15:48:53+07:00

The Civil and Commercial Code stipulates that marriage requires spouses of different genders, that is, one party is male and the other is female. Both males and females are based on their biological sex. This requirement is therefore an obstacle for LGBTQ people who live together as a couple, especially people who have undergone gender reassignment surgery. However, there is no law to recognize the status of such persons, thus they cannot be legally married. The objectives of this research are to study the concepts and feasibility of gender recognition and protecting the marital rights of LGBTQ people. These will result in those who are certified to exercise their marriage rights according to the new gender identity under Thai Civil and Commercial Code, Book 5. The insights of the research can be integrated into teaching and learning in a Family Law course.
The results of this research found that (1) the State should enact legislation certifying the gender status of LGBTQ individuals who have undergone gender reassignment surgery, (2) the State should push for more effective protection of LGBTQ rights, and (3) the State should push for the recognition of a new sexual status so that such status can be used for marriage registration under the provision of the Civil and Commercial Code, Book 5.

Legal Readiness of Thailand for Accession to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications

2022-12-09T16:51:59+07:00

The purpose of this research were to (1) study development, concepts and theories of an accession to the Geneva Act, (2) study international registration of appellations of origin and geographical indications under the Lisbon Agreement, Geneva Act, Regulations (EU) and protection of geographical indications under the TRIPs Agreement with registration system of Thai geographical indications, (3) analyze an
international registration of appellations of origin and geographical indications under Lisbon Agreement, Geneva Act, Regulations (EU) and compare the protection of geographical indications under TRIPs Agreement with registration system of Thai geographical indications, (4) propose the appropriate guideline in the context of Thailand for legal readiness for Accession to the Geneva Act. This research is qualitative research conducted based on the documentary research and in-depth interviews.
The research reveals that the TRIPs Agreement to which Thailand becomes a State Party does not include any provision relating to international registration, but such registration is not prohibited while The European Union has enacted regulations in line with the Geneva Act and Lisbon Agreement for particular application within their jurisdiction. The European Union enacted regulations to protect appellations of origin and geographical indications under the Geneva Act and Lisbon Agreement to increase their product protections to reach a similar standard at the special level. However, Thailand, under its current law, classifies legal protection to products into two levels in accordance with the requirements in the TRIPs Agreement. For the purpose of accession to this Geneva Act, a definition “appellation of origin” should be added along the line of the said Act and, in addition, there should be a new provision empowering the Director-General to issue subordinate legislation prescribing rules on international registration. Further, the protection system should be streamlined to achieve the standards set forth in the Geneva Act. To these ends, it must be specified in the law that the registered appellations of origin and geographical indications cannot be considered to have become generic. Also, there must be new provisions on collection of fees as well as refusal, invalidation and cancellation of the protection, in agreement with the Geneva Act.

Legislative Development of The Protection of The Survivors of Domestic Violence

2022-12-22T16:31:19+07:00

The research article aimed to investigate laws and principles related to the protection of survivors of domestic violence, analyze issues regarding the roles and responsibilities under the law for personnel at the Community Family Development Centers (CFD) in the protection of the survivors of domestic violence at the community level by comparing between Thai law, the federal law of Malaysia and Commonwealth of Australia law (Australian Capital Territory). It aimed to suggest guidelines for creating legal mechanisms for the protection of survivors of domestic violence at the community level by defining the authority and responsibilities of personnel at the Community Family Development Centers (CFD) in accordance with the intent of the Family Protection and Development B.E. 2562. This research was qualitative. The major findings revealed that even Thailand’s the Family Protection and Development B.E. 2562 had outlined the operational framework for Community Family Development Centers (CFD) in protecting individuals subjected to domestic violence at the community level; however, it did not systematically define the roles and responsibilities of the CFD personnel in performing their duties. When compared to the foreign legal mechanisms, both Malaysia and Australia had more clearly defined roles for personnel in controlling, preventing, and solving domestic violence at the community level. Therefore, it is recommended to amend and enhance the Thai law by defining the roles and responsibilities of CFD personnel in Sections 15/1 and 33 of the Family Protection and Development B.E. 2562.

Food Delivery Business on Digital Platforms and Public Interest and Consumer Protection in Thailand

2022-12-28T18:08:20+07:00

This research aims to study concepts, theories, and regulations of food delivery business on digital platforms. It includes the comparative study of international regulations under World Health Organization (WHO), foreign laws, namely, the United States of America, Australia and People’s Republic of China related to legal measures on consumer protection on food delivery businesses. The study also analyzes the limitations and legal problems under Thai laws and propose the legal measures more clearly about rights, duties, responsibilities and sanction for the relevant parties of the food delivery businesses on digital platforms to protect the public safety and consumer rights in Thailand, The study employs a qualitative method with in-depth interview and group discussion. The research finds that the selected foreign laws provide that food providers and restaurants are responsible for public safety and must ensure food hygiene and safety. However, Thai laws lack such legal measures. Therefore, Thai laws and regulations on public safety and consumer protection on food delivery businesses on digital platforms should be amended. Moreover, the system management of the service providers, rights, duties, responsibilities and sanction of the relevant parties should be obviously imposed as well.

Approaches tp Protect the Right to Work under Preventing and Restraining Measures of the Pandemic of COVID-19

2023-02-06T16:07:13+07:00

The objectives of this research are: (1) to identify the nature problem and impact on the right to work during the outbreak of Coronavirus disease (COVID-19) and (2) to suggest the guidelines for protecting the right to work during the outbreak of COVID-19. The research methods employed in this research were documentary research, in-depth interviews with experts, representatives of government agencies and private-sector, employers and employees in various sectors, and a focus group.
The research results were as follows: The containment and prevention measures to flatten the peak of COVID‑19 adopted by the Government can be considered effective measures to prevent and control the spread of COVID-19, such as, lockdown and curfew. However, such measures are likely to have a significant effect on the economy, the society at large, and the right to work, for example, the right to organize and collective bargaining, the right in work, the right to get payment of wages, and occupational safety. Therefore, the adoption of legislation during COVID-19 pandemic should consider not only preventing the spread of the COVID-19 virus but also the right to work. In addition, some laws should be enacted, for example, an obligation for employers to provide comprehensive protection for employee’s safety, and the right to refuse unsafe work and quarantine leave without loss of wage.

Defamation of Politicians and Public Officials: The Comparison of Thai and Australian Law

2023-04-11T09:55:12+07:00

Politicians and government officers exercise public functions and powers for the purpose of public interest. Therefore, it is important in democratic society that people and the media must have right to know and criticize their performance. In Australia, Defamation against politicians and government officers is protected as implied constitutional protection which provides appropriate defense for person who mistakenly but honestly published government or political matters to a large audience, as these matters could affect their political choice in the elections. To qualify for the political qualified privilege defense, a publisher must prove its conduct was reasonable. In order to prove its conduct was reasonable, the publisher must show that (1) it had reasonable grounds for believing the imputations were true, (2) it took proper steps to verify the accuracy of the material, (3) it did not believe the imputations to be untrue and (4) it sought out and published a response from the person defamed. In Thailand, the criminal code section 326 provides the element regarding defamation against politicians and government officers. The court also accept that public interest is founded in communicating about government
and political matter. Similar to Australia, the publisher might not be liable for defamation action for the imputation made as part of political discussion as long as it was published in good faith. The study suggests that Thai court could protect freedom of expression as part of the constitutional right.

Academic Study Project for Supporting the Drafting of Civil Partnership Act B.E. ....

2023-04-18T12:51:14+07:00

There is a proposed draft of the Civil Partnership Bill, which aims to guarantee the right of same-sex couples to establish a family to address various issues such as the right to receive benefits for same-sex couples living together, inheritance issues, and joint adoption. The research team has studied the laws related to same-sex marriage in different countries, as well as principles of various religions, to support the proposal of the Civil Partnership Bill. It was found that the bill still grants fewer rights than those of married couples under the Civil and Commercial Code, leading the group of individuals with diverse sexual orientations to view it as discriminatory. Additionally, after studying the principles of different religions, it was found that same-sex couples’ relationship contradicts the beliefs of Christianity and Islam. However, enabling this legal right to civilians is separated from the religious beliefs. Religious officiants must not be compelled to perform same-sex marriage ceremonies for individuals with diverse sexual orientations to respect the beliefs of different religions. Therefore, the research team recommends that the essential contents of the Civil Partnership Bill should be developed to ensure equality and non-discrimination.