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Courts Handle Civil and Criminal Cases in Thailand

Representatives of NGOs and legal entities reported that police and security officers sometimes torture suspects to obtain confessions. Human rights groups also reported that government officials filed frivolous lese majeste and sedition charges against protest leaders and journalists.

Litigation in Thailand is typically a lengthy and time-consuming process. To address this issue, the Law on the Timeframe for Judicial Proceedings was enacted in October 2022 and came into effect on 23 January 2023.

Courts

In Thailand, judges and not juries try cases. Courts have jurisdiction to adjudicate all civil and criminal matters based on law. Judges are independent in adjudicating cases and may use their discretion to determine guilt or innocence, as well as to decide on the punishment for a defendant.

The Courts of First Instance consist of general courts,(2) juvenile and family courts and specialized courts.(3) The Supreme (Dika) Court has the final authority over all appeals against judgments of the Courts of First Instance and specialized courts.

The Supreme Court’s judgments become precedents for the lower courts to follow. Its role is to ensure that all laws are in accordance with the Constitution and public interest. It also acts as the protector of the rights and liberties of the people and the maintainer of a democratic regime of government with the King as Head of State. In interpreting the Constitution, the Court has been creative in mobilising constitutional interpretation techniques such as originalism and legal history.

Jurisdiction

There are three levels of courts in Thailand: the Courts of First Instance, Appeals Court and Supreme Court. Parties who are unhappy with a decision at the lower level can appeal to the higher court.

Court proceedings in Thailand are conducted in the Thai language and pleadings must be submitted in that language. Testimony and documentary evidence must also be translated into Thai before they can be presented in court.

The Appeals Court handles cases decided by the lower courts, such as the District and Provincial Courts. In addition, the Appeals Court has jurisdiction over all cases decided by the First Instance and Regional Appeal Courts located in Bangkok and the Specialized Appeal Court for a Case.

The Constitutional Court has garnered an ambivalent international reputation for its de facto dissolution of opposition political parties and cancelling of general elections in the name of protecting democracy. More recently, it has been tasked with validating organic acts (rules of near-constitutional value placed above legislation in the hierarchy of norms) by the junta.

Filing a Case

The legal process in Thailand begins with a private individual or company submitting a complaint to the police or directly to the court. If the complaint is criminal, the court will conduct a preliminary “investigative” hearing to determine whether or not there is sufficient evidence to proceed with the case for a full trial.

The central and nine regional courts of appeal review the judgments of the First Instance and Specialized Courts, respectively, to reaffirm, dismiss, or reverse those decisions. The Supreme Court, located in Bangkok, hears appeals of cases that are not within the jurisdiction of the other two courts, or those involving a matter of national importance.

As a general rule, criminal defamation cases are filed by companies who allege that a public figure has slandered or libelled them. Defamation is punishable by imprisonment and large fines, as it violates lese majeste laws. Moreover, it can lead to civil damages claims which involve civil litigation procedures.

Trial

The Judge presiding over the trial makes all determinations of guilt or innocence, and also determines punishment. Unlike most countries in the world where criminal trials have a jury, Thai trials are conducted without one.

The court in a district where an offence is committed, alleged, or believed to have been committed, or where an accused resides or is arrested, has jurisdiction over the case. In addition, the Central Bankruptcy Court, the Central Intellectual Property and International Trade Court, the Central Taxation Court, and the Central Labor Court are centralized courts with national jurisdiction.

In 2019 the criminal court dismissed a four-year-old lese majeste case against Patnaree Chankit, mother of political activist Sirawith “Ja New” Seritiwat, after finding her one-word reply to a question in a Facebook chat critical of the monarchy was not an offense. Nonetheless, many rights activists continue to face charges related to their demonstrations. Security forces have been reported visiting or surveilling the homes of protest leaders and harassing them in other ways.

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Child Legitimation in Thailand

Child Legitimation is an important process in Thailand that reflects cultural values and legal considerations. It has far-reaching implications for families and society.

In order for a father to gain custody of his child in Thailand, he must first have the child and mother legitimated. This can be done by either a voluntary declaration or a court judgment.

Fathers Have Equal Rights and Responsibilities Over Their Children

In Thailand, fathers have equal rights and responsibilities over their children. This is reflected in the Thai Civil and Commercial Code, Book V: Family, Title II: Parent and Child. However, this does not mean that a father’s name on a child’s birth certificate automatically grants him parental rights.

In order for a father to gain custody, he must complete the process of child legitimation. This is a legal process that involves the mother’s consent and a court’s judgement.

The process is important to the Thai culture as it helps preserve family honor and social standing. It also promotes a strong and cohesive family unit. For foreigners, it can have a significant impact on their immigration status and visa options. For this reason, it is important to have an experienced lawyer assist in the process. They can help you navigate the complexities of child legitimation in Thailand and ensure that your rights are protected. This includes ensuring that your child is registered as your legitimate child at the district office (amphur).

Children Have the Right to Use the Father’s Name

The father of a child in Thailand has the same rights and responsibilities as the mother. However, a father can only exercise these parental powers and custody rights after his filiation with the child is recognised through the process of registration of legitimation or through marriage.

The process of legitimization is a significant legal and social matter in Thailand. It reflects the country’s cultural values and has far-reaching implications for families.

For example, children who have been legally recognised as the father’s are entitled to inherit, use their father’s surname and obtain citizenship or nationality in his father’s country. Children are also bound to be cared for by their parents throughout their minority. This includes providing them with food, shelter and education. Child custody is a complex issue for both married and unmarried couples. It can be disputed over issues such as a separation, divorce or death of the parent. The issue is decided by a judge in court.

Fathers Have Custody Rights

Child legitimation grants legal rights and responsibilities to fathers in Thailand. These include custody, visitation and inheritance rights. It also helps them in visa applications.

If a father wants to have custody of his child in Thailand he must register their legitimacy with the district office with the mother’s consent and upon a court’s judgement. The registrar will notify the mother and child of his application for registration of their legitimacy. She has ninety days to object. She can do so by proving that the child is not his or that she is unsuitable to exercise parental power partly or entirely.

Child legitimation is an important process in Thailand that reflects cultural values, legal considerations and children’s rights. It has far-reaching implications for families and society. The process aims to protect family honor and promote cohesive families. In addition, it carries a social acceptance that is beneficial to children. It will help ensure that children are treated equally in a Thai society where family honor and tradition are highly valued.

Fathers Have the Right to Visit Their Children

In most Western countries, fathers are considered to have equal rights and responsibilities over their children. In Thailand, this is not necessarily the case. According to Section 1546 of the Civil and Commercial Code, if a child is born out of wedlock and the mother is not married to the father, the mother has sole parental powers over the child – regardless of whether or not the father’s name is on the birth certificate.

If a father wishes to gain custody of his child in Thailand, he must first register the child’s legitimation at an amphur with the mother’s consent. However, the mother can oppose the application by stating that she does not agree and that he is unsuitable to exercise partial or full parental authority over the child. In this case, the application for legitimation of the child will need to be petitioned before court for a judgment. This will take a minimum of 60 days or 180 days in case the mother and the child are living abroad.

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Child Support in Thailand

Child Support, also called maintenance is not something that normally gets disputed much during divorce proceedings in Thailand. School fees, food, housing and medicine are generally covered by the payment of child support.

In case of a dispute, the court will take various factors into consideration prior to judgment. The courts will consider relative incomes, expenses and assets of the parties involved.

Legitimation

If a child’s father is not named on the birth certificate or he has not undertaken the full legitimization process, then he does not have any legal rights to that child and cannot demand support. Under Thai law, only the biological father has parental rights to the child.

In a divorce case in Thailand the parties can agree to share physical custody and also to deal with the issue of child support (alimony) within their settlement agreement. They can then register this agreement at a district office as a simple procedure within a consensual administrative divorce case.

This was highlighted in a seminar held at the parliament to promote the importance of expanding the universal child support grant to all children under 6. This will ensure that the most vulnerable children receive basic social protection from the state. UNICEF and other partners emphasized that evidence shows that investment in children in their first six years yields the greatest long-term returns for society.

Divorce

Fathers are required to support their children financially until the child becomes a legal adult. This duty can be established either by agreement between the parents or through a family court ruling. If the mother has a child out of wedlock, Thai law grants her full parental rights unless the father acknowledges his paternity through a process called “legitimation”.

The amount of money a parent must send for their child is usually determined in the divorce settlement. This will be submitted to the district office along with the divorce agreement and will be enforceable once it is registered.

In disputed cases, the court considers relative incomes, expenses and assets to determine an appropriate amount of child support. If a parent’s financial circumstances change, it is possible to petition the court to modify the amount of child support. We often help clients collect and legalize relevant documentation to present in such a case. We can also assist in filing a claim against a noncustodial parent who leaves Thailand and flees back to their home country to avoid paying child support.

Custody

Child support is an important part of Thai family law, aimed at safeguarding children’s financial well-being in the event of separation or divorce. The Child Support Act of 1998 provides a legal framework that promotes fairness and equity by considering relative incomes, expenses, and the standard of living of each party when determining appropriate child support payments.

Unmarried biological fathers in Thailand do not have custodial rights for their children, but can request to legitimize the child in a district office and then ask for child support from the mother. Whether the court will grant such requests is dependent on the child’s best interests and the father’s financial capacity to pay.

The Department of Legal Execution enforces child support orders in Thailand. However, it is not a signatory to international agreements like the Hague Convention and it can be difficult for foreign courts to recognise these judgements. This is why it is very important to have a lawyer on hand who knows how to deal with these matters.

Enforcement

Child maintenance or alimony is an issue that will likely be part of any divorce settlement. It can be negotiated and agreed on or it may be ordered by the Thai courts in the event of a contested divorce. It is important to fully understand and consider the ramifications when contemplating either of these options. A family lawyer in Thailand can assist and advise you with the details of your particular situation.

The courts will take into consideration the relative incomes of the parties, their expenses and assets when deciding on a child support schedule. They will also look at the standard of living that the children are used to and your ability to maintain this level of lifestyle.

The Courts in Thailand are not bound to follow the precedent set by Supreme Court decisions or any other court rulings, however, they will be highly influenced by them. All rulings of the courts are published in the Government Gazette.

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Child Custody in Thailand

Child custody in Thailand is a complex issue. Under Thai law, the mother has sole custody of children. If the father wants to acquire rights, he must legitimize the child according to section 1566 of the CCC.

It is possible for a man who was married to a woman during or shortly after she gave birth to be considered the lawful father and granted parental rights and duties.

Biological parents

In Thailand, a biological father has no legal rights to child custody unless he is legally registered as the father by taking action for “child legitimization”. This is irrespective of whether he is named on the birth certificate.

If a married couple divorces and wants to share custody, the court will normally make an agreement that is binding on both parties and must be registered at the amphur. This does not work if the marriage was a “no fault” or “default” divorce.

When determining a child custody case the Thai courts primarily use their major policy concern of “the best interest of the child”. This is similar to the usual standard used in most western countries. This is done by assessing among other things the parents behaviour including child development issues through social worker reports. However, these judgments are not automatically enforceable in foreign nations which would depend on their domestic laws.

Joint custody

A married couple may agree to share custody of their child or children. The courts will look at the circumstances and the best interests of the child before deciding on a custody arrangement. In some cases, the court will refer the matter to the Observation and Protection Center (OPC) for a social worker’s evaluation of the family situation and report. The Court will usually follow carefully the recommendation of the OPC.

In Thailand, the term ‘custody’ is not synonymous with “parental powers”, as it can be used to denote physical custody only. The person exercising parental powers has the right to determine where a child lives, demand their return from anyone unlawfully detaining them, and manage their property with certain restrictions.

If a father wants to exercise his custody rights, he must first register the legitimation of his child with the local district office, and the mother must consent. This process is called establishing paternity in Thailand.

Sole custody

Custody is the right to physically guard and care for a child. In Thailand, this means deciding where the child lives and ensuring that it receives a standard level of care. This is a responsibility that can be shared between parents, as long as they follow the principles of Thai family law.

In married couples, a divorce court can enter into a written agreement on custody and visitation rights. This can also include provisions for child support. It is important to consult with a legal specialist to understand the law and to ensure that any agreement meets the requirements of Thai law.

In cases of unmarried parents, the mother has sole custody rights. However, the father can exercise his legal rights if he legitimizes his child by filing a legitimation case with the district office. This is a complicated process that involves both the mother and the father. It can be done along with the divorce proceedings or separately.

Visitation rights

A parent with child custody rights can require that a child be returned to them from another person, or that a child stay with them for certain periods of time. The parents can also agree to share joint parental control. Parents are obligated to provide their children with food, shelter, clothing, and education. In addition, they must keep their children informed of their parents’ whereabouts.

The mother usually has sole custody of a child in Thailand, but the father can acquire rights through a legitimation process. This involves marrying the mother during or shortly after the birth of the child.

Custody disputes in Thailand often occur as a result of divorce. However, in some cases, married parents can dispute custody even though they are not divorced. This situation can be complicated when one of the parents is a foreign national and flees back to their home country to avoid paying child support. This is why a foreign national should seek legal advice before leaving the country.

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Filing of Divorce in Thailand

There are times that relationships become irrevocably strained to the point of no return. In such cases, it may be necessary to end the marriage by divorce.

For a divorce by mutual consent, both parties must personally attend at the amphur to file for an administrative divorce registration. This type of divorce is less expensive than a contested divorce.

Marriage Registration

There are two types of dissolution of marriage in Thailand, a contested divorce and an administrative divorce. A contested divorce is typically a court divorce which involves one of the spouses filing a legal complaint with a Thai Family Court in order to bring an end to the marriage based on any ground that would be applicable under the law (link to sections below).

An uncontested divorce on the other hand does not require a definite reason or grounds for terminating a marriage as long as both parties agree to sever their relationship and this agreement is registered with the local register office (amphur or khet). This type of divorce requires the presence of both spouses as well as an interpreter if a foreigner is required to present himself/herself.

If a couple has registered their marriage at any District office then they may also file for an administrative divorce registration at the same office (provided both spouses are in agreement). This procedure will be a quicker option compared to a contested divorce.

Mutual Consent Divorce

If you and your spouse both wish to divorce, this can be done without going through a court case. This is called a mutual consent divorce.

This is a quick and inexpensive option. However, the divorce will not be legally recognized in other jurisdictions including some western embassies. Therefore, we recommend that you always go through the proper contested or uncontested court process.

An contested divorce requires the couple to have a legal ruling regarding the distribution of marital or joint assets and common debts. The court will also make a ruling regarding custody of children and if needed, alimony settlements. A contested divorce usually takes significantly more time, money and physical court appearances than a divorce by mutual consent. It is a good idea for couples seeking divorce to retain a lawyer during this process to ensure they are protected and getting the most out of their agreement. This is especially true when it comes to expats who have children involved.

Contested Divorce

If the parties cannot reach an agreement regarding their divorce or the care of any children, one spouse may file for a contested divorce. This is the legal process of ending a marriage in Thailand and it involves going to court. It is more complicated and costly than the administrative divorce.

The plaintiff must cite one of the grounds for divorce provided under Thai law which include 3 years’ separation, a year of desertion, adultery and failure by a spouse to provide maintenance. The court will then consider the issue and make a decision.

In case of a contested divorce, the court will divide all marital properties between husband and wife according to Thai law which includes real estate, vehicles and other assets acquired during marriage. However, personal property held by a party prior to the marriage remains their sole ownership. For this reason, it is advisable for you to seek professional legal advice to ensure that your rights are protected.

Administrative Divorce

If the married couple agrees to all aspects of a divorce including property division, alimony and custody issues it is possible for them to register an administrative Thailand divorce at their local district office. This process is called a mutual consent divorce and requires that both husband and wife be present for the registration of the divorce. It could be a good idea for the couple to draw up their divorce settlement agreement with the help of their Thai family lawyer before they head to the district office.

It is important to understand that an administrative divorce is not a fully legalized Thailand divorce and the divorce will not be recognized by most countries as valid. A contested divorce is required if one spouse is not happy with the terms agreed to by the couple. One spouse can file a claim for a contested divorce on the basis of lawful grounds such as infidelity, desertion for three years and undue enrichment (Section 1516 of the Civil and Commercial Code). An experienced Thailand divorce lawyer can assist you with this process.

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US-Thai Treaty of Amity

The treaty allows American citizens or companies with majority shareholdings to operate business in Thailand. These companies are granted national treatment and are exempt from many of the restrictions imposed by the Foreign Business Act.

The process of obtaining protection under the US-Thai Treaty of Amity can be lengthy and complicated. GPS Legal has a great deal of experience in handling these applications for its clients.

Trade

The US-Thai Treaty of Amity enables American entities to maintain majority shareholdings or wholly own a company, branch office or representative office in Thailand and receive “national treatment,” which allows them to engage in business on the same basis as Thai businesses and to be exempt from many of the foreign investment restrictions of the Foreign Business Act.

Beyond cuts in tariffs, the agreement aims to increase market access for Thai and American goods by addressing sensitive issues such as excessive paperwork and opaque customs procedures. It would also help reduce barriers to investment in a range of sectors, including automotives and electronics.

For an Amity treaty company to sponsor a non-B visa for an American Citizen, the company must have 4 Thai Employees and at least 2 million in registered capital. GPS Legal has extensive experience in assisting clients to obtain US Amity certification and work permits in Thailand. Contact us today to schedule your initial consultation.

Investment

The US-Thai Treaty of Amity allows American citizens, companies or corporations to maintain complete ownership, or at least a majority of a Thai company. This is a major advantage for those who are looking to establish regional headquarters in Thailand, or even maintain a presence in the country.

In order to qualify for these provisions, a new or existing Thai company limited (Co., Ltd) must be set up, and evidence must be presented that the majority of the shares are held by American citizens or legal entities. The US Embassy will then issue a Foreign Business Certificate.

This removes the company from many of the restrictions on foreign investment in the country under the Foreign Business Act and allows it to operate on the same level as a Thai-owned company. Sunbelt is experienced in performing amity set-ups and can walk you through the process. We work hand-in-hand with the Commercial Department at the US Embassy to ensure all documentation is prepared and submitted properly.

Human Rights

In the 1833 Treaty of Amity and Commerce, signed under the presidency of Andrew Jackson, the United States and the Kingdom of Siam pledged to establish “a perpetual peace.” Unfortunately, the United States cannot overlook Thailand’s recent moves that undermine democracy, human rights, the rule of law, and freedom of expression.

In principle, the Amity treaty allows American citizens and companies to maintain a majority shareholding in Thai businesses and be exempt from most restrictions on foreign investment that would otherwise apply under the Foreign Business Act. However, it takes more time and costs to set up an Amity treaty company than a non-Amity company.

The Amity treaty is also an important tool for promoting cooperation in the areas of maritime security, long-term modernization, and regional economic integration. We urge the Government of Thailand to re-examine the terms of the Amity treaty to ensure it remains a robust tool for advancing our shared interests.

Immigration

The US-Thai Treaty of Amity provides protection to American natural persons and companies that have been certified by the U.S. Commercial Service office at the US Embassy in Bangkok as being owned and managed by Americans. The certificate is issued after the US embassy confirms that the company meets the requirements of the treaty for national treatment under Thai law. Despite this, it would be wise for any prospective American business owner considering registering a company in Thailand under the amity treaty to seek qualified legal advice prior to doing so.

The treaty essentially allows a company with majority American ownership to operate on the same basis as a Thai company, exempting them from many restrictions of foreign investment that are otherwise applied under the Foreign Business Act. However, there are still limitations that apply, such as prohibitions against owning land; engaging in certain businesses such as domestic trade in agricultural products and exploitation of land or other natural resources; and banking involving depository functions.

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Registering a Company Under the Thailand Board of Investment

Registering a company under the Thailand Board of Investment is beneficial for foreign entrepreneurs. It enables them to receive more investment incentives than companies operating within normal industrial estates. This includes exemptions from corporate income tax and reductions of taxes on dividends paid to shareholders.

Non-tax incentives include reduced or no import duties on raw materials and lower costs of electricity, transportation, water supply and infrastructure installation. These perks are granted for varying periods of time.

Requirements

A BOI-promoted company offers a lot of benefits and privileges for foreign business owners. However, it can also be very time-consuming and frustrating. It is important to follow all of the rules and regulations for the process. If you don’t, you could end up having to visit the BOI several times and re-submit your forms.

Besides reserving the company name, foreign promoters should prepare all necessary documents like MOA, application form and list of shareholders, declaration of company office and address, and more. They should use the company stamp when signing all the documents.

After the company is registered, it must submit the documents to the BOI within six months. The BOI officer will then review the documentation and interview the company. Once the company is approved, it will receive a BOI certificate. In addition, the company can benefit from various perks, including exemptions on import duties on machinery and raw materials. This will help it compete with businesses in the international market and grow its business in Asia.

Procedures

If you want to register a company under the BOI, you must meet certain requirements. You must submit your documents and provide proof of funds. In addition, you must pay a prepaid tax of about half of the estimated annual profit. This money will be credited against your company’s future tax liability.

The BOI offers a wide range of benefits and privileges for companies that have been approved. These include 100% foreign ownership, reduced work permit and visa requirements, and other business benefits. In addition, a BOI-promoted company can deduct the cost of raw materials and machinery.

In order to qualify for BOI benefits, your company must be registered in Thailand and meet the requirements for each sector. Additionally, it must be owned by at least three people. Moreover, the shareholders must be natural persons and their details must be disclosed on a public file. The BOI will evaluate your application and notify you of their decision within seven days.

Costs

The registration process for a BOI-promoted company is quite time-consuming and there are several costs associated with the registration. These include legal fees and costs associated with office space, hiring staff, buying machinery, and more. These costs can easily add up to tens of thousands of dollars, which makes the process expensive and time consuming.

The BOI provides tax and non-tax incentives for companies that operate in targeted sectors of the economy. These benefits include up to 13 years of corporate income tax exemption, 100% foreign ownership, and work permit and visa help.

BOI-promoted companies are also exempt from paying import duties on raw materials and equipment. They can also receive deductions on transportation, electricity, and construction costs. In addition, they can hire foreign workers without meeting the four-to-one quota. The company can even own land in Thailand under certain conditions. Moreover, the company can transfer foreign currency abroad. All of these benefits make a BOI-promoted business an attractive investment option for investors.

Taxes

A company registered under the BOI gets a whole host of benefits. It is not only able to enjoy tax exemptions but also enjoys a number of non-tax benefits such as streamlined visa applications for foreign workers and waivers on foreign land ownership restrictions.

A Memorandum of Association must be prepared which should include the company name, address, business objectives, share capital, types of shares (ordinary and preferred), names of promoters (there should be at least 3 promoters) and their contact details. A copy of the MOA must be submitted to the registrar.

The amount of taxes a company pays depends on the type and value of its investment in Thailand. The BOI offers tax exemptions and deductions for foreign investments in certain promoted activities such as factories, electronics, pharmaceuticals, regional financial centres, and more recently digital businesses. Other benefits of being a BOI-promoted business include reduced immigration fees and relaxed rules for hiring skilled foreign employees.