Law for Development Graduate Journal

Legel Problem Concerning Juristic Persons and Liability of Registered Ordinary Partnerships

arunee suebroek — 2024-09-30

The purpose of this independent study is to study the status of juristic person and liability of partners. Once the ordinary partnership is registered, the partnership and its partners will be assigned of rights and duties by the law. However, the question is that, is the effect of the rights and duty assignment by the sufficient to protect or to serve as a risk-reducing tool for business owners. Therefore, I made a comparative study with the partnership law of United Kingdom, which could be considered a modern country with economic prosperity, to make an analysis for solution and appropriate revision for the law in Thailand. Regarding the study, the main point of the status of juristic person of ordinary partnership and the liability of the juristic ordinary partnership is the separation between the partnership and the juristic ordinary partnership. Still, the status of juristic person for an ordinary partnership and the partners could not be separated entirely since all the partners have the rights to manage the partnership and there is a collective consequence. Also, all the partners still have unlimited liabilities. This also shows that the partnership will have more obligations once registered but does not receive any benefit of being registered fully or equally with other registered business entities that have statuses of juristic person. According to the reasons above, I consider that there should be revisions on the status of a juristic person for ordinary partnership and a limit of liability of an ordinary partnership. I have 2 suggestions as follows; the first one is the registration for the ordinary partnership should be cancelled. Normally, the forming of the ordinary partnership does not require registration by the law. The law only allows the registration for ordinary partnership if preferred according to section 1064 1^st paragraph. Once the registration happens, the ordinary partnership will become a juristic person. However, the law does not provide the limit of liability after becoming the juristic person despite the partnership with juristic status and the partners. However, when I looked at the liability, the partners still have unlimited liabilities after the registration of the ordinary partnership. As a result, the liability of the juristic ordinary partnership requires the liability provisions of ordinary partnership as a mutatis mutandis provisions. As a result, the registration of the ordinary partnership to transform it into the juristic ordinary partnership should be cancelled. My 2^nd suggestion is that, regarding the liability, I suggested that Thailand should use the partnership law, Limited Liability Partnerships, of United Kingdom, as a model for improving the partnership law in Thailand. Based on the study, I saw the benefit and strength of Limited Liability Partnerships, which is called “First Fundamental Innovation in this Respect in this Century”. The main strength that distinguishes this ordinary partnership from other partnerships is (1) this ordinary partnership has its own characteristics as it allows the partners to enter the contract by themselves, using their own names, and (2) the limit of liability, a partner has limited liability, based on their capitals. In conclusion, I learnt about the benefit and the importance of such concept. I also wish to see the change in ordinary partnership law in Thailand to be more up-to-date and beneficial to the country. The law should be improved to be similar to other countries and to promote the investment while reducing the risks that the business owners must face. This will ultimately benefit Thailand as a whole.

Challenges in Legal Enforcement and Civil Liability in Regulating Air Pollution Under New Vehicle Emission Standards

Nutthaphon Sangsiri — 2024-09-30

As of 2021, Thailand grapples with a pressing issue of air pollution that poses significant threats to public health, with one of the major contributors being the burgeoning automotive industry. This independent study delves into the causes, control mechanisms, and management strategies aimed at addressing the root causes of air pollution, with a specific focus on the legal aspects. Drawing inspiration from the exemplary Clean Air Act of the United States, renowned for its effectiveness in managing air pollution, this study seeks to provide insights that could inform the development of Thailand’s draft of a clean air act.

While Thailand has several environmental laws in place, the primary legislation in effect is the Enhancement and Conservation of National Environmental Quality Act B.E. 2535. However, this law, though comprehensive, lacks specificity when it comes to addressing the root cause of air pollution, particularly in the context of vehicle manufacturing. Therefore, it becomes imperative to institute precise measures that not only align with successful air pollution management models from other countries but also harmonize various standards and regulations into a unified system.

In pursuit of a more robust and effective approach, this study proposes the integration of legal and non-legal measures. This multifaceted strategy aims to foster a more sustainable transportation system while curbing air pollution emanating from vehicles. By adopting lessons from established clean air laws and combining them with innovative management strategies, Thailand can take significant strides toward mitigating the adverse effects of air pollution, thus safeguarding the health and well-being of its citizens.

Data Breach Notification Measures under the Personal Data Protection Laws

Sutthiphong Phothaworn. — 2024-09-30

This article aims to study issues related to the notification of personal data breaches under the Personal Data Protection Act B.E. 2562, with a particular focus on determining when it can be considered that the data controller has become aware of the breach. The author conducted a study of the Personal Data Protection Act of Thailand alongside the General Data Protection Regulation (GDPR) of the European Union. This study includes an examination of the notification guidelines provided by the European Data Protection Board (EDPB), as well as the guidelines for interpretation by personal data protection supervisory authorities of the European Union regarding the determination of the timeframe for considering when the data controller becomes aware of a personal data breach.

The purpose of this study is to analyze and advocate for the establishment of clear guidelines regarding the timeframe for data controllers to become aware of personal data breaches, enabling them to notify such breaches within the legally specified timeframe. Furthermore, it also aims to protect the rights of data subjects by ensuring they receive appropriate and accurate notifications of personal data breaches in accordance with the law.

Legal Problems on Outdoor Advertising Billboard Tax Collection

Phichayada Srisubcharoen — 2024-09-30

The article aims to research the legal measures on outdoor advertising billboard tax collection in Thailand, problems, impacts, and legal measures on the outdoor advertising billboard tax collection of some foreign countries, namely France, Japan, and the United States of America by comparing the legal measures of these countries with the legal measures of Thailand and using them as models for improving Thai legal measures more effective.

Based on the study, there are some problems on the Section 6 and Section 7 of Signboard Tax Act B.E. 2510 with unclear scopes and uncorresponding way with principle of tax collection. Therefore, the uncertainty of tax assessment and the legal loopholes occur which being used as the tax avoidance for the taxpayers to pay less or enjoy tax exemption. Furthermore, the tax rates of each type of outdoor advertising billboard are considerably different from another, causing the unfairness or even disputes between the tax officials and taxpayers. These make the outdoor advertising billboard tax collection not as effective as it should be and thus impact the volume of revenue of the local administrative organization. The insufficient revenue caused the local administrative organization to be unable to fully develop its administrative area and provide the public services to the people.

For this reason therefore, these should to revised Section 6 and Section 7 of Signboard Tax ACT B.E. 2510. Regarding the provisions, the “outdoor advertising billboards” should have a clearer definition. Also, there should be additional provisions on the type of outdoor advertising billboard taxes and the tax rates in outdoor advertising billboard tax collection. Such improvement might be able to handle the current problematic situation and to prevent the problems in the first place. Besides, to assist the private sector or business owners in paying the outdoor advertising billboards tax correctly and preventing tax avoidance, the effective outdoor advertising billboard tax collection does could financially support the public sectors or local administrative organization. If the provisions still remain unclear, there would be more tax avoidance. Lastly, it is worth noting that the revision will create the better effectiveness and fairness in tax collection to all taxpayers as well.

Relationship between the Exercise of Administrative Power and the Liability under the Principle of Legality Control Conducted by Administrative Authority: The Consideration on Overlapping Redundancy between Disciplinary Liability and Criminal Liability

Atiyaphorn Chaiyarit — 2024-09-30

The objectives of this article are aimed to expound the relationship between the exercise of administrative power and the liability under the principle of legality control conducted by administrative authority and to present the consideration on overlapping redundancy between disciplinary liability and criminal liability. The study revealed that the exercise of administrative power of the administrative authority can be classified into four categories: Regulation, administrative order, administrative contract and other conducts. Importantly, if the administrative authority unlawfully exercises administrative power, its later results in the liability of the administrative authority. When considered in the principle of legality control of both internal and external organizations of the administrative authority, it is found that the administrative authority may inevitably be in liability if the administrative power is illegally exercised. Its liability consists of four types: civil liability, criminal liability, disciplinary liability and administrative liability. However, these multiple liabilities may create redundant problems and the argumentative discussion over the liability of the administrative authority. This issue will become a major challenge for lawyers in laying down the principles that lead to a conclusive resolution as well as to create the norm for the consideration process that will create justice for all relevant parties in the future.

Law for Development Graduate Journal ส่วนท้าย

Law for Development Graduate Journal — 2024-09-30

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Law for Development Graduate Journal — 2024-09-30