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May 28, 2024

Case Dismissed: The Impact of the Phinai Law on Ongoing Criminal Cases

Under Thai law, namely the Criminal Procedural Code, an injured person may bring a criminal case to a criminal court without having a public prosecutor file the case for him or her. After the court conducts an inquiry into the case, the court considers whether to accept the case for further trial and determine whether the defendant should be penalized accordingly. Private parties involved in certain types of cases, such as labor disputes or shareholder disputes, may find this a common channel to pursue.

Criminal law in Thailand recently underwent a significant change, as new legislation changed numerous criminal offenses to become phinai-fine offenses instead. However, as this is a relatively new development, there are still instances in which plaints involving phinai fines are still being submitted to the court by these private injured persons as criminal cases. But this raises the issue of whether the court can proceed with such cases.

For over a year, Thailand has enforced the Act on Phinai Fine Proceedings B.E. 2565 (2022) (ACFP) as a new legal measure to decriminalize certain types of fines for criminal penalties with less-serious offenses to phinai offenses, which results in phinai-related offenders having to pay only fines instead of facing the entire criminal procedures and penalties under the Thai Penal Code and Criminal Procedure Code, including bail submission, travel restrictions, imprisonment, and a criminal record.

What happens to ongoing trials in court for phinai offenses?

The ACFP automatically changed criminal offenses under 204 pieces of legislation, including certain offenses under the Bankruptcy Act B.E. 2483 (1940), the Determining Offenses Relating to Registered Partnership, Limited Partnership, Limited Company, Association, and Foundation Act B.E. 2499 (1956), the Labor Relations Act B.E. 2518 (1975), the Consumer Protection Act B.E. 2522 (1979), the Public Limited Companies Act B.E. 2535 (1992), and other legislation listed in the ACFP, to be phinai offenses. Once the ACFP took effect, many of these common white-collar criminal offenses were no longer criminal offenses but became phinai offenses. The practical effect of this is that many offenses are no longer considered crimes.

One of the effects of this change is that the ongoing trials for these offenses at the court are changed into phinai proceedings falling under the guidelines provided in the Regulation of the President of the Supreme Court on Trial for Phinai Cases B.E. 2565 (2023).

This regulation includes procedures and guidelines for proceeding with phinai cases that are designed explicitly for phinai offenses, such as in-absentia and asynchronous trials, paper-based hearings, and electronic proceedings. The regulation also provides for the notification of the judgment in writing without requiring the parties to attend a judgment hearing. These procedures and guidelines for phinai cases result in proceedings that are more flexible, more convenient, and faster than proceedings in civil and criminal cases.

In contrast to the Criminal Procedural Code, this regulation has a limited definition of “plaintiff” for the purposes of a phinai case. Specifically, articles 3 and 11 of the regulation provide that the plaintiff must be a “public prosecutor or government official. This narrows the scope of the eligible group of people who can file a phinai complaint with the court. These articles are designed to align with section 23 of the ACFP should the phinai offender refuse to accept the phinai accusation or to pay the phinai fine, in which case the government official must summarize the facts and the supporting documents, providing a legal basis, and send the final report to the public prosecutor to file a complaint with the court unless the legislation stipulates otherwise. This results in the plaintiff in the phinai case being narrowed down to be a public prosecutor or government official, which in effect would reduce the number of cases in which an injured person files a case directly with the court as a bargaining or pressure tool against the offender, such as offenses relating to labor disputes, shareholder disputes, director disputes, and so on.

However, a phinai accuser can still supplicate the allegation or bring its grievance through a government official so that the phinai offender can be fined. A phinai case could also be brought to court through a government official and the public prosecutor’s determination.

What if the plaintiff is not a prosecutor or government official?

The impact of section 23 of the ACFP and articles 3 and 11 of the regulation mentioned above is that if the plaintiff is not a public prosecutor or government official, the court has no other option but to dismiss the case on the grounds that the plaintiff has no authority to file a phinai case against a phinai offender. This will result in the court not accepting the case for trial.

Still, we cannot deny that the ACFP and the regulation are new procedural laws that the courts and most litigators may not have experienced or have in-depth knowledge of. Consequently, it is advised to seek local expert consultants to identify and explain the details or the updates related to the ACFP and the regulation and to analyze the strategy for ongoing phinai cases in court.