Business entities registered in Thailand such as Registered Partnership, Limited Partnership, Limited Company, Association, and Foundation have independently specified the rights and obligations of investors and managing persons. Most of the general rights and duties are to operate a business in compliance with its objectives, gain dividends when it reaches a goal of benefits, conduct an annual or an extraordinary meeting to resolve and enhance target affairs, and so on.
On the other hand, misconduct of such persons could commit a criminal offense as well which is punishable by the Civil and Commercial Code of Thailand under the Act Determining Offenses Relating to Registered Partnership, Limited Partnership, Limited Company, Association, and Foundation B.E. 2499 (the “Act”)
In addition to the Civil and Commercial Code enacting the civil liability of a partnership, a shareholder, and a director, the above mentioned Act was established to let business entities and their owners strictly comply with the Thai Law. Thai Company Limited and other types of Business Entities in Thailand are governed by this law.If that person who, being responsible for the operation or affairs of the Thai Business Entity commits or gives consent in;
Due to the large number of cases related to legal persons committing offences against the law, the Thai government through the National Legislative Assembly passed a new Act on the Amendment to Legal Provisions Related to Criminal Liability of Representatives of Legal Entities B.E. 2560 (2017) (the “Act”). The Act effectively repealed the strict-liability-presumption clause existing in 76 separate laws and replaced them with a revised concept of non-presumption, which is:
The director, manager, or person responsible for the business operations will be liable for the same offense committed by the company if the offense results from the instructions or actions of the director, or the director, manager, or the person responsible for the business operations has a duty to give instructions or take action but omits to do so, which results in such legal entity committing an offense.
The 76 affected acts include, for example, the Revenue Code, the Act Prescribing Offenses Relating to Private and Public Companies, the Consumer Protection Act, the Telecommunications Act, and the Anti-Money Laundering Act.
With the passage of this new Act, if you are a director, you will no longer be subject to the strict liability presumption, meaning that you will no longer bear the burden of proof to show that you did not conspire, nor were you involved, in the offense committed by your company (guilty by presumption). Instead, the burden of proof is shifted to the public prosecutor, or the complainant, who must prove that you instructed, acted or omitted to act, in a manner that resulted in your company’s offense (guilty by action or omission).
One consequence of this change is that directors who have management responsibilities (and thus have “a duty to give instructions or take action”) are most likely to be exposed to criminal offenses under these 76 laws.
The said person can be charged under the Thai Law and in reference to this Act. Particularly refers to a Thai private limited company which is the most interesting structure of business in Thailand, being managed by a director or directors.
In case the director(s) acts against the law on behalf of such a company, they shall be charged individually with a criminal offense under the said Act. In the light of this matter, if another director of the company who is acting in good faith might be suspected the said director will be charged as well.
With our expertise in resolving these kinds of cases, we can definitely advise you on the next step you need to take or pursue with regard to the case you would like us to assist or advise you. We frequently assist our clients from setting up the Thai Company or Thai Business Entity, to the management of the business in accordance with the Thai laws.
Additionally, any disputes arising between investors, shareholders, or directors are rather delicate since they were partners in a business. In case it has huge investment and its dissolution may ruin the essential profits incurred which will be earned in the future, it would be better to discuss the issue through mediation and settlement with the interpersonal subtleties.
Nevertheless, if a case materially becomes adverse, we would proceed or defend with matters or facts, evidence, and laws available to us and ensure that a beneficial and substantial result will be met.
