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สรุปคำแปลวินิจฉัยของศาลปกครอง
สรุปคำแปลวินิจฉัยของศาลปกครอง

ปรับปรุงเมื่อ 8 มี.ค. 2564, 09:15น.

The Dispute relating to the Grievance or Injury arising from the Replied Consultation Letter

When the official replied the consultation in writing, it was merely giving an opinion as it was consulted. There were not any requirements for the inquiry official to comply therewith. The inquiry official had the discretion to take or not take the result of the consultation for supplementing his consideration so as to issue an order or take any actions. The reply in writing for the mentioned consultation was a general performance of duties, not being the exercise of powers under the law by the official which affected the status of rights or duties of the person. Hence, the replied consultation letter was not an administrative order and was further not the performance of duties for carrying out administrative acts. Therefore, the dispute relating to the grievance or injury arising from the replied consultation letter concerning the provisions of the Sangha Act B.E. 2505 (1962) or the regulations relating to the Sangha’s duties performance was not the case involving a dispute in relation to a wrongful act of an administrative agency or a State official arising from the exercise of power under the law or from a by-law, an administrative order or any other order. This case did not fall within the competences of the Administrative Courts to try and adjudicate.

อ่าน 1   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 8 ก.พ. 2564, 15:16น.

Condition of Degree Recognition Inconsistent with the Law

The Plaintiff No.1 applied for a license for professional practice (associate engineer) to the Defendant but it requested the Plaintiff No.1 to take an examination of specific required courses for obtaining the license. The Supreme Administrative Court held that the requirement provided in the Council of Engineers Regulation on Recognition of Degree, Diploma, or Certificate for Regulated Engineering Professional Practice, B.E. 2543 (2000) was not applied to the Plaintiff No.1 since he enrolled in a program prior to the academic year of 2001. However, the Plaintiff No.1 was subject to the Announcement of the Council of Engineers No. 4/2554 on Application for a License for Professional Practice (Associate Engineer). He graduated in Bachelor of Engineering (Civil Engineering) from A University by earning more credits as required by the Announcement; he thus did not have to pass either an examination of specific engineering courses or basic engineering and specific engineering courses. Additionally, the Defendant recognized the Engineering program of A University by the condition that an applicant for the license who graduated from A University has to take an examination of engineering for obtaining the license without any exception. The condition did comply with the Council of Engineers Regulation on Issuance of a License for Professional Practice (Associate Engineer) and the Announcement of the Council of Engineers No. 4/2554 so the rules were not enforceable. Therefore, the Defendant’s order requesting the Plaintiff No.1 to take the examination for acquiring the license was unlawful pursuant to Section 9 paragraph one (1) of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999).

อ่าน 62   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 14 ม.ค. 2564, 10:35น.

Unreasonable Delay in Consideration of a Complaint

The Plaintiff concluded an agreement selling a parcel of land including building with Miss P. who was authorized to trade in real estate and execute land allocation. Miss P. did not transfer ownership of the land and building to the Plaintiff after receiving a payment under the agreement. The Plaintiff then filed a complaint with the Defendant asking it to assist her in acquiring the ownership of land and building. She argued that the Defendant considered the complaint with delay so she filed a case with the Administrative Court of First Instance. The Supreme Administrative Court held that the official of the Defendant performed his/her duty as required by the law with unreasonable delay, under Section 9 paragraph one (2) of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999). However, damages shall not be awarded since a wrongful act committed by the official of the Defendant was not directly caused by the official of Defendant's performance of official duties with unreasonably delay. As a result, the Supreme Administrative Court reversed the Judgment of the Administrative Court of First Instance which ordered the Defendant to reimburse damages to the Plaintiff.

อ่าน 118   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 7 ม.ค. 2564, 16:03น.

Registering the Change of the Company’s Director Based upon Incorrect Facts

The Plaintiff signed a request of the registration of the change of an authorized director of P Company without consent because he did not know the detail of the document. The Defendant No.1 failed to remove his name from the registration of P Company as the Plaintiff requested. The Plaintiff then appealed against the decision of the Defendant No.1 to the Defendant No.2 but he affirmed the decision; thus, he filed a case with the Administrative Court of First Instance. The Supreme Administrative Court held that there was no clear and sufficient evidence showing that an extraordinary general meeting was held. Although the signature of the Plaintiff written on the request was legally binding, the meeting was not held; so it was impossible that a resolution to change an authorized director of P Company was approved. The fact which was a requirement of the legality of the registration did not occur so the registration of the change of an authorized director was invalid. The Supreme Administrative Court affirmed the judgment of the Administrative Court of First Instance to revoke the orders of the Defendant No.1 and Defendant No.2 and cancel the registration of changing the company’s director.

อ่าน 136   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 4 ธ.ค. 2563, 11:02น.

The Issuance of the Administrative Order without Authority is the Issue of Law Concerning Public Order

In the case that an official of a government agency caused damage to another government agency, the Head of the department that has suffered damage and the Head of the department that the official who committed a tort is affiliated with, have the power to jointly consider the appointment of the Committee for Investigation of tort liability and joint decision-making procedure to make a decision on the matter and offer opinions, whether they agree or not, to the Ministry of Finance under Clause 10 of the Regulation of the Office of the Prime Minister on Rules and Practices Regarding Tortious Liability of Officials, B.E. 2539 (1996). When the Subdistrict Administration Organization, which suffered damages, has solely made an order appointing the Committee to investigate the tort liability, signed and submitted report to the Ministry of Finance and also issued the administrative order to the officer who committed the tortious act to pay compensation without letting the Head of the department of the official who committed a tort cosigns the order. Thus, it is considered as the case where an administrative order issued without authority. This case involved an issue of law concerning public order, which the Supreme Administrative Court may invoke such issue and deliver a judgment or an order accordingly. The administrative order, in this case is unlawful.

อ่าน 147   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 4 พ.ย. 2563, 09:51น.

Requesting the Construction Suspension and Submitting the Environmental Impact Assessment Report

Pursuant to the Notification of the Ministry of Natural Resources and Environment on Projects, Undertakings, or Operations Required to Provide an Environmental Impact Assessment Report and Rules, Procedure, and Conditions in Providing an Environmental Impact Assessment Report, dated 16th June B.E. 2552, any building which was located by a riverside has to submit the Environmental Impact Assessment (EIA) report. In addition, riverside in this Notification only means the ground along either side of a river not including areas near a river. In this case, a fresh market and OTOP shopping center was not located by the riverside. Therefore, the project was not subjected to submit the EIA report. The Supreme Administrative Court affirmed the decision of the Administrative Court of First Instance holding that the Defendants did not have to submit such report and they did not neglect their duties.

อ่าน 231   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 8 ต.ค. 2563, 09:01น.

Registering the Change of the Company’s Director Based upon Incorrect Facts

The Plaintiff signed a request of the registration of the change of an authorized director of P Company without consent because he did not know the detail of the document. The Defendant No.1 failed to remove his name from the registration of P Company as the Plaintiff requested. The Plaintiff then appealed against the decision of the Defendant No.1 to the Defendant No.2 but he affirmed the decision; thus, he filed a case with the Administrative Court of First Instance. The Supreme Administrative Court held that there was no clear and sufficient evidence showing that an extraordinary general meeting was held. Although the signature of the Plaintiff written on the request was legally binding, the meeting was not held; so it was impossible that a resolution to change an authorized director of P Company was approved. The fact which was a requirement of the legality of the registration did not occur so the registration of the change of an authorized director was invalid. The Supreme Administrative Court affirmed the judgment of the Administrative Court of First Instance to revoke the orders of the Defendant No.1 and Defendant No.2 and cancel the registration of changing the company’s director.

อ่าน 314   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 10 ก.ย. 2563, 09:00น.

Conflict of Interest in the Security Guard Employment Contract

In the case where the Plaintiff who held the position of the Chief Executive of the Subdistrict Administrative Organization approved to employ his son to be a security guard of such Subdistrict Administrative Organization by using the state budget, it could be seen that the Plaintiff’s son would take some amount of his monthly wages to maintain his parent as the duties required by the law pursuant to Section 1563 of the Civil and Commercial Code. Although the employment procurement was lawful, such the Plaintiff’s approval was carried out for personal interest rather than public interest. Thus, it was considered that the Plaintiff had an indirect interest in a contract with such Subdistrict Administrative Organization which was prohibited by Section 64/2 paragraph one (3) of Subdistrict Council and Subdistrict Administrative Organization Act, B.E. 2537 (1994) and the amendment. As well, Defendant No.1 was empowered to inquire and render a decision to vacate the Plaintiff from his position pursuant to Section 64/2 of the said Act. The decision of Defendant No.1 vacating the Plaintiff from his previous position was deemed a reasonable and lawful discretion.

อ่าน 370   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 6 ส.ค. 2563, 13:22น.

Abuse of Discretion to Grant Permission for the Use of Land in a Land Reform Area

The Plaintiff No.1 was informed by a village headman that the Defendants No.2 to No.6 falsely provided information to the Office of Provincial Agricultural Land Reform, Nakorn Sri Thammarat, and the Defendant No.1 took the information into consideration and granted the Defendants No.2 to No.6 permission for the use of five parcels of land which the Plaintiffs No.1 to No.3 possessed. The Plaintiffs could not acquire the disputed lands so they filed a case with the Administrative Court of the First Instance. According to the judgment of the Supreme Court of Justice which had the cause of action related to this case, the evidence of the Plaintiff No.1 was more reliable than the evidence of the Defendants No.2 to No.6. It could be concluded that the Defendants No.2 to No.6 did not use the disputed lands so they were not entitled to acquire the lands. Thus, the Supreme Administrative Court determined that the Defendants No.2 to No.6 were not a farmer who possessed a state land and operated agriculture in a land reform area so they were not entitled to use the disputed lands. As a result, the resolution of the Defendant No.1 granting permission for the use of land to the Defendants No.2 to No.6 was invalid. The Defendant No.1 abused its discretion by unlawfully issuing the order without adequate reason. The Supreme Administrative Court affirmed the judgment of the Administrative Court of First Instance to revoke the resolution of the Defendant No.1 in effect of the date of issuance and dismiss the plaint filed against the Defendants No.2 to No.6.

อ่าน 491   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 9 ก.ค. 2563, 10:53น.

Liability without fault of Administrative Agency in Water Management Practice

The accelerated drainage and water diversion practices for the propose of damage control by the Royal Irrigation Department are the water management practices within the scope and in accordance with the purpose of the Royal Irrigation Act B.E. 2485 which is the prevention of disaster whereas the public interests must be considered. The water management is proceeding in accordance with the powers and duties stipulated by law. Where there is no unlawful act, there can be no conviction for torts from injuring the individual. However, if the said act caused damage to the rights of any person, the administrative agency is liable to compensate for damage. The purpose is to protect the rights of individuals who are especially burdened by the government's other liability actions. However, the compensation, in this case, is not compensation of torts which the purpose of compensatory damages in tort law is to place a plaintiff as far as possible in the position in which they would have been or had the wrong not occurred. In this case, it is compensation for damages that are more than usual caused by the actions of administrative agencies. When the damage partly caused by heavy rainfall that is a natural disaster and another part was caused by accelerated drainage from the dam, therefore, the causes of flooding in the injured persons’ property were a result of both nature and administrative agency factors. The administrative agency must compensate only for damages that caused by water management without claiming that the damages were caused by natural disaster and exercised its authority in a manner that is consistent with the law so, it shall not be liable for any damage.

อ่าน 533   |  ดูรายละเอียดบทความ

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