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สรุปคำแปลวินิจฉัยของศาลปกครอง
สรุปคำแปลวินิจฉัยของศาลปกครอง

ปรับปรุงเมื่อ 12 ธ.ค. 2562, 09:56น.

The Reviewability of an Expired License Suspension Order

The Reviewability of an Expired License Suspension Order

อ่าน 2   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 7 พ.ย. 2562, 10:03น.

The Prohibition of Misleading Advertising

The Plaintiff, a publisher of a weekly magazine, “Car Today” and “Education Today,” made a statement claiming that the magazines were the bestselling magazine. In “Car Today” magazine, the bestselling claim was based on surveys of magazine sales, but the Plaintiff did not disclose that the surveys were conducted solely in Bangkok metropolitan region, and a period of the surveys was in a small print which it is difficult to read. Most consumers would not read the small print as shown in the magazine. The statement would mislead consumers or the public that “Car Today” magazine had been the No.1 bestselling magazine in Thailand. In “Education Today” magazine, the Plaintiff referred to the survey result of other types of magazines – not an education magazine – to support its bestselling claim, and the statement, “Job Advertisement, Home, and Car Book,” was printed in very small font size. Consumers would be misled that “Education Today” magazine was the No.1 bestselling education magazine. The claim displayed in the Plaintiff’s magazines would materially mislead consumers about goods; as a result, the use of the misleading statement in “Car Today” and “Education Today” magazine violated the Consumer Protection Act B.E. 2522 (1979). The Defendant No.1 lawfully exercised its discretion to issue orders prohibiting the use of misleading advertisement in the Plaintiff’s magazines.

อ่าน 75   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 7 พ.ย. 2562, 10:06น.

Performing of the Official Information Board’s Duties in Considering a Complaint

The Defendant No.1 did not fail to perform its duties as the Plaintiff claimed. It adequately inspected the existence of the information requested by the Plaintiff. It held two meetings in order to inspect the relevant information, requested the Department of the Treasury to provide facts for consideration, and notified the Plaintiff of the result of its consideration. In addition, Section 34 of the Official Information Act, B.E. 2540 (1997) provides that the Defendant No.1 shall have the power to appoint the sub-committee to consider any matter or perform any act assigned by the Defendant No.1. Thus, the sub-committee was lawfully appointed by the Defendant No.1 and had a delegated power to consider the Plaintiff’s complaint.

อ่าน 46   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 3 ก.ย. 2562, 13:12น.

The Determination of the Trade Competition Act Violation

The Defendant No. 4 appointed a specialized subcommittee to consider whether Abbott Laboratories Limited (Abbott) violated the Trade Competition Act, B.E. 2542 (1999) as the Plaintiffs claimed. It considered a specialized subcommittee’s opinion on the allegations and determined that Abbott did not violate the Trade Competition Act by cancelling its application to register an antiretroviral HIV drug, “Aluvia.” The resolution adopted by the Defendant No.4 to determine Abbott’s violation of the Trade Competition Act was a lawful administrative act. Abbott did not violate Section 25 (3) of the Trade Competition Act. Abbott did not import Aluvia for sale in the market because Abbott’s application to Aluvia registration was not approved. As a result, Abbott was not a business operator in the Aluvia market under the Trade Competition Act. Moreover, Abbott’s request to cancel its application to register Aluvia was not in violation to Section 28 of the Trade Competition Act. Abbott had a relation to Abbott (United States of America) through shareholding and policies by following a policy of Abbott (United States of America) to withdraw its application. However, Abbott’s request did not limit the opportunity of the Plaintiffs, including HIV and AIDS patients, to purchase Aluvia directly from business operators outside Thailand. The Government Pharmaceutical Organization was also still able to import or place an order of a drug that had the same formulation of Lopinavir and Ritonir as Aluvia from India for sale in Thailand. Therefore, the Plaintiffs, including HIV and AIDS patients, were able to purchase Kaletra which was identical to Aluvia in Thailand. Finally, the Defendant No.4 by the specialized subcommittee complied with the Administrative Procedure Act, B.E. 2539 (1996) in considering the Plaintiff’s complaint on the violation of the Trade Competition Act.

อ่าน 467   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 5 ส.ค. 2562, 09:57น.

The Court Discretion to Reduce a Penalty Arising from a Breach of Contract

The Defendant No.1 breached a contract for the sale of jammers due to failure to deliver jammers conforming with the contract; as a result, the Plaintiff shall be entitled to a penalty in the amount agreed upon the parties, according to the terms of the agreement. However, the Court found that the amount of the penalty was disproportionately high and it was unreasonable that the Plaintiff delayed in terminating the contract. The Court then decided to reduce the penalty to a reasonable amount, 10% of the contract price, pursuant to Section 383 of the Civil and Commercial Code. In addition, the Defendant No.2 as a guarantor shall not be liable for the penalty exceeding the guaranteed amount.

อ่าน 505   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 5 ส.ค. 2562, 10:00น.

Unlawful Dismissal Due to the Engagement of a Participant in Disciplinary Proceedings

A Committee of Gross Disciplinary Breach Investigation notified and explained the Plaintiff about misconduct allegations that were made against him, and informed him of evidence which the Committee obtained to support the allegations. The Committee also sent an investigation report to the Defendant No.1 and the Chairman of the Defendant No.2. Thus, the Committee conducted the investigation in accordance with the law. However, a qualified member of the Defendant No.2 who made a complaint against the Plaintiff attended a meeting for determination of penalties. The qualified member was deemed to be a participant and was prohibited to engage in an administrative process under the Administrative Procedure Act, B.E. 2539 (1996). As a result, the resolution to remove the Plaintiff from his office was unlawful and the order of dismissal issued by the Defendant No.1 with the approval of the Defendant No.2 became invalid. A decision to deny the Plaintiff’s appeal was also invalid even though the participant was not present in a meeting for a grant of permission to appeal.

อ่าน 362   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 1 ก.ค. 2562, 09:36น.

The Court Discretion to Reduce a Penalty Arising from a Breach of Contract

The Defendant No.1 breached a contract for the sale of jammers due to failure to deliver jammers conforming with the contract; as a result, the Plaintiff shall be entitled to a penalty in the amount agreed upon the parties, according to the terms of the agreement. However, the Court found that the amount of the penalty was disproportionately high and it was unreasonable that the Plaintiff delayed in terminating the contract. The Court then decided to reduce the penalty to a reasonable amount, 10% of the contract price, pursuant to Section 383 of the Civil and Commercial Code. In addition, the Defendant No.2 as a guarantor shall not be liable for the penalty exceeding the guaranteed amount.

อ่าน 706   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 7 มิ.ย. 2562, 12:57น.

Claiming a Refund of Overpaid Port Dues

A fifty-percent discount of the prescribed port dues rate shall apply to a general cargo ship passing the water channel more than six trips in one year, or an oil tanker and other ship passing the water channel more than eight trips in one month, pursuant to the Notice of the Port Authority of Thailand on the Revision of the Dues and Charges Rate. The Plaintiff is not entitled to receive the discount since its ship is not considered as a general cargo ship. The Plaintiff’s ship is a container ship which is categorized as a cargo ship, according to the resolution of the Dues and Service Fees Rate Committee. Moreover, the Notice of the Port Authority of Thailand provides that the Dues and Service Fees Rate Committee has discretion as it sees appropriate to determine a discount rate of port dues for a general cargo ship, an oil tanker or other ship. It does not require the Dues and Service Fees Rate Committee to prescribe a discount rate of port dues for all types of ship. The Dues and Service Fees Rate Committee had not specified a discount rate of port dues for a container ship; as a result, there was no discount applied to the Plaintiff. The Defendant lawfully collected the Plaintiff port dues with no discount applied so the Defendant would not have to refund overpaid port dues to the Plaintiff as claimed. In addition, the resolution of the Dues and Service Fees Rate Committee to deny refunding an overpayment of port dues to the Plaintiff is not an administrative act. The Plaintiff was not aggrieved or injured resulting from an act by an administrative agency.

อ่าน 499   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 4 เม.ย. 2562, 10:17น.

The disciplinary punishment by deduction of salary due to neglect of official duty without reasonable cause

While the civil servant has a duty to attend the meeting but going to submit an envelope and price quotation documents for personal interest, such act is considered as neglect of official duties. And when the submission of the envelope and price inquiry, the civil servant signed other signatures on the registration document issued by the officer as evidence, which is an unlawful act, resulting in cancellation of the Notification of Price Inquiry of Purchasing and the Provincial Court imposed a sentence of imprisonment but suspension of execution of sentence, such act is thus a severe breach of discipline not a minor disciplinary breach which the authorized person may exercise the discretion to refrain the punishment and issue a written parole or admonishment instead according to Section 96 of the Civil Service Act, B.E. 2551 (2008). Additionally, in the case of authorized by the grantor of power of attorney, the grantee has no right to sign other person’s signature but as a grantee only. However, being in the government service for a long time by acting as the Director of the Hospital, the civil servant should have understood the laws and known that the signing of other persons’ signature is unlawful and ignorance of the law is thus no excuse. Therefore, the issuance of disciplinary punishment order deducting salary is an exercise of discretion to a prescription of lenient punishment which is beneficial to such a civil servant.

อ่าน 664   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 6 มี.ค. 2562, 11:22น.

Right to claim for housing rent of government official in case of relocation during the investigation of disciplinary proceedings

Royal Decree Housing Rent of Government Official B.E. 2547 (2004) and Regulation of Ministry of Finance on Criteria and Procedures regarding Withdrawal of Housing Rent of Government Agency, B.E. 2549 (2006) do not provide the specific time period for consideration of housing rent application, the government agency then has the duty to consider the application within reasonable time and by the case–by-case basis. The Plaintiff exercises the right to apply for housing rent due to the Order of relocation to perform official duties, at another place for the interest of fact inquiry during investigation process, resulting in the wrongfully performing official duty and suspicious behaviour to malfeasance made by the Plaintiff. Therefore, government agency has to make the consideration of the competent authority for the approval of housing rent application and the withdrawal from the budget owner. Moreover, the Plaintiff exercised the right to claim for the housing rent almost three years retroactively which could not be considered as a general case. This leading to the inquiry before the approval in order to ensure that the consideration of the housing rent is in a discreet and correct manner. Therefore, the consideration and approval of the housing rent application of the competent authority in the period of 339 days is a reasonable period of time and not a wrongful act according to the Section 420 of the Civil and Commercial Code.

อ่าน 534   |  ดูรายละเอียดบทความ

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