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สรุปคำแปลวินิจฉัยของศาลปกครอง
สรุปคำแปลวินิจฉัยของศาลปกครอง

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 97   |  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 190   |  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 95   |  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 410   |  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 252   |  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 364   |  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 277   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 8 ก.พ. 2562, 09:15น.

Legal Status of an Order of the Royal Thai Police Issued under Immigration Act

Order of the Royal Thai Police on Rules and Conditions for the Determination of Requests for Temporary Stay in the Kingdom, dated 8th September B.E. 2549 (2006) was applied only to the performance of duty of police officers; it did not have general application. The said Order of the Royal Thai Police was thus an internal administrative measure, not a rule. Clause 7 (7.24) of the Order of the Royal Thai Police, dated 8th September B.E. 2549 (2006) stipulated that a request for temporary stay in the case of receiving medical treatment, attending rehabilitation, or taking care of a patient shall be accompanied by a letter of confirmation and request for a temporary stay issued by a physician of the hospital providing said medical treatment. An opinion from doctor was crucial in order for the competent official to determine whether the illness was an impediment to travel. Moreover, the Order of the Royal Thai Police, dated 8th September B.E. 2549 (2006) was issued under Section 35 of Immigration Act, B.E. 2522 (1979), of which the purpose was to maintain national security and public order. To this end, rules and conditions in granting permission for temporary stay must be stringent. It was thus justified to demand that a letter of confirmation and request for temporary stay needed to be issued by physicians working in hospitals, not in clinics, so as to ensure the accuracy and truthfulness of the letter. Consequently, Order of the Royal Thai Police on Rules and Conditions for the Determination of Requests for Temporary Stay in the Kingdom, dated 8th September B.E. 2549 (2006) was lawful.

อ่าน 324   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 7 ม.ค. 2562, 09:19น.

The Inconsistency of Prices in the Quotation of Successful Bidder

When a quotation specified the price in numbers inconsistently with the price in words, and an estimated cost indicated in attached documents was equal to the quoted price in numbers, it was deemed that the prices in numbers and in words were at variance pursuant to Clause 4.2 of the Price Inquiry Document, dated 19th January B.E. 2553 (2010). The Price Inquiry Envelope-Opening Committee had the discretion to consider such quotation by taking the price written in words as the price that the bidder intended to quote. The difference between the prices written in numbers and in words did not cause any advantage or disadvantage to other bidders, since the words will prevail over the numbers. Moreover, the documents indicating the construction cost estimate were only attachments to the quotation; the bidder was not obliged to quote the price according to the cost estimate. Therefore, it was lawful for the Price Inquiry Envelope-Opening Committee to consider the above-mentioned quotation and choose the bidder who submitted that quotation as the successful bidder.

อ่าน 322   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 6 ธ.ค. 2561, 15:00น.

The above general standard for the acceptance inspection should have been stipulated as a specific condition in the contract

When the administrative party required the seller to test the efficiency of the wheel loader at the actual construction site and to dispatch experts to advise and participate in the testing, it is considered that such inspection of the wheel loader is above the general standard for the inspection and acceptance whereby the general functions are tested upon delivery. If the administrative party wishes to do so, it should have stipulated such specific condition in the contract. Since the requirement is not a condition in the contract, the non-compliance may not be claimed against the seller as a termination cause. Therefore, the notice to terminate the contract is unlawful. Nevertheless, when the seller repossessed the wheel loader and the administrative party did not maintain it for use, the parties shall restore the other to the former condition under Section 391 of the Civil and Commercial Code. As a result, the seller may not be required to comply with the contract by demanding for the payment for the wheel loader whereas the seller suffers from the damage, damages shall be stipulated.

อ่าน 415   |  ดูรายละเอียดบทความ

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