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สรุปคำแปลวินิจฉัยของศาลปกครอง
สรุปคำแปลวินิจฉัยของศาลปกครอง

ปรับปรุงเมื่อ 13 ก.ย. 2564, 09:18น.

Unlawful Order to Assist Other Department in the Performance of Functions

A plan and policy analyst position was held to a higher performance standard than a government service officer position. The job description of the plan and policy analyst and the government service officer position were distinctly different in terms of knowledge and capabilities. The Mayor ordered a municipal officer, a policy and plan analyst, to assist other department in the performance of administration tasks without a specific job description or available position. The Mayor’s order resulted in decreasing roles and responsibilities of the municipal officer and lacking opportunities to increase knowledge, capabilities and experience required for promotion to a higher-level position. The Plaintiff still held the plan and policy analysis position and received the same amount of salary, and was not deprived of either rights and benefits, or a status of a municipality officer; however, the Plaintiff who was ordered to assist other department in the performance of functions was inevitably aggrieved or injured. Thus, the Plaintiff was entitled to file a case with the Court, according to Section 42 paragraph one of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999). Although the Mayor shall have power to manage personnel in the Municipality so as to successfully provide public services, he must have justification to issue the order and shall comply with the prescribed laws, regulations and rules. If the Mayor did so, his discretion would be lawfully exercised. The job description and duties and responsibilities of the plan and policy analyst (Level 4) and the government service officer position were clearly different. In addition, there was no fact presented that any effect or injury would occur if the order was not issued. Accordingly, the Mayor’s issuance of the order was the unlawful exercise of discretion

อ่าน 67   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 23 ส.ค. 2564, 14:45น.

Unlawful Order of Deportation

The Plaintiff was an alien who was permitted to take up residency in Thailand. He was sentenced with criminal penalties – 3-year imprisonment and 7,000 Thai Baht fine – by the judgment of the Phuket Provincial Court; but the sentence was deferred. The Plaintiff would not be excluded from entering Thailand under Section 12 paragraph one (6) of the Immigration Act, B.E. 2522 (1979) since he had not been imprisoned by the judgment of the Thai Court. Moreover, the Plaintiff remained residing in Thailand and did not commit a crime or had behavior as specified in Section 12 of the Immigration Act, during the period of deferred sentence. He then would not likely be danger to the society or cause disruption jeopardizing public peace or safety of the public or security of the Kingdom. Thus, the Plaintiff was not prohibited from entering the Kingdom pursuant to Section 12 paragraph one (7) of the same Act. The Supreme Administrative Court affirmed the decision of the Administrative Court of First Instance to revoke the deportation order issued by the official of the Defendant No.1 and the decision on an appeal to dismiss an appeal issued by the Defendant No.2 in effect on the issuance date of the order and the decision.

อ่าน 153   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 9 ก.ค. 2564, 13:06น.

Unlawful Order to Not Score an Examination

The Plaintiff’s mobile phone inside his bag, which was placed outside an examination room, continuously rang about 10 times while he was taking an examination for entry to the Doctor of Medicine program. As a result, the Defendant No.2 did not score the Plaintiff’s test paper providing that he violated the Rule of the Consortium of Thai Medical Schools on Examination which requires an examinee to turn off his or her mobile phone or other communication devices. The Administrative Court held that the Plaintiff complied with the Rule. He powered off his mobile phone but the sound ringing from his mobile phone was an alarm which he set to study. The Plaintiff could not use the mobile phone while he was taking the exam since the mobile phone was 20 - 25 meters away from the examination room. Although, the Rule provides that if it is found that there is a sound or a communication signal, or there is incompliance with the Rule, it is deemed that there is an intention to cheat an examination and the exam will not be scored, it was not an absolute presumption which could not be proved otherwise. The Defendant No.2 exercised its discretion inconsistent with the legal purpose and exercised its power without considering facts along with other circumstances. The order not to score the examination was unlawfully issued by the Defendant No.2. The Supreme Administrative Court affirmed the decision of the Administrative Court of First Instance to revoke the order of the Defendant No.2 not to score the examination for entry to the Doctor of Medicine program in the year of 2011.

อ่าน 661   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 8 มิ.ย. 2564, 15:30น.

Requiring The Compensation for The Damage Arising from The Police’s Performance of Duties

The action of the State Official in exercising the power under the Criminal Procedure Code or other laws, which prescribes the rules and procedure for punishing the person committing an offence, was a proceeding in accordance with the criminal justice process. It was not the exercise of administrative power which fell under the competence of the Administrative Courts. According to Section 11 paragraph one of Liability for Wrongful Acts of Officials Act, B.E. 2539 (1996), when the Plaintiff was aggrieved or injured in consequence of using the arrest warrant to the wrong person by the Inquiry Official, the Plaintiff had the right to file the application with the State agency to consider the payment of compensation for such damage. In the case where the State agency refused the payment thereof, the Plaintiff had to file the case with the Court of Justice, the Court that had the competence to try and adjudicate this case.

อ่าน 424   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 11 พ.ค. 2564, 15:10น.

Unlawful Permit for the Construction of a LPG Service Station

The Defendant unlawfully granted a permit for the construction of a LPG service station to the Interpleader. The LPG service station was set back less than 50 meters from another fuel selling station opposite to the LPG service station. It was inconsistent with Clause 15 (1) of the Ministerial Regulation, No.4, stipulated under the Announcement of the National Executive Council, No. 28, which provides that an area of one service station shall be separated at least 50 meters from other service stations and other fuel oil selling stations located on the side of the same road or highway. Thus, the order for granting a permit of the LPG service station construction issued by the Defendant was unlawful. The Supreme Administrative Court affirmed the decision of the Administrative Court of First Instance to revoke the order and ordered the revocation of the order to be in effect retrospectively on the day the order was issued.

อ่าน 668   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 23 เม.ย. 2564, 08:10น.

The Wrongful Act of an Agency because of Its Negligence

According to Clause 8 (2) of the Announcement of the Ministry of University Affairs regarding the Division of Administrative Agencies in Mahidol University, B.E. 2540 (1997), the Defendant, Mahidol University, was an administrative agency, and Siriraj Hospital was affiliated with the university. Pursuant to Section 4 of the Official Information Act, B.E. 2540 (1997), medical records were considered as official information in the form of personal information of patients. The hospital had a responsibility for providing the medical records to patients upon their request under Section 58 of the Constitution of the Kingdom of Thailand, B.E. 2540 (1997), and Section 25 of the Official Information Act. In this case, the Supreme Administrative Court held that the hospital neglected its duties because it neither followed nor recovered such documents even though it noticed the loss of the records. It was considered that the hospital violated the Plaintiff's right to receive information. Therefore, the hospital conducted the wrongful act to the Plaintiff, and the Defendant was bound to make compensation pursuant to Section 5 of the Liability for Wrongful Acts of Officials Act, B.E. 2539 (1996).

อ่าน 425   |  ดูรายละเอียดบทความ
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 502   |  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 989   |  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 668   |  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 908   |  ดูรายละเอียดบทความ

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