Copyright by Bhumindr BUTR-INDR*
“Juris effectus in executione consistit”: ประสิทธิภาพของกฎหมายขึ้นอยู่กับการบังคับใช้ให้ปฎิบัติตาม
สุภาษิตกฎหมายโรมัน
บทคัดย่อ
บทความนี้ผู้เขียนได้พยายามวิเคราะห์เชิงสถาบันทางกฎหมายในสองมิติสัมพันธ์กัน กล่าวคือ ๑) มิติด้านสถาบันตุลาการ และ ๒) มิติด้านสถาบันผู้ประกอบวิชาชีพทนายความ เพื่อชี้ให้เห็นแนวคิดดั้งเดิมและเสนอทางปฎิรูปสถาบันดังกล่าวซึ่งถือได้ว่าเป็นหัวใจสำคัญของกระบวนการยุติธรรมของไทย สถาบันแรก ผู้เขียนได้ชี้ให้เห็นลักษณะขององค์กรทางกฎหมายที่มีลักษณะเชิงอนุรักษ์ การปรับปรุงระบบการบริหารงานยุติธรรมให้มีประสิทธิภาพเพิ่มขึ้น ส่วนสถาบันหลังนั้นมีปัญหาในเรื่องของวัฒนธรรมองค์กร การปรับเปลี่ยนวิธีคิดในการบริหารงานวิชาชีพทนายความและการเปรียบเทียบกับลักษณะของการประกอบวิชาชีพทนายความสากล ดังนั้น ผู้เขียนจึงขอวิพากษ์ในเชิงวิชาการต่อสองสถาบันนี้
What we are mainly concerned with here is the extreme dogma of our justice institution. There fall into two aspects of the problems: firstly, those which rely on the judiciary institution (I), and secondly, those based on lawyer institution.(II) I will confine myself to a brief outline on the problems, looking more particularly at how it affects the Thai justice institution.
I. The First Dimension: Judiciary Institution
It is always considered true that “justice delay is justice deny”. Thai civil justice system whose ideal state is fast, convenient, low-cost, and fair, fails to live up to its own ideal and, as a consequence, leads to a great number of problems. The improvement on Thai civil justice is definitely not at all facile. It is logical to commence from the integral adaptation of paradigm of thoughts then to the alteration of practice, respectively. Additionally, this particular change needs to be in forms of the reformation in terms of moderationism.
However, to reform the entire system is difficult as, firstly, the justice system itself is complex and accurate, secondly, there are a lot of organizations and people involved, thirdly, it has its own unique philosophy, tradition and norms to do things. These are the obstacles for people who are not used to the juridical process to succeed. For the moderate reformation to be successful, it requires right understanding about the connection within the juridical process, its philosophy, and its way. Moreover, it has to be based on accurate body of right knowledge and information. The most significant thing is that the reformation must be appropriate, compatible, coherent, correspondent and effective in Thai social context.
When the subject of Thai civil justice system in the present is scrutinized, it is factual that the system has beneficent points as well as dangerous aspects. I myself have long been studying this peculiar system, not only with comparative method with non-Thai civil justice system, but also from my work experience. I therefore would like to present both fine and unpleasant elements concerning Thai civil system in the following paragraphs.
Advantage
1. In Thai present, in special jurisdiction courts, such as Intellectual and Property court[1] and Exchequer which are under the supervision of justice system, the modern technology has been utilized. For instance, taking evidence by VDO conference, perceiving the information via the computer, and the recording of oral evidence which replaces the old strategy, the one which requires the presence of the oral evidence to give evidence, is used merely in the cross-examination.
2. According to Constitution B.E 2550, the relevance of convenience and low time-consuming are realized. Hence a speedy trial system in civil court is logically established.
3. The committee of conciliation is set up in civil justice system to decrease the quantity of cases flooding into the court. This method is one of the alternative disputes resolutions (ADR), which will prevent the situation where the court is unable to settles the cases in time and also permit more time for the Supreme Court to make a finality of verdict more efficiently.
Disadvantage
1. It is undeniable that Thai civil justice system is extremely time-consuming and modern principle and technology has not been sufficiently introduced. These cause a lot of inconveniences to people who wish to contact the court including lawyers. The lawyers’ work process requires reasonable swiftness and service provided by government. Yet what they experience in reality are inefficient court officials, outdated database with lack of technological enhancement. Moreover, Thai civil justice system is broken down into many unnecessary sub-departments but the information centre fails to be satisfactorily helpful to lawyers.
2. The methods of selecting judges are not up to the standard in terms of age, experience, maturity and post-selected efficiency development. To clarify this, I would like to demonstrate an example from Thai system. In Thai strategy of electing judges, there are two stages required, that is, passing on examination of Barrister At Law provided by “Thai Bar Association” and then when a person reaches the age of 25, he/she is entitled to taking another examination to become a judge. In my personal opinion, I strongly conceive that one with twenty-five years of age is not experienced enough to be in such an important undeniable position as a judge, who justifies what is really right and what is really wrong for the people.
3. The database in the Deputy of Justice does not link sub units such as courts and government departments in the civil justice system together. Each exists separately without integration
4. The legal profession honor, prestige and dignity of being lawyers is inferior to that of judges.
I now would like to propose the schema for the reformation of Thai justice institution by suggesting four possible approaches.
1. The improvement on Juridical Administration system
1.1 The Committee of Policy and Evaluation should be established. Its main duties must involve planning, administrating, forming policies, and separating juridical responsibilities from those of administration.
1.2 A centre of database information and technology for Thai civil court is a necessity.
1.3 The speedy trail system should be executed so as to encourage the civil proceedings to end in well plan. I realize the significance of this specific technique and regard it as one of the biggest reforms in Thai legal sphere.
I have performed a comparative study, in the United States and France, case management system particularly the federal rules of civil procedure. Its relevant content is as follows:
a) Due to the increasing number of cases nowadays and its complexity, case management is incredibly essential. It generally means judge’s active role in pre-trail proceedings. The judge with sufficient and valid evidences in hand, will become involved immediately after the civil action. A pre-trail conference will be held to plan legal procedures including scheduling and management, scheduling order, and also pre-trail motion.
b) Then the judge will proceed to illustrate other proceedings such as a search for witness and evidence, and an agreement to settle the dispute. The judge ought to evaluate the possibility in settling the argument and hold a settlement conference which he/she must carry out him/herself.
c) Finally, when the peremptory day is approaching close, if the judge is convinced that the trail is going to be complicated and time-consuming, he/she may set up and ultimate meeting to make joinder of issue in an attempt to narrow it down.
It is probable that speedy trail system in Thai civil justice system is influenced by the United States district court for the eastern district of Virginia. Judges in the latter use “Rocket Docket Case List” to accelerate the trail in the early stage. They will hold brief meeting to assign definite time. As a result, that agreed date is not changeable as if it is “written in the stone” after the trail actually begins.
According to my personal opinion, Thai civil justice system ,through analysis and synthesis, may gain benefits from the system used in eastern Virginia and also in some European norms, as follows:
1.3.1 Case classification
Case classification will help the court to administer workload and time appropriately and efficiently. It should be done by realizing objectively the value of claim, the complexity of case, and the fast track.
1.3.2 The pre-trail conference
After case classification, the court will recognize that the lawsuit will take more time than others. If the judge examines the point in dispute in advance, success of the case can be expected.
2. The reformation of right protection system
The account ability should be transparent and should provide judges independency in working, and protection from the interference possibly created by the outside. This can be achieved by sharing maximum information for people involved and last but at least under the principle of human conscience.
3. The reformation of attitudes, common sense, and potential of personnel in the Deputy of Justice
It can be renovated by these activities:
3.1 Restructuring the curriculum in law school by broadening the material of study side by side with moderating dogmatism in law curriculum. It should not be limited merely to the knowledge of law but a variety, for instance, economics, business, accounting, statistics, foreign language, logic, ethics, and axiology. As a result, people who graduate from law school will be practical when working.
3.2 Improve the criteria used in selecting people to be judges by demonstrating appropriate age and other standards including ways to develop them after being in the actual position. Work and self evaluation should be carried out all the time.
3.3 Support the personnel development in other necessary fields apart from the law-concerned in order to increase the smoothness in the court system, such as, computer specialists.
4. The reformation of running the trial
4.1 Strengthen the base of primary court to reach higher standard. It can be accomplished by gaining public and international acceptance through the judges. They should sit at trail … This will allow less cases to approach Supreme court and then the latter will have more time to consider each case efficiently and soundly.
4.2 Establish an effective system to help people involved in legal matters by giving more budgets supporting to the Law Society Association with the hope for its righteous activities.
4.3 Increase more international cooperation particularly in the aspect of information which is very significant in the era of globalization, in moderation with Thai mentality and logic.
4.4 Promote alternative dispute resolution (ADR) so as to reduce the number of cases which have to enter court. I personally agree with this specific strategy the most. Alternative dispute resolution (ADR) seems extremely useful in Thai civil justice system in my opinion. It satisfies the need of businessmen who want convenient, fast, and low cost juridical process which will maintain the positive relationship between both parties than bringing the case of the court.
Mr. Clive Schmitthoff, the author of “Export Trade, the Law and Practice of
International Trade”, who states that:
“It is almost a truism to state that arbitration is better than litigation, conciliation better than arbitration, and prevention of legal disputes better than conciliation.”[2]
In noble era, therefore the ideal dispute resolution must have prominent characteristics of being fair, cheap, speedy, effective, scientific, humanitarian, as well as possess enforcement mechanism, measurement against bad publicity, and preservation of relationship. I would like to discuss four strategies further in the following paragraphs.
1. Negotiation
It is the most effective Alternative dispute resolution as it does not need the neutral third party. Consequently, it is cheap, quick, remain confidential and maintain positive relationship between the two parties. Moreover, this method is considered fair since the parties concerned settle their dispute themselves and are the ones who choose the outcome. Carrying the negotiation themselves make both parties feel equally win/win.
The problem of this strategy is that the parties may refuse to compromise for fear of losing face or due to cultural differences. Therefore, each party should be quite flexible, not regard only about its own benefit, but on a settlement that will benefit to both. In Roger Fisher’s book, “Getting to Yes”, it displays 5 important tips in negotiating.
1. Do not bargain over position
2. Separate people from the problem
3. Focus on humanity interests, not positions
4. Invent options for mutual gains
5. Insist on objective criteria
2. Conciliation/Mediation
According to the fact that court conciliation by Thai civil procedure code section 19 – 20 was not highly pragmatic and effective, now a Committee of Conciliation is established to decrease the case quantity which has to enter the court and go to trail.
Fundamentally, a mediator must understand that the process of mediation is composed of 4 stages, that is, prepare – discuss – propose – bargain. It has to be made out of mutual interests of both parties… a truly “give and take” process, under the ethical principle of “Do not do what so ever you do not want to be done for you”. I believe that conciliation needs a good mediator. Some qualities of a good mediator are listed below:
1. Can collect him/herself for a long period of time.
2. Have an ability to confer in diplomatic style.
3. Have communicative skill.
4. Have an ability to appropriately respond to others.
5. Possess enough knowledge of the matter discussed.
6. Have past experience in negotiating complex cases.
7. Have enthusiasm to be a mediator.
8. Understand the process of dispute resolution.
9. Possess clear and independent thinking.
10. Be a good listener.
11. Good at keeping confidentiality.
12. Have a common sense in timing and humanity.
13. Unbiased
14. Have good articulation.
15. Alert
16. Have a lot of patience.
17. Intelligent and emotionally stable
18. Can cleverly introduce points into a conversation.
19. Can independently contemplate and solve the problem by not following the usual rational way of thinking.
20. Can handle uncertainly
In case of a Committee of Conciliation is founded, there are possible obstacles which will hinder the process of mediation.
1. Anger occurred within the process which leads to unreliability and distrust.
2. Misunderstanding and an inability to accurately express oneself to others.
3. Each party expects too much from the opposite side leading to a lack of flexibility.
4. The secrets kept by each party cause the conciliation to fail.
3. Arbitration
The dispute settlement by out of court arbitration is the most important strategy used in international trade. The parties often include an arbitration clause in a contract which will compel each to propose the dispute to the statutes. The advantages of arbitration compared to litigation may be listed as follows:
1. Privacy
2. Tribunal of the parties’ choice
3. Informality of proceedings
4. Speed and efficiency
5. Lower costs
6. Finality of the award
7.
4. Early neutral evaluation
This particular alternative dispute resolution by appraisement allows each party to decide the next move. A role of disinterested evaluator can be employed by a judge or a solicitor.
5. Juridical Appraisal
The appraisement according to the party’s argument is accomplished by a retired judge who is accepted by both parties.
(II) The Second Dimension: Lawyer institution
Nowadays, business competition is increasing more than previously. All companies or firms are trying to provide service to meet the customer’s demand. To offer that service in a field of law is one of the high demands in a present market. From seven-year experience of the author in working and researching for both theoretical and practical in law firms, I hope that this article would help my readers to clearly point out problems and also show new vision to further improvement for our social.
Problems
1. Old Fashion Management of Thai Law Firm
Since the author had experiences in working for local law firms which the organization culture still dogmatically sticks with old fashion thought, this makes me be able to see the problems to the improvement as followings:
1.1). Service Limitation for only Litigation
Without offering other kinds of services apart from litigation, this leads to a limitation for the choice of customer that they can experience. This can be compared to a pharmacy that has only tablet not liquid drug and first aid accessories to sell. On the other hand, an international law firm has more than seventy options for the customer. This reflects that the Thai law firm is lack of expert sense.
1.2). Lack of Modern Management
Most of the Thai law firms are named using the owner or establisher’s name. This makes the customer remember and stick with only that name. And when that person has retired or stepped down the job, most of the customers prefer to leave the company to other big names, since they have been memorized that only the big name can help them. Furthermore, the employees do not want to succeed the business because they do not feel that they are recognized as “partnerships” of the company but working for salary month by month, absolutely determined by the company for the working experience for their own firm in the future.
The Strategic Alliance is quite difficult to success, because most of the lawyers prefer to work and establish a firm by their own, instead of performing a combination or cooperation between firms. As a result, a strong organization, that has more negotiation power and high ability to serve the customer, including business growth to the borderless world, is impossible.
1.3). Unprofessional Relation between Employers and Employees
In many law firms, the employees are students who had the firm establisher as their lecturer, while they are at the university. The relation between them becomes more teacher and student rather than employer and employee and it causes the lack of motivation due to the benefit limitation. In addition, the lack of motivation brings slow improvement of the employees in becoming high quality lawyer. On the other hand, the international law firm is more than willing to pay more and offer a variety of benefits to their employees because they believe that the employees are driving force for the organization to step forwards. Therefore, to give them confidence in both financial and beneficial opportunity will be a good motivation for the employees to work and improve themselves for the organization.
1.4). Lack of New Innovation and Technology
It is inevitable to accept that the new innovation and technology can help to make a faster process, safe time and reduce payment for the company. Furthermore, they can be used to calculate, collect and analyze the database from which is composed important and reliable information in the future.
1.5). Marketing: Major Factor
Since the legislation has declared that the exaggeration to convince others to become a case client is prohibited, which makes that the marketing can’t go such a way. However, there are various ways to advertise, for instant, presenting some other services that the firm can offer to the customer and not against the legislation. But not many people take a serious consideration at this point and the following question is that how to do the marketing ? Furthermore, there is no certain standard or fixed rate of the fee for each case but contingent fee. As a result, this uncertainty is another factor that makes the customer worry about the high expense.
2. International Law Firm Problem and Key Factors to Doing the Business in Thailand
The first principal problem is cultural barriers, the second is differences of international legal systems, the third is sophistication or lack of sophistication in the legal systems and the fourth is that of legal hermeneutics. One thing a foreigner learns when living in Thailand is patience. Because we all have different starting points for our logic and the key factor to doing business in Thailand is the ability to communicate, responsiveness, keep in touch with the clients are more important.
Avoiding conflict, any type of conflict, is something that most people want to do in business. The reasons why a conflict exists is often due to a lack of communication, a lack of understanding and the last is in court you must takes time to educate the judges and educate the lawyers as to what they can and cannot do. It will take time.
3. A Big Change to Survive in the Business
Since doing business in law service is one of the marketing in the services sector which has features of intangibility, heterogeneity, short life cycle, too many limitations, and the business starts when the customer is under the need of law service, i.e., has a case. Therefore, the marketing is usually to let the performance become the trademark.
At present, the whole world is in globalization state where the service life cycle and product lifetime is short. There is cooperation between firms in a form of merging, acquisition and international joint venture more and more. The author would like to refer in summery a generic strategy proposed by Michael E. Porter[3] to apply to the business as followings:
3.1). Differentiation
In order to success in a very high marketing competition, the important thing is to offer value-added or differentiation of the product from others. Because the same product can’t attract the customer at all time. For example, in the past the main duty of the local law firm is litigation but it covers rehabilitation and debt reconstructing today. However, the product value, consumer taste and market change all the time a service that offers differentiation to meet customer’s need is very important.
3.2). Focus Strategy
3.2.1). Customer Focus: is to offer a service that meets the demand of customer and make a good relation with the customer in a long term which can bring confidence and brand royalty.
3.2.2). Product Focus: is to improve or create a new product by doing ever research to offer a variety of products to the customer. For example, there are more than seventy services for the customer in banking service.
3.3). Speed and Flexibility Strategy
The first entry to the market is a big advantage over the competitors since it makes a landmark to the customer to remember. For the flexibility, a good example would be Toyota for their factory process called Flexible Manufacturing. The factory can manufacture and modify various products without the need to build a new factory but using software to control robots and machines to do the job as they want.
3.4). Teamwork Strategy
Working in an environment that everyone has different abilities to be shared and integrated helps each other as teams to get to the same goal can safe time and increase capability.
3.5). Global Marketing Strategy
This strategy is to extend and strengthen the business by creating business alliance.
3.6). Information and Technology Analysis Strategy
The world at present is the world of information. Anyone has more information will have more chance, because the analysis of database bring information using to forecast, protect and prepare a solution for a mistake that can occur. Many people always say the fewer mistakes the more success and the most successful never exist without some mistakes. For the technology, it is a major part for the success of the organization according a book named The Practice of Management. Obviously, for many changes of the world the technology is behind it such as a stream engine, printer, nuclear power and computer.
I, as the author, hope that this article would serve to suffice a thought and motivation for readers to create and lead our vocation to the international level, as well performed in other countries. In the end, I do wish that in the future Thai justice Institution will be beautified by moderation of our dogma, and finally in relation to this article, may I, as a Buddhist, cite Buddhist proverbs[4] as (a) “NIGGAŅHE NIGGAŅĀRAHAM PAGGAŅHE PAGGAŅHARǺHAM” – Punish whom so ever in a position to be righteously punished and award whomsoever in a position to be righteously and (b) “ATTADANTAM SUKHĀVAHAM” – Man who is well-trained and well-controlled of self-disciplinarian lives a progressive, peaceful life.
* Doctoral Candidate of Law (Docteur en Droit),, L’Ecole Doctorats à Université de Panthéon Assas (Paris 2) ; Master de recherché (Droit Propriété Intellectuelle)- L’Université Aix-Marseille , France ; Barrister At Laws ; LL .B Thammasat University , Thailand
[1] Example: Rules for Intellectual Property and International Trade Cases B E 2540(1997) Art. 29-30 (submission of Written Witness Statement); Art. 32 (Hearing of witness by means of Videoconference) ; Art. 33-36 ( Admission of Computer Record )
[2] Clive Schmitthoff et al., “Export Trade, the Law and Practice of International Trade”, ed. 10, sweet & Maxwell, January 2000
[3] Porter, M.E. (1990, 1998), “ The competitive avantage of nations”, Free Press, Newyork, 1990
[4]Dhammapadagāthā
