Abstract:
Thailand was a Kingdom with full judicial independence until the reign of King Rama IV of Chakkri Dynasty. During his reign, the King conceded to the regime of "Extraterritorial Judiciary" of foreigners through the signing of "Bowring treaty" within which judical independence was partey forsaken. Treaties of this nature were concluded not only with Great Britain but also with other foreign powers during the late Nineteenth Century. Reasons behind the concession of such treaties contributed mainly to the archaic nature of the law of that time. The "Law of three great seals" (as it was then called) was too severe in nature and the methods of prove were unfamillar to the eyes of the major powers. King Rama V took up the reform of law and the judiciary in the early twentieth century with the hope that judicial independence could be restored. Among many measures, the enactment of westernized legal codes was accomplished. The first penal code of R.S.127 (1908) was promulgated on 15th April B.E. 2451. The study of legal history reveals that there was at least one attempt to draft criminal law prior to the code of R.S. 127. It was officially called "the draft royal decree on the offences against body and life R.S. 118" and it was drafted by Thai lawyers with out external interference. The Law of Three Great Seals as applied during the early Rattanakosin era was a collection of old laws from Ayudhaya period. King Rama I commissioned the revision and reorganization of the law. Therein contained four categories of offense related to body and life: decree on royal punishment, decree on private punishment, decree on theft and decree on quarrels and battering. These decrees faced with problems of enforcement and many showed their archaic nature. This study finds that the drafted law was the revolution of the Thai legal concept. Classification of crimes, mental elements of crime, crime of attempt, participation to crimes, punishments, separation of civil from criminal matters, and distinction of substantive and procedural principles were introduced for the first time in Thailand. This study also finds that the principles were developed using English law as a model. In this case, the Offenses Against the Person Act of 1861 as enforced during the same time in Great Britain and the principle of common law were introduced. As a result there appeared new legal principles pertaining to criminal law which are still applicable to the present Thai criminal law, for example, principle of transfer of intent either by law or by fact. Evidently, the Draft Royal Decree on the Offences against Body and Life R.S. 118 is the sign demonstrating the commendable attempt by Thai lawyers to bring in modem criminal law principles without foreign influence. Such ingenuity is worth of study. Yet, it is to this researcher's regret that the Draft decree was not put into force