Abstract:
According to Section 28 of Criminal Procedure Code stated that persons entitled to institute criminal prosecution in court are the public prosecutor and injured person. Whereas, public prosecutor is entitled to institute criminal prosecution on behalf of the government based on the Principals of criminal procedure of public sector, while injured person is also entitled to institute criminal prosecution because he/she is directly affected based on the Principles of Criminal Procedure of injured person. Since the authority to institute criminal prosecution of the injured person is unlimited therefore criminal procedure of the public prosecutor and the injured person is separated from each other independently. After prosecution, the injured person is entitled to institute criminal prosecution solely whether such criminal case is compoundable offence or public offence. However, it was found that the section 28 has never been amended since the Criminal Procedure Code was enforced in 1935. Therefore, criminal prosecution of the injured person may damage criminal procedure, especially any criminal case whereas the injured person firstly sues in criminal case by themselves and the court sentences to dismiss such case but the public prosecutor fails to acknowledge on criminal prosecution of the injured person hindering the public prosecutor to institute such criminal case again.
In the event that injured person damages any public offence as shown in previous cases, for example, Judgment of Supreme Court No. 687/2502 in which the injured person was the plaintiff used against the defendant of attempted murder but there was no specification on time and scene as well as no description that was consistent with elements of offence of attempted murder therefore it was ordered by the court to be amended but the plaintiff failed to remedy leading to dismissal of such prosecution according to Section 161 and 185 of Thailands Criminal Procedure Code. According to such sample case, it was deemed that there was the final judgment on the offence that had already been sued hindering public prosecutor from suing again. This judgment represented the legal gap that could be utilized by injured persons as the channel to help themselves. Although the court defines the principle in which the criminal prosecution instituted by injured persons against public offence with mutual consent for helping themselves shall not deprive the right of public prosecutor in suing again according to the Judgment of Supreme Court No. 9334/2538 and 6446/2547. However, there were practically some possibilities on damage against criminal case on public offence in the event that public prosecutor failed to acknowledge on prosecution instituted by injured person or in the event that public prosecutor was unable to exhibit evidence to the court to prove that prosecution of injured person was prosecution with mutual consent. In addition, the principles of judgment were required to be considered case by case with less clarity than that of legal legislation.
When comparing with in foreign laws, it was found in some countries that the public prosecutor played the role in criminal prosecution for countries applying the principles of public prosecution, whereas, the injured person has the limited rights. In addition, there was the connection among organizations in criminal justice process therefore the injured person has no opportunity to damage any criminal case with public offence.
Accordingly, this thesis emphasized on studying regarding concepts and theories on criminal prosecution and role of public prosecutor and injured person with the authority in criminal prosecution based on Thai laws and foreign laws including laws of France, Germany, Spain, UK, and U.S.A., in order to acknowledge on the principles of public prosecution, criminal prosecution instituted by injured person or people, roles of public prosecutor and injured person, and connection among organizations in criminal justice process for public order.
Therefore, Thai public prosecutors should have the same role as that of other countries to maintain social benefits and protect peoples freedom and rights. Laws should be amended to prevent the injured person to damage any criminal case with public offence, whereas, public prosecutor should be allowed to engage in criminal case that is firstly sued by injured person from investigation process. Allowing public prosecutor to perceive criminal prosecution of the injured person would prevent damage against criminal case with public offence and be consistent with public prosecution.