Abstract:
At present, Thailand has applied civil penalty, which is a legal concept coming from foreign countries, to the Securities and Exchange Act B.E. 2535 as amended by the Securities and Exchange Act (No. 5) B.E. 2559 and the Emergency Decree on Digital Assets Business Operation B.E. 2561. Civil penalty is deemed a measure causing law enforcement to be more efficient, irrespective of reducing the number of offenders, reducing expenses for enforcement of laws for the state, accelerating conducting legal proceedings, and being able to take the offenders as guilt more than ever. However, the current provisions of civil penalty of Thai laws have no any right protection of the accused, including court proceedings for proof of the guilt and weighing of evidence, which are different from applying civil penalty in foreign countries causing civil penalty application to be unfair for the accused. Therefore, this Thesis aims to study the problem of applying civil penalty in Thai laws by studying theoretical concepts of the civil penalty so as to conduct comparative analysis with monetary penalties or fines in other Thai legal branches; later on, studying criteria for applying the civil penalty in foreign laws; for instance, United States of America, Australia, and France, so as to conduct comparative analysis with applying the civil penalty in Thai laws; after that, studying the theoretical problems and practical problems upon applying the civil penalty to Thai laws so as to know the problems of current law enforcement; and in addition, also studying the results coming from applying the civil penalty to Thai laws. According to the study of law application of law enforcement agencies, application of Thai civil penalty also has the problem on right protection of the accused both in the state officer stage and in the court stage, including court proceedings to prove the guilt and to weigh the evidences, has not sufficiently created fairness for the accused. However, upon studying laws and court judgments of United States of America, Australia, and France each country has the criteria on right protection of the accused for different civil penalty application in the case of right protection of the accused both in the state officer stage and in the court stage. For court proceedings to prove the guilt and to weigh the evidences in United States of America and Australia, the courts shall try and lay down the principle of laws by applying standard of proof in the level higher than general civil proceeding but not up to standard of proof in criminal cases because the courts desire to cause fairness to the accused, meanwhile, France shall use standard of proof in the level equal to standard of proof in criminal cases. Upon taking into consideration the criteria on applying the civil penalty in foreign countries, criteria of United States of America and Australia are appropriate for the natures of offenses providing the civil penalty in Thai laws, while the criteria of France are inappropriate for applying to Thai laws. As a result, the Researcher would like to propose amendment to laws by providing criteria on right protection of the accused both in the state officer stage; for example, right to notification and having information and the principle of bilateral hearing, and providing criteria on right protection of the accused in the court stage; for example, right to the undue exclusionary rule, right not to be compelled to testify against himself, and rule of strict interpretation. Additionally, court proceedings for proof of the guilt and weighing of evidence ought to use standard of proof in the level higher than general civil proceedings but not up to standard of proof in criminal cases so as to cause the right protection to the accused and so as to apply civil penalty in Thai laws to be more fair.