General Principles of Law, Custom and Analogy in Thai Law

Thai law is based on specific acts enacted by the Thai Parliament and, of particular relevance, the Thai Civil and Commercial Code (TCCC), which is the main body of Thai law pertaining to civil and commercial matters.

Book I of the TCCC sets out general principles of Thai civil and commercial law, and Title 1 of Book I sets out general provisions for these general principles of Thai civil and commercial law. The first section of Title 1, Book I, is Section 4 of the TCCC, which states as follows:

Section 4.  The law must be applied in all cases which come within the letter or the spirit of any of its provisions.

Where no provision is applicable, the case shall be decided according to the local customs.

If there is no such custom, the case shall be decided by analogy to the provision most nearly applicable, and, in default of such provision, by the general principles of law.

Section 4 sets out a fundamental four tier order of priority that should be applied when civil and commercial cases are decided under Thai law:

Tier 1: The letter or spirit of the provisions of Thai law must be applied to a case.

Tier 2: If there are no such provisions of Thai law applicable to a case, then the case should be decided by local custom.

Tier 3: If there is no Thai law or local custom applicable to a case, the case should be decided by analogy to that provision of Thai that is “most nearly applicable”.

Tier 4: If none of the sources in the first three tiers are available, the case shall be decided by “general principles of law.”

There are also several aspects of TCCC Section 4 that are particularly significant.

  1. If there is a provision of Thai law that addresses a disputed issue in a case, that provision of Thai law decides the issue, and there is no need to look further to the next three tiers, local custom, analogous provisions of Thai law and general principles of law.  In other words, when there are provisions of Thai law that decide an issue, the inquiry ends with those provisions of Thai law, and the other three tiers mentioned in TCCC are irrelevant.

    General principles of law” is the last of the four tiers in the order of priority.  This means that general principles of law are only relevant when (1) the letter or spirit of Thai law cannot be used to decide an issue, (2) there is no local custom that can be used to decide an issue, and (3) there is no analogous provision of Thai law that can be used to decide an issue.  Under Thai law, there is no need to make an inquiry into or apply general principles of law if a case can be decided by employing any of the first three tiers of TCCC Section 4.

The term “general principles of law”, necessarily means something that is not itself a provision of Thai law.  This follows as a matter of logic since, if the term “general principles of law” meant provisions of Thai law, those provisions of Thai law would constitute a tier 1 source that could be used to directly decide the issue, and the reference in TCCC Section 4 to the lowest tier, “general principles of law”, would not make any sense.  The term “general principles of law” refers to principles that merely provide guidance on how to decide a specific case when none of the prior and higher three tiers of Section 4 are available.  In this sense, although “general principles of law” might be used to decide a specific case, they are not part of the corpus (body) of Thai law.

Because “general principles of law” are not part of the corpus (body) of Thai law, Thai Courts do not have to apply general principles of law.  Indeed, Thai Courts should not adopt foreign principles of law when contrary to the principles of the Thai law system.  Dr. Kittisak Prokati, a Professor of Law at one of Thailand’s top universities, Thammasat University, wrote in an article called General Principles of Application and Interpretation of Law that: “principles of foreign law to be applied as a general principle of law must not be contrary to the general principles in the Thai legal system.”  This particular rule on the application of foreign law as a general principle of law has been followed by the Thai Supreme Court on numerous occasions.