Siriphon Kusonsinwut **
I am very thankful to Professor Tom Ginsburg, professor of law at University of Illinois, who granted me the most valuable suggestion about my research when I studied in an Master of Law program in 2004. This research paper compare the criminal liability under the civil law idae and the common law through the Penal Code of Thailand and the model of criminal law in the United States both common law and Model Penal Code. My study suggests that the idea of criminal liability in both system shares the core concept and the same end. I have proposed some legal concept that should have been introduced and implemented in Thailand to achieve the goal of public order. This research will be composed of five parts; I have outlined as bellow. I acknowledge that I might make some mistake about my idea in some points. If you coincidentally read my research, and let me know your idea, I will really appreciate.
Introduction
Part I History and Formation of the Thai legal system
A. An ancient legal system of Thailand
B. The Reform of Criminal Law in the King Rama V
Part II: The Structure and General Concept of the Penal Code of Thailand
A. The Structure of the Penal Code of Thailand
B. Some Outstanding Characteristics of the Penal Code
B. Some Outstanding Characteristics of the Penal Code
I. Types of Punishment
II. Judicial Discretion to Impose the Punishment
III. The Purposes of Punishment
IV. The Principle of Legality
V. The Principle of Legality in the United States Legal System
Part III: The Different Concept of Criminal Liability
A. Theory of Offense Structures
I. The Bipartite theory
II. The Quadripartite theory
III. The German Tripartite theory
B. The Idea of Criminal Liability in the United States
I. The American Common Law Idea
I. The American Common Law Idea
(2) The Elements of Criminal Liability
(3) Common Law and Principle of Legality
(4) Scope of Criminal Liability
II. The Model Penal Code (MPC)
(1) Background of the Model Penal Code (MPC)
(2) The Elements of Criminal Liability in the MPC
2.1) Actus Reus
2.2) Mens Rea
(3) The Justification or Excuse and Scope of Criminal Liability
2.2) Mens Rea
(3) The Justification or Excuse and Scope of Criminal Liability
Part IV: Criminal Liability in the Penal Code of Thailand
A. General Provisions
I. Subject or Person Concerning in the Penal Code
II. The Special Sanctions: Measures of Safety
III. The Extraordinary Sanction before the Crime Committed
III. The Extraordinary Sanction before the Crime Committed
B. Criminal Liability in the Penal Code
I. The Main Provision of Criminal Liability: Section 59
II. The Conflict of Scholars’ Idea of Criminal Liability
II. The Conflict of Scholars’ Idea of Criminal Liability
C. Some Topic of the Penal Code Compare to the MPC and Common Law
I. Structure of Criminal Liability
II. Justification and Excuse
(1)The claim of mistake of fact
(2) The claim of intoxication
(3) The necessity under section 67
(4) The claim of defense of rights under section 68
(5) The claim of unjust maltreatment under section 72
III. Unclear Provision
(1) Attempt Crime
(2) Innocent Agent
(2) Innocent Agent
IV. Some Problematic Language in Provision: Principal, Instigator, Supporter
V. Lacking of Rule of Conspiracy in the Criminal Liability Part
D. The Problem of Judicial Discretion
I. The Problem of Gambling Machine
II. The Right to Resist the Unlawful Arrest
I. The Problem of Gambling Machine
II. The Right to Resist the Unlawful Arrest
Part V: Conclusion
A. The Same Principles of Criminal Law in Every Legal System
B. The Same End but Different Means
C. Proposal for Thailand
C. Proposal for Thailand
D. Example of Introducing the Rule of Conspiracy Crime
E. Final Words
E. Final Words
Footnotes
This report will illustrate the brief history of the legal system of Thailand and the general concept of criminal liability in the Penal Code of Thailand as well as compare it to the criminal liability idea of some countries including that of the United States. The Penal Code and the Model Penal Code of the United are similar to each other; however, the concept of the application of “mens rea” element is quite different. In contrast, the concept behind mens rea in the Penal Code of Thailand and in Common Law Jurisdictions is quite similar.
The component of this report is divided into five parts: Part I: History and Formation of Thai legal system; Part II: The Structure and General Concept of the Penal Code of Thailand; Part III: The Different Concepts of Criminal Liability in several countries; Part IV: Criminal Liability in the Penal Code of Thailand, and Part V: Conclusion.
The first part I will shortly demonstrate the concept of Thai legal system prior to and after accepting the western legal concept; the second part will be the general idea of type of punishment and judicial discretion in inflicting criminal sanction as well as the principle of legality both in Thailand and in the United States. The third part will elaborate the structure of offense or criminal liability elements in different concepts among bipartite, tripartite, and quadripartite, including idea of common law criminal liability, and Model Penal Code (MPC). The fourth part covers the criminal liability in the Penal Code of Thailand. The conclusion presents the proposals to revise the Penal Code of Thailand.
Part I
History of Thai Law
History of Thai Law
A. The ancient legal system of Thailand
The ancient legal system of Thailand was relatively based on moral concepts, and there was no obvious distinction between the civil law and penal code. Since the ancient commencement of Thai history, the law in Sukhothai Period (13th to 15th centuries) was rooted in the “Hindu Code of Manu.” The King in this period would act as the judge, who would decide the dispute among his subjects. The next period was that of Ayudhya (1350-1767); the law was revised, called the “Dharmasatra.”[FN1] The king also announced the “Rajasatra,” whenever the situation required or whenever the king decided the dispute. Those king’s decisions would become the law applied to the subsequent disputes as well. The last period before the legal reformation was called the “Bangkok” period. King Rama I (1782-1806) appointed a committee to draft the new law because the law in Ayudhaya reign was destroyed by Burmese invasion in 1764. The new law in this period was regularly known as “the Law of Three Great Seals.” [FN2] However, the drafters had simply collected the old law from “Dharmasatra,” and the King’s decrees from the former period, and such law was enforced until the reformation of legal system in the King Rama V in the beginning of 20th Century.
B. The Reform of Criminal Law in the King Rama V
The reformation of legal system of Thailand resulted from the Colonialism by the western countries. Thailand had to enter the covenant of “extraterritoriality” with several western countries. [FN3] Those countries claimed that “Thai Criminal Process,” which was based on the physical torment to seek the confession from the accused, were brutal, and they did not want to be subjected the law of Thailand in that period. Not only to retreat the judicial independence, but political independent, Thailand had to be very careful in keeping equilibrium of power between two most dominant western nations: France as the “civil law” and England as the “common law.” [FN4] King Rama V had reconstructed several institutes in that period; especially, he hired foreigner – France – to draft Penal Law and eventually proclaim to enforce it in B.E. 2451 (1917). In B.E.2475 (1932), the “Great Revolution” occurred; the political system had been changed from “Absolute Monarchy” to “Constitutional Monarchy” under the parliamentary system. The cabinet had agreed to draft a new Penal Code, and consequently the covenants of “extraterritoriality” were completely repealed in B.E.2481 (1938).
After the first Penal Law was enforced for 49 years, until B.E. 2499 (1956), a new law, Penal Code of Thailand, was proclaimed and has remained in enforce since January 1, 2500 (1957) until now. The reason to adopt the new code was “to revise and amend the defects of Penal Law to be congruent to the temporary period and the rule of law of general democratic countries. Besides those reasons, the drafters of the Penal Code had compared the rule of law of several countries such as China, Switzerland, Poland and etc; particularly, the Political system has been changed from Absolute Monarchy to Democracy system.” [FN5]
Even though the Penal Law (2451) was different the Law of Three Seals in that it repealed some illegal acts such as the crime of sodomy, abnormal sexual intercourse, and the crime committed by the monk in Buddhism, etc; it was not completely up to date in some aspects. For instance, it did not separate the criminal procedure from the criminal law sanction, and the levels of punishment which were separated into four levels in the ways that were not compatible with the new situations which has been changed considerably. [FN6]
Part II
Structure and General Concept of the Penal Code of Thailand
Structure and General Concept of the Penal Code of Thailand
This part will illustrate the structure of the Penal Code of Thailand. In addition, the distinction of this Code such as the type and purpose of punishment as well as the principal principles will be demonstrated as well.
A. The Structure of the Penal Code of Thailand
Thai Penal Code is divided into three main parts; it is comprehensively written in the general concept, which does not explain the details of the act or give the example or explanation of the crime, as follows:
Thai Penal Code is divided into three main parts; it is comprehensively written in the general concept, which does not explain the details of the act or give the example or explanation of the crime, as follows:
BOOK I General Provision; this part is divided into two principal parts, that is, Title I:
the Provisions Applicable to General Offenses, and (2) Title II: Provisions Applicable to Petty Offenses (or Strict Liability). [FN7]
the Provisions Applicable to General Offenses, and (2) Title II: Provisions Applicable to Petty Offenses (or Strict Liability). [FN7]
The first part of the Penal Code is very crucial because it is composed of the general principles that will apply to every offense not only defined by the Penal Code, but also defined by other laws that impose the criminal sanction. These general principles are divided into nine chapters, that is:
Chapter 1 Definitions of some terms defined in the Code;
Chapter 2 Application of Penal Laws;
Chapter 3 Punishments and Measures of Safety;
Chapter 4 Criminal Liability;
Chapter 5 Attempt;
Chapter 6 Principals and Supporters;
Chapter 7 Concurrence of Offenses;
Chapter 8 Recidivism;
Chapter 9 Prescription.
BOOK II Specific Offense, this part is divided into twelve titles as followings:
Title I Offenses relating to the Security of the Kingdom: (1) the
crime against the King, the Queen, and the Heir-apparent and the Regent, (2) Offence against the Internal Security of the Kingdom, (3) Offence against the External Security of the Kingdom, (4) Offence against the Friendly Relations with Foreign States;
Title II Offenses relating to Public Administration: the Offenses against Officials, and Malfeasance in Office (and Corruption);
Title III Offenses relating to Justice: Offenses against the Judicial Officials, Malfeasance in the Judicial Office (and Corruption);
Title III Offenses relating to Religion;
Title V Offenses relating to Public Peace; [FN8]
Title VI Offenses relating to Causing Public Dangers; [FN9]
Title VII Offense relating to Counterfeit and Alteration;
Title VIII Offense relating to Trade;
Title IX Offenses relating to Sexuality; [FN10]
Title X Offenses against Life and Body; [FN11]
Title XI Offenses against Liberty and Reputation; [FN12]
Title XII Offense against Property; [FN13]
BOOK III Petty Offense. This part is composed of the offenses which do not require the state of mind or culpability of the doer or strict liability. [FN14]
B. Some Outstanding Characteristics of the Penal Code
I. Types of Punishment
The Penal Code section 18 defines the punishments for inflicting upon the offender as five sanctions: (1) Death; (2) Imprisonment; (3) Confinement; (4) Fine; and (5) Forfeiture of property. Typically, it does not only provides several optional choices for the court to inflict to the defendant, it does also entitle the court find out some mitigating circumstances to reduce the scale of punishment, and thus some measures have been established by the court without clearly being expressed in the Code.
II. Judicial Discretion to Impose the Punishment
The Supreme Court of Justice of Thailand has introduced many sanctions besides the special sanctions provided by the Code to impose on the accused before the crime has been committed. [FN15] Generally, the courts can reduce the scale of punishment if they find out some mitigating circumstances in crime commission [FN16] due to the defendant status – the age of the offenders [FN17], especially, the young offender [FN18], and mental ability. [FN19] In those cases as well as the other mitigating circumstances, the court might reduce the punishment to one third of normal scale of punishment. [FN20] However, the court has established some new rules; if the defendants felt guilt and immediately as well as voluntarily confessed their guilty and thus give the benefit of the trial process, the court might reduce the punishment scale by a half of the normal punishment rate. The courts also have authority to order the defendant who was subject to the mental illness to be hospitalized in the infirmary as long as necessary before punishment will be actually executed.
In short, several additional sanctions have never appeared in the Penal Code, but they have been developed by the court; particularly the decision about the admission of psychiatrist testimony to determine the criminal liability of retarded offender [FN21], and the rule of voluntary and immediate confession to get a half of scale of punishment.
It s the same concept of common law and the Model Penal Code, ignorance of law shall not excuse a person from criminal liability, but the court can allow the defendant to prove that he may not know that the law has provided such act to be an offence, and if the court believe, the court may inflict less punishment to any extent than that provided by the law for such offence. [FN22]
In contrast, if the court finds that the defendant committed the crime with the aggravating manner, such as the murder with the aggravating circumstances [FN23], the aggravating circumstances of the arson [FN24], the recidivist, and concurrence of the offenses [FN25], the court can exercises its judicial discretion to increase the scale of punishment by one third of punishment for the subsequent offence.[FN26] However, even if there are severely aggravated circumstances; the court cannot impose the death penalty unless the specific provision imposes the death sentence. [FN27]
III. The Purposes of Punishment
Criminal scholars have identified four main goals of punishment: retribution, deterrence, incapacitation, and rehabilitation. [FN28] However, those ideas, in fact, are based on two “criminology theories,” that is, (1) the retributive function of punishment, and (2) the utilitarian function. The former theory is justified by the rightness or the fairness to punish the persons who are capable of making choices for good or evil in the moral aspects or blameworthiness, not the good consequence of such punishment may generate. Then, the people who make the evil choices deserve to be punished because they violated the social norms. The latter theory is associated with the goals of deterrence [FN29], incapacitation [FN30], and rehabilitation. [FN31] The goal of punishment in this theory is to achieve the beneficial social consequence, that is, to prevent or minimize criminal behavior in the society. [FN32]
The main purposes in accordance with the Penal Code, which have been depicted in the discussion of judicial discretion, can illustrate both ideas of punishment theories. The offender must be punished by the sanctions of law, and simultaneously the court can exercise the discretion to find some mitigating or aggravated circumstances to reduce or increase the scale of penalty congruent to the background of each defendant. Sometimes, the former theory may be diluted, and the latter theory may be stronger in order to let the mechanic of punishment be functional and appropriate to the real person in the specific cases.
IV. The Principle of Legality
The Thai Constitution of B.E. 2540 (1997) [FN33] has provided the guarantee of individual rights, especially in criminal case [FN34], that everyone shall enjoy his or her rights to develop himself or herself as human being without any intervention by State. The State cannot exercise its powers without regardless the human dignity, rights and liberties both in accordance with the provisions of Thailand’s Constitution [FN35] and in accordance with the constitutional practice in a democratic regime.[FN36] All persons are equal before the law and shall enjoy equal protection under the law without unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, physical or health condition, personal status, economic or social standing, religious belief, education or political view.[FN37] Therefore, the government cannot wield the power without the rule of law. Normally, the restriction of the rights and liberties as recognized by the Constitution shall not be imposed on a person, except by virtue of provisions of the law specifically enacted for the purpose determined by the Constitution and only to the extent of necessity and provided that it shall not affect the essential substances of such rights and liberties.[FN38] Without the enacted law by the National Assembly, the State cannot exercise its power to affect the positive rights and liberties of general people.
The Penal Code also provides that: “A person shall be criminally punished only when the act done by such person is provided to be an offence and the punishment is defined by the law in force at the time of the doing of such act, and the punishment to be inflicted upon the offender shall be that provided by the law.
If, according to the law as provided afterwards, such act is no more an offence, the person doing such act shall be relieved from being an offender; and, if there is a final judgment inflicting the punishment, such person shall be deemed as not having ever been convicted by the judgment for committing such offence. If, however, such person is still undergoing the punishment, the punishment shall forthwith terminate.” [FN39]
The principle of legality has been enshrined in that it signifies that the offense or criminal conduct must be specified in advance, and no person shall be punished for a crime that has not been clearly defined by the appropriate authority. [FN40]
Even this provision does not say anything directly about the doctrine of principle of legality; it has been additionally explained by Thai scholars as follows: [FN41]
V. Principle of Legality in the United States Legal System
(1) The state cannot enact a law to specify some act retroactively criminalized if such act had not been defined as the crime. Moreover, the terms of the law must be comprehensively written to be applied to any conduct in general, and not specially apply to the past conduct.
(2) Even if some conduct has been specified as a crime, the state cannot pass the
law to increase the scale of punishment to effect such action in the past; the new scale of punishment will be enforced prospectively after the law has been promulgated.
(3) In contrast, the new law which is more beneficial to the defendant than the old
law before revision or amendment can be enforced effectively to the criminal who had committed such crime before the new law has been enacted.
(4) Any sanction which is not deemed a punishment, such as safety measures can be
enacted retroactively.
(5) The bill or the draft must be unequivocal so that the general people can understand the prohibition immediately. However, it is widely accepted that it might be impossible to exactly specify some conduct in particular crimes. Then, if such provision can be understandable even though there is some vagueness but can be tolerable as demanded by the necessity, such provision does not conflict with this principle.
(6) The law which defines the criminal procedure or the sanction which do not concern with the punishment is not in the scope of this provision neither.
V. Principle of Legality in the United States Legal System
The principle of legality has been codified in clause (3) of the Article I § IX of the Constitution of the United States. It provides that: “No bill of attainder or ex post facto law shall be passed,” This idea has also been emphasized in clause (1) of the Article I, § 10, that is, “No state shall enter into any treaty,…; pass any bill of attainder, ex post facto law, or law impairing the obligation of contract, or grant any title of nobility.”
However, the scholars in the United States interpret these U.S. Constitution provisions to limit the power of “state” or “the government of each state,” not the power of the court to interpret and fill the gap of the law, as well as to establish the new law compatible with the idea of “judge made law.” In contrast, this concept is strictly interpreted to limit the power of Legislature and Court in Thailand to enact the law conflicting with the concept of “ex post facto law.” Particularly, the judge, in civil law system like that of Thailand, cannot “say what the law is” in the same manner of Common law judge.
The scholars in the United States also explain that this principle is not in any ordinary sense a rule of law because it is more nearly a statement of ideal of good law. However, it is widely accepted ideal, and familiarity with its essential to understanding the criminal law as a product of Enlightenment thinkers, Montesquieu and Cesare Beccaria from the European Origins. These ideal conflicts with the English Common Law heritages – the judge made law - adopted in some states because this ideal limits the power of the court to make the law, especially, in the criminal law area. However, presently, Judges no longer feel free to set up the new crime in the criminal law area; they are bound themselves to enforce only those offenses previously declared to exist. [FN42]
In sum, the principle of legality in the United State is very important for general people not to be enforced the law arbitrarily and discriminatorily, [FN43] as well as this principle always has been interpreted as encompassing the doctrine of vagueness which requires the legislature to enact the law to avoid the vagueness doctrine. [FN44] Thus in the present, even if this principle is not the rule of law, it is widely accepted for every level of the state that law must be promulgated in advance and it must be clearly enough to lay person can understand. Finally, it also emphasizes that this principle is based on the doctrine of separation of powers and only the legislature should be the best position to enact the law to limit the liberty and free of the people who delegate the power to them, not the court to make a law.
Part III
The Different Concept of Criminal Liability
The Different Concept of Criminal Liability
This part will clarify the theory of offense structure, and illustrate the element of criminal liability in the United State both in Common Law Jurisdiction and the Model Penal Code Jurisdiction (MPC).
A. Theory of Offense Structures
The structure of offense or the element of criminal liability can be demonstrated in light of the bipartite, tripartite, and quadripartite modes of analysis. [FN45]
I. The Bipartite theory
The first system is applied in common law countries; the structure is composed of “Actus Reus”, or the external side of criminal conduct, and “Mens Rea,” the internal side. This system fails to provide a concept of defenses because all the defenses such as self-defense, duress, etc are out side the structure defined by actus reus and mens rea.
II. The Quadripartite theory
This system neatly classifies elements of offense structure into four categories: (1) the subject of the offense; (2) the subjective side of liability; (3) the object of the offense; and (4) the objective side of liability. This system clearly defines the notions of subject and object of the offense, and it also classified a special category for analyzing the problems of insanity and infancy. Thus, the court can take account whether some classification of defendant should be subjected to sanctions. However, the claims of justification are left outside the four categories, just as they are in the bipartite system.
III. The German Tripartite theory
While the first two theories fails to provides the justification and excuse in the criminal liability structure, the tripartite system, German system, begins from premises entirely different from those first systems.
III. The German Tripartite theory
While the first two theories fails to provides the justification and excuse in the criminal liability structure, the tripartite system, German system, begins from premises entirely different from those first systems.
This system is based on three affirmative dimensions of criminal liability:
(1) the definition of the offense;
(2) the wrongfulness or unlawfulness; and
(3) the culpability or blameworthiness.
It illustrates that: the claims based on the action, harm, and causation will negate the definition of the offense; the claims of justification will negate wrongfulness; and claims of excuse will negate culpability. The absence of culpability provides a sufficient reason for acquittal; then, if there is no culpability, even on the ground of personal necessity, mistake of law, involuntary intoxication, and insanity, there is no liability.
B. The Idea of Criminal liability in the United States
American legal systems, growing from English roots, are characterized as “Common law legal systems.” [FN46] Although the United States adopted the common law from England, several factors cause the American legal system in each state to differ from one state to another, especially in the criminal law area. [FN47] This complicated system also results from the structure of federalism which the authority of the states and federal government are clearly separated and limited both in vertically and horizontally. [FN48]
In the criminal law area, each state is free to set the appropriate system to its own state. [FN49] The Federal government and some states retain themselves in common law rule, but two-thirds of the states have adopted in whole or in part the Model Penal Code (MPC), which was drafted by the American Law institute in the 1950s and 1960s. [FN50]
I. The American Common Law Idea
(1) Background of Common Law Idea
The criminal law in common law idea based on the concept of “actus reus” and
“mens rea” was clearly established by Sir Edward Coke of England in the seventeenth century, and Kant’s analysis in 1979 of the shipwrecked sailors who kill to save their lives. [FN51] Since then, Coke’s maxim – actus non facit reum nisi mens sit rea – which means that the act is not crime without the guilty mind had been accepted in general. [FN52]
In the United States, Blackstone and other scholars describe that the “vicious will” or “guilty mind” must be present at the same time of act to become a crime. [FN53] For example, Joel Prentiss Bishop distinguished non-criminal law from criminal law by nothing that civil law often finds liability without blame but that “crime proceeds only from a criminal mind” and that “the essence of an offense is the wrongful intent, without which it cannot exist.” [FN54] Bishop, however, thought that law was divine and written on our hearts and the courts closely directed by God, [FN55] and an offender must be responsible for all consequence of a wrongful act.
“mens rea” was clearly established by Sir Edward Coke of England in the seventeenth century, and Kant’s analysis in 1979 of the shipwrecked sailors who kill to save their lives. [FN51] Since then, Coke’s maxim – actus non facit reum nisi mens sit rea – which means that the act is not crime without the guilty mind had been accepted in general. [FN52]
In the United States, Blackstone and other scholars describe that the “vicious will” or “guilty mind” must be present at the same time of act to become a crime. [FN53] For example, Joel Prentiss Bishop distinguished non-criminal law from criminal law by nothing that civil law often finds liability without blame but that “crime proceeds only from a criminal mind” and that “the essence of an offense is the wrongful intent, without which it cannot exist.” [FN54] Bishop, however, thought that law was divine and written on our hearts and the courts closely directed by God, [FN55] and an offender must be responsible for all consequence of a wrongful act.
(2) The Elements of Criminal Liability
The actus reus is the conduct and omission to cause the mischief to the society. The omission can be established by several ways such as by the law, by the contract, by the family relationship, and by the voluntary act to aid another person but did not completely done which precludes the other persons from assistance.
The mens rea or the “guilty mind” can be roughly divided into two categories, that is, the specific intent, and general intent. The former requires that the doer must intentionally commit the crime, but the latter does not; nevertheless, it requires that an offender must have some blameworthiness or guilt without intention. However, the terms to identify which offense requires the specific intent or general intent cannot be determined by the plain language because the common law courts use several terms that are deemed the terms of art, and do not directly imply the actual meaning. For example, the term of “corruptly” might be interchangeable with “willfully,” “scienter,” “maliciously,” “fraudulently,” “wantonly,” “feloniously.” [FN56] Those terms are typically collected in American Common Jurisdiction without attention to what they mean or how they relate to each other. [FN57] The common law court will define the actual meaning of such terms and the level of guilty mind whether it requires the state to prove the “specific intent” or “general intent.”
(3) Common Law and Principle of Legality
The common law idea does not emphasize on the principle of legality. The crime is not necessarily specified in advance and thereby if any person causes the harm to public, the Judge can declare such act criminalization, and impose the punishment for such act. The results of common law idea are that the Judges can declare that the crime exists even though the legislature has never declared such crime. It is still applies until now; for example, Kansas State Annotated § 21-3102 (1988) provides that “where a crime was denounced by any statute of this state, but not defined, the definition of such crime at common law shall be applied.” [FN58]
(4) Scope of Criminal Liability
The scope of criminal liability in common law is very broad. As far as the defendant can reasonably foresee the probable consequence of his conduct of the conduct of another according to the “complicity” theory, and the crime of “conspiracy,” he will be guilty of such consequences even he did not intend to cause them. People v. Durham, 449 P2d 198, (1969), and Pinkerton v. United States, 328 U.S. 640 (1946).
II. The Model Penal Code (MPC)
(1) Background of the Model Penal Code (MPC)
The MPC was drafted by the American Law Institute in the 1950s and 1960s, and roughly 35 states adopted it following the basic structure and terminology of the new criminal code. [FN59] The MPC reflected the idea of the group of American lawyers who attempted to rationalize the traditional criminal doctrine, and adapted the criminal justice system to utilitarian crime control idea. It emphasizes on the principle of legality which requires the state to make clear what conduct would be a crime. In addition, every element of the offender must be proved the culpability or blameworthiness or generally called mens rea, [FN60] based the normative theory. Then, if someone acts properly in necessity or self-defense or is excused on the ground of duress or insanity, he cannot be culpable. [FN61] However, this concept is not established in the common law jurisdiction as mentioned in the bipartite theory.
(2) The Elements of Criminal Liability
The MPC elaborates the principles of “actus reus” or the act and “mens rea” or culpable mind. It explains that a person shall not be guilty of any offense unless he acted voluntarily [FN62]; at the same time the actor has the mens rea when committing such offence. [FN63] Moreover, even the defendant had committed any crime with the requirement of mens rea but he had some justification or excuse, [FN64] he will be discharged from criminal liability because the justification is an affirmative defense. [FN65]
The MPC elaborates the principles of “actus reus” or the act and “mens rea” or culpable mind. It explains that a person shall not be guilty of any offense unless he acted voluntarily [FN62]; at the same time the actor has the mens rea when committing such offence. [FN63] Moreover, even the defendant had committed any crime with the requirement of mens rea but he had some justification or excuse, [FN64] he will be discharged from criminal liability because the justification is an affirmative defense. [FN65]
2.1) Actus Reus
The requirement of actus reus in each crime is composed of three elements, that is, Conduct, Circumstances, and Result. The conduct means the voluntary act or the omission to perform an act as well as omission, and possession. [FN66] Unlike common law, the omission under the MPC must be defined or imposed by law, [FN67] while the omission in common law jurisdiction might stem from the duties based on: (1) the statute; (2) the relationship in family; (3) contractual relationship; and (4) the voluntary assumption of responsibility that effectively precludes aid from the others. [FN68]
The requirement of actus reus in each crime is composed of three elements, that is, Conduct, Circumstances, and Result. The conduct means the voluntary act or the omission to perform an act as well as omission, and possession. [FN66] Unlike common law, the omission under the MPC must be defined or imposed by law, [FN67] while the omission in common law jurisdiction might stem from the duties based on: (1) the statute; (2) the relationship in family; (3) contractual relationship; and (4) the voluntary assumption of responsibility that effectively precludes aid from the others. [FN68]
2.2) Mens Rea
The second part of criminal liability is the mens rea; the MPC defines the level of state of mind different from both common law jurisdiction and several civil law countries in that it classifies the mens rea into four categories: purpose; knowledge; recklessness, and negligence. [FN69] Most of civil law countries will divide the level of mens rea into two categories, that is, “intention” and “negligence,” while the common law jurisdiction defines it as “specific intent,” and “general intent.”
The second part of criminal liability is the mens rea; the MPC defines the level of state of mind different from both common law jurisdiction and several civil law countries in that it classifies the mens rea into four categories: purpose; knowledge; recklessness, and negligence. [FN69] Most of civil law countries will divide the level of mens rea into two categories, that is, “intention” and “negligence,” while the common law jurisdiction defines it as “specific intent,” and “general intent.”
This code also requires the state to prove that while committing the offense, the defendant occupied the mens rea in every element of offence: conduct; circumstances; and result as defined in the statutes. However, if the statute does not exactly specify which level of state of mind shall be proved by the state, the “recklessness” is the minimal level of mens rea. Therefore, some provision can require different level of mens rea in different element of crime. [FN70] In contrast, this requirement is not fit and does not appear in common law jurisdiction, and civil law jurisdiction. The court always interprets that only one level of mens rea is required in such offence; especially in civil law countries, there is only two level of mens rea: either “intentional” or “negligent.”
(3) The Justification or Excuse and Scope of Criminal Liability
This code eases the claim of justification such as the claim of self-defense, [FN71] the mistake claim, [FN72] or the excuse such as the claim of duress, [FN73] and claim of intoxication. [FN74] The new rule established by the MPC normally based on the subjective standard of the defendant, rather than the objective standard such as the claim of mistake or self-defense including the claim of manslaughter under the influence of emotional disturbance.
Besides attempting to reduce the complex rule of the claim of justification and an excuse, the MPC also endeavors to limit the criminal liability of the person for another conduct, such as the principle in “Complicity” and “Conspiracy,” by limiting the liability only to the scope of the defendant mens rea, not extending to the natural, foreseeable and probable consequences as in common law jurisdiction defines. [FN75] Particularly, in conspiracy crime which is the stand alone crime, the defendant will be guilty if there is some overt act while the conspiracy in common law shall be complete as soon as the defendant had greed with other to commit some offense. [FN76] Furthermore, the MPC also provides the criteria to use of force to protect life and property, and at the same time the MPC requires the defendant to retreat from use of force to avoid the unnecessary loss of human life if he can retreat with complete safety.
In sum, the MPC, in my point of view, is very useful and it is the innovation of penal code movement even though there are some defects and some scholar thinks that the categories and the hierarchy of mental states form purpose, knowledge, recklessness, and negligence is flawed. [FN77]
Part IV
Criminal Liability in the Penal Code of Thailand
Criminal Liability in the Penal Code of Thailand
Besides the principle of legality concept that has been explained in the second Part of this paper, the Penal Code of Thailand has been comprehensively written in order to apply to the specific crime in this Code, and according to section 17 of The Penal Code of Thailand, it, particularly in general provision, also applies to every statute, which imposes the criminal punishment, enacted by the Legislature.
A. General Provisions
I. Subject or Person Concerning in the Penal Code
The Penal Code defines the general principles to apply for any offense in part I of the code. In general, the Code will define that the person who will be subjected to the penal sanction, and who will get the diplomatic protection or the benefit if he gets injury by another person. The person who commits a crime within the Kingdom as defined by the Code or by other laws shall be punished in the Kingdom. However, if such offenses are extremely serious and affect to the integrity of Kingdom both in national security and economic security or such offense are deemed the universal offense, the doer, co-principal as well as supporter including instigator shall be punished in the Kingdom of Thailand. [FN78] However, when victim is Thai citizen and gets injury due to the crime committing of other nationality citizen in foreign countries, the Thai government might grant the diplomatic protection for him according to the section 8 of this code.
II. The Special Sanctions: Measures of Safety
The Code also provides the additional sanctions that aim at protecting the public order, which are not deemed the punishment as specified in Section 18 of the Code, such as the sanctions of “measures of safety.” The measures that court can impose to the defendant are: (1) Relegation; (2) Prohibition to enter a specified area; (3) To execute a bond with security for keeping the peace; (4) Prohibition to carry on certain kinds of occupations. These measures shall be imposed after the defendant has been found guilty, and the Court considers that it will be beneficial to apply some special measures to prevent him from committing the crime, or to reform his character, and to train him for occupation in order return him to the society. [FN79]
III. The Extraordinary Sanction before the Crime Committed
The Code can also yield the authority to the Court to impose some measures to the person who is likely to commit the crime before the crime will be committed. This extraordinary sanction will be applied even if there is no crime committed or some crime is in the stage of preparation which the conduct is not qualitative enough to be indicted into the court, but the code entitles the authority to the police office and prosecutor to conduct the investigation as if the crime had been committed, and can exercise the power to have the accused in their custody. However, the law enforcement office must comply with the Code of Criminal Procedure, and the custody period shall not exceed forty-eight hours. The public prosecutor must file the motion to the Court to impose the duty to accused to execute some amount of money to prevent him from committing the crime or to order him from entering some specific area where he is likely to commit a crime. [FN80] However, this sanction has practically never been used to prevent the prospective crime, and, additionally, this measure will not be applied to the act of a child not over seventeen years of age.
B. Criminal Liability in the Penal Code
I. The Main Provision of Criminal Liability in the Penal Code: Section 59.
“A person shall be criminally liable only when such person commits an act intentionally, except in the case where the law provides that such person must be liable when such person commits an act by negligence, or except in the case where the law clearly provides that such person must be liable even though such person commits an act unintentionally.
To do an act intentionally is to do an act consciously and at the same time the doer desired or could have foreseen the effect of such doing.
It the doer does not know the facts constituting the elements of the offence, it cannot be deemed that the doer desired or could have foreseen the effect of such doing.
To do an act by negligence is to commit an offence unintentionally but without exercising such care as might be expected from a person under such condition and circumstances, and the doer could exercise such care but did not do sufficiently.
An act shall also include any consequence brought about by the omission to do an act which must be done in order to prevent such consequence.”
II. The Conflict of Scholars’ Idea of Criminal Liability
The drafter of the Penal Code had adopted the ideas of criminal liability from several countries such as China, Switzerland, Poland, Germany, Japan, etc. Some Thai scholars explain the section 59 like the idea of German by reasoning that it derives from the German Code; others explain this provision as if it is the Model Penal Code. For example, Professor Kietkajorn Vachanaswasit, the former Dean of Thammasat University Faculty of Law, and the scholar who graduated S.J.D. from Northwestern University, explains the element of criminal liability based on the mixed theory of Model Penal Code and Common Law Jurisdictions. [FN81]
In contrast, Professor Kanit Na Nakorn, former Attorney General and the scholars who graduated Ph.D. in law from German, always claims that the Penal Code idea was based on the German tripartite theory; he explains about the criminal liability of the Penal Code the same as the German theory. He applies the same rule as that of German Penal Code by asserting that even though an offender commits any conduct which has been criminalized by law, if such conduct cannot be blamed, or there is not culpability, he will not be punished. [FN82]
The first proposal offered by Professor Kietkajorn Vachanaswasit is widely accepted among the scholars because his explanation is congruent to the specific provision of the Penal Code while the last theory proposed by Professor Kanit Na Nakorn cannot explain some provisions in the Penal Code.
(1) The concept of the first model of criminal liability
There are three elements of criminal liability; a person shall be guilty if:
(1.1) he engaged in the proscribed conduct or crime element as defined by the
law; and
(1.2) he acted intentionally or negligently or without intention as defined by law
while acting with consciousness, and desired the cause the result or know what the probable consequence will derive from his act; and
(1.3) there is no justification or excuse for such conduct.
(2) The Scope of the Second Concept of Criminal Liability
This concept is the same as the German system which has been already explained since the last part. However, under this concept some conduct without culpability, despite being wrongful, cannot be discharged from the criminal liability under the Penal Code. For example, the person who was necessary to commit a crime, under the section 67; there was no culpability in his mind, but he was still guilty. However, he might get an excuse by being exempted from the punishment. This theory seems incompatible with the Penal Code; it is also difficult for general people to understand this concept.
C. Some Topic of the Penal Code Compare to the MPC and Common Law
Regardless the different explanation of different scholars, the structure of criminal liability in The Penal Code of Thailand is quite familiar to the MPC in some aspects, and it is quite the same as that of common law jurisdiction.
I. Structure of Criminal Liability
The Penal Code and the MPC provide the same rule about the principle of legality, structure of actus reus, and mens rea, [FN83] as well as defense or justification, and excuse in the code, but it is different in some details. For example, the Penal Code does not break down the element of crime to be a conduct, circumstances, and the result in order to apply the mens rea as to each element of crime, but it requires only “intention” applied to all of element of crime except some crime requires only negligence or some crime is classified as strict liability. [FN84] Both conduct and intention in the Penal Code have been clarified by the rule of common law. For example, the duties to act to prevent the result under the omission conduct have been explained by the structure of common law duties which derive from: statute, contract, family relation, and the special duties under the voluntary act. The attempted crime is explain by the common theory to determine the quantitative conduct based on the physical proximity test, the dangerous test, and Res Ipsa Loquitur, rather than the substantial step in the MPC.
II. Justification and Excuse
The Penal Code provides some justification and excuse in several provisions such as: the unknown fact which is the element of crime under section 59(3), mistake of fact under section 62, intoxication under section 66, mental illness under section 65, necessity under 67, and the defense of the defendant’s right or the right of the other under 68, but the ignorance of law is not a defense or excuse.
(1)The claim of mistake of fact
The context of section 59(3) is the same as the MPC in that if an offender does not know the facts constituting the element of the offence, it cannot be deemed that an offender desired or could have foreseen the effect of such doing. That means the code will provide the justification to the defendant because he had no mens rea when committing some conduct. However, this provision causes the confusion to court and general people because it is quite the same as the mistake of fact in section 62. In section 62, when the defendant believes that some facts, which render him not to be liable for, or not to be punishable, or to receive the less punishment, even mistakenly, he shall not be guilty, or exempted from the punishment, or receive less punishment depending on the his belief and facts. Both section 59(3) and 62 illustrate that if mistake of fact negates the mens rea, in part or whole, he will be not guilty or exempted from punishment or receive less punishment as he believes. However, the ignorance of law shall not excuse the defendant from criminal liability under section 64 but the court might permit him to prove such ignorance if the court find it proper to do so.
(2) The claim of intoxication
The intoxication is not the justification both in “intentional crime” or “negligent crime;” this is totally different from the MPC and common law jurisdiction because both MPC and common law jurisdiction provides some defense if the intoxication negates the mens rea in the specific crime or the crime that require purpose or knowledge as to mens rea. However, under section 66, if the defendant did not that he introduced the intoxication substance, or he was compelled to introduce such substance, and that he committed an offense while totally unconscious, he will be exempted from the punishment. He will get the imperfect justification, if committing a crime while he still was partly conscious.
The intoxication is not the justification both in “intentional crime” or “negligent crime;” this is totally different from the MPC and common law jurisdiction because both MPC and common law jurisdiction provides some defense if the intoxication negates the mens rea in the specific crime or the crime that require purpose or knowledge as to mens rea. However, under section 66, if the defendant did not that he introduced the intoxication substance, or he was compelled to introduce such substance, and that he committed an offense while totally unconscious, he will be exempted from the punishment. He will get the imperfect justification, if committing a crime while he still was partly conscious.
(3) The necessity under section 67
It provides some excuse to defendant to be exempted from punishment. If any person is reasonably necessary to commit an offense under either; (1) under compulsion or under the influence of a force; or (2) under the necessity to avoid the imminent danger which could not avoid by any other means and such person was not at fault, he shall not be punished if such necessary conduct is proportional to the imminent danger. This provision is quite the same as the necessity defense under the common law rule. Moreover, the code also provides the imperfect justification under section 69 by reducing the scale of punishment provided that the use of force incurred by the defendant was not proportional to the imminent harm.
(4) The claim of defense of rights under section 68
This provision does not clearly specify that the defense of right means only the right to life or it includes the right to protect the property. The court and Thai scholars have never explained about the right to protect the property. The context of this provision is the same as common law rule in some aspect in that it provides the affirmative defense if the defendant has to commit any offense to protect his right, However, the Penal Code also provides the right to use of force to protect the right of the other persons in order to escape from the unlawful act which causes the imminent danger to him, or the other with the affirmative defense if the use of force is reasonable and proportional to the danger. If his conduct is in the scope of sec. 68 and 69, he will not be guilty of any crime.
It provides some excuse to defendant to be exempted from punishment. If any person is reasonably necessary to commit an offense under either; (1) under compulsion or under the influence of a force; or (2) under the necessity to avoid the imminent danger which could not avoid by any other means and such person was not at fault, he shall not be punished if such necessary conduct is proportional to the imminent danger. This provision is quite the same as the necessity defense under the common law rule. Moreover, the code also provides the imperfect justification under section 69 by reducing the scale of punishment provided that the use of force incurred by the defendant was not proportional to the imminent harm.
(4) The claim of defense of rights under section 68
This provision does not clearly specify that the defense of right means only the right to life or it includes the right to protect the property. The court and Thai scholars have never explained about the right to protect the property. The context of this provision is the same as common law rule in some aspect in that it provides the affirmative defense if the defendant has to commit any offense to protect his right, However, the Penal Code also provides the right to use of force to protect the right of the other persons in order to escape from the unlawful act which causes the imminent danger to him, or the other with the affirmative defense if the use of force is reasonable and proportional to the danger. If his conduct is in the scope of sec. 68 and 69, he will not be guilty of any crime.
(5) The claim of unjust maltreatment under section 72
This claim seems similar to the claim of the under “the influence of extreme mental or emotional disturbance” under MPC §210.3. Manslaughter. However, it is somewhat different because MPC § 210.3 requires the defendant must pass two standard, that is, the subjective standard and objective standard. The defendant might claim that he committed manslaughter under the emotional disturbance or extreme mental because there were some circumstances that provoked him to committed a crime; the provoked circumstances must be reasonable under his view of points and his belief. Under section 72, it does not provide any standard of maltreatment which will constitute the adequate provocation and render such person would commit the crime.
This section provides that: whenever any person commits an offense at the time of grave and unjust maltreatment against him and causes him to commit such offense, the court may inflict upon such person less punishment to any extent than provided by the law for such offence. This provision will not grant the defendant an affirmative defense.
This claim seems similar to the claim of the under “the influence of extreme mental or emotional disturbance” under MPC §210.3. Manslaughter. However, it is somewhat different because MPC § 210.3 requires the defendant must pass two standard, that is, the subjective standard and objective standard. The defendant might claim that he committed manslaughter under the emotional disturbance or extreme mental because there were some circumstances that provoked him to committed a crime; the provoked circumstances must be reasonable under his view of points and his belief. Under section 72, it does not provide any standard of maltreatment which will constitute the adequate provocation and render such person would commit the crime.
This section provides that: whenever any person commits an offense at the time of grave and unjust maltreatment against him and causes him to commit such offense, the court may inflict upon such person less punishment to any extent than provided by the law for such offence. This provision will not grant the defendant an affirmative defense.
The indictment which relates to this section always concern about the family relation between the husband and wife when the wife kill her husband because her husband conduct adulteration with other woman. The court always decides that the defendant commit the murder under this section. In contrast, if husband kill her wife because of the same reason, the court always decides that the defendant has to protect his right and dignity, and thereby he is not guilty for the murder. [FN85]
III. Unclear Provision
(1) Attempt Crime
The Attempt Crime in the Penal Code provides two types of attempted
crime under section 80 and 81; in addition, it provides the benefit for the defendant if he desists from carrying it or changes his mind and prevents the act from achieving its end under section 82 of this code.
(1.1) General Attempt
Section 80 provides that: “Whoever commences to commit an
offence, but does not carry it through, or carries it through but does not achieve its end, is said to attempt to commit an offence.
Whoever attempts to commit an offence shall be liable to two thirds of the punishment as provided by the law for such offence.”
This section does not explicitly clarify whether the defendant has to have “intention” to commit a crime or he can negligently commit an attempt crime. Unlike, the MPC §5.01(1) obviously defines that a person shall be guilty of attempt to commit a crime if he commit purposely engage the crime or purposely cause a result or believe that his conduct will cause a result..[FN86] However, Thai courts and scholars based upon the theory of the MPC as well as common law explain that the attempt crime shall exist in case the defendant intends to commit a crime but it is unsuccessful or he cannot achieve the result if the crime requires the consequence.
In addition, the provision does not provide the criteria about the boundary of preparation and attempted crime. The scholars, therefore, apply different rules based on their knowledge background. The court applies the proximity test under the common rule; some scholars apply the dangerous test or proximity test; others apply the German theory. The German will consider the substantive virtue which such offence is designed to protect from violation. If the conduct is closed to violate the substantive virtue of such offence, it is the attempted crime.
(1.2) Impossibility of attempted crime
Section 81 of Penal Code provides that: “Whoever does an act by aiming at the effect which the law provides a an offence shall, if such doing the act is certainly incapable of achieving its end on account of the factors employed in the doing, or on account of the object aimed at, be deemed to attempt to commit an offence and shall be inflicted with the punishment of not more than one half of the punishment as provided by the law for such offence.
Section 81 of Penal Code provides that: “Whoever does an act by aiming at the effect which the law provides a an offence shall, if such doing the act is certainly incapable of achieving its end on account of the factors employed in the doing, or on account of the object aimed at, be deemed to attempt to commit an offence and shall be inflicted with the punishment of not more than one half of the punishment as provided by the law for such offence.
If the act mentioned in the first paragraph is done on account of blind belief, the Court may not inflict the punishment.”
This context is very similar to the idea of common law rule of the “factual impossibility” and “legal impossibility.” The concepts of these theories are that there is unknown fact or external matter to the defendant which will render the crime impossible to be complete because of non-existing of unknown fact of external matter. Under the common law theory, the factual impossibility is not a defense while the legal impossibility is a defense. However, there is no clear explanation about these concepts, and still debatable because in both cases the defendant knew that he was going to commit a crime and he had already performed such conduct with existing of mens rea; however, it was impossible for him to complete the crime because some reason unknown to him. Then, it might be arguable.
In the Penal Code, there is no such distinction. The criminal liability under the section 81 is based on the belief of the defendant and his intention. The Code deems such conduct an attempted crime and the court shall inflict him not more than one half of the punishment provided by the law for such offence. In addition, if the defendant believes in the supernatural power, or blind belief, the court may not inflict him any punishment. That means he is still guilty of attempted crime based on his belief, but he might get an excuse. It looks the same as the attempted crime under the MPC in that the criminal liability is based on the belief of the defendant. In practice, there is no indictment based on the section 81 of the Code.
(2) Innocent Agent
The doctrine of innocent agent is developed in the context of the narrow
theory of accomplice liability. [FN87] The explanation in the concept of innocent agent is rooted in the common law rule, that is, the one person induce another to perform criminal conduct for which that person could not be held liability such as the infancy, insanity, or innocent mistake of one who actually administered the offence without knowing that fact. The common law views the guiltless actor merely an instrumentality of the ultimate wrongdoer. [FN88]
The doctrine of innocent agent is developed in the context of the narrow
theory of accomplice liability. [FN87] The explanation in the concept of innocent agent is rooted in the common law rule, that is, the one person induce another to perform criminal conduct for which that person could not be held liability such as the infancy, insanity, or innocent mistake of one who actually administered the offence without knowing that fact. The common law views the guiltless actor merely an instrumentality of the ultimate wrongdoer. [FN88]
Thai scholars explain the criminal liability of one person under this doctrine based on the idea of common law rule whereas no any provision in the code defines about the innocent agent. [FN89] This explanation is different from the concept of the MPC. The MPC defines some conducts of a crime concerning with the innocent agent such as in MPC §5.01(2)(g) in criminal attempt. [FN90] In addition, it also defines the criminal liability of a person for his own conduct or by the conduct of another person for which he is legally accountable, or both such as in the MPC §2.06(2)(a) which defines that: “a person is legally accountable for the conduct of another person when (a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct.”
The Penal Code has not provided any provision about “innocent agent” but Thai scholars always explains it by reasoning and analogy the theory of common law. The Code provides merely some provisions about the principal, the instigator, and supporter, but those are incompatible with the theory of complicity under common law to explain about the innocent agent. The Principal rule under section 83 will be applied when the two person upwards participate in the crime commission they agree and conduct some act to assist one another by separating their functions in crime commission, or any other means by which they always present at the crime scene or in the nearby crime scene promptly to aid one another. While the instigator under section 84 must cause the person who has an absolute mental ability to commit a crime either by employment, compulsion, threat, hire, instigate, or others means, the theory of innocent agent will be applies when the person causes the person, who cannot be held liable because of some reason such as mental illness, to engage the crime conduct. The Supreme Court of Justice of Thailand and Thai scholars have been introduced the idea of innocent agent to Thai legal system long time ago without the basis of the Penal Code.
However, the question is why there have ever been any questions or challenges about the legitimacy of such introduction, under the civil law legal system. The explanation might be rooted in the homogenous context of moral and common sense of general people which Thai society believes that the person who causes the other person commit an offense should be punished.
IV. Some Problematic Language in Provision: Principal, Instigator, and Supporter
The “Principal” in the section 83 means the persons who have not committed the substantive crime directly but participated in committing a crime with another person. This idea is quite similar to common rule of the principal and accessory in the common law rule. It differentiates the principal between the first and second degree parties by which the first degree principle is always the person who is the primary actor while the second degree principle is the person who agrees to aid or abet the primary actor in the crime commission. However this idea has been substituted by the idea of the MPC by dividing the parties who engage a crime as principal, a primary actor, and an accomplice, who aid and abet the principal to commit a crime. [FN91] This term used in The Penal Code causes the confusion to the general person because everyone would understand that the principle should the person who engages the crime directly by himself, not only the person assists the actual perpetrator.
The “Instigator” under section 84 is the person who engages in employment, compulsion, threat, hire, or by other means to cause another person to commit a crime; however, this section does not relate to the innocent agent theory because the person who was employed or other means must be the person who can be held liable for the crime. If the crime had been committed, the instigator shall be liable as the “Principal,” but if, within any reason, the crime has not been committed, he must be liable to only one third of the punishment provided for such offence. The terms of “Instigator” relating to “Principal” causes the confusion to the lay person because if the term of “Principal” is clear, it effects the interpretation of this provision.
The “Supporter” under section 86 is the person who assists or facilitates the primary actor in committing a crime shall be liable for the conduct of another person even though the primary actor does not know of such assisting or facilitating by the supporter. The support shall be liable to two third of the punishment provided for such offense. The problem of this provision is that it does not illustrate the result of the result it the primary actor does not get any benefit from the assistance or the facility of the supporter.
V. Lacking of Rule of Conspiracy in the Criminal Liability Part
The Penal Code defines the specific crime of conspiracy in section 209 – 216 concerning about the gang or body of person whose aim is to secretly proceed the unlawful commission. The person who is the membership of this gang, called “Ung-Yee,” shall be guilty of this crime. Moreover, the person who agrees to commit any crime specified in the Book II of the code shall be guilty of the crime as a member of a criminal association, called “Song-Jone.” [FN92] The scale of punishment inflicting to the person who concerns with the gang-crime or a criminal association will depend on how serious is the crime that they intend to commit; the highest punishment of this crime is the imprisonment of two to ten years and fine of four thousand to twenty thousand baht (or around $100 - $500.)
This idea of a gang crime or a crime association might be considered as the “Conspiracy.” However, the Court and the general scholars do not pay attention about this important crime. One main reason might derive from the problem of impracticability of this crime. In the past more than 50 years ago, there were many crimes committed by the Chinese or by the foreigner in this manner. The police and administrative agency utilized this crime to deter the crime to incapacitate some person in the crime gang from committing a crime in a certain period. Then, it sounds like the public policy to apply this crime only in the necessary period. Eventually, the Court would exercise his power to confine the defendant as long as the Criminal Procedure Code allows, and the prosecutor would drop every charge. Consequently, there is no good consequence from this beneficial provision to achieve the social deterrence or specific deterrence.
D. The Problem of Judicial Discretion
The last point of this part is what the proper role of the judge is in Thai legal system. The question is whether the judge will be able to spurn the law enacted by the legislature or the regulations issued by the administrative agency if there is no claim of unconstitutionality of such law or regulation.
I would like to give two example of Thai Court Judgment about the criminal liability and the policy deriving from the court decision. The first is the problem about the gambling machine, and the second is the right to resist of the arrested person when it turned out that the arrest was unlawful.
I. The Problem of Gambling Machine
Gambling in Thailand is illegal. The Legislature has enacted the Act of Gambling of B.E. 2478 (1935) and delegates the authority to administrative agency to promulgate the decree or regulation compliance with the Act to identify the type of gambling and the other devices related. In B.E. 2530 (1987) the agency promulgated the regulation number 23 identified that: “the device, which is powered by the electric power, light power, or the other means, and which is played by touching, pushing, flicking, drawing, shooting, shaking, revolving, or other means to compete and can be beatable regardless by the way of counting point or by giving some signal or others.” This regulation is to manipulate the machine games which have been set up in the pub and restaurant, and thus lure the student to play this game machine.
Gambling in Thailand is illegal. The Legislature has enacted the Act of Gambling of B.E. 2478 (1935) and delegates the authority to administrative agency to promulgate the decree or regulation compliance with the Act to identify the type of gambling and the other devices related. In B.E. 2530 (1987) the agency promulgated the regulation number 23 identified that: “the device, which is powered by the electric power, light power, or the other means, and which is played by touching, pushing, flicking, drawing, shooting, shaking, revolving, or other means to compete and can be beatable regardless by the way of counting point or by giving some signal or others.” This regulation is to manipulate the machine games which have been set up in the pub and restaurant, and thus lure the student to play this game machine.
The nature of this disputed machine is the electronic power machine which is used to play by touching or pushing; the player have to pay for the fee by inserting the coin into the machine, and the player will control the device to grasp doll in the machine within the limited time. If the player can successfully grasp the doll, the player wins and gets the doll.
The Appellate Court division 7 of Thailand ruled in this case by interpreting the term of “beatable” meaning that merely the players have to play and beat one another, excluding other person [such as the provider or the machine itself.] Because the person who plays this machine cannot beat one another, then, that the game machine is not the gambling machine. This machine is used to exercise and obtain the entertainment.
The problems that I would like to discuss are what the definition of the gambling is and who should make a decision about this topic. A case study to compare with this problem is State v. Ellis, 206 N.W. 105 (1925). The court ruled that: “The meaning of gambling is defined in Iowa Code section 13202, 13203 (1924). The machine in question purported to be used for the sale of mints in packages. These packages were retailed at five cents each, through the use of the machine. It is a slot machine. The nickel goes into the slot, and the purchaser pulls a lever, whereby the mint package is delivered into the hand of the purchaser. This result is invariable. In addition to the package of mints, "chips" are sometimes delivered also. These "chips" are metal discs, which are stamped as being "good for five cents in trade." These "chips" furnish the allurement of the game. In order to avoid the appearance of chance in the game, an indicator is provided with this machine, which indicates to the purchaser in advance just what he will receive by a pull of the lever and a deposit of a nickel. At the first play of the lever, the purchaser is usually advised by the indicator that he will receive nothing but a package of mints. The first pull of the lever sets the indicator, however, for the next play. It may indicate that for the second pull of the lever the purchaser will receive a specified number of "chips" in addition to the mint package; or it may indicate that only a package of mints will be received. It is a question of chance at this point. If the indicator fails to promise "chips" for the second pull, such promise may be there when it is set for the third pull. The promise is sure to come if the lever is pulled and the nickel dropped a few times successively.”
“Machines of this character have been considered by the courts of last resort of many of our states. Without exception, they have been held to be gambling devices. We are of opinion that the machine in question, as operated, was a gambling device, within the meaning of our statute. We hold, therefore, that the trial court properly condemned the machine in question as a gambling device.”
As described above, the fact and the law defining the gambling machine is the same; however, the outcome is totally different. I will not say whether the Thai court decision is correct or imprecise. However, in my view, under the principle of legality which is backed up by the doctrine of separation of power, the court should have not decided the case to affect the effectiveness of crime deterrence and public policy that only the legislature and the government are the better position to decide. They are the representative of the general people to promulgate the general will of the people. Public policy should be decided by them; then, without the clearly erroneous issue or unconstitutional issue, the court should attempt to find out what the great benefit to the people and support the effectiveness of the law enforcement. The judgment of the court might instigate or provoke a bad result that the court might not discern.
II. The Right to Resist the Unlawful Arrest
The Supreme of Justice of Thailand consistently decides the case about the criminal liability of the arrested person who resisted the arrest of the police. The Court ruled that when it turned out that the arrest was unlawful, the arrested person who resisted and hurt the police was not guilty of resistance and obstruction to the official under section 138, and was not guilty of causing injury to the official. [FN94]
This judgment is completely inappropriate because it might incite or provoke violent and cause danger to the police officer including the person who assists the police office in conducting arrest the other under the Code section 70. The Code section 70 grants an excuse to the people who assist the official if he believes that the police act due to their official performance. The MPC § 3.04 (2) (a) (i) (1) limits the justification to resist the arrest of the public officer, and in Wainwright v. New Orleans, 392 U.S. 598 (1968), the Court declined to support the right to resist the arrest of police.
The Supreme Court of Justice of Thailand should have considered both sides; on the one hand is the effectiveness of the police performance to enforce the law as the general will of the legislature, which may require any sanctions that do not invade the fundamental right of the individual. On the other hand is the right of the people. Even though in this case, the police had conducted the search and seizure without warrant, the people should have no right to resist such arrest by the police in order to avoid the loss of life due to the mistake. However, the police must be liable for the misconduct or unlawful conduct if they incur any loss to the arrested people.
Part IV
Conclusion
Conclusion
A. The Same Principles of Criminal Law in Every Legal System
The idea of criminal liability of one system might be different from the others. However, the main stream of idea and the ultimate goal is the same. The people learn that the crime is the normal phenomena in society, and they need to wipe out all the crime, but it seems impossible. Many theories of punishment based on the retributive function of punishment, and the utilitarian function have been applied to deal with the crime commission. Some societies are very tolerant of high crime rate; then, the “due process of law” to protect right and freedom of the defendant will be enshrined rather than the goal to deter the high crime rates. In contrast, other societies concentrate on the problem of high crime rates and attempt to get rid of such problems; the means to achieve this end is totally different. For example, the personnel in the Japanese criminal justice system have very broad power to investigate the crime by applying all means to obtain the confession, and the defendant cannot assert the rights to counsel when he was inquired by the police or prosecutor. [FN95]
Nevertheless, the unanimous movement of criminal liability is that the crime must be described in advance; the state cannot enact any criminal law retroactively, known as “nullum crimen nulla poena sine lega.” The principle of legality, which requires that the crime be specially proscribed by the law in advance of the conduct sought to be punished, has been widely accepted in every legal system both common law jurisdiction and civil law jurisdiction. [FN96] For example, Article 8 of the Declaration of the Rights of Man and the Citizens of 1789 provides that: “no one may be punished except by virtue of a law (loi) drawn up and promulgated before the offense is committed,” which has been the fundamental basis for adopting the French Penal Code of 1971. [FN97] The United States adopted this principle and explicitly declared in Article I, Section IX that: “No bill of attainder or ex post facto law shall be passed.” [FN98] This principle is also the bed rock declared in Article 12 of the Universal Declaration of Human Rights which provides that: “No one shall be held guilty of any penal offence on account any act or omission which did not constitute a criminal offense, under national or international law, at the time when it was committed.” [FN99] As a civil law country, Thailand the principle of legality has been promulgated in Section 2 of Penal Code that: “A person shall be criminally punished only when the act done by such person is provided to be an offence and the punishment is defined by the law in force at the time of the doing of such act, and the punishment to be inflicted upon the offender shall be that provided by the law.”
Moreover, the criminal law must be sufficiently definite enough for general people to understand what conduct is prohibited, and it was generally accepted that the proscribed conduct must be based on “conduct,” not the “offense against the law of morality.” [FN100] The criminal liability, in general, must be based on the element of conduct and guilty mind, and bearing on the presumption of innocence which requires the state to prove the defendant guilty. The crimes which do not require the state to prove the guilty mind of the defendant, called regulatory crime, shall be limited on certain rules. For example, such crimes must aim to promote the public welfare; the scale of punishment is very small; those crimes must be very necessary for the public interest, and such interest is much greater than that of the individual. Besides those regulatory crimes, all offenses require both conduct and guilty mind.
B. The Same End but Different Means
Both common law and civil law countries are based on the ideas that the elements of crimes must be composed of mens rea and actus reus as well as other principles mentioned above. All countries attempt to achieve the same end even though they apply the different idea, but obtain the same result in criminal law area. As explained in the last part, the elements of criminal liability in different theories, which are bipartite, tripartite, and quadripartite theory or even the MPC which modifies the common law bipartite theory, are aimed at achieving the same end by using the different means.
The MPC was published in 1962 under the subjective idea of the group of the American lawyers to uniform the common law and to control the crime under the utilitarian crime idea, [FN101] and at the same time to grant the opportunity to the person who committed the crime but there is some reasonable explanation or excuse to be discharged from criminal liability.
The MPC also endeavors to remodel and ease the complex rules of common law in several ways. For example, it reforms the terms of art used in common law by classifying the mens reas into four categories, eases the claim of justification or excuse, limit the criminal liability of the person for another conduct only in the intention of the defendant mens rea without an additional responsibility which he did not intend. Particularly, the conspirator will be guilty if an overt act has been committed. Furthermore, the MPC also promote the effectiveness of law enforcement since it does not provide a justifiable defense for the arrested people to use of force resisting the arrest even though the arrest is unlawful. In use of force, the MPC requires the defendant to retreat from use of force to avoid the unnecessary lose of human life if he can retreat with complete safe.
C. Proposal for Thailand
The Penal Code has been promulgated for a long time. The legislature has revised or amended some provision in certain period. Those provisions has been amended because of Thailand has approved and ratified the international obligation. Other provisions have been changed only some details about the amount of fine. However, the general principle of criminal liability has never been amended since it was promulgated in B.E. 2499 and enforced since B.E. 2500 or 1957.
In my view, the MPC is the good model for Thailand to use as a tool to revise the Penal Code in some areas such as:
D. Example of Introducing the Rule of Conspiracy Crime
(1) adding the provision of conspiracy in to the general part of criminal liability principles;
(2) providing some standard of attempted crime to explain the boundary line between preparation and attempt crime;
(3) separating the value and punishment in the theft crime;
(4) protecting the use of force to the law enforcement officer and limiting the right to resist of the arrested person even unlawful arrest;
(5) limiting the role of the judge in establishing the rule without the provision basis.
D. Example of Introducing the Rule of Conspiracy Crime
The Legislature of Thailand should introduce the conspiracy crime in to the general part of criminal liability as following.
The provision of “conspiracy” should be located in the general provision, and should be applied as the alternative of attempt crime or complicity. In some situations, especially the serious crime, the impact of the complete crime or even the attempted crime is very board. For example, economic crimes can cause the huge damage to our society as a whole. The idea of “conspiracy” as a stand alone crime might be used a significant tool to prevent such disaster at the first stage of planning. In addition, the amount of the criminal penalty should be increased to promote the respectfulness of the law.
However, the idea to introduce the conspiracy crime to Thai legal system might have to be very careful and very limited. The common law conspiracy idea, which provides that the conspiracy crime is complete once the parties have agreed to commit any crime without overt act, and such parties have to be liable for any natural and foreseeably probable consequence even no agreement, is too broad. The idea of the MPC of conspiracy crime which requires the agreement to aid and abet or other overt act as well as the purpose to commit such conspiracy crime may be more appropriate to protect both the individual’s rights, and the benefit of the country.
E. Final Words
I found that the criminal liability idea of both common law and civil law are compatible to each context of each country, but in fact those are to achieve the same end of crime control and protection of individual rights. The Penal Code of Thailand is the example of the mixed theories of both civil law and common law. As a result, it becomes less beneficial to distinguish the legal system strictly on the rule of each legal system. If one country can figure out the means to control the crime, the theoretical character of the technique as being based upon common law or civil law legal system does not matter.
FOOTNOTES:
** The athor is a police inspector of Legal Affair Division, Royal Thai Police Department. He gradutated in some degrees as following: BA. (Police Science) Royal Police Cadet Academy; Barrister-at-law; LL.B,(Hon.) and LL.M. (Public Law) Faculty of Law, Thammasat University; Master’s Degree of Public Administration Faculty of Political Science, Thammasat University; LL.M. Indiana University – Bloomington; LL.M. candidate University of Illinois At Urbana-Champaign. Presently, he has been studying in JSD program or Ph.D. in law at University of Illinois.
[FN1]. SEA, “Ayudhaya Law: Dharmasatra,” available at,
< http://members.tripod.com/~leavis/SEA.htm >, (last visited December 4, 2004).
[FN2]. Tilleke & Gibbins international Ltd. “Thailand Legal Basics,” available at, http://www.tillekeandgibbins.com/Publications/thailand_legal_basics/
thai_legal_sytem.pdf <>, (last visited December 5, 2004).
[FN3]. National Identity Board of Thailand, “Thailand into the 2000’s,” 27, (Bangkok: Amarin Printing and Publishing Public Company Ltd.) (2000)
[FN4]. Prapun Naigowit, “Criminal Justice in Thailand.”
http://www.iap.nl.com/speeches_asia_conference_2003/criminal-justice-inthailand-by-prapun-naigowit.html, (last visited November 28, 2004).
[FN5]. Sa-nga Leelasmit, “Penal Code 1,” 12-17, (Bangkok: Rungsilp-karnpim (1997) Ltd.,) (1987)
[FN6]. The Penal Law provided the class of punishment as followings:
The punishment class 1 means fine not exceeding one hundred bath;
The punishment class 2 means fine not exceeding five hundred bath;
The punishment class 3 means imprisonment not exceeding ten days or fine not exceeding five hundred bath, or both;
The punishment class 4 means imprisonment not exceeding one month or fine not exceeding one thousand baht, or both.
[FN7]. The Penal Code in the General Provision is composed of 106 secs; the first part is the provision which applicable to every offense both in The Penal Code, and other law that inflicts the criminal sanctions as well
[FN8]. This title relates to the conspiracy act, about the crime of gang or “Ung-Yee.”
[FN9]. This title relates to the commission of arson.
[FN10]. This title relates to the commission of rape, indecent act, and related acts of
sexuality.
[FN11]. This title relates to murder, manslaughter or negligent murder, assault and battery, offense of abortion, and the offense of abandonment of children, sick persons or aged persons.
[FN12]. This title relates to causing frightening in fear of injury to life, body, liberty, reputation or property, illegal confinement, enslaving a person, kidnapping, unreasonably taking away of the minor from the parents or the guardian, revealing the other secrete information, and upon his professional career or calling of trust, acquiring a secret concerning industry and disclosing that secret to obtain the benefit. Moreover, this title still does relate to the offense of defamation as well.
[FN13]. This title relates to the offense of theft and snatching, offenses of extortion, blackmail, robbery, and gang-robbery. Furthermore, it also concerns about the offenses of cheating and fraud, offences of cheating against creditors, offenses of misappropriation and embezzlement, and the offense of receiving stolen property. In addition, this title does recount the offenses of mischief, intruding or the offenses of trespass
[FN14]. The last part of Thailand Penal Code defines the misdemeanor act which will be inflicted the confinement not exceeding than one month imprisonment or fine not exceeding than 1000 baht ( or around $ 50), or both. It relates to the moral senses, or the duties of the civil people for the common good, and public order, for example, drunk in the public, causing river or road polluted or filthy.
[FN15]. The Act Promulgating the Penal Code B.E. 2499 Sec 7 provides that: “In the case of safety measures according to Sec 46 of the Penal Code, the provision of the Criminal Procedure Code shall apply as if a criminal offence, but the custody in the inquiring stage shall not exceed forty-eight hours as from the time when the arrested person arrives at the office of the Administrative or Police officer, but the time taken for ordinary journey in bringing the arrested person to the Court shall not be included in such period of forty-eight hours.”
Sec 46 provides that: “If it appears to the Court, by the submission of the Public Prosecutor, that any person is likely to cause danger to another person to the property belonging to another person, or if, in the trial of any case, the Court will not convict the prosecuted person, but there is reason to believe that the prosecuted person is likely to cause danger to another person or the property belonging to another person, the Court shall have the power to order such person to execute a bond in a sum of money amount exceeding five thousand bath (or $125), with or without security, for keeping the peace during such period as determined by the Court but not exceeding two years
If such person refuses to execute a bond, or cannot furnish security, the Court shall have the power to order such person to be confined until such person executes the bond or furnishes security, but such person shall not be confined for more than six months, or the Court may give order prohibiting such person to enter a specified area according to Sec 45”
Sec 45 provides that: “Whenever the Court passes judgment inflicting punishment on any person, and deems fit for the sake of public safety, the Court may, whether there is a request or not, give order in the judgment that, when such person has passed over the punishment according to the judgment, such person shall be prohibited to enter a specified area for the period of not exceeding five years”
[FN16]. The Penal Code sec 78 provides that “whenever it appears that there is an extenuating circumstance, whether or not there be an increase or reduction of the punishment according to the provisions of this Code or the other law, the Court may, if it think fit, reduce the punishment to be inflicted on the offender by not more than one half.
Extenuating circumstances may include lack of intelligence, serious distress, previous good conduct, the repentance and the efforts made by the offender to minimize the injurious consequence of the offence, voluntary surrender to an official, the information given to the Court for the benefit of the trial, or the other circumstances which the Court considers to be of similar nature.”
[FN17]. The Supreme Court Judgment or Dika Court Decision no.1851/2522(1979)
[FN18]. The Penal Code, Sec 73-77
Sec 73 provides that “a child not yet over seven years of age shall not be punished for committing what is provided by the law to be an offense.”
Sec 74 provides that “whenever a child over seven years but not yet over fourteen years of age commits what is provided by the law to be an offence, he shall not be punished, the Court shall have the power as follows:
(1) to admonish the child and then discharge him; and the Court may, if it thinks fit, summon the parents or guardian of the child or the person with whom the child is residing to be given an admonition too;
(2) if the Court is of opinion that the parents or guardian are able to take care of the child, the Court may give order to hand over the child to his parents or guardian by imposing the stipulation that the parents or guardian shall take care the child does not cause any harm throughout the time prescribed by the Court but not exceeding three years, and fixing a sum of money, as it thinks fit, which the parents or guardian shall have to pay to the Court but not exceeding one thousand baht for each time when such child caused harm.
(3) ….,
(5) to send such child to a school or place of training and instruction or a
place established for training and giving instruction to children throughout the period of time prescribed by the Court but not longer than the time when such child shall have completed eighteen years of age.”
Sec 75 provides that “whenever any person over fourteen years but not yet over seventeen years of age commits any act provided by the law to be an offence, the Court shall take into account the sense of responsibility and all other things concerning such person in order to come to decision as to whether it is expedient to pass judgment inflicting punishment on such person or not. If the Court does not deem it expedient to pass judgment inflicting punishment, it shall proceed according to Sec 74, or if the Court deems it expedient to pass judgment inflicting punishment, it shall reduce the scale of punishment as provided for such offence by on half.”
Sec 76 provides that “whenever any person over seventeen years but not yet over twenty years of age commits any act as provided by the law to be an offence, the Court may, if it think fit, reduce the scale of the punishment provided for such offence by one third or one half.
[FN19]. The Penal Code sec 65 provides that “whenever any person commits an offence at the time of not being able to appreciate with the nature, or illegally of his act or not being able to control himself on account of defective mind, mental disease or mental infirmity, such person shall not be punished for such offence.
But, if the offender is still partially able to appreciate the nature of illegality of his act, or is still partially able to control himself, such person shall be punished by the law for such offence.”
[FN20]. The Penal Code, sec. 52
[FN21]. The Supreme Court of Justice or Dika Court Decision no.1281/2508(1965)
[FN22]. Dika no.3106/2535(1992)
[FN23]. Sec 289 of The Penal Code provides that: “Whoever commits murder on
(1) an ascendant;
(2) an official in the exercise of his functions, or by reason of exercising or having exercised his functions;
(3) a person who assists an official in the exercise of his function , or by reason of the fact that such person will assist or has assisted the said official;
(4) the other person will by premeditation;
(5) the other person by employing torture or acts of cruelty;
(6) the other person for the purpose of preparing or facilitating the commission of the other offence ; or
(7) the other person for the purpose of securing the benefit obtained through the other offence , or concealing the other offence or escaping punishment for the other offence committed by him,
shall be punished with death.”
[FN24]. Sec. 218 provides that “Whoever sets fire to:
(1) a building, boat or floating house in which a human being dwells;
(2) a building, boat or floating house used for storage or manufacture of goods;
(3) a house of entertainment or meeting place;
(4) a building which is domain public of State, public place or place for performing religious ceremonies;
(5) a railway station, airport, or public parking or mooring place for cars or boats;
(6) a steam-boat or motor-boat of five tons upwards, aero plane or train used for public transportation.
shall be punished with death, imprisonment for life, or imprisonment five to twenty years.”
[FN25]. The Penal Code, Sec.90, and Sec. 91
[FN26]. The Penal Code, Sec.92
[FN27]. The Penal Code Sec 51 defines that: “In increasing the punishment, it shall not be increased up to the punishment of death, imprisonment for life or imprisonment exceeding fifty years.”
[FN28]. Richard J. Bonnie, et al., Criminal Law, 2nd ed., (New York: Foundation Press: 2004), Page 2
[FN29]. Id at 14, Jeremy Bentham outlined the classical concept of deterrence depending on the main factors of the cost and benefit or the “pain and pleasure” stemming from the action by defining that: “If the apparent magnitude, or rather value of that pain be greater than the apparent magnitude, or rather value of the pleasure or good he expects to be the consequence of the act, he will be absolutely prevented from performing it. The mischief which would have ensued from the act, if performed, will also by that means be prevented.”
[FN30]. Id. at 24 The Incapacitation theory defines that “When criminals are deprived of their liberty, as by imprisonment…., their ability to commit offenses against citizens is ended.”
[FN31]. Id. at 29 – 30. According to the Rehabilitative Model, the criminal conduct is caused by the pathology of individual offenders. However, this theory has tended to fluctuated between extremes of optimism and pessimism. For example, Karl Menninger, the most optimistic view, offered that the rehabilitation is a humanitarian intervention that promises to cure offenders and return the offenders to law-abiding ways by using the mechanics of the numerous from and techniques developed by the psychiatrist. In contrast, Robert Martinson, who reviewed the scientific research on rehabilitation that was published between 1945 and 1967, concluded that the efficacy of rehabilitative programs to cure the vicious propensities of the offender was negative. However, he finally found out and offered that some categories of rehabilitation may well prove to be effective for non recidivism.
[FN32]. Id. at 2
[FN33]. Office of the Council of State, “Thailand Constitution B.E.2540 (1997)”,
[FN3]. National Identity Board of Thailand, “Thailand into the 2000’s,” 27, (Bangkok: Amarin Printing and Publishing Public Company Ltd.) (2000)
[FN4]. Prapun Naigowit, “Criminal Justice in Thailand.”
http://www.iap.nl.com/speeches_asia_conference_2003/criminal-justice-inthailand-by-prapun-naigowit.html, (last visited November 28, 2004).
[FN5]. Sa-nga Leelasmit, “Penal Code 1,” 12-17, (Bangkok: Rungsilp-karnpim (1997) Ltd.,) (1987)
[FN6]. The Penal Law provided the class of punishment as followings:
The punishment class 1 means fine not exceeding one hundred bath;
The punishment class 2 means fine not exceeding five hundred bath;
The punishment class 3 means imprisonment not exceeding ten days or fine not exceeding five hundred bath, or both;
The punishment class 4 means imprisonment not exceeding one month or fine not exceeding one thousand baht, or both.
[FN7]. The Penal Code in the General Provision is composed of 106 secs; the first part is the provision which applicable to every offense both in The Penal Code, and other law that inflicts the criminal sanctions as well
[FN8]. This title relates to the conspiracy act, about the crime of gang or “Ung-Yee.”
[FN9]. This title relates to the commission of arson.
[FN10]. This title relates to the commission of rape, indecent act, and related acts of
sexuality.
[FN11]. This title relates to murder, manslaughter or negligent murder, assault and battery, offense of abortion, and the offense of abandonment of children, sick persons or aged persons.
[FN12]. This title relates to causing frightening in fear of injury to life, body, liberty, reputation or property, illegal confinement, enslaving a person, kidnapping, unreasonably taking away of the minor from the parents or the guardian, revealing the other secrete information, and upon his professional career or calling of trust, acquiring a secret concerning industry and disclosing that secret to obtain the benefit. Moreover, this title still does relate to the offense of defamation as well.
[FN13]. This title relates to the offense of theft and snatching, offenses of extortion, blackmail, robbery, and gang-robbery. Furthermore, it also concerns about the offenses of cheating and fraud, offences of cheating against creditors, offenses of misappropriation and embezzlement, and the offense of receiving stolen property. In addition, this title does recount the offenses of mischief, intruding or the offenses of trespass
[FN14]. The last part of Thailand Penal Code defines the misdemeanor act which will be inflicted the confinement not exceeding than one month imprisonment or fine not exceeding than 1000 baht ( or around $ 50), or both. It relates to the moral senses, or the duties of the civil people for the common good, and public order, for example, drunk in the public, causing river or road polluted or filthy.
[FN15]. The Act Promulgating the Penal Code B.E. 2499 Sec 7 provides that: “In the case of safety measures according to Sec 46 of the Penal Code, the provision of the Criminal Procedure Code shall apply as if a criminal offence, but the custody in the inquiring stage shall not exceed forty-eight hours as from the time when the arrested person arrives at the office of the Administrative or Police officer, but the time taken for ordinary journey in bringing the arrested person to the Court shall not be included in such period of forty-eight hours.”
Sec 46 provides that: “If it appears to the Court, by the submission of the Public Prosecutor, that any person is likely to cause danger to another person to the property belonging to another person, or if, in the trial of any case, the Court will not convict the prosecuted person, but there is reason to believe that the prosecuted person is likely to cause danger to another person or the property belonging to another person, the Court shall have the power to order such person to execute a bond in a sum of money amount exceeding five thousand bath (or $125), with or without security, for keeping the peace during such period as determined by the Court but not exceeding two years
If such person refuses to execute a bond, or cannot furnish security, the Court shall have the power to order such person to be confined until such person executes the bond or furnishes security, but such person shall not be confined for more than six months, or the Court may give order prohibiting such person to enter a specified area according to Sec 45”
Sec 45 provides that: “Whenever the Court passes judgment inflicting punishment on any person, and deems fit for the sake of public safety, the Court may, whether there is a request or not, give order in the judgment that, when such person has passed over the punishment according to the judgment, such person shall be prohibited to enter a specified area for the period of not exceeding five years”
[FN16]. The Penal Code sec 78 provides that “whenever it appears that there is an extenuating circumstance, whether or not there be an increase or reduction of the punishment according to the provisions of this Code or the other law, the Court may, if it think fit, reduce the punishment to be inflicted on the offender by not more than one half.
Extenuating circumstances may include lack of intelligence, serious distress, previous good conduct, the repentance and the efforts made by the offender to minimize the injurious consequence of the offence, voluntary surrender to an official, the information given to the Court for the benefit of the trial, or the other circumstances which the Court considers to be of similar nature.”
[FN17]. The Supreme Court Judgment or Dika Court Decision no.1851/2522(1979)
[FN18]. The Penal Code, Sec 73-77
Sec 73 provides that “a child not yet over seven years of age shall not be punished for committing what is provided by the law to be an offense.”
Sec 74 provides that “whenever a child over seven years but not yet over fourteen years of age commits what is provided by the law to be an offence, he shall not be punished, the Court shall have the power as follows:
(1) to admonish the child and then discharge him; and the Court may, if it thinks fit, summon the parents or guardian of the child or the person with whom the child is residing to be given an admonition too;
(2) if the Court is of opinion that the parents or guardian are able to take care of the child, the Court may give order to hand over the child to his parents or guardian by imposing the stipulation that the parents or guardian shall take care the child does not cause any harm throughout the time prescribed by the Court but not exceeding three years, and fixing a sum of money, as it thinks fit, which the parents or guardian shall have to pay to the Court but not exceeding one thousand baht for each time when such child caused harm.
(3) ….,
(5) to send such child to a school or place of training and instruction or a
place established for training and giving instruction to children throughout the period of time prescribed by the Court but not longer than the time when such child shall have completed eighteen years of age.”
Sec 75 provides that “whenever any person over fourteen years but not yet over seventeen years of age commits any act provided by the law to be an offence, the Court shall take into account the sense of responsibility and all other things concerning such person in order to come to decision as to whether it is expedient to pass judgment inflicting punishment on such person or not. If the Court does not deem it expedient to pass judgment inflicting punishment, it shall proceed according to Sec 74, or if the Court deems it expedient to pass judgment inflicting punishment, it shall reduce the scale of punishment as provided for such offence by on half.”
Sec 76 provides that “whenever any person over seventeen years but not yet over twenty years of age commits any act as provided by the law to be an offence, the Court may, if it think fit, reduce the scale of the punishment provided for such offence by one third or one half.
[FN19]. The Penal Code sec 65 provides that “whenever any person commits an offence at the time of not being able to appreciate with the nature, or illegally of his act or not being able to control himself on account of defective mind, mental disease or mental infirmity, such person shall not be punished for such offence.
But, if the offender is still partially able to appreciate the nature of illegality of his act, or is still partially able to control himself, such person shall be punished by the law for such offence.”
[FN20]. The Penal Code, sec. 52
[FN21]. The Supreme Court of Justice or Dika Court Decision no.1281/2508(1965)
[FN22]. Dika no.3106/2535(1992)
[FN23]. Sec 289 of The Penal Code provides that: “Whoever commits murder on
(1) an ascendant;
(2) an official in the exercise of his functions, or by reason of exercising or having exercised his functions;
(3) a person who assists an official in the exercise of his function , or by reason of the fact that such person will assist or has assisted the said official;
(4) the other person will by premeditation;
(5) the other person by employing torture or acts of cruelty;
(6) the other person for the purpose of preparing or facilitating the commission of the other offence ; or
(7) the other person for the purpose of securing the benefit obtained through the other offence , or concealing the other offence or escaping punishment for the other offence committed by him,
shall be punished with death.”
[FN24]. Sec. 218 provides that “Whoever sets fire to:
(1) a building, boat or floating house in which a human being dwells;
(2) a building, boat or floating house used for storage or manufacture of goods;
(3) a house of entertainment or meeting place;
(4) a building which is domain public of State, public place or place for performing religious ceremonies;
(5) a railway station, airport, or public parking or mooring place for cars or boats;
(6) a steam-boat or motor-boat of five tons upwards, aero plane or train used for public transportation.
shall be punished with death, imprisonment for life, or imprisonment five to twenty years.”
[FN25]. The Penal Code, Sec.90, and Sec. 91
[FN26]. The Penal Code, Sec.92
[FN27]. The Penal Code Sec 51 defines that: “In increasing the punishment, it shall not be increased up to the punishment of death, imprisonment for life or imprisonment exceeding fifty years.”
[FN28]. Richard J. Bonnie, et al., Criminal Law, 2nd ed., (New York: Foundation Press: 2004), Page 2
[FN29]. Id at 14, Jeremy Bentham outlined the classical concept of deterrence depending on the main factors of the cost and benefit or the “pain and pleasure” stemming from the action by defining that: “If the apparent magnitude, or rather value of that pain be greater than the apparent magnitude, or rather value of the pleasure or good he expects to be the consequence of the act, he will be absolutely prevented from performing it. The mischief which would have ensued from the act, if performed, will also by that means be prevented.”
[FN30]. Id. at 24 The Incapacitation theory defines that “When criminals are deprived of their liberty, as by imprisonment…., their ability to commit offenses against citizens is ended.”
[FN31]. Id. at 29 – 30. According to the Rehabilitative Model, the criminal conduct is caused by the pathology of individual offenders. However, this theory has tended to fluctuated between extremes of optimism and pessimism. For example, Karl Menninger, the most optimistic view, offered that the rehabilitation is a humanitarian intervention that promises to cure offenders and return the offenders to law-abiding ways by using the mechanics of the numerous from and techniques developed by the psychiatrist. In contrast, Robert Martinson, who reviewed the scientific research on rehabilitation that was published between 1945 and 1967, concluded that the efficacy of rehabilitative programs to cure the vicious propensities of the offender was negative. However, he finally found out and offered that some categories of rehabilitation may well prove to be effective for non recidivism.
[FN32]. Id. at 2
[FN33]. Office of the Council of State, “Thailand Constitution B.E.2540 (1997)”,
(last visited December 13, 2004).
[FN34]. Thailand Const. art. 233-254
[FN35]. Thailand Const. art. 26
[FN36]. Thailand Const. art. 7
[FN37]. Thailand Const. art. 30
[FN38]. Thailand Const. art. 27 and art. 29
[FN39]. The Penal Code, sec. 2
[FN40]. Richard J. Bonnie, et al., supra note 28, at 85
[FN41]. Kietkajorn Vachanaswasit, “Explanation of Criminal Law Part I,” 6th edit, 15-26
(Bangkok: Thammasat University Press, 1999), (2542)
[FN42]. Richard J. Bonnie, et al., supra note 28, at 85-88
[FN43]. Herbert Packer, “The limits of the Criminal Sanction,” cited in Richard J.
Bonnie, et al, supra note 28, at 89.
[FN44]. Kolender v. Ladwson, 461 U.S. 352, 358 (1983), illustrates the vagueness doctrine and the requirement of the principle of legality as followings:
(1) The law must be clear to indicate what conduct is prohibited so that
the people will not feel unfairly surprised when they have been arrested and charged because of their conducts;
(2) The law must be sufficient definiteness to prevent arbitrarily and
discriminatorily exercising the discretion of the law enforcement officer or police and prosecutor based on their own decision what conduct is illegal;
(3) This principle also emphasizes the doctrine of “Separation of Powers,”
that is, only the Legislature is proper to declare what conduct will be properly criminalized, and that the legislature is required to established the minimal guidelines to govern law enforcement..
[FN45]. George P. Fletcher, Theoretical Inquiries in Law, 2 THEORILAW 265, 269-276 (2001).
[FN46]. Graham Hughes, “COMMON LAW SYSTEM,” in “Fundamentals of American law,” page 1 (Alan B. Morrison ed., New York: Oxford University Press Inc,) (1996)
[FN47]. Id. at 13
[FN48]. Lawrence G. Sager, “The sources and limits of legal authority,” in
“Fundamentals of American law,” 27 (Alan B. Morrison ed., New York: Oxford University Press Inc,) (1996)
[FN49]. James B. Jacobs, “Criminal Law, Criminal Procedure, and Criminal Justice,” in “Fundamentals of American law,” 294 (Alan B. Morrison ed., New York: Oxford University Press Inc,) (1996)
[FN50]. Id. at. 295-296
[FN51]. George P. Fletcher, supra note 45, at 266 Professor George P. Fletcher explains that Sir Edward Coke said that “actus not facit nisi mens sit rea” which can be translated into English as “the act is not criminal unless the mind is criminal,”
[FN52]. Gerald Leonard, TOWARDS A LEGAL HISTORY OF AMERICAN CRIMINAL THEORY: CULTURE AND DOCTRINE FROM BLACKSTONE TO THE MODEL PENAL CODE, 6 Buff. Crim. L. Rev 691 (2003)
[FN53]. Id.
[FN54]. Id. at 749
[FN55]. Id. at 760
[FN56]. Please see the Problem of Offense Definition and Terminology of Intention in Guyora Binder, The New Culpability: Motive, Character, and Emotion in Criminal Law, 6 Buff. Crim. L. Rev 1, 15-17, (2002).
[FN57]. Richard J. Bonnie, et al., supra note 28, at 179
[FN58]. Id. at 80-92 The recent decision is Commonwealth v. Mochan, 110 A.2d 788 (1955), and the old case is decided by the Court of Criminal Appeal in Rex v. Manley, 1 K.B. 529 (1933), that there is a misdemeanor of committing an act tending to the public mischief; therefore, all offenses of a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable.[Even though there is no statute or the court decision.]
[FN59]. George P. Fletcher, supra note 45, at 283
[FN60]. Gerald Leonard, supra note 52, at 821
[FN61]. George P. Fletcher, supra note 45, at 274
[FN62]. Model Penal Code § 2.01(1)
[FN63]. Model Penal Code § 2.02
[FN64]. Model Penal Code § 3.04-3.08 (Defense of self, and use of force), § 2.04 (Mistake), § 2.08 (Intoxication), § 2.09 (Duress), §2.11 (Consent), §2.13 (Entrapment)
[FN65]. Model Penal Code § 3.01(1)
[FN66]. Model Penal Code § 2.01
[FN67]. Model Penal Code § 2.01(3)
[FN68]. Richard J. Bonnie, et al., supra note 28, at 122
[FN69]. Model Penal Code § 2.02(2)
[FN70]. Model Penal Code § 2.02(4), (9)
[FN71]. Model Penal Code §3.04 (1) provides the justification of self-defense for the defendant to be discharged from criminal liability based on his belief that the use of force is immediately necessary for purpose of protecting himself against the use of unlawful force by another; it changes the common law that requires the “reasonable belief” that there is “immediate danger of bodily harm,” and he is not the aggressor, and finally the use of force must be proportional to such harm; see in People v. Goetz, 497 N.E.2d 41, (1986).
[FN72]. Model Penal Code §2.04 provides the justification of mistake for the defendant if his mistake of fact or law negates his culpability of mens rea, he will get a defense but ignorance of law is not a defense except the law have not been promulgated, or the defendant relies on the official statement or the judgment of the court. The common law rule provides the complex rule based on the type of intent “specific intent” or “general intent;” if the mistake of fact of the defendant is honest, and negates the specific intent, the defendant get a defense, if not, the mistake of fact must be reasonable. In addition, mistake of criminal law is not a defense while mistake of non-criminal law only in the specific intent crime if it is honest and negates the specific intent. However, the strict liability crime does not allow the defendant asserts the mistake as a defense.
[FN73]. Model Penal Code §2.09 provides the excuse for defendant if he has to commit any offense because of the duress which reasonable firmness person would have been unable to resist while the common law rule requires reasonable belief” that there is “unlawful immediate threat of great bodily harm” and “there is no legal alternative” for the defendant; see United State v. Haney, 287 F.3d 1266, (2002).
[FN74]. Model Penal Code §2.08 provides the excuse of intoxication if the crime requires state of mind of purpose or knowledge, and the intoxication negates the mens reas, the defendant get a defense, but there is no defense for the crime that requires recklessness or negligence. The common law rule is divided into three theories; the first is the Restrictive excuse, which is the same result as the MPC; the second is Logical Relevance, which intoxication will be an excuse if it negates mens rea; the last one is the Lack of Capacity, which provides the defendant an opportunity to prove that he is so drunk that he is incapable of forming intent.
[FN75]. Model Penal Code § 2.06 and § 5.03 restrict the scope of liability of the defendant for the conduct of another in case of “complicity” and “co-conspirators;” the defendant must be responsible for the conduct of another which he had agreed to aid, or attempt to aid or other manner only the level of his intent. He will not held liable for the consequence which he did not intend to cause or agree with while the common rule extends the liability of the defendant for the conduct of another if such consequence can be natural and foreseably probable consequence; see People v. Durham, 449 P2d 198, (1969), and Pinkerton v. United States, 328 U.S. 640 (1946).
[FN76]. Model Penal Code § 5.03(5)
[FN77]. Kenneth W. Simons, RETHINKING MENTAL STATES, 72 B.U.L. Rev. 463, 464 (1992).
[FN78]. The Penal Code sec. 4 – 11
[FN79]. The Penal Code sec. 39 - 45
[FN80]. The Penal Code sec. 46, and please see supra note 15.
[FN81]. Kietkajorn Vachanaswasit, supra note 41, at 100-126.
[FN82]. Kanit Na Nakorn, “Penal Code: General Principles,” 105-200, (Bangkok: Vinyuchon,) (2000)
[FN83]. The Penal Code sec. 59 clause 1-3.
[FN84]. The Penal Code sec. 59 clause 1, and sec. 104. sec. 104 provides that: “Petty offences under this Code are punishable offences, even though they are committed unintentionally, unless otherwise provided in such offences.”
[FN85]. This Supreme Court of Justice of Thailand always has established the element of claim under this sec based on the common law of provocation doctrine, that is, (1) the defendant must be in fact have acted in a heat of passion based on sudden provocation; (2) the provoking event must have been “legally adequate;” the provocation must also have been of a sufficient degree to have excited the passion of a reasonable person; and (4) the defendant has to commit a crime with no cooling off time. Moreover, the judgment of the Supreme Court of Justice of Thailand based on the adultery case has always been criticized that is not fair for women who killed his husband, and she has to subjected to the criminal liability while the man killed her wife and her lover does not. Please the detail of the common law rule in Richard J. Bonnie, et al., supra note 28, at 804 – 813.
[FN86] Model Penal Code § 5.01 Criminal Attempt.
(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
(2) Conduct That May Be Held Substantial Step Under Subsec (1)(c). Conduct shall not be held to constitute a substantial step under Subsec (1)(c) of this Sec unless it is strongly corroborative of the actor's criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law:
(a) lying in wait, searching for or following the contemplated victim of the crime;
(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
(c) reconnoitering the place contemplated for the commission of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
(e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;
(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;
(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.
(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Sec 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.
(4) Renunciation of Criminal Purpose. When the actor's conduct would otherwise constitute an attempt under Subsec (1)(b) or (1)(c) of this Sec, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.
Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increases the probability of detection or apprehension or that makes more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.
[FN87]. Peter Alldrige, THE DOCTRINE OF INNOCENT AGENCY, 2 Crim.L.F. 45, 46 (1990).
[FN88]. Richard J. Bonnie, et al., supra note 28, at 681
[FN89]. The Penal Code provides some provisions about the principal, instigator, and supporter, as well as the propagation or publication to the general public to commit a crime, but there is no provision relating to the innocent agent. The Penal Code Sec 83-86.
[FN90]. Model Penal Code § 5.01(2) (g), please see in supra note 86
[FN91]. Richard J. Bonnie, et al., supra note 28, at 680-681
[FN92]. “Song-Jone” plain meaning in Thai language is the place for the robber living together or managing their unlawful commission; it might be translated into English is “a criminal association.”
[FN93]. The case number (black) no. 57/2544 (2001), The case number (red) no 3099/2544 (2001) by the Appellate Court Division 7, December 26, 2544 (2001)
[FN94]. Dika no 2914/2537(1994) The Supreme Court of Justice of Thailand decided that the police conducted the seizure and search without warrant; the arrested person resisted and obstructed the arrest was not guilty of a crime defined in the Code sec. 137
[FN95]. Melissa Clack, “Caught Between Hope and Despair: An Analysis of the Japanese Criminal Justice System”, available at < http://www.law.du.edu/ilj/onlin.PDF> (Last visited in December, 2004)
[FN96]. Edward M. Wise, GENERAL RULES OF CRIMINAL LAW, 25 DENJILP 313, (1997).
[FN97]. Id.
[FN98]. Id.
[FN99]. US Constitution, “US Constitution,” available at:
<> , (last visited December 2004)
[FN100]. Gerald Leonard, supra note 52, at 760. This concept is the proposal of Edward Livingstone. Professor Gerald Leonard explains that “Edward Livingstone’s criminal code stands an intellectual landmark in the development of American criminal theory. It was the great crystallization of the codifying philosophy that would rather influence across the nineteenth century.” He rejected all vaguely described offense “against the law of morality” because they only invited “the crude and varying opinions of judges, as to the extent of this uncertain code of good morals.”
[FN101]. Gerald Leonard, supra note 52, at 821
[FN34]. Thailand Const. art. 233-254
[FN35]. Thailand Const. art. 26
[FN36]. Thailand Const. art. 7
[FN37]. Thailand Const. art. 30
[FN38]. Thailand Const. art. 27 and art. 29
[FN39]. The Penal Code, sec. 2
[FN40]. Richard J. Bonnie, et al., supra note 28, at 85
[FN41]. Kietkajorn Vachanaswasit, “Explanation of Criminal Law Part I,” 6th edit, 15-26
(Bangkok: Thammasat University Press, 1999), (2542)
[FN42]. Richard J. Bonnie, et al., supra note 28, at 85-88
[FN43]. Herbert Packer, “The limits of the Criminal Sanction,” cited in Richard J.
Bonnie, et al, supra note 28, at 89.
[FN44]. Kolender v. Ladwson, 461 U.S. 352, 358 (1983), illustrates the vagueness doctrine and the requirement of the principle of legality as followings:
(1) The law must be clear to indicate what conduct is prohibited so that
the people will not feel unfairly surprised when they have been arrested and charged because of their conducts;
(2) The law must be sufficient definiteness to prevent arbitrarily and
discriminatorily exercising the discretion of the law enforcement officer or police and prosecutor based on their own decision what conduct is illegal;
(3) This principle also emphasizes the doctrine of “Separation of Powers,”
that is, only the Legislature is proper to declare what conduct will be properly criminalized, and that the legislature is required to established the minimal guidelines to govern law enforcement..
[FN45]. George P. Fletcher, Theoretical Inquiries in Law, 2 THEORILAW 265, 269-276 (2001).
[FN46]. Graham Hughes, “COMMON LAW SYSTEM,” in “Fundamentals of American law,” page 1 (Alan B. Morrison ed., New York: Oxford University Press Inc,) (1996)
[FN47]. Id. at 13
[FN48]. Lawrence G. Sager, “The sources and limits of legal authority,” in
“Fundamentals of American law,” 27 (Alan B. Morrison ed., New York: Oxford University Press Inc,) (1996)
[FN49]. James B. Jacobs, “Criminal Law, Criminal Procedure, and Criminal Justice,” in “Fundamentals of American law,” 294 (Alan B. Morrison ed., New York: Oxford University Press Inc,) (1996)
[FN50]. Id. at. 295-296
[FN51]. George P. Fletcher, supra note 45, at 266 Professor George P. Fletcher explains that Sir Edward Coke said that “actus not facit nisi mens sit rea” which can be translated into English as “the act is not criminal unless the mind is criminal,”
[FN52]. Gerald Leonard, TOWARDS A LEGAL HISTORY OF AMERICAN CRIMINAL THEORY: CULTURE AND DOCTRINE FROM BLACKSTONE TO THE MODEL PENAL CODE, 6 Buff. Crim. L. Rev 691 (2003)
[FN53]. Id.
[FN54]. Id. at 749
[FN55]. Id. at 760
[FN56]. Please see the Problem of Offense Definition and Terminology of Intention in Guyora Binder, The New Culpability: Motive, Character, and Emotion in Criminal Law, 6 Buff. Crim. L. Rev 1, 15-17, (2002).
[FN57]. Richard J. Bonnie, et al., supra note 28, at 179
[FN58]. Id. at 80-92 The recent decision is Commonwealth v. Mochan, 110 A.2d 788 (1955), and the old case is decided by the Court of Criminal Appeal in Rex v. Manley, 1 K.B. 529 (1933), that there is a misdemeanor of committing an act tending to the public mischief; therefore, all offenses of a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable.[Even though there is no statute or the court decision.]
[FN59]. George P. Fletcher, supra note 45, at 283
[FN60]. Gerald Leonard, supra note 52, at 821
[FN61]. George P. Fletcher, supra note 45, at 274
[FN62]. Model Penal Code § 2.01(1)
[FN63]. Model Penal Code § 2.02
[FN64]. Model Penal Code § 3.04-3.08 (Defense of self, and use of force), § 2.04 (Mistake), § 2.08 (Intoxication), § 2.09 (Duress), §2.11 (Consent), §2.13 (Entrapment)
[FN65]. Model Penal Code § 3.01(1)
[FN66]. Model Penal Code § 2.01
[FN67]. Model Penal Code § 2.01(3)
[FN68]. Richard J. Bonnie, et al., supra note 28, at 122
[FN69]. Model Penal Code § 2.02(2)
[FN70]. Model Penal Code § 2.02(4), (9)
[FN71]. Model Penal Code §3.04 (1) provides the justification of self-defense for the defendant to be discharged from criminal liability based on his belief that the use of force is immediately necessary for purpose of protecting himself against the use of unlawful force by another; it changes the common law that requires the “reasonable belief” that there is “immediate danger of bodily harm,” and he is not the aggressor, and finally the use of force must be proportional to such harm; see in People v. Goetz, 497 N.E.2d 41, (1986).
[FN72]. Model Penal Code §2.04 provides the justification of mistake for the defendant if his mistake of fact or law negates his culpability of mens rea, he will get a defense but ignorance of law is not a defense except the law have not been promulgated, or the defendant relies on the official statement or the judgment of the court. The common law rule provides the complex rule based on the type of intent “specific intent” or “general intent;” if the mistake of fact of the defendant is honest, and negates the specific intent, the defendant get a defense, if not, the mistake of fact must be reasonable. In addition, mistake of criminal law is not a defense while mistake of non-criminal law only in the specific intent crime if it is honest and negates the specific intent. However, the strict liability crime does not allow the defendant asserts the mistake as a defense.
[FN73]. Model Penal Code §2.09 provides the excuse for defendant if he has to commit any offense because of the duress which reasonable firmness person would have been unable to resist while the common law rule requires reasonable belief” that there is “unlawful immediate threat of great bodily harm” and “there is no legal alternative” for the defendant; see United State v. Haney, 287 F.3d 1266, (2002).
[FN74]. Model Penal Code §2.08 provides the excuse of intoxication if the crime requires state of mind of purpose or knowledge, and the intoxication negates the mens reas, the defendant get a defense, but there is no defense for the crime that requires recklessness or negligence. The common law rule is divided into three theories; the first is the Restrictive excuse, which is the same result as the MPC; the second is Logical Relevance, which intoxication will be an excuse if it negates mens rea; the last one is the Lack of Capacity, which provides the defendant an opportunity to prove that he is so drunk that he is incapable of forming intent.
[FN75]. Model Penal Code § 2.06 and § 5.03 restrict the scope of liability of the defendant for the conduct of another in case of “complicity” and “co-conspirators;” the defendant must be responsible for the conduct of another which he had agreed to aid, or attempt to aid or other manner only the level of his intent. He will not held liable for the consequence which he did not intend to cause or agree with while the common rule extends the liability of the defendant for the conduct of another if such consequence can be natural and foreseably probable consequence; see People v. Durham, 449 P2d 198, (1969), and Pinkerton v. United States, 328 U.S. 640 (1946).
[FN76]. Model Penal Code § 5.03(5)
[FN77]. Kenneth W. Simons, RETHINKING MENTAL STATES, 72 B.U.L. Rev. 463, 464 (1992).
[FN78]. The Penal Code sec. 4 – 11
[FN79]. The Penal Code sec. 39 - 45
[FN80]. The Penal Code sec. 46, and please see supra note 15.
[FN81]. Kietkajorn Vachanaswasit, supra note 41, at 100-126.
[FN82]. Kanit Na Nakorn, “Penal Code: General Principles,” 105-200, (Bangkok: Vinyuchon,) (2000)
[FN83]. The Penal Code sec. 59 clause 1-3.
[FN84]. The Penal Code sec. 59 clause 1, and sec. 104. sec. 104 provides that: “Petty offences under this Code are punishable offences, even though they are committed unintentionally, unless otherwise provided in such offences.”
[FN85]. This Supreme Court of Justice of Thailand always has established the element of claim under this sec based on the common law of provocation doctrine, that is, (1) the defendant must be in fact have acted in a heat of passion based on sudden provocation; (2) the provoking event must have been “legally adequate;” the provocation must also have been of a sufficient degree to have excited the passion of a reasonable person; and (4) the defendant has to commit a crime with no cooling off time. Moreover, the judgment of the Supreme Court of Justice of Thailand based on the adultery case has always been criticized that is not fair for women who killed his husband, and she has to subjected to the criminal liability while the man killed her wife and her lover does not. Please the detail of the common law rule in Richard J. Bonnie, et al., supra note 28, at 804 – 813.
[FN86] Model Penal Code § 5.01 Criminal Attempt.
(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
(2) Conduct That May Be Held Substantial Step Under Subsec (1)(c). Conduct shall not be held to constitute a substantial step under Subsec (1)(c) of this Sec unless it is strongly corroborative of the actor's criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law:
(a) lying in wait, searching for or following the contemplated victim of the crime;
(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
(c) reconnoitering the place contemplated for the commission of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
(e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;
(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;
(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.
(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Sec 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.
(4) Renunciation of Criminal Purpose. When the actor's conduct would otherwise constitute an attempt under Subsec (1)(b) or (1)(c) of this Sec, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.
Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increases the probability of detection or apprehension or that makes more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.
[FN87]. Peter Alldrige, THE DOCTRINE OF INNOCENT AGENCY, 2 Crim.L.F. 45, 46 (1990).
[FN88]. Richard J. Bonnie, et al., supra note 28, at 681
[FN89]. The Penal Code provides some provisions about the principal, instigator, and supporter, as well as the propagation or publication to the general public to commit a crime, but there is no provision relating to the innocent agent. The Penal Code Sec 83-86.
[FN90]. Model Penal Code § 5.01(2) (g), please see in supra note 86
[FN91]. Richard J. Bonnie, et al., supra note 28, at 680-681
[FN92]. “Song-Jone” plain meaning in Thai language is the place for the robber living together or managing their unlawful commission; it might be translated into English is “a criminal association.”
[FN93]. The case number (black) no. 57/2544 (2001), The case number (red) no 3099/2544 (2001) by the Appellate Court Division 7, December 26, 2544 (2001)
[FN94]. Dika no 2914/2537(1994) The Supreme Court of Justice of Thailand decided that the police conducted the seizure and search without warrant; the arrested person resisted and obstructed the arrest was not guilty of a crime defined in the Code sec. 137
[FN95]. Melissa Clack, “Caught Between Hope and Despair: An Analysis of the Japanese Criminal Justice System”, available at < http://www.law.du.edu/ilj/onlin.PDF> (Last visited in December, 2004)
[FN96]. Edward M. Wise, GENERAL RULES OF CRIMINAL LAW, 25 DENJILP 313, (1997).
[FN97]. Id.
[FN98]. Id.
[FN99]. US Constitution, “US Constitution,” available at:
<> , (last visited December 2004)
[FN100]. Gerald Leonard, supra note 52, at 760. This concept is the proposal of Edward Livingstone. Professor Gerald Leonard explains that “Edward Livingstone’s criminal code stands an intellectual landmark in the development of American criminal theory. It was the great crystallization of the codifying philosophy that would rather influence across the nineteenth century.” He rejected all vaguely described offense “against the law of morality” because they only invited “the crude and varying opinions of judges, as to the extent of this uncertain code of good morals.”
[FN101]. Gerald Leonard, supra note 52, at 821
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โอ้ว .. สะ .. สุดยอดเลยครับพี่พล O_o
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