Prescription of Decrees in Administrative Cases

Abstract

This documentary research is a study of problems concerning the determination of the decree in administrative cases. The objective of this research is to study the principles and basic concepts regarding administrative case procedure and the determination of the decrees in Thai administrative cases, as well as the concept of specifying the decree in administrative cases in France and Germany, so that to propose the guideline for specifying the proper decree in administrative cases. The Administrative Courts have the power to specify the decree under the scope of Section 72 of Act on Establishment of Administrative Courts and Administrative Court Procedures B.E. 2542 (1999), which prescribes both the scope of the content and the scope of the period in order to be the criteria for the Administrative Courts to consider when specifying the decree in accordance to each category of the plaint. The scope of the content has only one content and cannot be determined in other ways; as a result, it becomes the limitation of power of the court. However, the scope of the period does not set criteria for the appropriate exercise of the discretion; in consequence, in many cases, the decrees specified by the Administrative Courts are unable to comply therewith. According to the study, it appears two solutions of such problems. Firstly, there should be the amendment to Section 72 of Act on Establishment of Administrative Courts and Administrative Court Procedures B.E. 2542 (1999) by providing the Administrative Courts to have further the scope of the content of the decree. It should not limit the content thereof not only the revocation, the performance, or omission of an act but also allowing the Court to specify the decree ordering the administrative agency to perform in the manner favorable to the plaintiff. Moreover, there should be the criteria for determining the results regarding the scope of period for the retrospective revocation, which must be merely a serious violation of the law and must be balance of belief in good faith between individual and the public interest. Secondly, there should be the establishment of the quasi-judicial commission regarding the compliance with the judgment, which holds the duties making a decision on the problem of non-compliance with the decree in the judgment of Administrative Courts.