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สรุปคำแปลวินิจฉัยของศาลปกครอง
สรุปคำแปลวินิจฉัยของศาลปกครอง

ปรับปรุงเมื่อ 29 ธ.ค. 2564, 10:17น.

Bangkok Metropolitan Administration Neglects its Official Duty to Maintain Pedestrian Path

According to Section 89 paragraph one (6) of Bangkok Metropolitan Administration Act B.E. 2528 (1985), the Defendant has the authority and duty to provide and maintain roads, waterways and drainage system, therefore, it was directly legal obligation for the Defendant to maintain, adjust and repair the concrete pedestrian path along the Saen Saep Canal in the case where there were any defects in any or all parts thereof that may be dangerous. Furthermore, the broken part of such pedestrian path was necessary to be repaired urgently in order to ensure the safety of pedestrians. Even though, there was the temporary reparation by covering the broken part of the pedestrian path with a wooden broad, this wooden broad was not durable enough. As well, the Defendant argued there were the operational problems that hindered the relevant authorities to perform duties required by the law. Then there was a construction contract to rebuild or repair the mentioned pedestrian path; however, no action was taken until the contract period was terminated and the repaired part deteriorated as time passed. Thus, from the aforementioned action, it was deemed that the Defendant neglected official duty required by the law to maintain, adjust and repair the said pedestrian path.

อ่าน 30   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 29 ธ.ค. 2564, 10:21น.

Requiring The Compensation for The Damage Arising from The Police’s Performance of Duties

The action of the State Official in exercising the power under the Criminal Procedure Code or other laws, which prescribes the rules and procedure for punishing the person committing an offence, was a proceeding in accordance with the criminal justice process. It was not the exercise of administrative power which fell under the competence of the Administrative Courts. According to Section 11 paragraph one of Liability for Wrongful Acts of Officials Act, B.E. 2539 (1996), when the Plaintiff was aggrieved or injured in consequence of using the arrest warrant to the wrong person by the Inquiry Official, the Plaintiff had the right to file the application with the State agency to consider the payment of compensation for such damage. In the case where the State agency refused the payment thereof, the Plaintiff had to file the case with the Court of Justice, the Court that had the competence to try and adjudicate this case.

อ่าน 22   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 29 ธ.ค. 2564, 10:25น.

Building Repairs within the Area of Historical Site

The Plaintiff was an owner of a land located within the area of historical site, “Roi Et ditches and walls.” The Director of the 10th Regional Office of Fine Arts notified the Plaintiff that she failed to comply with the requirement specified by the law since she had demolished buildings on her land to construct new buildings and ordered the Plaintiff to immediately suspend the construction and tear down the buildings. The Defendant considered the Plaintiff’s appeal and decided that she shall demolish and remove her buildings and clear a construction site. The Plaintiff argued that the order was unlawfully issued so she filed a case with the Administrative Court. The Supreme Administrative Court held that the Plaintiff’s land located within the area of historical site was considered as a historical site. However, her four buildings were constructed before the Plaintiff’s land was determined as a historical site and those buildings were not or parts of a historical site. Thus, the Plaintiff was able to repair them without permission of the Defendant or the 10th Regional Office of Fine Arts pursuant to the Act on Ancient Monuments, Antiques, Objects of Art and National Museums. Moreover, the Plaintiff merely repaired the buildings not construct new buildings. The Defendant did not have power under the said Act to order the Plaintiff to demolish and remove her buildings and clear a construction site. Therefore, the Plaintiff’s decision was unlawfully issued. The Supreme Administrative Court affirmed the decision of the Administrative Court of First Instance to revoke the order issued by the Defendant in effect retrospectively on the day the order was issued.

อ่าน 33   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 13 ก.ย. 2564, 09:18น.

Unlawful Order to Assist Other Department in the Performance of Functions

A plan and policy analyst position was held to a higher performance standard than a government service officer position. The job description of the plan and policy analyst and the government service officer position were distinctly different in terms of knowledge and capabilities. The Mayor ordered a municipal officer, a policy and plan analyst, to assist other department in the performance of administration tasks without a specific job description or available position. The Mayor’s order resulted in decreasing roles and responsibilities of the municipal officer and lacking opportunities to increase knowledge, capabilities and experience required for promotion to a higher-level position. The Plaintiff still held the plan and policy analysis position and received the same amount of salary, and was not deprived of either rights and benefits, or a status of a municipality officer; however, the Plaintiff who was ordered to assist other department in the performance of functions was inevitably aggrieved or injured. Thus, the Plaintiff was entitled to file a case with the Court, according to Section 42 paragraph one of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999). Although the Mayor shall have power to manage personnel in the Municipality so as to successfully provide public services, he must have justification to issue the order and shall comply with the prescribed laws, regulations and rules. If the Mayor did so, his discretion would be lawfully exercised. The job description and duties and responsibilities of the plan and policy analyst (Level 4) and the government service officer position were clearly different. In addition, there was no fact presented that any effect or injury would occur if the order was not issued. Accordingly, the Mayor’s issuance of the order was the unlawful exercise of discretion

อ่าน 176   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 23 ส.ค. 2564, 14:45น.

Unlawful Order of Deportation

The Plaintiff was an alien who was permitted to take up residency in Thailand. He was sentenced with criminal penalties – 3-year imprisonment and 7,000 Thai Baht fine – by the judgment of the Phuket Provincial Court; but the sentence was deferred. The Plaintiff would not be excluded from entering Thailand under Section 12 paragraph one (6) of the Immigration Act, B.E. 2522 (1979) since he had not been imprisoned by the judgment of the Thai Court. Moreover, the Plaintiff remained residing in Thailand and did not commit a crime or had behavior as specified in Section 12 of the Immigration Act, during the period of deferred sentence. He then would not likely be danger to the society or cause disruption jeopardizing public peace or safety of the public or security of the Kingdom. Thus, the Plaintiff was not prohibited from entering the Kingdom pursuant to Section 12 paragraph one (7) of the same Act. The Supreme Administrative Court affirmed the decision of the Administrative Court of First Instance to revoke the deportation order issued by the official of the Defendant No.1 and the decision on an appeal to dismiss an appeal issued by the Defendant No.2 in effect on the issuance date of the order and the decision.

อ่าน 293   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 9 ก.ค. 2564, 13:06น.

Unlawful Order to Not Score an Examination

The Plaintiff’s mobile phone inside his bag, which was placed outside an examination room, continuously rang about 10 times while he was taking an examination for entry to the Doctor of Medicine program. As a result, the Defendant No.2 did not score the Plaintiff’s test paper providing that he violated the Rule of the Consortium of Thai Medical Schools on Examination which requires an examinee to turn off his or her mobile phone or other communication devices. The Administrative Court held that the Plaintiff complied with the Rule. He powered off his mobile phone but the sound ringing from his mobile phone was an alarm which he set to study. The Plaintiff could not use the mobile phone while he was taking the exam since the mobile phone was 20 - 25 meters away from the examination room. Although, the Rule provides that if it is found that there is a sound or a communication signal, or there is incompliance with the Rule, it is deemed that there is an intention to cheat an examination and the exam will not be scored, it was not an absolute presumption which could not be proved otherwise. The Defendant No.2 exercised its discretion inconsistent with the legal purpose and exercised its power without considering facts along with other circumstances. The order not to score the examination was unlawfully issued by the Defendant No.2. The Supreme Administrative Court affirmed the decision of the Administrative Court of First Instance to revoke the order of the Defendant No.2 not to score the examination for entry to the Doctor of Medicine program in the year of 2011.

อ่าน 772   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 8 มิ.ย. 2564, 15:30น.

Requiring The Compensation for The Damage Arising from The Police’s Performance of Duties

The action of the State Official in exercising the power under the Criminal Procedure Code or other laws, which prescribes the rules and procedure for punishing the person committing an offence, was a proceeding in accordance with the criminal justice process. It was not the exercise of administrative power which fell under the competence of the Administrative Courts. According to Section 11 paragraph one of Liability for Wrongful Acts of Officials Act, B.E. 2539 (1996), when the Plaintiff was aggrieved or injured in consequence of using the arrest warrant to the wrong person by the Inquiry Official, the Plaintiff had the right to file the application with the State agency to consider the payment of compensation for such damage. In the case where the State agency refused the payment thereof, the Plaintiff had to file the case with the Court of Justice, the Court that had the competence to try and adjudicate this case.

อ่าน 520   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 11 พ.ค. 2564, 15:10น.

Unlawful Permit for the Construction of a LPG Service Station

The Defendant unlawfully granted a permit for the construction of a LPG service station to the Interpleader. The LPG service station was set back less than 50 meters from another fuel selling station opposite to the LPG service station. It was inconsistent with Clause 15 (1) of the Ministerial Regulation, No.4, stipulated under the Announcement of the National Executive Council, No. 28, which provides that an area of one service station shall be separated at least 50 meters from other service stations and other fuel oil selling stations located on the side of the same road or highway. Thus, the order for granting a permit of the LPG service station construction issued by the Defendant was unlawful. The Supreme Administrative Court affirmed the decision of the Administrative Court of First Instance to revoke the order and ordered the revocation of the order to be in effect retrospectively on the day the order was issued.

อ่าน 806   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 23 เม.ย. 2564, 08:10น.

The Wrongful Act of an Agency because of Its Negligence

According to Clause 8 (2) of the Announcement of the Ministry of University Affairs regarding the Division of Administrative Agencies in Mahidol University, B.E. 2540 (1997), the Defendant, Mahidol University, was an administrative agency, and Siriraj Hospital was affiliated with the university. Pursuant to Section 4 of the Official Information Act, B.E. 2540 (1997), medical records were considered as official information in the form of personal information of patients. The hospital had a responsibility for providing the medical records to patients upon their request under Section 58 of the Constitution of the Kingdom of Thailand, B.E. 2540 (1997), and Section 25 of the Official Information Act. In this case, the Supreme Administrative Court held that the hospital neglected its duties because it neither followed nor recovered such documents even though it noticed the loss of the records. It was considered that the hospital violated the Plaintiff's right to receive information. Therefore, the hospital conducted the wrongful act to the Plaintiff, and the Defendant was bound to make compensation pursuant to Section 5 of the Liability for Wrongful Acts of Officials Act, B.E. 2539 (1996).

อ่าน 508   |  ดูรายละเอียดบทความ
ปรับปรุงเมื่อ 8 มี.ค. 2564, 09:15น.

The Dispute relating to the Grievance or Injury arising from the Replied Consultation Letter

When the official replied the consultation in writing, it was merely giving an opinion as it was consulted. There were not any requirements for the inquiry official to comply therewith. The inquiry official had the discretion to take or not take the result of the consultation for supplementing his consideration so as to issue an order or take any actions. The reply in writing for the mentioned consultation was a general performance of duties, not being the exercise of powers under the law by the official which affected the status of rights or duties of the person. Hence, the replied consultation letter was not an administrative order and was further not the performance of duties for carrying out administrative acts. Therefore, the dispute relating to the grievance or injury arising from the replied consultation letter concerning the provisions of the Sangha Act B.E. 2505 (1962) or the regulations relating to the Sangha’s duties performance was not the case involving a dispute in relation to a wrongful act of an administrative agency or a State official arising from the exercise of power under the law or from a by-law, an administrative order or any other order. This case did not fall within the competences of the Administrative Courts to try and adjudicate.

อ่าน 623   |  ดูรายละเอียดบทความ

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