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OpenLegalTextBook

Analytic and diagnostic researches:

ประมวลกฎหมายแพ่งและพาณิชย์
Civil and Commercial Code

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« Arrangement of "Remedies for non-performance" »

[PDF] Lastly updated on 2023-10-08

• How the German and Japanese provisions were rearranged

• Table of comparison between the German, Thai, and Japanese provisions.

∗ Among 23 provisions in the part "Non-performance การไม่ชำระหนี้", 17 provisions were adopted from the German Civil Code of 1898 while only 3 were introduced from the Japanese Civil Code of 1896.  Apparently, the German influencd is quite dominant. However,  a comparson between the German, Thai, and Japanese laws reveals an abnormal arrangement of these German provisions. The Thai and Japanese laws show an "ordinary" and "straightforward" relation, but the adoptive relationship between the German and Thai provisions is completely "twisted". There is no recognizable regularity in it. For this reason, it is quite difficult to image how the drafters rearranged the German provisions. Such a differentiation of the Thai law from the German law could be charactalized as "Divergence", which raises an expectation of "Convergence". Indeed, the "Modernized German law on obligations" shows certain approximation to the Thai arrangement, of course, what the German reform project did not intend!

[PDF] Lastly updated on 2018-03-24

• Thai Arrangement: How the Thai drafters arranged the provisions on "Remedies for non-performance" adopted from the German law

• Presentation: 8 steps of arrangement according to a hypothesis of the translator.

∗ The straightforward relation between the Thai and Japanese laws suggests that the drafters of the Thai law preferred the Japanese scheme of the "Remedies for non-performance" to the German one. On the other hand, however, the Thai drafters intended to adopt the German provisions instead of the Japanese ones. As a result, the drafters had to completely rearrange the order of the German provisions in accordance with the Japanese scheme.

∗ How did the drafters perform such a rearrangement? For this task, they must have compared the German and Japanese laws. But there was almost no common features between the two laws in this subject except for a single provision regarding "liability for non-performance"; namely Art. 415 in the Japanese Civil Code. The German Civil Code of 1898 had two provisions for this issue; namely § 280 for cases of "impossibility of performance" and § 286 for cases of "debtor's default". Indeed, the Japanese Art. 415 and the German § 286 Par. 1 show a quite similar sentence structure. This comparison must have been the starting point of the rearrangement.

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« Comparative Review of Law on "Remedies for non-performance" »

〈 Part I 〉
— Reception of Model Laws —

[PDF] Lastly updated on 2013-11-10

• The Thai Civil Law on Non-performance in a Comparative, Structural View

• Description of the structural difference between the German and Japanese laws and the extraordinary arrangement of these two model laws in the Thai law.

∗ Originally, this paper was published in "Law Journal Thammasat University", 42(2), 897 – 925. Unfortunatelly, the formattings of the pages did not meet the expectation and desire of the author so that the original intention of the research was not clearly recognizable. For this reason, the same work is presented once again in its original formattings.

[Link] Published in 2019

• The Role of the Japanese Civil Code in the Codification in the Kingdom of Siam

• This paper describes the codification in the context of the process to establish a "nation-state" in Thailand.

∗ This work was written as a contribution to the publication project by Kobe University in Japan "Civil Law Reforms in Post-Colonial Asia".

[PDF] Lastly updated on 2023-11-20

•「1925年タイ民商法典における日本民法継受の態様」(only in Japanese)

• Reception of the Civil Code of Japan in the Civil and Commercial Code of Thailand, Book I & II (1925)

∗ This work was firstly published in the journal of the "Japanese Association of Asian Law"; "Aisan Law Review", 115 – 134, 2011. However, this paper suffered some careless mistakes. The author did know of the fact that the Siamese society used an old-style calender system at the time of the codification. According to this old Buddhist calendar, a new year started in the month April เมษายน. The months January, February, and March were the last three months of a year. As a result, they belonged to the preceding year while a new year already started in the Christian calendar. Due to this circumstance, the author had misunderstanding in several issues. These problems are now corrected in the newest version.

〈 Presentation 〉

[PDF] [MP4: 18 min.] Lastly updated on 2024-02-13

•「近代国民国家への長い道程」(only in Japanese)

• Prologue to the Presentation: Introductory explanation of the modernization in the Kingdom of Siam.

[PDF] [MP4: 38 min.] Lastly updated on 2023-12-28

•「タイ民商法典編纂史に関する通説的理解」(only in Japanese)

• Presentation (Part 1): Authoritative understanding of the codification process in Thailand.

[PDF] [MP4: 39 min.] Lastly updated on 2023-12-29

•「日本民法をモデルにするに至った経緯」(only in Japanese)

• Presentation (Part 2): Memoir of the drafter Phraya Manavarachasevi.

∗ These two files were originally prepared for the presentation at the regular conference of the "Japanese Association of Asian Law" on 7th November 2010. At the time, we had only quite limited access to the historical documents regarding the codification in Thailand. Meanwhile, the original documents of the "Draft Civil and Commercial Code for the Kingdom of Siam" (1919) was finally rediscovered in the main library of the Bangkok University. Moreover, the Office of the Counsil of State eventually published all the historical material preserved in its library as the "Archives of the History of Thai Codification". Now, we could clear several questions with these new historical documents. Accordingly, these two presentation files were updated and improved again.

〈 Part II 〉
— Consistency Question of Thai Arrangement —

[PDF] Lastly updated on 2017-03-10

• Reconstruction of Thai Arrangement of the “Remedies for non-performance”

• Description of arrangement and composition of the provisions in this part of Book II (1925).

∗ This paper complehensively reviews the way how the drafters composed each provision from the model laws. The description traces the procedure of the special Thai arrangement of the provisions and examines the "system integrity" of the arrangement; namely logical consistency of arrangement of the German provisions in accordance with the Japanese scheme. The work suggests not only possible inconsisitency questions, but also certain "actuality"; namely similarities to the certain concepts in the "Modernized German law".

〈 Part III 〉
— Thai Arrangement and Recent Reforms in Germany and Japan —

[PDF] Lastly updated on 2023-04-04

• Thai Law and Recent Reforms in Germany and Japan in Law on Non-performance

• Comparison of Thai arrangement against the reformed German and Japanese laws.

∗ As the preceding work "Reconstruction of the Thai arrangement" already suggested, the Thai arrangement of the provisions on "remedies for non-performance" suffers certain "system integrity issues" mainly due to its extraordinary concepts. Firstly, this work examines each of these integrity issues in detail. Secondly, the main features of the reformed German and Japanese laws on remedies for non-performance are introduced. The comparison between the Thai arrangement on the one side and the reformed German and Japanese laws on the other side shows that the Thai arrangement already conceived some of such features of the reformed German and Japanese laws. These points are colled "actualities" of the Thai arrangement. At the same time, such similarities of the both sides suggest that the reformed laws, especially the "Modernized German law" could offer suitable sollution to the system integrity issues. In the conclusion, the author suggests possible reform concepts to enhance the system integrity of the Thai arrangement.

∗ The Thai arrangement radically changed the order of the provisions adopted from the German Civil Code (BGB) of 1898. As a result, the Thai law shows similarities rather to the French (and Japanese) scheme than to the German one in the "remedies for non-performance". We have called this circumstance "Divergence". In the "Modernized law on obligations", however, the German law itself departured from its traditional concept and came closer to the Japanese and Thai scheme. These three laws show now certain common features and similarities. This circumstance may be called "Convergence". This fact could be one reason to seek suitable solusion of the integrity issues of the Thai arrangement in the "Modernized German law".

[PDF] Lastly updated on 2023-03-28

• Reformed Civi Code of Japan and Its Problem

• One reason why the reformed law of Japan is not suitable as a model law.

∗ This paper explains the reason for the circumstance that the author recommends the reformed German law, but not the reformed Japanese law as a model for the possible reform of the Thai law. According to the understanding of the author, the reformed law on obligations of Japan suffers serious inconsistency and incompleteness. One of such issues is Art. 415 Par. 2 on "claim for damages in lieu of performance". The drafters had correctly recognized the problem in the traditional concept of "claim for damages". However, their answer to the question was completely confused; namely analogical application of the provision on "rescission of contract" to the general principle of "claim for damages" (?!) As a result, the logical reasoning is simply reversed; a reasoning from special cases (rescission) to the general principle (liability for non-performance).

∗ This is the presentation paper for the special lecture at the Chulalongkorn University on 14 March 2023.

[PDF] Lastly updated on 2023-03-25

• Materials: Rescission of Contract in German law

• Tables of laws and drafts: Its origin and drafting process in the German law.

∗ This collection of tables shows mainly the origin of a "asynmetory" between the provisions on "claim for damages" and on "recission of contract". Initially, the French and Swiss laws developed the main concept of "recission of contract". The German law resisted long time against it because it would essentially weaken the validity of obligation and contract. For the same reason, the German law refused any procedure to claim "damages in lieu of performance" exept for cases of "impossibility of performance". The 1st Draft of BGB (1888) introduced firstly "rescission of contract" in case of "impossibility". However, this draft strictly required the "choice between damages and rescission". The 2nd Draft of BGB (1892) introduced also a procedure to rescind a contract due to the debtor's default under the strict limitaiton of the "choice between damages and rescission". This provision § 277 opened the first opportunity for the creditor to claim "damages in lieu of performance" due to the debtor's default. However, even the 2nd Draft still rejected to introduce a similar procedure into the general part of the law on obligations. This situation remained unchanged in the BGB of 1898. In this way, the "asynmetory" of provisions between "claim for damages" and "rescission of contract" was born in the German law.

∗ Unfortunately, this "asynmeotic structure" was transfered to the Japanese law as the drafters decided to introduce the concept of "rescission of contract" based on the German and Swiss laws while they maintained the French concept of the liability for non-performance. This problem was further transfered to the Thai arrangement of the German and Japanese provisions by พระยามานวราชเสวี.

∗ This is an additional material for the special lecture at the Chulalongkorn University on 14 March 2023.

〈 Part IV 〉
— Personal Proposal for Enhanced Consistency —

[PDF] Lastly updated on 2023-06-19

• Proposal for the Reform of the Law on Obligations; Secs. 194 – 389

• Tables: Uncorrected Thai translation from the manuscripts in German.

∗ This proposal is the result of the research in the next entry "Reasoning to the Personal Proposal". In the latter work, the concept for the reform of the Thai law was conceived from the German provisions of BGB (1898). Accordingly, all the process of formulation of the text was performed principally in German language. After the German manuscripts were accomplished, they were translated into English and Thai language. The Thai translation was still not corrected by Thai native speakers and Thai lawyers. In this sense, it stays in an experimental stage yet.

∗ However, it is not its aim to offer an really practicable draft for a possible reform. The author intends to make the point clear that it would be quite possible to introduce the main reform concepts of the "Modernized German law of 2001" into the current Thai arrangement of the provisions on non-performance without any risks of inconsistency or contradiction.

[PDF] Lastly updated on 2023-06-19

• Reasoning to the Personal Proposal for the Reform of the Law on Obligations

• Description of the process to formulate the proposal based on the German law of 2001.

∗ This paper starts its reasoning with an analysis of the "asyncronic" structure of the provisions between the part of "claim for damages" and the part of "rescission of contract" in the Germen BGB of 1898. One of the central goals of the German reform of the law on obligations was the "syncronization" between these two parts.

∗ In the 2nd step of the reasoning, the paper attempts to replicate the "Modernized German law" of 2001 starting from the provisions from the BGB of 1898. In this way, the differences between the old and new laws are clearly identified. At the same time, this method secures the adaptability of the new reform concepts to the Thai arrangment, which mainly consists of the old German provisions.

∗ In the third step of the reasoning, the replicated concepts of provisions are compared against the "Modernized German law" of 2001. The differences between the both concepts would be newly introduced subjects which do not have their reason in the internal issues of the old law, but outside of it. Such reform subjects would be "optional" for the Thai arrangement.∗ In the last step, the replicated reform concepts and also optional ones are exactly adapted to the Thai arrangement and translated into Thai language.

∗ In other words, this reasoning and proposal attempts to imagine what and how พระยามานวราชเสวี would have done if he were alive in the present days and would attempt to set up his arrangement in order to adopt the provisions from the "Modernized German law" of 2001 into the Thai law.

This part is still in process of improvement …

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