ความรับผิดทางอาญาของเจ้าพนักงาน : ศึกษากรณีเจ้าพนักงานที่มีข้อบกพร่องในกระบวนการแต่งตั้ง

Abstract

This individual study primarily aims to analyze the definition and scope of the term “official” (or “public officer”) under Section 1 (16) of the Criminal Code, as well as the legal issues concerning the criminal liability of officials whose appointment processes are defective but who in fact exercise authoritative power to commit offenses under the Chapter on Offenses Against Official Duty. This study examines the concepts and theories underlying criminalization and penalization, including legal philosophical concepts regarding the social contract and public trust. Additionally, it explores the statutory criteria in foreign statues— namely France, the United States, State of Illinois and India—to determine appropriate guidelines for amending Thai criminal law to be comprehensive and to effectively fill the legal gap in criminal liability. This qualitative research was conducted via documentary research, comprising statutory provisions, academic literature, and relevant judicial precedents. The research findings indicate that the current statutory definition of an official under Thai Criminal Code is strictly tied to the formal legality of the appointment. This gives rise to doubts as to whether an individual with a defect in their appointment process holds the legal status of an official under criminal law. This ambiguity creates a legal loophole in cases where an individual performs duties as an official with a legally defective appointment but in fact exercises state power. This impacts public rights and liberties, or public interests under the Chapter on Offenses Against Official Duty. If such individuals raise a defense based on the defectiveness of their appointment, they might escape liability as an official and receive lighter penalties as ordinary individuals. This undermines the efficiency of state crime suppression and contradicts the principle of accountability and the legislative intent of criminal law, which aims to protect the integrity and honesty in the exercise of state power that the public deserves. Therefore, to ensure that the factual exercise of authority is scrutinized and regulated by criminal law equitably and justly, this independent study proposes adding a provision to the Criminal Code to stipulate that officials with defective appointment processes shall be held liable under the Chapter on Offenses Against Official Duty. This would protect the integrity of the exercise of state power and reinforce public trust and confidence in the justice system and the state administration concretely and sustainably.