July 19th, 2009 at 11:38am
Under Administrative Law
In Thailand, Bankruptcy Laws form part of the Commercial Law. Thai bankruptcy law is devised in such a way not only to help debtors to distribute their property but also to help them in rehabilitating via several reorganization provisions.
In other words, the Bankruptcy Law includes the Bankruptcy Act for Business Rehabilitation. The Business Rehabilitation Law was introduced in 1999 as Chapter 90 of the Thai Bankruptcy Law BE 2483. The main purpose of the Business Rehabilitation law is to assist a debtor facing liquidity problem by giving him an opportunity for rehabilitation before being insolvent.
The procedures in connection with rehabilitation are usually commenced by an eligible petitioner by filing a petition with a provincial or a civil court as per the domicile of the debtor. However, petition for business rehabilitation could be filed only if the debtor’s overall debt comes to an amount that exceed Baht ten million. Likewise, In order to file a petition for business rehabilitation, certain legal and perquisites must be complied with such as:
- The names and addresses of creditors must be specified to whom the debtor owes in total at least an amount of Baht ten million
- Specify reasonable methods in order to rehabilitate business functions
- Proposed planner’s name as well as qualification
- Planner’s consent
- In case the petitioner is debtor, then details regarding assets and liabilities must be given
- Consent of authorities which is applicable as mentioned below :
1.In case the debtor is commercial bank or finance company, then the consent of the Bank of Thailand
2.In case the debtor is a securities company, then the consent of the Office of the Securities and Exchange Commission
3.In case the debtor is a file insurance company or a casualty insurance company, then the consent must be of the Insurance Department
On filing the petition as per the above grounds, the liquidator will start the case once when he confirms and proves that the debtor’s assets could not pay off liabilities. The court’s concern with regard to the business rehabilitation is mostly on the basis of debtor’s balance sheet as well as accounting documents and liquidator’s power of arguments. Discussed further in detail in this article are procedures with regard to business rehabilitation.
According to the Article 90 of the Bankruptcy Act, once the petition for business rehabilitation is accepted, a planner is appointed, who in turn possesses duties and powers to manage the debtor’s business as well as assets. In case, a planner is appointed, then the debtor executive’s power in administering the business and assets would cease. In such a situation, until the appointment of a planner, the court will employ one or more persons or sometimes the debtor’s executive for a temporary period to deal with the debtor’s business and assets under the administration of the receiver.
During this interim period, the receiver has complete right to administer interim executives and to order them to prepare explanation regarding the account details as well as anything pertaining to the management of business and assets. The interim executives would be relieved from the powers of receiver by the court when the receiver makes a motion.
In such situations, the court would employ new provisional executive to presume the office. In case the court does not appoint interim executive, then according to the Section 90/20 of the Bankruptcy Act, the receiver would be given power for a temporary period to manage debtor’s business and assets. Likewise, according to the Section 90/21 of the Bankruptcy Act, until a planner is appointed, all of the rights of the debtor’s shareholders would be suspended except for in the case of right to obtain dividends.
Once the acknowledgement order for business rehabilitation has been received, the debtor’s executive should handover everything from assets and seals to book keeping ledgers and documents pertaining to business, assets, and liabilities of the debtor to the provisional executive or the receiver.
Nowadays, a number of leading law firms is in the scenario to provide excellent services in connection with business rehabilitation and bankruptcy. Many of them undertake a plethora of such services in connection with business reorganization as analysis as well as consultation with creditor or debtor, filing petition for business rehabilitation, plan administration, and planner representation.
By Law Article
July 19th, 2009 at 07:06am
Under Labor Law
The Labor Protection Act of 1998 (LPA) and the Civil Commercial Code (CCC) are primarily responsible for administering labor protection laws in Thailand. In other words, the rights and duties pertaining to the employer and employee are governed by series of a laws and procedures.
Apart from Labor Protection Act BE 2541 (1998) and Thai Civil and Commercial Code, the laws in connection with Thai labor issues cover Labor Relations Act BE 2518 (AD 1975), Provident Fund Act BE 2530 (AD 1987), Social Security Act BE (AD 1900), and Workmen’s Compensation Act BE 2537 (AD 1994.)
The Ministry of Labor and Social Welfare, via the Department of Labor Protection and Welfare, administers the laws as well as rights with regard to labor issues. Further, the Minister of Labor and Social Welfare also possess right to appoint labor inspectors as well as to issue regulations and notifications.
The Labor Protection Act and other related laws have set up employees’ minimum rights working in the country. This in turn includes rights covering almost every aspect of an employment such as working hours, remuneration, child and female labor, employee welfare fund, overtime wages, sick leave and maternity leave, holidays, employee dismissal and termination, provident fund issues, workers’ compensation, employee social security, and severance. Discussed further in this article are rights pertaining to certain aspects of employment in Thailand.
Working Hours
An employee is mostly entailed to work eight hours a day or 48 hours a week. However, it is reduced to seven hours a day or 42 hours a week, in case, the work is hazardous and affects employee’s health. In addition, an employee working continuously for five hours a day should be given a resting time of at least one hour. Likewise, an employee must also be given at least one day holiday in a week.
Remuneration
A remuneration committee has been set up, containing chairman who is the permanent secretary of the Ministry of Labor and Social Welfare, government representatives, and representatives of both employers and employees, in order to fix the wages and to determine basic pay.
Place of Payment of Remuneration
As per the Labor Protection Act, an employer is required to make payment of remuneration at the working place itself. However, it can be changed provided if employee is ready to accept payment at some other place or via some other payment modes.
Female Employees
According to the labor acts, both male and female employees must be treated equally in a working environment. However, there are certain exceptions in this case. For instance, an employer is restricted to employ female employee in such organizations engaged in mining as well as construction projects, underwater and tunnel works, and production and transportation of inflammable materials and explosives. Similarly, pregnant female employee is prohibited from working in plant or equipment that vibrates and lifting or carrying on her head more than 15 kilograms of weight. Additionally, an employer cannot terminate a female employee when she is pregnant.
Child Labor
According to the labor law, a child labor could be employed only if he has completed 15 years of age. But, in order to child labor below 18 years of age, the employer is required to notify it to the labor inspector regarding the employment of a child labor within 15 days from the date of his joining the job. Likewise, the law restricts an employer to make a child labor below 18 years to work on public holidays and to do overtime. Further, child labor below 18 are not allowed work in certain working environments such as metal stamping, working with hazardous chemicals, and working with poisonous microorganisms.
Sick Leave and Maternity Leave
As per the law, an employer must grant employees at least 30 days paid sick leave. However, an employee must furnish a doctor’s certificate in case, he takes sick leave continuously for three days. In the case of maternity leave, a female pregnant employee should be granted at least 90 days maternity leave, of which the employer should pay for 45 days of the maternity leave.
Termination
A notice in writing must be given to an employee prior to his termination. However, according to the Labour Protection Act BE 2541 (1998), an employer can dismiss or terminate an employee without any notice or severance payment in any of these following circumstances such as
- Performing his or her duties and responsibilities dishonestly
- Committing any kind of criminal offense
- Negligence from the part of employee that leading to serious damage or loss to the employer
- Disobeying working rules and regulations devised by the employer
- On imprisonment as per the final judgment of imprisonment
A plethora of law firms are now in scenario in order to help you dealing with the Thai labor law. Usually, these law firms provide a range of services in connection with labor issues such as labor disputes, labor court representation, payroll issues, social security, and labor law compliance issues.
By Law Article
July 18th, 2009 at 02:52am
Under Banking Law
The banking industry in Thailand forms an essential segment of the nation’s financial services industry. In other words, banking sector in Thailand is well-established. The history of Thai banking dates back to 1865, when the Hong Kong and Shanghai Bank appointed its agents in Bangkok. Accordingly, the HSBC established a branch in Bangkok, thereby becoming the first bank to open a branch in the country.
Following the establishment of HSBC branch, many European as well as business banks opened their branches. As a result, foreign banks became the dominant players in the nation’s banking industry. In order to counter the supremacy of foreign banks, Siam Commercial Bank – the first Thai bank – was established in 1906. Later, more Thai banks were opened to trade with Asian countries, as a result of the Second World War, when majority of the foreign banks were forced closed.
After the world war, the Thai government introduced a protective policy in order to promote the growth of Thai banks in the country, which included limiting the operation of foreign banks to one branch office. As a result, foreign banks became less dominant players in the banking sector of Thailand. Since 1960, many innovative economic as well as social development plans have been introduced in the country, which in turn has led to rapid expansion of banking sector in Thailand’s provinces, resulting in banks numbering more than 3000 throughout the country.
Thailand’s modern banking system is made up of a variety of financial institutions including commercial banks, special purposes bank, and Government Savings Bank. Commercial banks are perhaps the most popular among the banks in Thailand. Commercial banks include both local and foreign banking institutions.
Being the biggest financial institutions in the country, Thai commercial banks render an array of services including acceptance of time savings as well as demand deposits, lending money via overdrafts, discounting of bills, and leasing. Their activities also cover fee-based services like custodian services, syndication of loans, feasibility studies, and consultations for mergers as well as acquisitions. Apart from these, in some instances, these banks issue negotiable instruments of deposit, apart from underwriting and issuing of debt instruments.
Commercial banks in Thailand, consisting of branches as well as representative offices of foreign banks, are functioned in accordance with the Thai laws and regulations formulated by the Ministry of Finance (MOF) and the Bank of Thailand (BOI.) Formed in 1875 by the Ministry of Thailand, the Ministry of Finance initially acted as an agency of the government to administer national finance, collect revenues, and disburse royal funds.
In 1933, it got its present name and status as a result of the passing of the Civil Service Reform Act. With eight departments and 16 state enterprises under its control, MOF’s major duties include supervision of matters in connection with operations of Government monopolies, property, and treasury. Additionally, it has power to provide loan guarantees for financial institutions, government agencies, and state enterprises.
Bank of Thailand started its operation in accordance with the formulation of the Bank of Thailand Act, on April 28, 1942. Among its duties are devising of monetary policy and supervision of financial institutions.
Now we will discuss banking regulation with regard to bank licensing. As per the Commercial Bank Act, first of all an application, containing particulars as entailed by the Ministry, must be filed with the Ministry of Finance in order to set up a commercial bank in Thailand. On the approval as well as the obtaining of a license from the Ministry, a commercial bank is opened as a limited public company.
However, a foreign bank has to comply with regulations formulated by the Thai government in order to open a branch in the country, such as the money should be brought from its head office. When comes to investment, Thai government permits foreign banks to hold 100% shareholding for up to a period of 10 years. After a period of 10 years, they are not required to divest their shares. But, in case, if they hold more than 49 percent of shares sold, they are not allowed to acquire additional shares.
In addition, the Commercial Banking Act has put forward certain laws and regulations for the maintenance of capital funds and reserves. As such, the commercial banks are required to maintain certain amount and types of the assets in the country.
Special purposes banks are state-owned financial institution whose activities are administered by the Thai government. However, they deal with only specific clients or projects. Included in the special purpose banks are the Bank for Agriculture and Agricultural Cooperatives, the Government Housing Bank, and the Government Savings Bank. When comes to the Government Savings Bank, it consists of an extensive network of branches throughout the nations.
Banking and financial sectors in Thailand are further categorized into: Asset Management Companies, Credit Froncier Companies, Finance and Securities Companies, and International Banking Facilities (IBF.)
By Law Article
July 15th, 2009 at 07:07pm
Under Labor Law
In Thailand, all of the rights and duties pertaining to employers and employees are usually governed by a series of laws and regulations. Among the different acts that govern labor issues in Thailand are Labor Protection Act BE 2541, the Labor Court and Labor Court Procedure BE 2522, Labor Relations Act BE 2518, Social Security Act BE 2533, Thai Civil and Commercial Code, Provident Fund Act BE 2530, and Workmen’s Compensation Act BE 2537.
Usually, according to the employment law in Thailand, an agreement that has been established between the employer and employee should not be less than the minimum requirements or standards devised by the law.
The Labor Protection Act and other relevant acts dealing with the labor issues have set some specific rules and regulations for each and every aspect with regard to an employment such as working hour, remuneration, child labor, female labor, sick and maternity leave, dismissal as well as termination of employees, welfare and social security of employees, and hiring of employees services.
Working hours in an organization is usually on the basis of nature and type of work. In most cases, working hours should not go above eight hours per day or 48 hours each week. In case of such works that are harmful for the health of an employee, then working hours should not exceed seven hours a day or 42 days a week.
Under the Thai employment law, an employee’s maximum probationary period is 120 days. Further, the Labor Law entails every employer in Thailand to provide its employees at least 13 public days each year and at least six vacation leaves on completion of a year’s services.
Likewise, employees are eligible for annual sick leave of 30 working days each year. Apart from sick leave, pregnant employees are eligible for maternity leave of 90 days with 45 days’ full wages. When comes to remuneration, an employer is required to pay all benefits, apart from normal salary, that form part of the employment. In addition, the basic remuneration paid by an employer must be in accordance with the minimum wage as prescribed by the Ministry of Labour and Social Welfare.
Al though, male and female employees are treated alike in a employment, a female employee is prohibited from working in certain organizations or work environments such as construction as well as mining work which are performed underwater, tunnel, or underground, and transportation and production working conditions in which it is necessary to deal with inflammable or explosive items.
Likewise, there are also certain exceptions for pregnant female employees. In other words, an employer should not ask a pregnant employee to work overtime as well as work on public holidays. Further, they are also not allowed to work in certain environments such as on plants, construction firms where it is necessary to carry loads on heads or shoulders, and ships and other water going vessels.
In the case of child labor, the minimum age in order to employ a child labor is 15 years of age. But, to employ a child below the age of 18 years, it is necessary for an employer to notify it to the labor inspector within 15 days as of the date that the child starts his work. An employer is required to give a child labor a rest period of one hour for every four hours he has worked.
Similarly, an employer should not ask a child employee below 18 years to work overtime or on holidays. Additionally, child labors below 18 years are not allowed to perform dangerous works such as rolling as well as stamping metal and works dealing with unsafe chemicals and poisonous microorganisms.
A child below the age of 18 years is also strictly prohibited from certain establishments such as gambling centers, slaughterhouses, dance clubs, and center where liquors and other related beverages are served. Above all, an employer is required to pay the remuneration or benefits of child employees only to child employees and not to any other persons other than the employees.
Now we will discuss laws and regulations pertaining to termination and dismissal. A notice in writing must be provided to an employee prior to his termination. However, according to the Labour Protection Act BE 2541 (1998), an employer can dismiss or terminate an employee without any notice or severance payment in any of these following circumstances such as
- Performing his or her duties and responsibilities dishonestly
- Committing any kind of criminal offense
- Negligence from the part of employee that leading to serious damage or loss to the employer
- Disobeying working rules and regulations devised by the employer
- On imprisonment as per the final judgment of imprisonment
Nowadays, a lot number of law firms are in Thailand to help you dealing with the Thai labor law. Usually, these law firms provide a continuum of services in connection with labor issues such as labor disputes, labor court representation, payroll issues, social security, labor law compliance issues, and more.
By Law Article
July 13th, 2009 at 02:53pm
Under Business Law
With highly sophisticated infrastructure and free enterprise economy, Thailand – officially the Kingdom of Thailand – attracts many foreigners to set up and conduct innovative businesses. However, in order to invest or conduct a business in Thailand, a foreign investor is required to comply with certain laws and regulations. Al though they are sometimes complicated, these regulations are straightforward and not problematic.
The laws regarding foreign business laws in Thailand are governed by the Foreign Business Act, B.E. 2542. In other words, the Foreign Business Act 1999 (FBA) is the most significant law that oversees major foreign-owned businesses in the country. Published on December 4, 1999 in the Royal Government and came into existence with effect from March 3, 2000, this Act actually replaced the Alien Business Law, otherwise known as the National Executive Council No. 281, which was enacted in 1972.
The Foreign Business Act 1999 has been developed to provide the country with a modern as well as effective legal framework that enables foreign investors to invest in large scale. According to the Foreign Business Act, a company is regarded foreign, if it complies with following regulations such as:
- The entity not being registered in the country
- A registered or a limited partnership entity with non Thai managing partner
- Al though the entity is incorporated in the country, foreign shareholding is half or more than half of the overall shares of the company
- Over half of the firm’s capital fund is derived from a person who is not of a Thai nationality
As per the Foreign Business Act, the businesses have been categorized into three categories, such as Category A, Category B, and Category C. Under the Category C, foreign individuals are completely restricted from starting certain business for some special reasons, and some of them are newspaper publication as well as television or radio business firms, livestock business, wood processing business, business in connection with the Thai herbs, trading of antique or any items of historical significance, manufacturing of the images of Lord Buddha, and land business.
As in the case of the Category A, the Category B also prohibits foreigners from investing in certain types of businesses. Among these businesses are businesses that may affect the safety as well as security of the national, such as, manufacture and sales of items like gun powder and explosive items; businesses that may affect the art and culture of the country like manufacture of wood items, manufacturing of earthenware items, silkworm rearing, orchard farming, and laundry services; and businesses that may affect natural resources of the country, such as, manufacture of sugar from sugarcane, mining of rock salt, and processing wood to build furniture as well as utensils. However, such businesses may be conducted if the entity can gain the approval of the Board of Investment.
When comes to the Category C, it allows foreign firms to invest in certain types of businesses, provided they get approval from the Committee. Included in this category are farming of rice as well as production of flour, business in connection with fishery and forestry matters, mining, manufacture of glass containers and crockery, lime production, accounting and legal service businesses, and architecture and engineering related businesses.
A foreigner interested in investing as well as conducting any of the business specified in the Category C is required to submit an application with the Department of Commercial Registration in order to receive a license, namely, Alien Business License, before starting any business activity in the country. This license would be valid for a stipulated time period, and would be further subject to certain conditions.
However, for a foreigner or an alien company to apply for Alien Business License, the Ministerial Regulations, as per the Section 8 of the Law, has put forward certain conditions, of which some of them are the overall debt in connection with the financing of the business should not exceed seven times the capital possessed by the proprietors, partners, and shareholders of the business; money brought from abroad should not be less than the amount that has been declared as capital investment for the business in Thailand; and the number of Thai as well as alien directors must be in accordance with the capital held.
A plethora of law firms and other related service providers are in the scenario to help foreigners in dealing with complicated laws in connection with the foreign business registrations.
By Law Article
July 12th, 2009 at 10:39pm
Under Immigration Law
There are certain laws imposed by governments of various countries to the people who are immigrating. These laws are in common named as the Immigration Laws. The Immigration Law for the Kingdom of Thailand is a set of laws concerning the immigration of people across the globe in to the kingdom. It is to be understood by any person intending to travel to Thailand even if as a tourist. The Immigration Law for the Kingdom of Thailand is to be followed by each and every person and are liable to be legally questioned if found guilty of breaking any of the set of laws. Immigration applications are handled by Immigration Bureau of the Royal Thai Police Department, Ministry of Interior, according to the immigration act of 1979.
Most people who are planning for a vacation need not worry about the problems of having a visa and other such legal licenses. Except a few countries, all people from all over the world are allowed to be guests in the kingdom of Thailand. The Immigration law of Thailand allows a person to stay in Thailand without a visa for a period of about 30 days. This law is very much helpful for tourists as most tours do not exceed a time limit of 30 days. This avoids the strain of running for visas when we are planning for a vacation. An extended period of 15 days may also be approved by the government on applying for it in the immigration office. Thus tourists are saved from these complicated steps to be undergone for getting visas and all, by the government itself.
But if a person wants to stay in Thailand for a long period of time as a settler then he or she will have to clear out all the norms put forth by the government. The Immigration law for the Kingdom of Thailand imposes rigorous punishments upon immigrants leading up to extend of giving death sentences. Immigrants may be of many types such as tourists, visitor transit, non- quota immigrant, non immigrant, and immigrants. People must apply for a visa in order to stay at any country for a longer time. Visas are of many types such as Non immigrant visa, tourist visa, etc. Non immigrant visas are taken by people who have other motives for being in Thailand rather than being a tourist. Other relevant documents may also be needed for non immigrants.
As per the immigration law for the Kingdom of Thailand, any ‘application’ is considered just as a request for staying in Thailand on a temporary basis. An official staff advised by the Commissioner General of the Thailand police headquarters only has the right to provide permit to people for a temporary stay. As per the immigration law of Thailand, any person having a valid passport may apply for the visa and if the application is rejected, then he or she may ask for the reason and the official concerned will have to give satisfactory explanations. Then he or she can resubmit the application again. The Thai Government can provide extension for staying at Thailand but it must not exceed 30 days and within this period the person concerned must get a license to stay at Thailand.
For people who plan to migrate to Thailand for the purpose of business, jobs, etc, permission may be granted which will not exceed a time period of one year. In most of the cases such as enrollment in a government institution, office, family member of a resident family, etc, the period will never extend one year at a time.
There are many procedures to be followed while submitting the application and it need not be accepted even though almost all details given in the application are most perfect. Sometimes the officials may find out some problem in granting the permission. The rules laid by the immigration law of the Kingdom of Thailand are rather complicated and might seem to be confusing for outsiders. Most Thai officials try not to cause problems and so immigration to the kingdom of Thailand is considered much strain less. The Immigration Law of the Kingdom of Thailand provides one of the vast studies upon the rules imposed on immigration. It is to be studied by all people planning to immigrate to the kingdom.
By Law Article