PROBLEM OF PROPORTIONALITY IN THE ADJUDICATION AND ASSESSMENT OF PENALTIES FOR CRIMINAL OFFENCES RELATING TO THE USE OF CHEQUES

Abstract

This independent study purposes to study the concept and the theory about suitable proportionality of liabilities and penalties for criminal offences related to the use of cheques. From studying the foreign cheque laws, the study tends to seek for solutions and adding the efficiency of law enforcement of the Act promulgation liability for misuse of cheques B.E. 2534 in Thailand

Regard to the study, it has shown that there are three points of issues to be noted. Firstly, although Article 11 of Part 3 of the International Covenant on Civil and Political Rights has stipulated that “No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation;” the criminal penalties related to the use of cheques in Thailand does not only stipulated based on the ground of not complying to the contract but also based on the ground of creating the guarantee for the having the debt payment of cheques. Secondly, the problem of designating criminal liability and the penalty for the use of cheque in foreign countries has stipulated both civil liability and criminal liability distinctively. In term of criminal liability, prison sentence and fine are designated for the use of cheques as appeared in French Cheque Law. According to Thailand, prison sentence for the misuse of cheques; which is a compoundable offense, has been applied for the benefit of creditors to negotiate with the debtors in exchange of not prosecuting criminal suit. Lastly, for the most suitable liability and punishment related to the use of cheque in discretion of the severity of offense and criminal judicial process, this study proposes the fine punishment ot the criminal offense related to the use of cheque, including the comparison trial for the minor offenses.   

From this research, it is concluded that the criminal liability and punishment related to the use of cheque in Thailand in comparison with the Foreign Cheque Laws is deemed disproportionate, which leads to the augmentation of cases in criminal judicial system. The researcher, therefore, proposes the amendment of criminal penalty under Thailand’s Act promulgation liability for misuse of cheques B.E. 2534 by repealing sentence penalty for the offense relating to the use of cheque and apply only the fine penalty, along with raising the rate of fine penalty.