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Criminal offence of dishonored check to be repealed

On 21 June 2022, as proposed by the Ministry of Justice, the Cabinet had a resolution approving the repeal of the Offence Arising from the Use of Check Act B.E. 2534 (1991) (the “Act”) on the basis that the Act conflicts with Section 77 of the Constitution of the Kingdom of Thailand B.E. 2560 (2017) (the “Constitution”) and Article 11 of the International Covenant on Civil and Political Rights (the “ICCPR”). It will take full effect 120 days after the Act repealing the Offence Arising from the Use of Check Act was published in the Royal Gazette.

When it comes to dishonored checks, Thailand is one of a few jurisdictions that imposes criminal liability on such offence. Section 4 of the Act provides that if the dishonored check is presented and the bank refuses to pay such check, “the drawer is said to commit an offence and shall be penalized with a fine not exceeding Baht 60,000 or imprisonment not exceeding 1 year, or both”.

According to the Ministry of Justice, however, this provision conflicts with Section 77 of the Constitution, which provides that criminal penalties should be prescribed for “serious offences” only, and with Article 11 of the ICCPR, which provides that merely “inability to fulfill a contractual obligation” should not be a ground for imprisonment.

Therefore, the repealing of the Act will reaffirm the constitutional right of Thai citizens and eliminate the issue of using criminal liability to coerce into civil debt payment.

After the Act is repealed, for any check that the bank refuses to pay, a creditor may bring a civil action against a debtor for payment of a dishonored check. However, if a debtor draws check in bad faith with intention to prevent his creditor from receiving payment, such debtor is said to have committed an offence of fraud under Section 341 of the Criminal Code, and a creditor may also initiate criminal proceedings against such debtor. If convicted, such debtor will be subject to imprisonment not exceeding 3 years or fined not exceeding Baht 60,000 or both.

Chirdpan/Natthaya