Thailand Civil Procedure Code-Section 197-199
CHAPTER II PROCEDURE IN CASE OF DEFAULT153
PART I
DEFAULT OF ANSWER
Section 197.154 When a defendant who has been served with a writ of summons to answer fails to file an answer within a period of time prescribed by law or by a court order, he or she shall be deemed to be in default of answer.
Section 198.155 If a defendant is in default of answer, the plaintiff shall make a request to the court within fifteen days from expiration of the period of time prescribed for the defendant to file an answer, for the court to render a judgement or order adjudicating in favour of the plaintiff by default.
If the plaintiff does not file the request with the court within such prescribed period of time, the court shall issue an order of disposal of such case from the case list.
If the plaintiff files the request with the court within such prescribed period of time, the court shall render a judgement or order adjudicating the case by default according to section 198 bis. However, if the court has reasonable cause to suspect that the defendant is not aware of the writ of summons to answer, the court shall issue an order to have such writ re-served by ordinary service or by any other substitute method and may prescribe any conditions as it sees fit to cause the defendant to be aware of such writ.
Section 198 bis.156 A court may not render a judgement or order adjudicating in favour of the plaintiff due to the defendant’s default of answer unless the court views that the plaintiff’s plaint is founded and not contrary to law. In this regard, the court may raise any point of law involving public order by itself.
In determining the amount of money according to any request for enforcement of the plaintiff, the court shall proceed as follows:
- In the case where the plaintiff makes a request demanding the defendant pay a monetary debt in a definite amount, the court shall issue an order directing the plaintiff to deliver documentary evidence as the court thinks necessary in lieu of taking evidence;
- In the case where the plaintiff makes a request demanding the defendant pay a monetary debt in an indefinite amount, the court shall take the evidence of the plaintiff ex parte and the court may call for other evidence to be taken itself as it thinks
If the defendant who is in default of answer fails to appear before the court on the date of taking evidence under this section, such defendant shall not be deemed to be in default of appearance.
If the plaintiff fails to produce evidence as provided in this section within a period of time prescribed by the court, it shall be deemed that the plaintiff’s case is not founded and the court shall dismiss the plaintiff’s plaint.
Section 198 ter.157 In a case in which some defendants are in default of answer, the court shall first render a judgement or order adjudicating the case by default of answer between the plaintiff and the defendants who are in default of answer and proceed with the trial of the case between the plaintiff and the defendant who has filed an answer. However, if the grounds of action are the performance of an indivisible obligation, the court shall suspend its judgement or order adjudicating the case by default of answer and when the court has completed the trial for the defendant who has filed an answer, it shall then render a judgement or order adjudicating the case according to the merits of the case for all defendants.
In the case where the defendant who is in default of answer fails to appear before the court on the date of taking evidence of other party, such defendant shall not be deemed to be in default of appearance.
Section 199.158 If the defendant who is in default of answer appears in the court before the court has decided the case and informs the court on the first occasion that he or she desires to defend the case, when the court views that such default of answer was not willful or there is a valid reason for such default, the court shall issue an order permitting the defendant to file an answer within a period of time as the court sees fit and shall conduct the proceedings again beginning from the time at which the defendant has been in default of answer.
In the case of paragraph one, if the defendant who is in default of answer does not inform the court or the court views that the default of answer was willful or there is no valid reason for such default, the court shall continue to conduct the proceedings. In this case, the defendant may cross-examine the plaintiff’s witness who is being examined, but may not adduce his or her own evidence.
In the case where the defendant fails to file an answer within the prescribed period of time under paragraph one or the court does not permit the defendant to file an answer under paragraph two or the court has previously issued an order of a new trial on the request of the defendant who is in default of answer under section 199 ter, such defendant may not request to file an answer under this section again or may not apply for a new trial.
Section 199 bis.159 When the court has rendered a judgement directing the defendant in default of answer to lose the case, the court may prescribe any directions as it sees fit in order for the defendant in default of answer to be served with the decree on the judgement or order by ordinary service or by any other substitute method, or the court may postpone the enforcement of the judgement or order for a period of time as the court sees fit.
Enforcement of a judgement or order against a defendant in default of answer shall be governed by section 273, section 289 and section 338. 160
Section 199 ter.161 If a defendant who is adjudicated by a court judgement or order to lose the case by default of answer does not file an appeal against such judgement or order, such defendant may make a request for a new trial of the case, unless:
- the court has once previously issued an order of a new trial of the case;
- the request for a new trial is prohibited by law.
Section 199 quater.162 A request for a new trial must be filed with the court within fifteen days from the date on which the decree on judgement or order has been served on the defendant in default of answer; provided, however, that if the court has prescribed any directions for service of such decree by ordinary service or by any other substitute method, such directions must be complied with. In the case where the defendant in default of answer is unable to file the request within the prescribed period of time due to circumstances beyond control, the defendant may file a request for a new trial of the case within fifteen days from the date on which such circumstances cease to exist. In any case, such request shall not be filed after six months have elapsed from the date of seizure of property or enforcement of the judgement or order by any other means.
The request under paragraph one shall clearly set forth the reasons for the default of answer of the defendant and his or her objection to the court’s decision, which shall demonstrate that he or she may win the case if the court retries the case and, in the case of delay in the filing of the request, set forth the reasons for such delay.
Section 199 quiquies.163 When the court has received the request for a new trial, if it sees fit, it may issue an order staying execution of the case. In this case, the court shall notify its order to an executing officer.
In considering the request for a new trial, if there is reasonable cause to believe that the default of answer was not willful or there is a valid reason for such default and the court views that the applicant may win the case based on the reasons alleged in the request and, in the case of delay in the filing of the request, the applicant filed it within a prescribed period of time, the court shall issue an order granting such request. In this case, if the judgement or order directing the party in default of answer to lose the case is appealed or petitioned, the court shall also notify such order to the appeal court or the Supreme Court, as the case may be.
When the court has issued an order granting the request of a new trial under paragraph two, the judgement or order of the court in which the defendant is in default of answer and other judgement or order of the appeal court or the Supreme Court in the same case and any execution already carried out shall be deemed to have been revoked, and the court shall notify an executing officer accordingly. However, if it is not possible to restore the parties to the condition in which they were before the execution or when the court views that such execution is unnecessary, the court, in the interest of the parties or third parties, shall have the power to give any order as it sees fit. The court shall then try the case again from the time at which the defendant has been in default of answer, provided that the defendant shall file an answer within a period or time as the court sees fit.
The court order permitting a new trial shall be final. However, in the case where the court issues an order not granting such permission, the applicant may file an appeal against such order. The judgement of the appeal court shall be final.
If the defendant was willfully in default of answer or there is no valid reason for such default, causing the opposing party to pay more costs than he or she would have been liable to pay, such excess costs shall be deemed unnecessary within the meaning of section 166.
Section 199 sexies.164 In the case where a plaintiff does not file an answer in reply to a counterclaim of the defendant within a prescribed period of time, the provisions of this Part I shall apply, mutatis mutandis, insofar as they relate to such counterclaim.
Unofficial Translation Chaninat and Leeds Ltd. Thailand Child Abduction Attorneys
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