Thailand Civil Procedure Code Section 223-246

BOOK III
APPEAL AND PETITION

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TITLE I
APPEAL

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Section 223. Subject to the provisions of sections 138, 168, 188 and 222 and the provisions of this Title, an appeal against the judgement or order of a court of first instance shall be made to an appeal court, unless such judgement or order is final as provided by this Code or other laws.

Section 223 bis.229   (Repealed)

Section 224.230 In a case in which the value of property or the amount in dispute on appeal does not exceed fifty thousand baht or does not exceed the amount prescribed in the Royal Decree, the parties shall be prohibited from appealing on facts unless the judge hearing such case in the court of first instance has provided a dissenting opinion or has certified that there is reasonable cause for appeal. If there is no such dissenting opinion or certification, permission to appeal shall be obtained in writing from the Chief Justice of the Court of First Instance or the competent Chief Justice of Region, as the case may be.

The provision of paragraph one shall not apply to cases concerning rights pertaining to natural personality or family rights and cases in which a request for relief cannot be computed in terms of money, except cases of eviction of any person from immovable property yielding rent or available for rent at the rate of not exceeding four thousand baht per month or not exceeding the amount prescribed in the Royal Decree, at the time of the filing of the plaint.

In requesting the judge hearing the case in the court of first instance to certify that there is reasonable cause for appeal, the appellant shall file a  motion  addressed  to  such judge, together with the appeal, with the court of first instance. When the court has received such motion, it shall send the motion together with the file to such judge for considering granting certification.

Section 225.231 In the filing of an appeal, any fact or legal provision which will be raised and relied upon must be clearly stated by the party in the appeal and must have been validly raised in the court of first instance and also must be the essential matter of the case worthy of being decided.

If any party did not raise any question involving public order in the court of first instance or any party was unable to raise any question of law in the court of first instance because the circumstances do not permit such act or because it is a non-compliance with the provisions governing appeal proceedings, the party concerned shall be entitled to raise such question.

Section 226. Before the court of first instance renders a judgement or order adjudicating the case, if such court has issued any order other than those specified in sections 227 and 228:

1. no appeal may be made against such order during trial;
2. if any party objects to any of such order, the court shall note down such objection on a report. The objecting party shall be entitled to appeal against such order within one month from the date on which the court renders a judgement or order adjudicating the case.

For the purpose of this section, irrespective of whether the court has already issued an order of acceptance of the plaint, any order of the court issued from the time of the filing of the plaint with the court other than the orders specified in sections 227 and 228 shall be deemed to be an interlocutory order.232

Section 227. An order of a court of first instance rejecting or returning a pleading under section 18 or an order giving a preliminary decision under section 24 which concludes the whole case, shall not be deemed to be an interlocutory order and shall be subject to the rules of appeal against judgements or orders adjudicating a case.

Section 228.233  Before a court decides the case, if the court issues any of the following orders:

1. detention, imposition of a fine or imprisonment of any person under this Code;
2. any order concerning a request for the protection of the interests of the parties during trial or any order concerning a request for execution of a judgement; or
3. rejection or return of a pleading under section 18 or a preliminary decision under section 24 which does not conclude the whole case, but particular issues only, such order may be appealed by the party within one month from the date of such order.

Even though an appeal is made during trial, the court shall continue to proceed with the case and render a judgement or order adjudicating such case. However, if during trial, the party appeals against an order of the kind specified in subsection (3) and the appeal court views that  the reversal or  amendment  of the order against  which  the party  appeals  would decide the case or decide any issue undecided by the lower court, the appeal court shall have the power to issue an order for the lower court to stay the trial pending appeal or to suspend its decision until the appeal court has decided such appeal.

If the party does not appeal against the order during trial as provided in this section, the appeal may be made when the court has rendered a judgement according to the provision of section 223.

Section 229. An appeal shall be made in writing and filed with the court of first instance issuing the judgement or order within one month from the date of its pronouncement, and the appellant shall deposit fees which must be paid to the opposing party according to the judgement or order with the court together with the appeal. The appellant shall file a copy of the appeal with the court for service on the respondent (that is the original plaintiff or defendant who does not file an appeal) as provided by sections 235 and 236.

Section 230.234 With regard to a case under section 224, if the party appeals on fact, the court of first instance shall first examine whether such appeal will be accepted for consideration or not.

If the judge trying such case has a dissenting opinion or has certified or certified at the time of the examination of such appeal that there is reasonable cause for appeal on such question of fact, the court shall issue an order accepting such appeal on such question of fact for  consideration.

If there is no such dissenting opinion or certification, the court shall issue an order rejecting the appeal on such question of fact. In this case, if the Chief Justice or the Chief Justice of Region took no part in the making of such order, the appellant shall be entitled to file a motion with the court addressed to the Chief Justice or the Chief Justice of Region within seven days. When the court has received such motion, the court shall forward such motion together with the file to the Chief Justice or the Chief Justice of Region for issuance of an order either confirming or reversing the order of the court. The order of the Chief Justice or the Chief Justice of Region shall be final.

The provision of this section shall not preclude the court from issuing an order under section 232 refusing to forward the appeal on other grounds or from issuing an order forwarding the appeal to the extent made on points of law.

Section 231. The filing of an appeal shall not stay the enforcement of a judgement or order of the court of first instance, but the party filing the appeal may file a request with the appeal court at any time before judgement in the form of a motion to clarify reasonable causes for requesting the appeal court to stay such execution.

Such request shall be filed with the court of first instance by the appellant up to the time when the court issues an order permitting the appeal. After the court has issued such order, it shall be filed directly with the appeal court. If the request has already been filed with the court of first instance, the court shall immediately forward it to the appeal court. In case of extreme emergency, when the court of first instance has accepted the request, it shall have the power to issue an order to stay the execution pending the decision of the appeal court on such request.

If the appellant deposits a sum of money with the court of first instance in the amount sufficient to pay the judgement debts including the costs of action and execution or furnishes a guarantee for such amount to the satisfaction of the court, the aforesaid court shall stay the execution as provided in section 292 (1).235

When receiving such request, the appeal court may grant the stay of execution in the case of emergency without hearing the opposing party. However, in this case, such order shall be deemed to be provisional until the court has subsequently heard the opposing party. If the court issues an order to stay execution as requested for, this order may or may not be subject to any conditions. The court may issue an order requiring the appellant to make a bond to the effect that he or she will not remove or dispose of his or her property during appeal or to furnish a guarantee to the court sufficient to cover the amount of money to be paid according to the judgement or to deposit such amount with the court. If the appellant fails to comply with such order, the court may order seizure or attachment of the appellant’s property, and if such property or any part thereof is movable property, the court may issue an order to sell it by auction if it appears that such sale is necessary and appropriate because such property is of a perishable nature or its preservation during appeal would likely lead to difficulty or incur considerable expense.

Section 232. When receiving an appeal, the court of first instance shall examine it and issue an order either to forward or refuse to forward the appeal to an appeal  court according to the provisions of this Code. If the court refuses to forward, it shall state the reason for it in the order in each case. If both parties file appeals, the court may give a decision on both appeals by the same order.

Section 233. If the court accepts the appeal and is of the opinion that on appeal the party who has won the case according to the court’s judgement will have to pay increasing costs, the court shall have the power to prescribe in its order that the appellant shall deposit with the court an additional sum of money sufficient to cover the amount of such costs required to be paid at the rate then in force before expiration of the period of time allowed for appeal or within a period of time as the court sees fit to permit or as requested by the appellant within ten days from expiration of such period of time for appeal. If the appellant fails to deposit such sum of money with the court within the time allowed, the court shall dismiss such appeal.

Section 234.236 If the court of first instance refuses to accept an appeal, the appellant may appeal against the order of such court to an appeal court by filing the request in the form of a motion with the court of first instance and depositing all costs with the court and making payment according to the judgement or furnishing a guarantee to the court within fifteen days from the date of issuance of the court’s order.

Section 235. When the court of first instance has accepted an appeal, it shall serve a copy of the appeal on the respondent. Within seven days from the date on which the respondent has filed a reply to the appeal or, if the respondent does not file a reply, within seven days from expiration of the period of time prescribed in section 237 for the filing of a reply to an appeal, the court shall forward the appeal and the reply, if any, together with the file and evidence to the appeal court. When the appeal court has received the appeal and the file, the case shall be entered in the appeal court’s case list at prompt.

Section 236. When the party has filed a motion appealing against the court’s order of refusal of the appeal, the court shall forward such motion to the appeal court without delay together with the judgement or order adjudicating the case of the court of first instance and the appeal. If the appeal court finds it necessary to examine the file, it shall issue an order for the court of first instance to forward the file to it. In such case the appeal court shall consider the motion and issue an order confirming the refusal of the court of first instance or issue an order accepting the appeal. This order shall be final and forwarded to the court of first instance for pronouncement.

When the appeal court’s order of acceptance of the appeal has been pronounced, the court of first instance shall serve a copy of the appeal on the respondent and, within seven days from the date on which the respondent has filed a reply to the appeal or from expiration of the period of time prescribed in section 237 for the filing of a reply to an appeal, the court shall send the reply to the appeal court or notify that there is no reply to the appeal. When the appeal court has received the reply or the notification, the case shall be entered in the appeal court’s case list at prompt.

Section 237. The respondent may file a reply to the appeal with the court of first instance within fifteen days from the date of service of a copy of the appeal.

In any case, the court shall not declare that the respondent is in default due to failure to file a reply to the appeal.

Section 238.237 Subject to section 243 (3), in a case of which an appeal may be made only on questions of law, in deciding such questions of law, the appeal court shall be bound by the facts as found by the court of first instance from the evidence in the file.

Section 239.238 An appeal against an order must be considered prior to appeals against judgements to the maximum extent possible even though such appeals against judgements have been entered in the appeal court’s case list before such appeal against an order.

Section 240.239 An appeal court shall have the power to decide the case by merely considering the appeal, the reply to the appeal and all documents and evidence in the file forwarded by the court of first instance, provided that:

1. if the appeal court has appointed the date for hearing oral arguments as provided in section 241, but any or both parties fail to appear on such appointed date, the appeal court may proceed with the case and the appeal court’s judgement or order shall not be deemed to be a default judgement;
2. if the appeal court is not satisfied with such consideration of the appeal, the reply to the appeal and evidence appearing in the file under section 238 only with respect to the questions on appeal, the court shall have the power to determine the issues, take evidence already taken or examine further witnesses as it sees fit and try the case in general as provided by this Code for the trial in courts of first instance, and the provisions of this Code governing trial in courts of first instance shall apply, mutatis mutandis;
3. in a case in which the party appeals against a question of law, if the appeal court views that the court of first instance had not tried or decided any question of fact which is material to the issue, the appeal court shall have the power to issue an order directing the court of first instance to try such question of fact and then render a judgement according to the merits of the case.

Section 241.240 If any party wishes to appear to make an oral argument in an appeal court, such party shall make such request at the end of the appeal or the reply to the appeal, as the case may be, and the appeal court shall appoint the date for hearing such oral argument, unless the appeal court considers that such oral argument is not necessary for the case, in which case it may order staying the hearing of the argument. In the case where the appeal court has appointed the date for hearing an oral argument, the opposing party shall be entitled to also appear to make an oral argument in the appeal court even though he or she did not state such wish.

In making an oral argument, the person making the request to do so shall first make his or her argument and then the opposing party shall reply. The person making the request shall then be entitled to make an argument once again. If both parties make the request, the appellant shall first make an argument. If both parties  appeal  and  make  the  request,  the appeal court shall consider and give an order.

Section 242.241 When the appeal court has completed examining the file and hearing all parties or taking further evidence as provided in section 240, the appeal court shall decide the appeal in any of the four following ways:

1. If the appeal court finds that such appeal is prohibited by law, it shall dismiss the appeal without deciding the issues of the appeal;
2. If the appeal court finds that the decision of the court of first instance is correct, whether for the same reason or other reasons, it shall render a judgement to confirm the court of first instance’s judgement;
3. If the appeal court finds that the adjudication of the court of first instance is not correct, it shall reverse the court of first instance’s judgement and render a new judgement on those questions;
4. If the appeal court finds that the decision of the court of first instance is partly correct and partly incorrect, it shall amend the court of first instance’s judgement accordingly by rendering a judgement to confirm parts of the judgement, reverse parts of the judgement and rendering a new judgement to replace the reversed parts.

Section 243.242  The appeal court shall also have the following powers:

1. When the case appears not to comply with the provisions of this Code governing judgements and orders and the appeal court finds that there is reasonable cause, it shall issue an order dismissing the judgement or order of the court of first instance and then send the file back to the court of first instance for rendering a new judgement or order. In this case, the court of first instance may consist of other judges than those rendering the judgement or order, and such new judgement or order may decide the case otherwise than it was decided by the judgement or order dismissed.
2. When the case appears not to comply with the provisions of this Code governing trial or the court refused to take evidence as applied for by the appellant and the appeal court finds that there is reasonable cause, it shall issue an order dismissing such judgement or order of the court of first instance and direct the court of first instance consisting of the same judges or other judges or any other court of first instance as the appeal court sees fit to try the case again, in whole or in part, and render a new judgement or order;
3. In the case where the appeal court must be bound by the facts as found by the court of first instance, if it appears that:
   1. the court of first  instance’s finding  of  facts is  contrary to law, the appeal court may hear new facts instead of the facts found by the court of first instance and then render a judgement or order adjudicating the case accordingly; or
   2. the facts found by the court of first instance are not sufficient to make a decision on any point of law, the appeal court may issue an order dismissing the judgement or order of the court of first instance and then direct the court of first instance consisting of the same judges or other judges or any other court of first instance as the appeal court sees fit to try the case again, in whole or in part, in accordance with the adjudication of the appeal court and to render a judgement or order according to the merits of the case, irrespective of whether appearing from the appeal or not.

In all cases in which the court of first instance has rendered a new judgement or order under this section, the parties shall be entitled to appeal against such new judgement or order to an appeal court in accordance with the provisions of this Title.

Section 244. The appeal court may read the judgement or forward it to the court of first instance for reading. In these cases, the court which shall read the judgement shall issue an order determining the date of pronouncement and have such order served on all parties to the appeal.

Section 244/1.243 Subject to section 247, the judgement or order of an appeal court shall be final.

Section 245. A judgement or order given on appeal shall take effect only between the parties to the appeal, except the following cases,

1. If the judgement or order appealed against involves the performance of an indivisible obligation and the appeal has been made by only some parties resulting in such judgement or order becoming final for the other parties, if the appeal court finds it appropriate to reverse the judgement or order appealed against, the appeal court shall have the power to adjudicate that a judgement or order of the appeal court shall also take effect for all parties to the case in the court of first instance;
2. If any interpleader has been permitted to appear in the case to substitute any party, a judgement of the appeal court shall take effect for such

Section 246. Except as provided for above, the provisions of this Code governing trial and adjudication in courts of first instance shall apply, mutatis mutandis, to the trial and adjudication on appeal.

Unofficial Translation Chaninat and Leeds Ltd.  Thailand Child Abduction Attorneys

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