Thailand Civil Procedure Code-Section-84-105

TITLE V
EVIDENCE

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CHAPTER I
GENERAL PRINCIPLES

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Section 84.52 A decision on a question of fact in a case, except the following, shall be made relying on evidence in the file of such case:

1. generally known fact;
2. indisputable fact; or
3. fact admitted or deemed to be admitted by the parties in the court.

Section 84/1.53 Any party who alleges any fact in support of his or her pleading shall have the burden of proof of such fact. However, where there is a presumption in law or reasonable presumption from the usual state of events in favour of a party, such party must prove only that he or she has fulfilled the conditions required to be entitled to such presumption.

Section 85. A party who has the burden of proof of a fact shall be entitled to adduce any evidence to prove the fact subject to this Code or other laws governing the admission and production of evidence.

Section 86. When the court finds that any evidence is not admissible or is admissible but is produced in violation of the provisions of this Code, the court shall refuse to admit such evidence.

When the court finds that any evidence is superfluous or causes undue delay or is irrelevant, it shall have the power to stay the taking of such evidence or of further evidence.

When the court finds that, for the purpose of justice, it is necessary to take any additional evidence concerning any issue in a case, the court, without an application by any party, shall take such further evidence which may include recalling of witnesses for re- examination.

Section 87.   A court shall be prohibited from admitting any evidence, unless:

1. such evidence concerns the fact to be proved by any party to the case; and
2. the party adducing such evidence has expressed his or her wish to rely upon it as provided in sections 88 and 90; provided, however, that if the court finds that, for the purpose of justice, it is necessary to take important evidence concerning any material issue of  the case in violation of the provision of this subsection, the court shall have the power to admit such evidence.

Section 88.54 When any party wishes to rely upon any document or upon a testimony of any witness or wishes to have any person, object, place inspected by the court or rely upon an opinion of an expert appointed by the court or an opinion of a person who is knowledgeable and specialised as evidence in support of his or her allegation or contention, such party shall file a list of witnesses and evidence with the court not less than seven days prior to the date of taking evidence, showing the documents or the nature of the documents to be adduced and the names and addresses of the persons, persons who are knowledgeable and specialised, objects or places to be adduced by such party as evidence or applied for inspection by the court or for appointment of the experts, as the case may be, together with a sufficient number of copies of such list for other parties to receive the same from a court officer.55

If any party wishes to file a supplementary list of witnesses and evidence, a statement requesting to list additional witnesses or evidence shall be filed with the court together with such supplementary list and its copies within fifteen days from the date of taking evidence.

Upon the expiration of the period of time for the filing of the list of witnesses and evidence under paragraph one or paragraph two, as the case may be, if the party who has already filed the list demonstrates, with valid reason, that he or she could not ascertain that certain evidence must be taken for his or her interest or did not know that certain evidence exists or has other reasonable causes, or if the party who did not file the list demonstrates to the satisfaction of the court that the list could not be filed within the prescribed time due to valid reasons, such party may file a motion to the court for adducing such evidence together with the list of witnesses and evidence and its copies at any time before judgement, and if the court finds that it is necessary to take such evidence to ensure fairness in deciding material issues, the court shall permit such motion.

Section 89.56 Any party who wishes to adduce his or her evidence to make proof of the following with respect to any witness of the other party:

1. to rebut or modify a testimony given by the witness regarding the facts known or witnessed by such witness; or
2. to prove any fact in connection with the act, statement, document or any other evidence made by such witness, shall cross-examine the witness at the time when such witness is giving testimony in order to allow such witness to have an opportunity of explaining the same, even though such witness has not given testimony regarding such fact.

In the case where such party fails to cross-examine the witness of the other party as mentioned above and subsequently adduces evidence to prove such fact, the other party who already examined the witness shall be entitled to object during when such party is adducing the evidence, and in this case the court shall refuse to admit such evidence.

In the case where the party wishing to adduce evidence to make proof with respect to the witness under paragraph one demonstrates to the satisfaction of the court that at the time when the witness was giving testimony, such party did not know or could not reasonably have known of such fact, or if the court finds that, for the purpose of justice, it is necessary to adduce such evidence, the court may admit such evidence, but in this case the opposing party may request for the witness concerned to be recalled for re-examination or the court, if it sees fit, may recall the same for re-examination.

Section 90.57 The party relying upon any document as evidence in support of his or her allegation or contention under section 88, paragraph one shall file with the court and service on the other party a copy of such document not less than seven days prior to the date of taking evidence.

In the case where any party files a statement or motion for relying upon any document as evidence under section 88, paragraph two or paragraph three, a copy of such document shall be filed with the court and served on the other party together with the filing of such statement or motion, unless the court permits the filing of a copy of the document at a later time upon valid reason.

The party relying upon evidence shall not be required to file a copy of the document to the court nor to serve a copy of the document on the other party in the following cases:

1. when any party relies upon a set of documents which is already known to the other party or which may be examined to ascertain the existence and genuineness of it easily, such as correspondences between the parties to the case or commercial books and accounts and bank’s books and accounts or documents in the file of another case.
2. when any party relies upon one or several documents in the possession of the other party or a third party.
3. if the making of a copy of the document would  delay  the proceedings  to  the injury of the party relying upon such document or there is a reason for not being able to make a copy within a period of time specified for the filing of such copy.

In the case of (1) or (3), the party relying upon the document shall file an ex parte request in the form of a motion with the court for permission to exempt from filing a copy of such document and to file the original instead for inspection by the court or the other party subject to the conditions as the court sees fit to prescribe.

In the case of (2), the party relying upon the document shall request the court for an order  demanding  such document  from  the possessor under section 123  by  filing a motion with the court within the prescribed period of time under paragraph one or paragraph two, as the case may be, and such party shall have a duty to follow to obtain such document within a period of time prescribed by the court.

Section 91. Both parties shall be entitled to rely upon the same evidence.

Section 92. If a party or any person is required to give testimony or produce any kind of evidence and such testimony or evidence may reveal:

1. any official document or fact concerning the affairs of the State which, by nature, must be kept confidential temporarily or permanently and such party or person has kept or obtained knowledge of the same in the course of his or her public office or in any other official function or semi-official function;
2. any confidential document or fact entrusted or informed to him or her by his or her client in the capacity as a counsel;
3. any invention, design or other work protected from disclosure by law, such party or person shall be entitled to refuse to give such testimony or produce such evidence unless permission for disclosure is obtained from the competent authority or person  concerned.

When any party or person refuses to give such testimony or produce such evidence, the court shall have the power to summon the competent authority or person concerned to appear before the court and give such explanation as the court may require to decide whether such refusal is reasonable. If the court views that such refusal is not admissible, the court shall have the power to issue an order to preclude such party or person from taking advantage of this section and compel him or her to give such testimony or produce such evidence.

Section 93.58    To rely on a document as evidence, only an original document shall be admissible, unless:

• when all parties concerned agree that a copy of such document is correct, the court shall admit such copy as evidence;
• if it is not possible to bring the original document due to destruction by force majeure or loss or otherwise not arising from the circumstance responsible by the person relying on such document, or the court views that it is necessary for the purpose of justice to produce a copy of such document or any oral evidence in lieu of the original document, the court may permit the production of such copy or oral evidence;
• it is an original document in official custody or control which may be produced only upon  the  prior  permission  of  the  relevant  official  agencies,  in  which  case  it  shall  be sufficient to produce a copy of the document certified correct by the competent person, unless otherwise prescribed by the court;
• when the party against whom a document is relied upon by the opposing party as evidence does not object to such documentary evidence being taken under section 125, the court may admit a copy of such document as evidence, provided that the court’s power under section 125, paragraph three shall not be precluded.

Section 94. When documentary evidence is required to be produced by law, the court shall not admit oral evidence in any of the following cases even with the consent of the opposing party:

• 1. Where oral evidence is requested to be taken in lieu of documentary evidence when the documentary evidence is not available to be produced;
  2. Where oral evidence is requested to be taken in support of any allegation to add, delete or modify the contents in a document which has already been produced.

However, the provision of this section shall not apply in the case of subsection (2) of section 93, and it shall not be deemed to preclude the party from alleging and producing oral evidence in support of the allegation that the documentary evidence produced is forged or is not correct, in whole or in part, or that a contract or any other obligation specified in such document is invalid or misinterpreted by the opposing party.

Section 95.  No oral evidence of any person shall be admissible unless such person:

• 1. is able to understand and answer questions put to him or her; and
  2. has directly witnessed, heard or known of certain relevant facts that are to be offered as testimony, provided that the provision of this clause shall apply only when no express provision of law or court order prescribes otherwise.

If the court refuses to admit the testimony of any person because the court views that such person cannot be a witness or cannot give testimony as aforementioned and the party concerned raises an objection, before the court continues to proceed with the case, it shall make a report specifying the name of the witness, the reason for not admitting it and the objection raised by the party concerned. With regard to the reason based on which the objecting party has raised his or her objection, the court, in its discretion, shall note down the reason on the report or require such party to file the statement with the court for inclusion in the file.

Section 95/1.59 Any statement, which is a recounting, to which any  oral  evidence testifies before a court or which is recorded in a document or any other material  that  is presented to the court as evidence for the purpose of proving the truth of its assertion shall be considered hearsay.

The court shall be prohibited from admitting hearsay evidence, unless:

1. according to the condition, nature, source and circumstantial facts of such hearsay evidence, it is believable that the truth is provable; or
2. there is a necessity due to the fact that the person who directly witnessed, heard or knew of certain relevant facts that are to be offered as testimony cannot be brought to appear as a witness and there is reasonable cause in the interest of justice to admit such hearsay evidence.

In the case where a court finds that any hearsay evidence should not be admitted, the provision of section 95, paragraph two shall apply, mutatis mutandis.

Section 96. A witness who is deaf or dumb or deaf-mute may be questioned or may answer questions in writing or by any other appropriate methods, and the testimony of such person shall be deemed to be witness statement under this Code.

Section 97. A party may call the opposing party to act as his or her witness or may tender himself or herself as a witness.

Section 98. Either party may call any person to act as his or her witness, who is knowledgeable and specialized, whether by profession or not, in art, science, skill, trade, his or her profession or foreign law and whose opinion in the capacity of a witness may be beneficial in decision-making of the relevant issues.

Section 99. If the court views that it is necessary to inspect a person, object or place or appoint an expert as provided in sections 129 and 130, the court, when it sees fit regardless of the stage of the trial or upon the request of any party under the provisions of sections 87 and 88, shall have the power to issue an order of such inspection or appointment of such expert.

The provision of this section shall not preclude the party from calling a person who is knowledgeable and specialized to act as the party’s witness.

Section 100.60  Any party who wishes to rely on any fact and call upon the other party to answer whether or not he or she will certify the correctness of such fact may give a written notice specifying such fact to the other party not less than seven days prior to the date of taking evidence.61

If the other party has duly received such notice, upon the application to the court on the date of taking evidence by the party giving the notice, the court shall ask the other party whether he or she will admit the correctness of the fact specified in the notice and the court shall then note down the answer in the proceeding report. If such party does not answer the question related to any fact or denies any fact without clear reason, he or she shall be deemed to admit such fact unless the court views that such party is not capable of providing an answer or a clear reason for such denial at such time, in which case the court may issue an order for such party to prepare and file a statement in relation to such fact with the court within a period of time as the court sees fit.

The provision of this section shall apply, mutatis mutandis, to all or any document on which the party expresses his or her wish of relying, provided that a copy of such document must be sent together with the notice and the original document shall be made available for inspection by the other party when required, except where such original document is in the possession of the other party or a third party.

Section 101. If any person views that any evidence which may be relied upon in the future would likely be lost or it would likely be difficult to bring such evidence, or if any party of the case views that any evidence intended to be relied upon would likely be lost before  he or she can adduce it or it would likely be difficult to adduce it at a later stage, such person or party may file a request with the court in the form of an application or motion for the court’s order of immediate taking of such evidence.

Upon receipt of such request by the court, it shall summon the applicant and the opposing party or third party concerned to appear before the court. After hearing them, the court shall decide the request as it sees fit. If the court grants such request, the taking of evidence shall be conducted in accordance with the provisions of this Code, and reports and other documents related to such matter shall be kept by the court.

In the case where the opposing party or third party concerned does not have a domicile in the Kingdom and has not yet appeared in the case, the court, upon receipt of the request under paragraph one, shall decide such request as it may be made ex parte. If the court has granted the request, the evidence shall be taken ex parte.62

Section 101/1.63 In an emergency where it is necessary to take any evidence urgently and prior notice to the other party is not possible, when filing the request under section 101 together with the plaint or answer or at a later time, the party making such request may also file an ex parte request in the form of a motion for the court to issue an order concerning this matter without delay, and if necessary may request the court to issue an order of seizure or delivery to the court of the document or object to be adduced as evidence, in the meantime.

The motion under paragraph one shall describe the fact of the emergency which necessitates urgent taking of evidence and renders prior notice to the other party impracticable, including potential damage in the case where such evidence would not be adduced. With regard to the motion for the court to issue an order of seizure or delivery to the court of the document or object to be adduced as evidence, it shall describe the fact of the necessity for the seizure or delivery of such document or object. In this regard, the court shall not grant such motion unless the court is satisfied from the examination that such emergency and necessity actually exist as described in the motion; provided, however, that the other party shall not be precluded from requesting the court to issue a subpoena for witnesses to appear before the court for cross-examination and other actions under section 117 at a later time. If such procedure cannot be complied with, the court shall exercise caution in weighing evidence.

Section 101/2.64 In the case where the court issues an order granting the request for seizure or delivery of the document or object to be adduced as evidence, the court may prescribe any conditions as it sees fit and may order the applicant to deposit a sum of money or furnish a guarantee in an amount as it sees fit to the court for payment of compensation for potential damages to any person as a result of the court’s issuance of such order believing by mistake, due to the applicant’s fault or negligence, that there was a necessity.

The provisions of section 261, section 262, section 263, section 267, section 268 and section 269 shall apply, mutatis mutandis, to the case under paragraph one, and in the case where the thing seized by the court order belongs to a third party, the third party shall have the rights as if he or she were a defendant in the case, and when it is no longer necessary to use such document or object as evidence, the court, when it sees fit or upon the application of the person entitled to return of the same, shall issue an order of return of the same to such  applicant.

Section 102. Evidence shall be taken by a court trying the case within the court or at any place outside the court as it sees fit to order as necessary to the nature of the evidence.

If the court of trial finds it necessary, it shall be competent to assign any judge in such court or appoint another court to take evidence on its behalf. The assigned judge or appointed court shall have the same power and duty as the court of trial, including the power to assign any judge in such court or appoint another court to take evidence on its behalf.

If the court of trial has appointed another court to conduct the taking of evidence, any party may make a statement to the court of trial that he or she wishes to attend to hear the trial. In this case the appointed court shall notify the scheduled date of taking evidence to the applicant at least seven days in advance. The party attending the trial shall be entitled to exercise his or her rights as if such proceedings of trial were conducted at the court of trial.

A copy of the plaint and answer together with other documents and evidence necessary for the taking of evidence shall be submitted to such appointed court. If the party relying on such evidence does not state his or her wish to attend to hear the trial, the party shall inform the appointed court of the issues to be examined. When the taking of evidence is completed, it shall be the duty of the appointed court to send necessary reports and all other documents in relation to the taking of evidence to the court of trial.

Section 103. Subject to the provisions of this Code governing default, interpleading and expulsion, the court of trial or the assigned judge or the appointed court above may not take any evidence without giving a full opportunity for all parties to attend to hear the trial and exercise the rights in relation to such proceedings of trial as provided by this Code, irrespective of whether such evidence is relied upon by any party or taken by the order of the court.

Section 103/1.65 In the case where the parties agree and the court finds it necessary and appropriate, the court may appoint a court officer or any other competent official approved by the parties to conduct any part of the taking of evidence outside the court on its behalf.

The competent official executing the duties under paragraph one shall be a competent official under the Penal Code, and the provision of section 103 shall apply, mutatis mutandis.

Section 103/2.66 The party concerned may apply to the court for the conduct of the taking of evidence in accordance with the method agreed upon by the parties. If the court sees fit for the purpose of convenient, fast and fair taking of evidence, the court may grant such application, unless such taking of evidence is illegal or contrary to public order or morals.

Section 103/3.67 For the purpose of convenient, fast and fair taking of evidence, the President of the Supreme Court with the approval of the general assembly of the Supreme Court shall have the power to issue any additional Regulations in relation to the guidelines on taking of evidence, provided that such Regulations shall not be in conflict or inconsistent with legal provisions.

The Regulations of the President of the Supreme Court under paragraph one shall come into force upon their publication in the Government Gazette.

Section 104. A court shall have full power to decide  if evidence  adduced  by the parties is relevant and sufficient to be admitted as conclusive and then to render a judgement accordingly.

In deciding whether and how hearsay evidence under section 95/1 or a record of statement of the statement provider who does not appear before the court under section 120/1, paragraph three and paragraph four or a record of statement under section 120/2 is weighed and reliable, the court shall use caution and also take into account the condition, nature and source of such hearsay evidence or record of statement.68

Section 105. Any party who fails to comply with the provisions of this Code governing evidence, causing the opposing party to pay more costs or fees than he or she would have been liable to pay shall pay such excess costs, which shall be deemed unnecessary within the meaning of section 166.

Unofficial Translation Chaninat and Leeds Ltd.  Thailand Employment Law Attorneys

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