Enforcement
Criminal Actions
Criminal action is a type of law enforcement against any person who acts or omits to act in violation of the laws administered by the SEC. Criminal actions are divided into two groups, namely: (a) criminal fining by the Criminal Fining Committee, and (b) criminal prosecution per the process of judgment.
Most of the violations against the SEC administrated laws are processed by criminal action.
1. Criminal Fining
All the five administered laws stipulate that certain offences could be settled by a criminal fine.The Criminal Fining Committee appointed by virtue of such laws determines the fine. After the offender agrees to enter the fining process and pays for the fine in full as ordered by the Committee. The right to pursue a criminal case is terminated.
Offences that could be settled by a criminal fine are prescribed under Section 317 of the Securities and Exchange Act of 1992, Section 155 of the Derivatives Act of 2003, Section 94 of the Trust for Transactions in Capital Market Act of 2007, Section 42 of the Provident Fund Act of 1987, Section 43 of the Royal Enactment on Special Purpose Juristic Persons for Securitization of 1997, and Section 95 of the Emergency Decree on Digital Asset Businesses of 2018.
The Criminal Fining Committee comprises three independent third-parties appointed by the Ministry of Finance, namely:
(a) representative of the Royal Thai Police;
(b) representative of the Bank of Thailand; and
(c) representative of the Fiscal Policy Office, the Ministry of Finance.
In this regard, the fine
according to the criminal compounding shall be remitted to the Ministry of
Finance as state
revenue.
2. Criminal prosecution per the process of judgment
Other offences that are not subject to a criminal fine, or whose offender refuses to enter the fining process, or does but fails to pay the fine, in whole or in part, as ordered by the Criminal Fining Committee, the SEC Office shall file a criminal complaint with an inquiry official (under the Royal Thai Police or the Department of Special Investigation) for further investigation in accordance with the Criminal Procedure Code.
After that, the inquiry official will conduct a further investigation and pass the file of the case, including his decision whether to prosecute the offender or not, to a public prosecutor. Thereafter, the case will be under consideration by the public prosecutor. In case of where the file of the case is satisfied a perfection and completeness, the public prosecutor will bring a case to the court that has a jurisdiction. Consequently, the court will consider the case and make a judgement eventually.
Due to the Thai legal system, the Courts of Justice are classified into three levels, namely: the Courts of First Instance, the Courts of Appeal, and the Supreme Court. Moreover, the right to appeal to the Courts of Appeal or the Supreme Court is subject to the conditions prescribed in the Criminal Procedure Code. That means where any party in a lawsuit can satisfy the conditions, such party has the right to appeal.
Moreover, the court may impose any of the following measures, along with imprisonment and fine, on whom committed any offense under Section 278, Section 281/2 paragraph 1, Section 281/10, Section 296, Section 296/1 or Section 297 of the Securities and Exchange Act of 1992, and Section 70, Section 71 or Section 73 of the Emergency Decree on Digital Asset Businesses of 2018:
(1) a compensation at an equal amount to the benefit received or should have been received from committing an offence;
(2) a suspension of securities or derivatives trading for up to five years;
(3) a bar from serving as a director or executive in a listed company or a securities company for up to 10 years; and
(4) a reimbursement of investigative expenses incurred by the SEC.