embezzlement case
It is a property-related offense to usurp or wrongfully take possession of another person’s property, either without any ownership rights to that property or when someone else holds joint ownership rights but wrongfully seizes the property for themselves with dishonest intent. For example, if a shopkeeper withdraws money erroneously and refuses to return it even though they are aware of the mistake, this constitutes an offense of embezzlement, which is a legally recognized crime.
Related Section
Article 352: Whoever possesses property belonging to another person, or property in which others have joint ownership, and dishonestly usurps that property for themselves or for a third party, shall be punished for the offense of embezzlement. The punishment is imprisonment for a term not exceeding three years, or a fine not exceeding sixty thousand Baht, or both imprisonment and a fine.
If the property has come into the possession of the offender because another person delivered it to them under significant error, or if it is lost property that the offender found and collected, the offender shall be subject to half of the prescribed punishment.
Article 353: Any person who is entrusted with the management of the property of another, or property in which others have joint ownership, and who, through any fraudulent means, acts contrary to their duties in a manner that causes damage to the interests of the owner in a way that affects their property, shall be liable to imprisonment for not more than three years, or a fine of not more than sixty thousand Baht, or both imprisonment and a fine.
Article 354: If the offense under Article 352 or Article 353 is committed while the offender is acting as a manager of another person’s property pursuant to a court order or by virtue of inheritance, or in the capacity of a professional or a businessperson, who is generally trusted by the public, the offender shall be liable to imprisonment for not more than five years, or a fine of not more than one hundred thousand Baht, or both imprisonment and a fine.
Article 355: Any person who acquires ownership of property that has been hidden or buried without anyone claiming ownership, and then appropriates that property for themselves or another person, shall be liable to imprisonment for not more than one year, or a fine of not more than twenty thousand Baht, or both imprisonment and a fine.
Article 356 The crimes listed in this paragraph are connivance crimes.
Supreme Court Judgment No. 3324/2560
The offense of misappropriation of property is not limited to the sole owner of the property; others may also commit this offense against the property owner. If they cooperate willingly in committing the misappropriation against the person entrusted with the property, even though they are not employees of the same limited partnership, they can still be considered as joint offenders. In the given scenario, although individual 4 is not an employee of the same limited partnership as individual 1, they cooperated with individual 1, who is an employee of the limited partnership, and allowed them to deposit the check into their deposit account. When the bank called for payment on the check, the money from the check went into individual 4’s account, making individual 4 the owner of the money from the check. Therefore, individual 4 is jointly responsible with individual 1 for the misappropriation of property, as per Section 352 of the Penal Code, Paragraph 1, in conjunction with Section 83.
Supreme Court Judgment No. 6811/2559
According to the compromise agreement, the aggrieved party (the one who is entitled to the land) has not yet become the owner of the property rights in the land. They are only registered as the right holder ahead of others. To establish the offense of misappropriation of property under Section 352 of the Penal Code, it is essential to establish, in the first place, whether the disputed land belongs to the aggrieved party. When the disputed land is still owned by individual 2 through 4, the aggrieved party cannot claim that their property rights have been misappropriated, as the property rights are still in existence. Furthermore, when the aggrieved party themselves have not assigned the right to claim the property to individual 5, any actions taken by individual 5 to assert the rights on behalf of the aggrieved party are a matter for individual 5 to handle independently. The money obtained as a result of these actions is not considered money that individual 5 must deliver to the aggrieved party. The aggrieved party only has the right to enforce the terms of the compromise agreement. In summary, as long as the land is still owned by individuals 2 through 4, and there is no assignment of the right to claim the property to individual 5 by the aggrieved party, individual 5 is not obligated to deliver any money to the aggrieved party. The aggrieved party’s rights are limited to enforcing the terms of the compromise agreement.
Supreme Court Judgment No. 14802/2558
The plaintiff contends that when the plaintiff has leased-purchased gold ornaments to the defendant, the ownership rights to the said gold ornaments still belong to the plaintiff. Meanwhile, the defendant has the right to possess and use them only. The act of the defendant selling the gold ornaments to third parties without the plaintiff’s permission can be considered as the defendant appropriating the gold ornaments for themselves or others with dishonest intent, even though It is alleged that the defendant agreed to either return the gold ornaments to the plaintiff or compensate for the damages. However, this action occurred after the offense of misappropriation had already been successfully committed. The defendant’s actions can be considered as mitigating the harm and receiving a lesser criminal penalty. It is not a breach of contract since the plaintiff’s contention does not dispute the factual findings made by the lower court. Instead, it disputes that the defendant’s act of selling the gold ornaments to third parties without the plaintiff’s permission constitutes misappropriation, not a breach of contract. Therefore, it is a legal issue raised by the plaintiff.
Supreme Court Judgment No. 13089 – 13090/2558
The offense of misappropriation under Section 352 of the Penal Code requires that the property in question must be tangible and capable of being touched or possessed by the offender. However, shares in a company are merely representations of ownership and rights or interests of the joint owners in the company. Therefore, they do not qualify as property that can be misappropriated. Additionally, it is evident that the actions of all three defendants were limited to filing applications to amend the shareholder register. These actions did not result in a change in ownership rights in the shares of the joint owners. Therefore, the actions of the three defendants do not constitute the offense of misappropriation. In conclusion, the actions of the three defendants do not constitute the offense of misappropriation under Section 352 of the Penal Code.
Employer theft case
“Larceny” is the act of taking someone else’s property with dishonest intent to possess that property, knowing that it does not belong to oneself. The person committing larceny can be subject to penalties under the Thai Criminal Code, Section 335, which includes a maximum prison sentence of up to three years and a fine of up to sixty thousand Baht. However, if the larceny is committed by an employee against their employer, it is considered a more serious offense and can result in heavier penalties due to the breach of trust and fiduciary duty.
Section 334 of the Thai Criminal Code states that any person who takes the property of another, or the property of others held in common, with dishonest intent, commits the offense of larceny. The punishment for this offense includes a maximum prison sentence of up to three years and a fine of up to sixty thousand Baht.
(1) at night
(2) In a location or area where there is a fire, explosion, natural disaster, or in a location or area affected by any disaster involving trains, other vehicles carrying passengers, or similar emergencies, or taking advantage of opportunities as if they were in such situations, or taking advantage of opportunities when the public is in a state of fear due to any danger whatsoever.
(3) By damaging an obstruction intended to protect persons or property. or through such things in any way
(4) By entering through a channel which was made without the intention of being an entrance. Or enter through the channel that the person who has a heart has opened for you.
(5) By impersonating or impersonating another person. Steal your face or do it in some other way so that your face cannot be seen or remembered.
(6) By falsely claiming to be an official
(7) by having weapons or by participating in the offense of two or more people
(8) In a residence, government office or a place arranged to provide public services that one has entered without permission. or hiding in that place
(9) In public places of worship, train stations, airports, parking lots, or public boats. Public place for loading and unloading goods or in public vehicles
(10) used or available for public benefit
(11) that belongs to the employer or is in the possession of the employer
(12) that belongs to those who have a career in farming Those that are products, plants, animals, or tools intended for farming. or obtained from that farming
Must be punished with imprisonment from one year to five years. and a fine from twenty thousand baht to one hundred thousand baht
If the offense according to the first paragraph is an act that has the characteristics as provided in the said sub-section from two or more sub-sections, the offender shall be punished with imprisonment from one year to seven years. and a fine from twenty thousand baht to one hundred and forty thousand baht
If the offense described in the first paragraph is committed against livestock, cattle, machinery, or equipment used by a person in their profession or trade, the offender shall be subject to imprisonment for a period of three to ten years and a fine ranging from sixty thousand to two hundred thousand baht.
If the offense described in this section is committed under duress or due to extreme hardship and the property involved has a low value, the court may impose a penalty on the offender as prescribed in Section 334.
Supreme Court Judgment No. 5215/2557
The reason for this is that despite participating with N., who is an employee of the victim, as a co-employee of the victim, Jealousy is not liable for theft under Section 335 (11) of the Criminal Code. This is because the status of being an employee is specific to N. and does not affect Jealousy. While this issue may not involve any party in the case, it is a legal issue related to maintaining order. The court has the authority to make a judgment in accordance with Section 195, paragraph two of the Criminal Procedure Code, in conjunction with Section 225.
Supreme Court Judgment No. 2387/2564
Jealousy is an employee of the victim with the responsibility of selling cars to the victim’s customers and collecting money from them, including booking fees, down payments, and other expenses related to car purchases received from customers who buy cars from the victim. The money received by Jealousy from customers is temporarily held by him in his capacity as an employee of the victim, whose duty is to liaise with customers who come to buy cars. However, the control and management of this money ultimately belong to the victim. When Jealousy received money from customers of the victim on seven occasions and took that money dishonestly, his actions constitute theft of the employer’s property under Section 335 (11) of the Criminal Code, first paragraph.
This case does not constitute theft because the salesperson’s role is primarily to sell, not to handle customer payments. The money paid by customers immediately becomes the property of the company, and the salesperson does not possess or control that money on behalf of the company. Therefore, the salesperson does not have ownership or control over the money and cannot be accused of theft.
Supreme Court Judgment No. 519/2502
Jumleoi kept the owner’s wallet, which was tucked into the waist and slipped out while sitting and watching a movie nearby. It is considered that the property still remains in the possession of the owner, not lost. Therefore, Jumleoi’s actions do not constitute theft of property.
Employee corruption case
The provision regarding exceptions where the employer is not required to pay compensation to the employee for wrongful termination under the Labor Protection Act of 1998, Section 119, is one of the most important provisions. When considering Section 118, it can be seen that in principle, when an employer terminates an employee, the employer must pay compensation to the employee.
In addition, there are exceptions specified in Section 119 of the Labor Protection Act of 1998 that exempt the employer from having to pay compensation to the employee, apart from cases where the employee resigns voluntarily.
(1) Dishonesty in performing duties or intentionally committing a criminal offense against the employer.
(2) Intentionally causing damage to the employer.
(3) Negligence causes serious damage to the employer.
(4) Violating the Employment Ordinance or the employer’s just and fair regulations or instructions, and the employer has issued a written warning, unless it is serious, the employer does not need to issue a warning, and the validity of the warning shall not exceed one year from the date of the employee’s violation.
(5) Resignation for three consecutive working days without justifiable reasons, regardless of whether there are rest days
(6) received a sentence of imprisonment according to a final judgment, except for an offense committed through negligence or a petty offence.
In case (6), if it is an offense committed through negligence or a petty offense, it must be a case that causes damage to the employer.
Termination without compensation as mentioned above If the employer does not specify the fact of termination of employment in the termination contract, or After dismissing the employer, no claims can be made.
Reasons for employers to invoke this section There is a provision clearly stated in Section 17, paragraph three, which states: “In the case where the employer is the party who terminates the employment contract If the employer does not specify the reason in the letter of termination of the employment contract The employer cannot raise the cause under Section 119 later.”
When the provisions of Section 17, paragraph three, are specified in this way, it is equivalent to specifying the grounds that the employer will raise. To claim that compensation will not be paid to the employee according to Section 119, it must be the reason specified in the letter of termination of the employment contract only. Therefore, if the employer terminates the employment either verbally or by implication. With various expressions such as ordering security guards not to allow employees to work in the factory. The employer is likely to raise an excuse under Section 119 to fight when the employee cannot sue for compensation at the labor court.
However, the Supreme Court ruled in favor of giving an opportunity to employers who did not terminate their employment in writing: “If the employer wishes to raise grounds under Section 119 as a refusal to pay severance pay. The employer must notify the employee of the matter when verbally terminating the employment” (Supreme Court Judgment No. 7047/1999, 95/2000)
Incidentally, the reason the employer specifies in the letter of termination of the employment contract must be an actual reason. It is a cause close to the termination of employment. and it is the reason that the employer has to terminate the employee’s employment (if it is an event that has happened for 2 years or 3 years, the employer knows that But later the employer became dissatisfied with the employee in another case and therefore terminated him. In this case, the court may consider that the said incident was an event that has occurred for a long time. The employer was aware of this but did not punish the employee in any way. It is considered that the employer has forgiven the employee.
In cases where the employer does not have to pay compensation
Reference source
- คำอธิบายกฎหมายแรงงาน พิมพ์ครั้งที่ 6 แก้ไขเพิ่มเติม โดย : ศาสตราจารย์เกษมสันต์ วิลาวรรณ
- เกษมสันติ วิลาวรรณ, การเลิกจ้างและการลาออก (กรุงเทพฯ: สำนักพิมพ์วิญญูชน, 2557).
- เกษมสันติ วิลาวรรณ, ดำอธิบายกฎหมายแรงงาน (กรุงเทพฯ: สำนักพิมพ์วิญญูชน, 2564)
- สุดาศิริ วศวงศ์, กฎหมายเกี่ยวกับการคุ้มครองแรงงาน (กรุงเทพฯ: นิติบรรณการ. 2548)
- กองนิติการ กรมสวัสดิการคุ้มครองแรงงาน, คำพิพกยาศาล (26 พฤษภาคม 2563) กองนิติการ กรมสวัสดิการ
- คุ้มครองแรงงาน . Available at: คุ้มครองแรงงาน . (Accessed: 28 September 2023).
- ลักทรัพย์นายจ้าง. Available at: https://www.keybookme.com/law/employer-burglary/ (Accessed: 28 September 2023).
- รวมคำพิพากษาฎีกาใหม่ฟ้อง คดียักยอกทรัพย์. Available at: https://www.lawyers.in.th/2020/08/25/ (Accessed: 28 September 2023).
- ความผิดฐานยักยอก. Available at: https://www.drthawip.com/criminalcode/1-55 (Accessed: 28 September 2023).