Analogies of Thai and German Law in general and exemplified on
the LTD.C /GmbH
1) Introduction-legal internship in Thailand
Being an internee at DLO for the second time already after 2003, I experienced that
Thai Law in many aspects is close to the German Law. Now my internship at DLO is
part of my trainee time in Germany which lasts two years and consists of several
stages whose final (“Wahlstation”) can be absolved in foreign countries. The German
trainee model is the “Referendar” which is in this form probably unique in the world -
a translation would be “person receiving practical training in judicial or other legal
work after having passed the first state examination” – you could also call it a junior
lawyer.
My assignment at DLO mainly consists in revising contracts assisting the lawyers of
DLO. In doing so I learnt some basics of Thai Law.
Foremost and most important Thai Law is - as well as the German - code law.
2) Comparison Case Law / Code Law
The regulation of particular cases is typical for the Anglo-Saxon legal system of case
law. The adjudication ex identical or comparable cases provides the primary source of
law.
In opposition there are highly abstract laws, with standards suitable for a variety of
cases - the code law.
Extensive freedom of contract with only a limited number of restrictions which are
supposed to guarantee the enforcement of contracts and on whose basis the legal practise
interprets individual cases is the characteristic of case law. Case law operates with
a low level of abstraction and regulations only applying to the particular case for
which they were developed. Case law is practised exempli gratia in the USA, Canada,
Great Britain, Australia, New Zealand, India.
Based on a general freedom of contract code law legislates substantial provisions for
standardization in order to cover all particular cases. It has a high level of abstraction
and regulations will be applied to all congenerous cases.
Code law is e.g. practised in France, Germany, Italy, Spain, Portugal (most European
countries), Japan, Thailand.
3) Influence of German Law in Thailand
In Thailand the German Civil Code (BGB) was received through Japan. Reading the
Civil and Commercial Code the General Principles or for instance under Book II, Title
V “Wrongful Acts” one will easily notice the great influence of the German BGB, the
cited passages refer to “BGB- Allgemeiner Teil” and “Unerlaubte Handlungen”.
Moreover commercial and labour law show many parallels and similarities. Nevertheless
Thai Law also has its parallels in English and French Law.
In the domain of family and succession law the aboriginal Thai Law appears.
Lately the influence of German Law, not only in Thailand, has become articulately noticeable,
as German Law is one of the countries most popular exports at the moment.
Suffice to say Thai Law differs not too much from German Law. The difference between
Thai and German Law is probably not as great as the one between English and
German Law. However in detail there are differences- you have to decide from every
field of law.
4) Similarities of LTD.C and GmbH
One could take several passages of the Civil and Commercial Code and the BGB and
HGB, (however) I just consider one example- a comparison of the Limited Liability
Company in Thailand (LTD.C) and the Gesellschaft mit beschränkter Haftung in Germany
(GmbH).
The LTD.C as well as the GmbH constitutes an independent incorporated enterprise
whose partners (“shareholders” in the Civil and Commercial Code – I changed the
wording, because for foreigners the expression “shareholders” mostly implies that the
company or partnership is admitted at the (national) stock exchange) are only liable
amounting to their subscribed interest which they did not yet pay. Their capacity to be
a subject of legal rights and duties both types of company achieve by registration and
publication. Admittedly the memorandum of association of the GmbH requires the
form of the public notary unlike the memorandum of association of the LTD.C.
The company name has to end with the appellation “limited” for the LTD.C and has to
contain the indication “GmbH” for the GmbH. Incidentally the choice of company
name is only subject to conditions to prevent accordance or confusion with already existing
companies.
The liability of the partners of the LTD.C and GmbH is restricted to the assets of the
partnership; they are only liable personally amounting to their subscribed interest
which they did not yet pay. However the founder partners are liable until the partnership
will be registered. An extended (e.g. unlimited liability) of the directors can be
appointed in the “Memorandum of Association”. This liability will end not later than
two years after retirement.
Other than the GmbH the LTD.C has no mandatory minimum registered capital. The
GmbH has a legally prescribed minimum registered capital of 25.000€ (ca. 1.175.000
Baht) whereas the LTD.C has a minimum capital of just 45 Baht (5 Baht per shareholder
/partner), consequently the market will regulate the capital a company needs to
set up its business.
The LTD.C as well as the GmbH is represented by its organs - the congregation of
partners and the board of directors. The management board, which consists of one or
more directors, is elected by the exclusively competent congregation of partners in a
general meeting.
Supreme organ of the LTD.C and GmbH is the congregation of partners (simply called
“general meeting” in the Civil and Commercial Code). To its decision affairs are reserved,
that concern
è appointment or dismissal of a director
è appointment of an auditor/ certified public accountant
è decision on dividend distribution
è dissolution of the company
è amalgamation/ merger with other companies/ partnerships
è in the memorandum of association listed matters.
The “general meeting” is held at least once every twelve months. Besides, extraordinary
meetings can be held upon invitation of the board of directors. The minimum
quorum of a general or extraordinary meeting needs the attendance of 25% of the
company’s capital. Though the memorandum of association can determine a deviating
higher quota.
As reasons for the dissolution of LTD.C and GmbH the following are given:
è cases provided by its regulations (memorandum of association)
è the expiration of an appointed period of time
è upon achievement of company’s aim, if only formed for this aim
è upon disclosure of bankruptcy/ insolvency
è a special dissolution resolution
è in particular cases by court decision.
The liquidation of the LTD.C is conducted by liquidators who, subject to prescribed
terms of publication, dispense the capital of the partnership first among its debtors and
thereafter among its partners. The procedure again shows many parallels to the German
GmbH Code.
An important characteristic that the LTD.C differing from the GmbH features is the
restriction after the Foreign Business Act. Accordingly partnerships need a majority of
51% of Thai partners minimum and consequential 49% foreign partners maximum.
Exceptions prove the rule – treaties with other countries allow variations of this provision.
(This article only intends to highlight similarities between Thai and German law considering
an example – it does not claim completeness)
;-D 
und das lag an dem faulem Sac. von Richter hier am Landgericht 
