Nitiparitat Journal

Legal Miscellaneous : On the Lawfare and the Constitution

Natdanai Nachan — 2024-09-09

Lawfare refers to the strategic use of legal systems and principles to damage or undermine an opponent. This concept may seem novel in Thai society, but this paper aims to illustrate that the study of law as a tool of lawfare has a long history in foreign literature, particularly in English. As a legal miscellaneous, this paper explores the potential of using the concept of lawfare to explain how constitutions can be employed as domestic laws to harm or neutralise political competitors. While this explanation is not entirely new, the author believes that a systematic study of the relationship between lawfare and constitutional law could yield significant insights and benefits for those interested in the deep connections between constitutional law, society, and politics.

Analyzing the Legitimacy and Appropriateness of Thailand’s General Royal Pardon Through the Case of Somkid Pumpuang in the Jurisprudential Perspectives of Savigny and Bentham

Jintana Plodpai — 2024-09-09

The history of the law on pardons in Thailand is long-standing, from ancient times to the present. It is primarily governed by the Constitution of the Kingdom of Thailand, B.E. 2560 (2017), specifically in Sections 179 and 175, and the Criminal Procedure Code in Section 261 bis. These serve as the main framework outlining the authority, criteria, and qualifications for pardons, detailed further in subordinate laws enacted through royal decrees. The objective of the pardon law is to provide offenders with the opportunity to reintegrate into society through a justice process administered by the Department of Corrections, the Cabinet, and the Ministry of Justice as the executive bodies responsible for such considerations. However, while this law is procedurally correct, from the perspective of legal philosophy, there are considerations regarding its legitimacy and appropriateness. Analyzing through the legal philosophy of Georg Friedrich Carl von Savigny of the Historical School, it is emphasized that the legitimacy of law must relate to the national spirit developed from the nation’s internal history. In contrast, Jeremy Bentham, the founder of modern utilitarianism, focuses on content and outcomes rather than formal aspects. He posits that a good law is one that maximizes happiness for the greatest number of people in society. Bentham uses the principle of utility to measure the value of actions and laws, believing that laws stem from the will of powerful individuals and can be amended, altered, or repealed to ensure the greatest benefit and minimize future suffering for the majority in society. This paper aims to evaluate whether the current practice of granting pardons in Thailand, particularly in the case of Somkid Pumpuang, aligns with the legal philosophies of Savigny and Bentham regarding legitimacy and appropriateness.

Analysis of the Legality of Unjust Laws from the Perspective of Positivist Theory Through a Case Study of Alice in Borderland

Theewara Chitjuy — 2024-09-09

This article aims to analyze a case study from the Japanese series “Alice in Borderland” Season 1 by examining the actions of the main character, Arisu, who strives to survive in a deadly parallel world along with other players through a series of games. Each game is controlled and regulated by an authority from above, and each player must follow these rules, including killing each other to survive, which is not considered illegal. Due to societal pressure, Arisu is compelled to follow the game rules despite internal conflict. Meanwhile, some other players feel that killing is not wrong, leading to a conflict between the enforcement of laws or commands and morality.

The authors believe that the legal philosophy issues presented in the series are particularly suitable as a case study for considering the legality of the commands of supreme authority in this given situation. They aim to examine whether the rules derived from such authority are considered laws through the perspectives and legal theories of positivist philosophers such as John Austin and H.L.A. Hart and analyze the limitations of these philosophers’ legal theories.

Enforcement of Hardcore Cartel in Japan

Thuntawat Limjanon — 2024-09-09

This study examines the historical development and enforcement framework of Japanese Competition Law, with a specific focus on the evolution of competition law principles and the handling of hardcore cartels. Beginning with the period following the Meiji Restoration up to the aftermath of World War II, the transition of Japan’s economic landscape is explored, particularly highlighting the shift from government-controlled industries to a competitive market environment catalyzed by the enactment of the Antimonopoly Act (AMA) in 1974. Influenced by United States antitrust laws, the AMA imposed stringent controls on mergers, prohibited unreasonable economic power disparities, and established the Japan Fair Trade Commission (JFTC) as the primary enforcement body.

An in-depth analysis is provided on the enforcement of hardcore cartels under the AMA, specifically focusing on their criminalization and procedural aspects. The study delves into the limited prosecution of hardcore cartels and the utilization pattern of criminal enforcement strategies. Furthermore, it examines the implications of criminal sanctions, emphasizing the stigma and dishonor associated with individuals involved in anticompetitive activities. Additionally, the study explores and the broad scope of criminal punishment in addressing collaborative efforts.

Through this examination, the study underscores the AMA’s enforcement in fostering a competitive economic landscape while combatting anticompetitive behavior through rigorous enforcement measures.