Court of Appeal Special Labor Case No. 841/2562: A foreign employee was called into a room by their employer and supervisor and ordered to write a resignation letter. They were threatened with legal action under Thai law if they refused. The employee did not genuinely consent to resign.

Held:

The court held that the employer's actions constituted a "constructive dismissal" and a violation of the employee's rights. The employer was jointly and severally liable with the assistant director of the housing department for damages for the tort of 100,000 baht and for damages for unfair dismissal of 550,000 baht (10 months' salary).

Key Points:

Forcing an employee to resign against their will may be considered a constructive dismissal.

Employers may be held liable for damages for unfair dismissal.

The amount of damages awarded will depend on the specific facts of each case.

Legal Analysis:

The court's decision in this case is based on the following principles of Thai labor law:

Employees have the right to be treated fairly and with respect by their employers.

Employers are not allowed to terminate an employee's employment without a valid reason.

Employees who are unfairly dismissed are entitled to compensation.

In this case, the court found that the employer's actions in forcing the employee to resign were unfair and in violation of their rights. The court awarded the employee damages for both the tort of 100,000 baht and for unfair dismissal of 550,000 baht (10 months' salary).

Significance:

This case is a reminder that employers must be careful not to terminate an employee with unfair reason. If an employer does so, they may be held liable for damages.

LAS / Legal Advance Solution

Thundthornthep Yamoutai

[email protected]

The Shareholder Register for limited company "A simple matter that has become complicated." One of the pain points for company owners and shareholders is that they have never known what a Shareholder Register is, why it is necessary, and what it is used for?

Many shareholders understand that the list of shareholders submitted to the Department of Business Development, Ministry of Commerce (also known as Form Bor. Or. Jor. 5), is considered evidence and correct information of the names and addresses of shareholders.

In reality, according to the law, what shareholders in limited companies must know is that the Civil and Commercial Code has laid down important legal principles regarding the Shareholder Register in 4 sections, and the Act Determining Offences Relating to Register Partnership, Limited Partnership, Limited Company, Association and Foundation, B.E. 2499 (1956) in another 3 sections, as specified at the end of this article.

The Shareholder Register is required by law to be prepared by limited companies from the date of company registration and kept at the company's office. The Shareholder Register must contain the details as prescribed by law.

The important objective is to record all information about shareholders, whether it is name, address, number of shares, volume of shares held, as well as various items such as recording changes in the shareholder's own information or changes in the number of shares, trading or transfer of shares, pledge of shares, as well as various conditions of the prohibition on share transfer (with conditions) or conditions for share transfer that are intended to be notified to shareholders, etc.

The information contained in the Shareholder Register for limited companies shall be considered the most accurate and reliable. If the list of shareholders submitted to the Department of Business Development, Ministry of Commerce, contains statements that contradict or are inconsistent with the Shareholder Register, the company must adhere to the information appearing in the Shareholder Register as a priority, including the name and address for sending meeting invitation documents, which must refer to accurate and reliable information as required by law.

In social reality, most shareholders are unaware of and have not prepared a Shareholder Register for limited companies because they understand that the list of shareholders submitted to the Department of Business Development, Ministry of Commerce (also known as Form Bor. Or. Jor. 5), is considered evidence and correct information of the names and addresses of shareholders.

From this article, shareholders must know that limited companies are required to prepare a Shareholder Register because the law requires it to be done. The list of shareholders submitted to the Department of Business Development, Ministry of Commerce, is not sufficient, and the company may be subject to penalties as prescribed by law!

Civil and Commercial Code

Section 1138: A limited company must have a register of shareholders containing the following particulars:

(1) The names, addresses and occupations, if any, of the shareholders, a statement of the shares held by each shareholder, distinguishing each share by its number and the amount paid or agreed to be considered as paid on the shares of each shareholder;

(2) The date on which each person was entered in the register as a shareholder;

(3) The date on which any person ceased to be a shareholder;

(4) The numbers and date of certificates issued to bearer or to a named shareholder and the respective numbers of shares entered in each certificate;

(5) The date of cancellation of any name or bearer certificate.

Section 1139: The register of shareholders commencing from the date of the registration of the company shall be kept at the registered office of the company. The register shall be open to inspection by the shareholders during business hours, subject to such reasonable restrictions as the directors may impose, but not less than two hours a day.

It shall be the duty of the directors to send once at least in every year to the Registrar a copy of the list of all shareholders at the time of the general meeting and of all persons who have ceased to be shareholders since the date of the last general meeting. Such list shall include all particulars specified in the foregoing section and shall be sent not later than fourteen days after the date of such meeting.

Section 1140: Any shareholder is entitled to require the delivery of a copy of such register or any part thereof on payment of a sum not exceeding five baht.

Section 1141: The register of shareholders is presumed to be correct evidence of any matters directed or authorized by law to be inserted therein.

Act Determining Offences Relating to Register Partnership, Limited Partnership, Limited Company, Association and Foundation, B.E. 2499 (1956)

Section 10: Any limited company which does not have a register of shareholders as provided in Section 1138 of the Civil and Commercial Code shall be liable to a fine not exceeding 20,000 baht.

Section 11: Any limited company which fails to keep the register of shareholders or, upon request by the shareholders, fails to make such register available for inspection by the shareholders under Section 1139 paragraph one of the Civil and Commercial Code shall be liable to a fine not exceeding 20,000 baht.

Section 26: Any director of a limited company who fails to send a copy of the list of shareholders and of persons who have ceased to be shareholders under Section 1139 paragraph two of the Civil and Commercial Code shall be liable to a fine not exceeding 10,000 baht.

LAS / Legal Advance Solution

Thundthornthep Yamoutai

[email protected]

When entrepreneurs register a company with the government to start a business as a legal entity, the term "shareholder" inevitably comes to mind. This article will address some common questions and concerns that business owners may have regarding shareholders and provide guidance on how to navigate complex legal issues related to shareholding structures.

Common Questions and Solutions:

1. Why do I need to have other shareholders if I want to invest and be the sole owner of a company?

2. Does the law require me to have a "nominee"?

3. How can I maintain complete control over my company?

4. What can I do if another shareholder is only interested in investing money and does not want to participate in the management of the company?

5. What happens if a new shareholder buys shares from an existing shareholder without any notification?

6. What can I do if I give shares to an employee and they later resign, but they want to sell the shares back to me at an inflated price?

7. What can an investor in a startup do if they want to sell their shares once the business becomes profitable?

8. How can I attract investors to my startup without giving them control over the company?

9. How do I set up a holding company structure?

10. How can I structure my business and shareholding to minimize my risk and liability without breaking the law?

11. How can I own shares in a company without disclosing my identity?

All of the questions and solutions presented in this article are relevant to business operations, shareholder structure management, and business legal planning.

Business lawyers must analyze all information and simplify complex legal issues so that business owners can understand them without any misunderstandings between shareholders.

The art of structuring shareholders and drafting business agreements is a skill of business lawyer to solve problems and create solutions for all shareholders, based on the foundation of mutual business success.

LAS / Legal Advance Solution

Thundthornthep Yamoutai

[email protected]

1. Concepts of the Condominium Act, Hotel Act, Building Construction Laws, and Environmental Laws

Condominium Act:

• Focuses on protecting consumer who purchase condominium units for residential purposes.

• Controls advertising for the sale of condominium units.

• Separates common areas for residential and commercial condominium units.

• Requires co-owners to pay for common area expenses in proportion to their ownership ratio.

• The juristic person of the condominium has the duty to manage and maintain the common areas.

• The provision of benefits in the common areas must be approved by a resolution of the general meeting of co-owners.

Hotel Act:

• Hotel operators must obtain a license.

• Must submit a construction permit specifying the hotel purpose and number of hotel rooms.

• Condominium buildings can apply to operate a hotel business.

• Problem: The Land Department may interpret this as being contrary to the Condominium Act.

Building Construction Laws:

• Focus on the safety of building users.

• Large buildings must apply for a construction permit according to the conditions of the Building Control Act and ministerial regulations.

• Developers must strictly comply with the laws.

Environmental Law:

• Controls safety, air, water, noise, and other environmental pollution.

• Mixed-use projects must/may undergo an environmental impact assessment (EIA).

• Developers must comply with environmental standards and monitoring report of EIA.

2. Legal Issues

• Each law is separate and there is no integration.

• Some laws are outdated and not in line with business development and cost of living.

• There are legal loopholes leading to inconsistent interpretations.

• The permit application process is complicated and time-consuming.

• High project development costs.

3. Solutions

• Enact a specific law for mixed-use projects.

• Integrate related laws into a system.

• Update the law to be modern and in line with social changes.

• Set clear guidelines to reduce legal loopholes.

• Develop a convenient and fast permit application system.

• Support the development of sustainable and environmentally friendly projects.

4. Conclusion

The laws related to mixed-use projects still have many limitations. Amendments are needed to develop projects efficiently and sustainably.

Thundthornthep Yamoutai

“LAS” Legal Advance Solution

[email protected]