On the Genesis of the Thai Civil & Commercial Code: An Interview with Shiori Tamura
Mr. Shiori Tamura is lecturer at the Faculty of Law of Thammasat University
Q: Mr. Tamura, can you tell us something about your personal career?
I studied law at Tohoku University in Sendai/Japan and Sociology at Chuo University in Tokyo/Japan. After that, I completed my Master course at Waseda University in Tokyo/Japan. The main focus of my Master´s thesis was on modern German philosophy of law. Therein, I have made the conceptual difference between “historicity of law” by Hans-Georg Gadamer and by Arthur Kaufmann a subject of discussion. After that, I have tried to continue my research in philosophy of law in Germany. I went to university in Marburg and wanted to graduate in that subject. But my thoughts were not yet mature enough, and I started teaching Japanese as a lecturer. There, I got to know Prof. Jens Rickmeyer and his theory of “Morphosyntax”. Those new experiences significantly influenced my interests. I became more interested in practical acquisition-competence of communication skills, rather than in the abstract, philosophical reflections about it.
In 1990, I applied for a job at the University of Hannover and was successful there, so I gave up my studies in Marburg. My new task evolved around legal and economic technical language in Japanese. I was teaching at the technical language centre at the University of Hannover until 1993.
One year later, in 1994, I came to Thailand. I started to work here as a language teacher at the Centre of Liberal Arts. In 2003, I switched from the Centre of Liberal Arts to the Faculty of Law where I am still working.
Q: What was the reason for you to research the development of the Thai Civil and Commercial Code?
It started before I came to Thailand. Some friends told me, that the Thai civil law was adopted from the Japanese civil law. But they were no legal experts so they could not tell me the details. I noticed, that the structure of the Thai civil code is the same as the structure of the German civil code (BGB). The third part, however, consists of contract types and trade types as is the case in the Swiss civil code. The opinion of Thai legal experts is, that the Thai civil law was mainly adopted from German civil law, but I was not sure. I wanted to know whether it is built upon Japanese or German law, or whether it is entirely independent.
Q: How long do you work on this project?
I cannot remember when I started that project, but I think it was around 1998. At that time, I began to translate the current version of the Thai civil and commercial code. At the beginning, that was before I came to the Faculty of Law, I did my translations after finishing work. But I still have not finished it. Currently, I work on the translation of the third part, which consists of more than 1.000 paragraphs. So there is still much work ahead. At the moment, I do not have much time for it. So I am not sure if I can finish it, but I still go on in my free time. I try to translate as much as I can.
Q: How did you proceed with your research?
The beginning was very difficult. The Thai text is written in a very old style, which deviates significantly from modern Thai. Therefore, I developed a method to analyse the syntax of the Thai legal text. This was an important task for without this knowledge it is impossible to translate correctly. There are already several translations in Japanese, but they are based on the English version. This double translation is not authentic. The Thai draft was in English, thus fairly reliable. A double translation however is inadvisable. This technique is called dependence-structure analysis, but it is not practised anymore and by today’s standards very old-fashioned. Computer engineers still use it for automatic language translations though. Thus, at the beginning, I translated the legal texts into German and Japanese and compared both with these legal texts. Later I discovered that large parts of Book I were modernised in 1992, but Book II and III are still in the original version. After that, I researched books about the history of Thai law, which I read to compare everything more precisely. At this time, I learned that the original version was adopted in 1925 (first part), so the style of speech really differs.
The second step was to translate the original version. This is why I have three different versions: the current one (1992), the original one (1925) and the draft (1923). I was wondering about the author of the original version. These are all great topics in the history of the Thai civil law Code.
I created a graph about which paragraphs from the old version have been used. Afterwards, I noted what I believed to be the origin of them. A precise comparison has to be made with the original version where the exact source of law can be identified. Since there are no documented sources however, one can never be absolutely sure.
Q: Which problems did you need to deal with, how did you solve them?
There have been many problems. For instance, I am no specialist in French law. I cannot read the French original text and was forced to use an English translation. The translation of the first Thai version was also very difficult because an old language was used. I had a lot of problems translating it properly, especially because many words could not be found in a dictionary.
Q: Can you roughly summarize your research work?
I found documents about the development of the first version of the Thai Civil Code. In 1891, a Belgian legal expert, Gustave Rolin-Jaquemyns, was invited and hired by the Siamese Government and began to work there as a legal advisor. Six years later, the Japanese government sent another legal advisor, Tokhichi Masao, to Siam, who was hired as secretary at Siam’s foreign ministry. In the beginning he worked as Rolin-Jaquemyns’ employee. But Rolin-Jaquemyns returned to Belgium and Masao took over his job and was also involved in the criminal law codification project. In 1905 a French legal expert, Georges Padoux, obtained the appointment as legal advisor. In the following years, more French legal experts joined him. The reason is, that it was said, that the Thai law would be accepted, if it would be based on European law. You must know that the Japanese civil law is almost a simplified German civil law. The first version of Japanese law was written by a French lawyer. That is why the French inheritance still remains. A large part of the Japanese civil law is taken from French law, but parts of German law were included too. Accordingly, Thailand could draft its own law but the French draft was taken almost completely.
But those documents are only related to the development of Book I. There is no description of the origin of Book II, III and IV. Even the Thai jurists do not know about the background. But it eventually became clear, that it was taken from the French. Book I and II were written completely new. But Book III and IV remained about the same, as the French had drafted it.
To understand my following explanations, you must know that there is a remarkable common feature between the Civil and Commercial Code of Thailand (1925) and the Japanese Civil Code (1896, 98). In both countries, the initial attempt of the codification was carried out by French legal advisors, and after they failed to achieve their goal, the second attempt of codification could be accomplished by lawyers from within the nation in each country. It is also common to both cases, that the accomplished codification stood under strong influence of the German Civil Code (1900).
In the case of the Japanese Civil Code, however, the initial attempt by the French legal scholar Prof. Gustave Emile Boissonade (1825 – 1910), namely the so-called “Old Civil Code of Japan (1890)”, left its traces and vestiges in many articles of the current Civil Code of Japan. We call them “Boissonade’s Heritage”.
In the case of the Civil and Commercial Code of Thailand, the initial attempt by the several French legal advisors could not be carried out completely. Soon after the first two books of the whole code were promulgated in 1923 (so-called “Old Text”), they had to be replaced with the new ones (so-called “New Text”). In the second attempt, the leading author used the Japanese Civil Code as “navigator” for the reception of the German Civil Code according to the advice of a famous English lawyer and politician, Sir John Simon. Due to these complicated circumstances, it was not clearly recognizable how intensive the Japanese influence upon the Thai Code was and in what kind of relation the Japanese element stood to the German one in the Thai Code.
An overwhelming majority of the articles in Book I (1925) seems to be adopted from the “Old Text”, which was compiled by the French advisors. The second large element were the articles which were adopted from the Japanese civil law. The German element in Book I was unexpectedly small, only about half of the Japanese one. In the case of the total 259 articles in Book II however, the result is quite different from the case of Book I: The Japanese and German elements were dominant (together almost 75 %), while most articles from the “Old Text” (merely 12 %) could be found mainly in the parts of “Undue Enrichment” and “Unlawful Acts (Tort)”. The simple arithmetic sums of these numbers would tempt us to say that the Japanese elements (161/452) were the largest ones in comparison to the elements from the “Old Text” (109/452) and the German elements (118/452).
However, we must not forget the fact mentioned before, namely the fact that the Japanese Civil Code consisted mainly of the French element (“Boissonade’s Heritage”) and the German element. We have therefore to separate “Boissonade’s Heritage” and the German element inside of the Japanese element in Book I and II. Again, according to the simple arithmetic sums of the numbers above, the largest element in Book I and II would be the German one (171/452) while the element from the “Old Text” (109/452) would fall into second place. Among the articles from the Japanese law (160), the “Boissonade’s Heritage” (87/160) is superior to the German element (54/160). If we would be allowed to count both of the articles from “Old Text” and “Boissonade’s Heritage” to the French element and count the Swiss element to the German one, then the total French element (202/452) would exceed the German one (193/452).
So regarding Book I of the recent version, most elements were taken from the first version, so by the French. In Book II, not much was taken from the first version with the exception of tort law. Most paragraphs concerning torts were taken from Japanese law. But if you break down Japanese law into German and French elements, you come to a different conclusion. In the first book it was nearly equal German and French parts. In the second book you can find much of the Japanese civil code, in terms of retention and preferential right. These paragraphs are not part of the German civil code (BGB), but part of the German civil procedure law (ZPO). This part was taken almost unmodified into Thai law. But if you add the German and French elements together, they are about the same.
Q: What is the fascination with this particular subject, that you research the development of the Thai civil law for such a long time?
I really want to know what lies is behind it. The facts. Sometimes it seems pretty simple. For example, in the law of failed performance (Leistungsstoerungsrecht). At first, it looks like most paragraphs are taken from German civil law. But this is a mistake. If one looks closer, it emerges that the order is completely different. That is a mystery! I tried to reconstruct how the order was established. Only three Japanese paragraphs were taken, but their order is correct. This means that single paragraphs were taken from the German law but rearranged according to the Japanese concept. And that is only one fascinating finding!
Q: Which further questions arose during your research?
I searched for materials about the development of the original version of the Thai civil code and found some interesting books. One of them is a book about the history of the civil and commercial law. I read that a previous version of Book I and II passed in 1923 and one of Book III in 1924. They were replaced in 1925 and 1928 respectively. But why? The answer can be found in those documents. As I already mentioned, Dr. Masao and Rolin-Jaequemins were legal advisors for the Siam government at the beginning of the last century. They worked on the criminal law codification project. After the withdrawal of Rolin-Jaquemins, the French government sent Mr. Georges Padoux, also a legal expert, to Thailand in 1905 and forced the government to include him in this. The French had taken on the task of creating legislation. First, Masao worked as a judge but he was also involved in discussions of the committee and worked together with the French. In 1908 the Siam Criminal Code was passed. After that, a codification committee was built with Padoux as its chairman. The most important task was the drafting of a Civil Code. Masao also participated in the meetings. They decided to integrate the civil and commercial law in one code.
In 1912, the first draft of the law of obligations (about 1.000 paragraphs) was finished. After that, the committee started with the discussion about the law of persons. Here, I found a controversy about the topic of polygamy between the Japanese and French. As a result, Masao quit his job and Padoux left for China. In 1919 the work was finished and given to the Thai government. But the work was not accepted. We do not know what happened, because there are no official documents. The Thai government concealed it.
Plod Vichian drafted the first and second version. He was a translator and interpreter at the codification committee in 1909. He studied English, but was not a legal expert. He noticed that he needed a legal education, so that he knew what he was translating. He asked Prince Rapee, a son of Rama V and minister of justice at that time, who often came to the committee and discussed with the French. Prince Rapee noticed that Plod is very capable and allowed him to visit law school (predecessor of Thammasat University). Plod studied there for two years and after that time, he was hired as a judge. But Prince Rapee still had another idea: He wanted to send Plod Vichian to England for further education. He himself had studied there. He asked his former supervisor Sir John Simon to become Plod Vichian´s supervisor also. When Plod Vichian went to England, he carried the draft with him and showed it to Sir Simon. He expressed that the draft is not recommended to become law as the French tried to expand their own system and this would not be accepted by the other European countries. He proposed to use an established system, which would surely be accepted, like the Japanese law, which – again – is simplified German civil law (BGB). Thailand could create its own law, based on that model. Because of this, Plod Vichian started studying Japanese law. After World War I made it impossible for him to go to Germany, he went back to Thailand in 1916.
In 1917, he was send to the codification committee again. That time, he held a higher position. He was supposed to translate the English draft into Thai and at that time, he started introducing his own ideas to the project. He argued the draft is not logical, has a lot of systematic problems and all in all is a disturbance to the Thai system. That statement unsettled the Thai government. At the End, Plod Vichian proposed to make a new draft, based on the Japanese model, which was accepted in the end.
In 1922 he became an ordinary member of the committee and was not just a translator any longer. He started with the revision of the French draft. But in my opinion, he started earlier with that work, because two years until its passing are hardly enough time so I really think he must have started earlier with the revision. I believe he just put on a necessary show. The government passed the draft of Book I but it never came into force as the judges argued with its inapplicability in court. The Thai government then had a reason for its revision. The same happened with Book II: it came into force in 1924 but was replaced in 1928. As for Book III and IV, the French draft was adopted almost unchanged.
So in a nutshell, Book I and II were rewritten according to the idea of Plod Vichian, whereas Book III and IV are still like the French had drafted it.
Thank you very much for the Interview, Mr. Tamura.
The interview was conducted by Sandra Blechschmidt, Legal Clerk at CPG.