ปัญหากฎหมายเกี่ยวกับการบอกล้างโมฆียะกรรมตามมาตรา 181 ประมวลกฎหมายแพ่งและพาณิชย์ / นพวรรณ เลาหบุญญานุกูล = Legal problems of avoiding voidable acts of section 181 of the civil and commercial code / Noppawan Laohaboonynukul
According to The Thailand Civil and Commercial Code, it defined the period for avoiding voidable acts in Section 181 contributed the problems. In historical study, the author founded that the differences of the period for avoiding voidable acts revealed in The Thailand Civil and Commercial Code (B.E.2466) enacted the period for avoiding voidable acts which was clearly categorized and directly protected the rights of avoiding voidable acts better than current The Thailand Civil and Commercial Code. In addition to the period for avoiding voidable acts, each mechanism and characteristic had legally differed from each other’s. Thus, these differences led to study about the rules and regulation of avoiding voidable acts analyzed by comparative dimension with The French Civil Code, The Italian Civil Code, The German Civil Code and The Japanese Civil Code in order to exemplify the proper rules for protecting the rights of avoiding voidable acts in Thailand.As considering the foreign avoiding voidable acts, it indicated that there are two forms of avoidance, namely, in judicial proceeding and a declaration. These different forms lead to the claim for restoring properties in different ways. The research founded that the lawsuit had been appropriated with single contract system as France, Italy and Japan while the declaration is suitable for separation contract system like Germany. In terms of the period, most of them have regulated to support the rights of avoiding voidable acts. However, each country had secured the rights of avoiding voidable acts, in all reason. Furthermore, there also are the rights of using voidability as a defense after lapse of time in The French Civil Code and The Italian Civil Code in consideration of justice and equity.The research results illustrated that the understanding of the right of avoiding voidable acts in Thailand, which uses single contract system, is a right to alter a legal relationship (Gestaltungsrecht), which is used in separation contract system, that effects to the forms of avoidance is incorrect. It also might stimulate the problems of restoring properties. The authors clarified that the rights of voidable act in single contract system is the right of claim (Anspruch) and should be enacted by court but, The Thailand Civil and Commercial Code had opened for declaration of intention in case of persons entitled to cancel foresee the effect of cancelation will occur as their expectancy or voidable acts are not worth for requiring the judge’s office. So, the right of avoiding voidable acts is the right of claim (Anspruch), it should be regulated by the law of prescription. Besides, the author would like to call for cancellation of the period of avoiding voidable acts to be one year from the time when ratification could have been made to equal provide the rights of avoiding voidable acts, including adding the rights of using voidability as a defense after lapse of time.
