Prêt fictif dissimulant une entreprise achetée par l'intermédiaire d'actionnaires prête-noms thaïlandais : nul et non avenu, et l'argent irrécupérable สัญญากู้อำพรางการซื้อกิจการโดยให้คนไทยถือหุ้นแทน เป็นโมฆะ และเรียกเงินคืนไม่ได้

SUPREME COURT DECISION No. 5457/2560
Année : 2017 (BE 2560)
Relevant Code Sections: CCC, Section(s) 150, 155, 411, 653

RÉSUMÉ
The plaintiff, a Japanese national, sued V.A.S. Tech Company Limited on a written loan agreement of 25 January 2013 (B.E. 2556) for 19,500,000 baht, paid over on 28 January 2013, with the second defendant, a director, as guarantor. He claimed the principal, 1,041,859.80 baht of interest to the date of filing and 15 per cent a year thereafter. Both defendants admitted the document but pleaded that it was a simulated act concealing the plaintiff's purchase of the whole business of the company, dressed as a loan so that the company would not fall under the restrictions of the Foreign Business Act B.E. 2542. Chonburi Provincial Court dismissed the claim; the Court of Appeal Region 2 reversed and ordered the defendants to pay 19,500,000 baht with 7.5 per cent interest from 28 January 2013, reasoning that the concealed sale governed under section 155 paragraph two, that the evidence did not allow it to decide whether that sale was unlawful, and that the company was in breach. The Supreme Court reversed and dismissed the claim. Having found the loan to be a simulated act, the Court of Appeal was bound to decide the illegality issue the defendants had pleaded; they bore the burden of proving it and would simply have lost had they failed. Deciding it, the Supreme Court found from the company's own witness that the transaction was the purchase of the business, that the plaintiff knew a Japanese buyer could not hold all the shares of a Thai company and so used the loan form, and that in March 2013 he sent the new list of directors and shareholders: 10,600 shares to himself, 9,000 to his son and 20,400 to six Thai nationals, 49 to 51 on paper. An email of 17 December 2012 from his son to the second defendant spoke of ways around Thai law, proposing that the company's president buy all the shares and then sell them all on. The plaintiff was the real buyer of the whole business and the real transferee of all the shares, the six Thais held theirs in name only, and with the plaintiff and his son truly owning more than half the company was a foreigner under section 4 (3)(a) and (4) of the Act and barred from the businesses in its Lists One to Three, on pain of imprisonment. A sale arranged to evade that law by having Thai nationals hold shares in name only has an object expressly prohibited by law and is void under section 150. The plaintiff knew from the outset that he was breaking the law, so he could not say the company might have applied for a licence: only an honest foreign juristic person can. The money he called a loan was in truth the price paid under that void sale, a payment made in breach of a legal prohibition that cannot be recovered under section 411. Who had broken the sale contract therefore did not matter. Costs in all three courts were left to lie where they fell.

FAITS DE L'AFFAIRE
V.A.S. Tech Company Limited was a Thai company whose authorised directors were the second defendant and a Ms Supawan. The plaintiff, a Japanese national, and his son agreed with the second defendant to buy the whole business. On 25 January 2013 the company signed a loan agreement for 19,500,000 baht from the plaintiff, the second defendant signed as guarantor, and the money was received on 28 January 2013. The company's own witness explained that the deal was the purchase of the business, and that because a Japanese buyer could not take all the shares of a company registered in Thailand the agreement was written as a loan. In early March 2013 the plaintiff sent the second defendant the list of the people who were to become directors and shareholders, and the company's personnel manager was told to amend the share register and change the directors' powers accordingly: 10,600 shares to the plaintiff, 9,000 to his son and 20,400 to six Thai nationals, out of 40,000, so 49 per cent foreign and 51 per cent Thai on paper. An email of 17 December 2012 from the plaintiff's son to the second defendant, which the plaintiff accepted at trial, said that Thai law was understood to have ways around it and asked whether the company's president could buy all the shares first and then sell all of them on. The plaintiff later sued on the loan agreement for 19,500,000 baht, 1,041,859.80 baht of interest to filing and 15 per cent a year thereafter. Chonburi Provincial Court dismissed the claim and awarded the defendants 50,000 baht in attorney fees. The Court of Appeal Region 2 reversed and ordered the defendants to pay 19,500,000 baht with 7.5 per cent interest from 28 January 2013 and 80,000 baht in fees. The defendants appealed to the Supreme Court.

DÉCISION DU TRIBUNAL
Where a loan agreement is a simulated act concealing another transaction, the concealed transaction governs under CCC section 155 paragraph two, and a court that has so found must go on to decide any plea that the concealed transaction is unlawful; the party pleading illegality bears the burden and loses if it cannot prove it. A foreigner's purchase of the whole business of a Thai company, structured so that Thai nationals hold shares in name only while the foreigner and his son are the real owners of more than half, makes the company a foreigner under section 4 of the Foreign Business Act B.E. 2542 and is a sale whose object is to evade that Act. Its object is expressly prohibited by law and it is void under section 150. A buyer who knew from the outset that he was breaking the law cannot argue that the company could have applied for a foreign business licence, because that route is open only to an honest foreign juristic person. Money paid under the void sale, though papered as a loan, is a payment made in breach of a legal prohibition and cannot be recovered under section 411.

ANALYSE JURIDIQUE
The Court of Appeal had found the loan to be a simulated act and then stopped: it applied the concealed sale under section 155 paragraph two, said the evidence did not allow it to decide whether that sale was unlawful, and gave the plaintiff back his price as damages for the company's breach. The Supreme Court held that stopping there was an error. Once the concealed transaction governs, a pleaded defence that it is unlawful is a live issue the court must decide, and the party raising it carries the burden; the correct consequence of thin evidence is that the pleader loses, not that the issue goes unanswered. On the evidence the Court then found the defence proved. It did not stop at the share register, which showed 49 per cent foreign and 51 per cent Thai. It asked who had really bought the business and who really owned the shares, and answered from the company witness's account, the payment of the whole price by the plaintiff, and the son's email about ways around Thai law: the plaintiff and his son were the true owners of all of them and the six Thai shareholders held in name only. Real foreign ownership above half made the company a foreigner under section 4 of the Foreign Business Act, restricted from the businesses in the Act's three Lists under criminal penalty, so a sale designed to produce that result through nominee holders had an object expressly prohibited by law and was void under section 150. The plaintiff's answer that a foreign company could have applied for a licence was rejected: that route exists for an honest foreign juristic person, not one that set out to evade the Act from the start. The sting is section 411. Because the 19,500,000 baht was in truth the price paid under a void and knowingly unlawful sale, it was a payment made in breach of a legal prohibition and could not be recovered, so the loan document that papered it gave the plaintiff no claim at all. The footer also lists section 653, the writing requirement for a loan of money, which is the provision the plaintiff sued on. What the case does not hold is that every nominee shareholding is itself void: the Court struck down the sale contract and left the buyer without his money; it convicted nobody, and the Act's penal provisions do not appear in the judgment, which is a civil court's business.

IMPLICATIONS PRATIQUES
Read this case before you agree to buy a Thai business through a 49 to 51 structure. The Supreme Court did not ask what the register said; it asked who paid and who really owned the shares, and it used the buyer's own family emails about ways around Thai law to answer. The result was the worst one available: the sale was void, the loan paper that disguised it gave no claim, and section 411 barred recovery of the 19,500,000 baht because the buyer had known from the start that the arrangement was unlawful. The argument that a licence could have been sought afterwards failed for the same reason. If the business you want falls under the Foreign Business Act's Lists, use a route that is lawful on its face: a foreign business licence applied for honestly, a BOI promotion, a Treaty of Amity company for United States nationals, or a joint venture in which the Thai shareholders genuinely own and pay for their shares. This is a civil decision about a void contract and lost money; it did not convict anyone under the Act's penal sections.

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Note : Ceci est un résumé en anglais du jugement original thaïlandais.
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