Section 56: Incompetent parties and capacity

Supreme Court decisions interpreting this section

1. Supreme Court Judgment No. 4217/2565 (2022)

   A defect in a party's capacity is not, by itself, a ground to dismiss or refuse the case outright; under section 56 paragraph two the court should first order the defect cured, though correction may be dispensed with where it would serve no purpose.

   A joint prosecutor entered through the father without complying with the rules on capacity of persons. The Supreme Court held that under section 56 paragraph two, read with section 15 of the Criminal Procedure Code, the proper course is to order the defect cured before dismissing; but on the facts, since the outcome would not change, ordering correction was unnecessary.

2. Supreme Court Judgment No. 2483/2561 (2018)

   Signing a pleading as the person who drafted it, when one is neither a registered and licensed lawyer nor an official of the kind saved by section 33 of the Lawyers Act B.E. 2528, makes the pleading improper. Where the court has already given the party the opportunity to correct that defect of capacity and the party files again without correcting it, the pleading remains unlawful and the court of first instance ought to refuse it.

   The plaintiff gave a power of attorney to a person who was not a registered lawyer, and that person signed the further appeal as its drafter, contrary to section 33 of the Lawyers Act. The Supreme Court had already directed, by order no. Tor 17/2559, that the defect of capacity be corrected, but the fresh further appeal was signed by the same person and the defect was left uncorrected. The Supreme Court held the further appeal unlawful, said the court of first instance should have refused it, declined to consider it and struck it out. It did not remit the case for the defect to be cured.

3. Supreme Court Judgment No. 3727/2561 (2018)

   Where an incompetent person under guardianship himself gives a power of attorney to bring an action, instead of the guardian acting for him, that is not a defect of capacity to be cured within a reasonable time under section 56: he had no power to sue from the outset.

   The plaintiff was an incompetent person under the guardianship of Ch. by an order of the Nakhon Ratchasima Juvenile and Family Court which had become final. He nevertheless gave M. a power of attorney to bring this action while he was still incompetent and under that guardianship, which was an act he had no power to perform; the guardian had to act for him. The Supreme Court held this was not a defect of capacity to be cured within a reasonable time under section 56 with Criminal Procedure Code section 15, as the plaintiff argued, because he had no power to sue from the outset.

Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.