Section 36 — Refiling a withdrawn case
Statutory text (Thai original)
คดีอาญาซึ่งได้ถอนฟ้องไปจากศาลแล้ว จะนำมาฟ้องอีกหาได้ไม่ เว้นแต่จะเข้าอยู่ในข้อยกเว้นต่อไปนี้
(๑) ถ้าพนักงานอัยการได้ยื่นฟ้องคดีอาญาซึ่งไม่ใช่ความผิดต่อส่วนตัวไว้แล้วได้ถอนฟ้องคดีนั้นไป การถอนนี้ไม่ตัดสิทธิผู้เสียหายที่จะยื่นฟ้องคดีนั้นใหม่
(๒) ถ้าพนักงานอัยการถอนคดีซึ่งเป็นความผิดต่อส่วนตัวไป โดยมิได้รับความยินยอมเป็นหนังสือจากผู้เสียหาย การถอนนั้นไม่ตัดสิทธิผู้เสียหายที่จะยื่นฟ้องคดีนั้นใหม่
(๓) ถ้าผู้เสียหายได้ยื่นฟ้องคดีอาญาไว้แล้วได้ถอนฟ้องคดีนั้นเสีย การถอนนี้ไม่ตัดสิทธิพนักงานอัยการที่จะยื่นฟ้องคดีนั้นใหม่ เว้นแต่คดีซึ่งเป็นความผิดต่อส่วนตัว
English translation
A criminal case which has been withdrawn from the court may not be brought again, except where it falls within the following exceptions:
(1) If the public prosecutor has filed a criminal case which is not a compoundable offence and has withdrawn that case, the withdrawal does not bar the injured person from filing that case anew.
(2) If the public prosecutor withdraws a case which is a compoundable offence without having obtained written consent from the injured person, the withdrawal does not bar the injured person from filing that case anew.
(3) If the injured person has filed a criminal case and has withdrawn it, the withdrawal does not bar the public prosecutor from filing that case anew, except for a case which is a compoundable offence.
This English translation is provided for reference only and has not yet been firm-verified — always rely on the Thai original.
Firm annotation
Section 36 states the general bar on refiling a withdrawn criminal case and then carves out three exceptions that protect whichever party did not control the withdrawal. The bar applies to a conclusive, genuine withdrawal; a withdrawal that is merely a procedural step, such as withdrawing one filing in order to join the other prosecution of the same matter, is not a conclusive withdrawal within the meaning of this section and does not bar continuation. The section works closely with Section 35 on withdrawal and Section 39 on extinguishment of the right to prosecute, and the courts read the general prohibition as a matter of public order that they may raise on their own.
Why this matters in practice
Withdrawing a case can be a one-way door: as a rule you cannot refile, so understand whether you fall inside one of the three exceptions before you withdraw. The exceptions turn on who withdrew, whether the offence is compoundable, and whether the victim gave written consent, so document consent carefully. Because a wrongful refiling can be dismissed on public-order grounds even without the defendant raising it, take legal advice before withdrawing or refiling.
Supreme Court decisions interpreting this section
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Supreme Court Judgment No. 952/2563 (2020)
A withdrawal made only to join the prosecutor's later case on the same matter is not a conclusive withdrawal within Section 36, so the right to prosecute is not extinguished.
The co-plaintiff withdrew a defamation case and then joined the prosecutor's later case against the same defendants. The court held the conduct clearly showed the withdrawal was made in order to join the prosecutor's case, not a conclusive withdrawal within Section 36, so the right to prosecute was not extinguished under Section 39(2).
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Supreme Court Judgment No. 14823/2558 (2015)
Where the second case rests on the same single act as the withdrawn first case, refiling is barred under Section 36, and the standing point is one of public order the court may raise on its own.
The court looked at the underlying single act rather than the wording of the charge or the sections cited, reasoning that otherwise a plaintiff could prosecute the same act endlessly. The second case was therefore barred under Section 36, a point of standing and public order the Supreme Court could raise on its own, and the dismissal was upheld.
Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.
Frequently asked questions
Can a withdrawn criminal case be filed again in Thailand?
As a general rule, no. Section 36 bars refiling a withdrawn case, except in three situations involving the prosecutor and the injured person set out in subsections (1) to (3).
Can the victim refile after the prosecutor withdraws the case?
Yes. Under Section 36(1) and (2), the injured person may refile if the prosecutor withdrew a non-compoundable case, or withdrew a compoundable case without the victim's written consent.
Does every withdrawal trigger the refiling bar?
No. Only a conclusive withdrawal does. A withdrawal that is merely a procedural step, such as withdrawing to join the other prosecution of the same matter, is not conclusive and does not bar continuation.