The proposed final draft of class action of late Justice Somboon Boonpinon’s object is to solve the problem of mass tort or mass injured person. This draft was made from the model rule 23 of the united stated about class action. This class action has to be separate from the normal civil procedure as it has its special characteristic which differs from the normal procedure. The most important and significant feature of class action is draft of section 222/35 said “the decision will bind all member of the class” regardless whether they have involved in the litigation or not. This is overrule the principle of section 145 of Civil Procedure code; within paragraph 2 said “..the decision shall not bind third person..” Moreover, this draft section 222/35 grants the power to the counsel to enforce the decision on behalf of the plaintiff and the member of the class. The member of the class only has the right to request his share but not to enforce individually. In present procedure, the counsel of the plaintiff will have the authority to do so only his client grants him the power.
From the most different feature, I will now summarize the rest of the different feature of the class action draft.
The injured person who will be regard as one member of the class are the person who has the same right arisen from the same fact and same principle of law even they have got different type of injury. (Section 222/1) Still, the court can order to sub-class by different type of injury (Section 222/24)
The cases that have been out in the draft to be eligible for class action are the (mass) tort, contract and the dispute arisen from other laws such as environmental law, consumer law labor, security and exchange etc. (Section 222/5)
The plaintiff may file the request to process the case as the class action case with his statement of claim, in order to do so he must state his reason. (Section 222/6)
The court fees in the common issue will be request only from the plaintiff who first brought the suit to court. (Section 222/7 paragraph 2). This is economical for all injured person.
In order to grant the class action proceedings, the court must concern both parties’ presentation and the benefit for all parties. And the class action proceedings would be granted only if the court found the reasonable fact to believe that;
- There’s common issue, both fact and law, between the member of the class.
- The members of the class are numerous that the normal procedure cannot work effectively or it would be to complicate and inconvenience.
- It would bring fairness and efficiency than bringing the suit in normal procedure.
- The counsel of the plaintiff has potential enough to guard benefit for all members. He must have time, resources, devotion/fairness and knowledge. In this point, the draft did not concern who is the first counsel filing the statement of claim, in other words, in deciding who will be the counsel of the plaintiff did not concern the time of filing the statement. (section222/10)
This is different from United States (US) practice because US grants the right to submit the request for class action proceedings before filing the statement of claim but our draft was drawn differently as our drafter thought it should be better if we know the whole picture of the case before deciding what type of the case is. And because the class action case cause a lot of effect to the defendant therefore the draft has given the right for the defendant to file the objection of such order even if he has not yet become the party of the request (the request is a matter between the judge and the plaintiff). In this essence the defendant has the right to file the counter claim against the plaintiff as well. In addition, the court remains its right to cancel class action order if he found it is not giving any...