4. Proposal, of proceedings for voluntary debtor's petition under Thai Bankruptcy Act B.E. 2483 (A.D. 1940)
After studying the laws concerning voluntary bankruptcy for individual debtors in the United States of America, United Kingdom, Commonwealth of Australia, and Canada, there are a number of issues to be considered before the recommendation on the amendment of the present Thai Bankruptcy Act be proposed.
4.1 Eligibility to file a petition for bankruptcy
An individual debtor who is a natural person can apply for bankruptcy. The new amendment should aim solely at a natural person excluding an ordinary partnership and a limited partnership because those who are affected most by the current Bankruptcy Act are the debtors who are natural persons. Since this is a new law, the drafters cannot predict all of the subsequent repercussions. Therefore, limiting the availability of this novel proposal to a natural person would be better. If the new enactment proves to be beneficial to the economy as whole, the lawmakers could then extend the term "individual debtor" to include an ordinary partnership and a limited partnership. In the meantime, the bankruptcy proceedings for partnerships should compulsory as stipulated in Chapter 3 of the present Act.
To qualify for filing a bankruptcy petition, the law should set a minimum amount of
debts the debtor owes. I suggest the debtor must be insolvent and indebted to one or several creditors amounting to not less than one million baht. In Thailand, if the legislators do not set a minimum debt for bankruptcy filing, there will be a caseload problem. The debtors who owe little money due to their recklessness with money or overuse of their credit cards will all apply for bankruptcy. These types of debtors are not the target group 'of the new amendment. Releasing these debtors will have little impact on the economy. By saying that, I do not recommend that the debt owed could only be occurred from business dealings. It could also be as a result of consumption but the amount owed needs to reach the minimum threshold of one million baht. Above all, the debt must be incurred legally. This will exclude debts arising from betting or illegal trade to be used as a cause for bankruptcy petition.
The debtor may not file a bankruptcy petition in the following cases : (1) the court has ordered the debtor to be under an absolute receivership; and (2) the debtor has been adjudged as a bankrupt and a period of five years has not passed since that time. lf the creditors decide to file a bankruptcy petition, it means that the debtor has waived ,his or her right to declare himself or herself bankrupt. This paragraph is needed because it will prevent dishonest debtors from abusing the law by applying for bankruptcy every time he or she has debts.
4.2 The place to file a bankruptcy petition
As in the case of the procedures of other countries, the debtor will apply the petition either at the Court or the government organization entrusted with bankruptcy matters. In Thailand, there is an argument about whether the debtor should hand in a bankruptcy petition at the Central Bankruptcy Court (CBC) or at the Legal Execution Department (LED), Ministry of Justice. The Legal Execution Department is an administrative body in the judicial procedures. Its principal mission involves the execution of civil judgments, bankruptcy administration, business reorganization, and the deposition of property and liquidation.7 The LED asserts that-presently the CBC is in charge of compulsory bankruptcy and reorganization of limited companies and public limited companies. It is obvious that the Court has a large amount of tasks on its hands. Thus, the bankruptcy petition should be filed directly to the official receiver, LED. This will reduce court procedures and expedite the process. At the moment the official receiver approves the debtor's petition, the debtor will become bankrupt and the time for automatic discharge will start to count. However, from my viewpoint, the petition needs to be filed with the Central Bankruptcy Court. Trust, reliability and neutrality are the most important aspects of any legal proceedings including those of bankruptcy. People still have faith in the Court. The Court is one of three main powers in governing the country and it is still free from the intervention of the legislation and the government. In addition, current court procedures are relatively fast, and efficient.
4.3 Process for becoming bankrupt
First, the debtor files a petition with the Central Bankruptcy Court, the petition for personal bankruptcy shall clearly point out:
(1) The insolvency of the debtor;
(2) The list and addresses of the creditor(s) to whom the debtor is indebted for a total amount of not less than one million baht;
(3) A Statement of Affairs which includes details of debtor's income, assets, debts, and business dealings;
(4) Reasonable grounds; and
(5) An acknowledgement that the debtor, knows his or her rights, responsibilities and restrictions once he or she is under a bankruptcy order.