Vicarious Liability in Thai Tort Law Discussed French Tort Law 1 By Samornsri Teerawatananon 2

Transcription

1 Vicarious Liability in Thai Tort Law Discussed French Tort Law 1 with By Samornsri Teerawatananon 2 Unit 1 Introduction Tort law is one of the most important civil law in every legal systems. This kind of law has special character that closely be relevant to criminal law, like as the paralleled roads.the fundamental concept of tort law in the ancient time came from moral rules that prohibited to harm the other or not to cause the other s damages. The Roman law has the rule of revenge ( Lex Talionis ), later it was developed to prohibit people to revenge each other and to reconcile by the state imposed the rule of compensation for using instead. Unexpectedly, the word tort is derived from French of the same spelling which means mischief, injury, wrong, or calamity, from the Latin tortus, meaning twisted 3. One part of tort law that enacted from the purpose of desiring the victim to have more chance in compensation, and to ensure that it always has the one who has to be responsible for the demands of social convenience, consistent with legal explication. A. What is vicarious liability? The original story of vicarious liability came from liability of the owner of an animal, especially, an ox. In history, mostly of human societies were agricultural communities, members of a community usually had their animals for using in their fields. The 1 This article is undertaken as part of the Comparative Tort Law class of Professor Richard W. Wright, the Illinois Institute of Technology, Chicago Kent Collage of Law, Chicago IL. 2 LL.M. ( Class of spring 2011 ) International and Comparative Law program, Chicago Kent Collage of Law. 3 Wikipedia, the free encyclopedia, Tort from Wikipedia, p. 2.

2 2 most popular animal for this task exactly was ox, so the farmer who owned the ox would be held liable for the damage caused by his ox. B. Context of vicarious liability The word vicarious derives from the Latin word for Change or alternation or stead and in tort law refer to the idea of one person being liable for the harm caused by another, because of some legally relevant relationship 4. About the examples might be the parent and a child, or the employer and an employee, or the teacher and a student.you can charge the employer for your damages caused by his employee, where the cause of action occurred in the scope of employment. This is called that the respondent superior. Thai Thai vicarious liability comes from tort law in the continental civil law or the European countries law including France and the Asian country such as Japan, plus the legal policy that the government intent to impose someone to be liable, although that one is not the real tortfeasor, but he is the beneficiary from the tortfeasor s business, or he is the guardian of the tortfeasor who is a child or the disabled person. This concept is relevant to the doctrine of Thai tort law which comes from a Thai aphorism that said Do not hurt the other person. This aphorism not only influences tort concept but to influence the Thai criminal law also. French French law holds two general rules of strict liability : one for damage caused by another person and one for damage caused by a thing. 5 Vicarious liability or liability for another person is one in two of them.this rule has been developed by the end of the nineteenth century, from the sector of industry that industrialization had caused a great increase in the number of casualties at the workplace. Employees who caused damage had a very weak legal position for getting compensation, since they had to prove that the employer had committed a fault. Thereafter, the new light of the Civil Code hold that a person is liable not only for the damage he causes by his own act, 4 See id. p Cee van Dam, European Tort Law ( 2006 ), p

3 3 but also for that which is caused by the acts of persons for whom he is responsible, or by things which are in his custody 6. The liable person is le guardian ( the custodian ) means the person who, at the time of the accident, has the power to direct, and to control the person who causes the damage. The concept of custodianship is Instrumental to the idea of enabling claimants to easily identify the liable person without having to deal with the legal relationship someone has with the thing. 7 It is generally accepted that persons with a mental disorder and young children can be guardian of a thing. The persons who are suitable to be the guardian such as parents, teacher, the guardian of incapacitated person. C.Scope of vicarious liability Thai Thai vicarious liability has been enacted in the Civil and Commercial Code, Section 425 to 430 composed with liability of employer ( 425 ), liability of principle for agent ( 427 ), liability of employer for contractor ( 428 ), liability of parents ( 429 ) and liability of other supervisors over children and liability of supervisors over disabled persons ( 430 ). French The French Civil Code, Article 1384 is the only one article of vicarious liability but it has 8 paragraphs, some of them to be composed with liability of parent ( 4 ), liability of master and employer ( 5 ), liability of teachers craftsmen ( 6 ), therefrom, the fundamental rule of vicarious liability declared in ( 1 ) as follows : Article 1384 ( 1 ). A person is liable not only for the damages he causes by his own act, but also for that which is caused by the acts of persons for whom he is responsible, or by thing which are in his custody. 6 See infra p See infra p. 53.

4 4 Unit 2 Analyzing and discussing The following contents consist of the provisions of vicarious liability in both Thai and French tort law, the context of explanation plus the remarks that helpful for the lawyers to apply, to consider and to use in their works. Thereafter, calls for analyzing and discussing between the two countries. A.Liability of employer Thai Section 425. An employer is jointly liable with his employee for the consequences of a wrongful act committed by such an employee in the course of his employment. The fundamental concept of this section is likely the tort of the continental law because of the copying. The interesting point is the way to interpret the meaning of phase of in the course of his employment.the ones who have duty in interpreting are the judges, especially, the Supreme Court Judges displayed in the Supreme Court s decisions. Those interpretations are not binding to the lower courts but to strongly influence to the lower court decisions. The following remarks are my translation of comments on this provision published by the Thai Bar under the Royal Patronage, at http: // www. thaibar. thaigov. net. They are collected from the Supreme Court s interpretations that the lower court judges usually think as the judicial rules or judicial precedents that helpful in using as the instrument of decision making correlated to this provision : 1.The relationship between employer and employee in this section must be the labor contract only. 2.The employer can possess and use the car on holidays because of employer s consent, if the employee commits the wrongful act, that cause the employer has to be liable. 3.The employee who has to drive a car for employer s business, although, the employee drove out of the direct way or changed the route, thereafter, he committed the tort and cause other person damage. His

5 5 employer still has to be liable. In the other case, the employee came to turn the car already, but later he backed to take the car for himself and committed the tort, the employer has not liability because his business has already finished, then it is not involved to the employment. 4. The employee lets the other one drives the car in the course of employment, thereafter, the employee s agent commits the tort, the employer is liable by the reason that is in the way of employment. 5.In case of, the employee has compromised with the victim after the tort circumstance occurred, the compromised contract causes to lose the obligation of tort, the employer then need not liable. The remedy Section 426. The employer who has made compensation to a third person for a wrongful act committed by his employee is entitled to reimbursement from such employee. This section was enacted for the purpose of maintenance the rule of the one who causes the damage would be liable. Nonetheless, for the situation of a victim whom to be injured, he is suitable to receive the compensation as soon as possible. The following remarks by the Thai Bar are collected from the Supreme Court s interpretations that the lower court judges usually think as the judicial rules or judicial precedents that helpful in using as the instrument of decision making correlated to this section : 1.The right of employer has been recognized when the employer already made compensation. 2.The prescription for the employer to take his right has been limited to 10 years since the time of compensation ( Section 193 / 30 of the Civil and Commercial Code ). French Article 1384 ( 5 ). Masters and employers, for the damage caused by their servants and employees in the functions for which they have been employed.

6 6 Liability of employer and master in ( 5 ) that committed in the course of the functions from the employment. Employers and principals ( masters ) are strictly liable for the damages caused their employees without any defense whatsoever apart from the victim s contributory negligence. Article 1384 ( 5 ) creates a strict liability regime for situations in which someone carries out activities as someone else s subordinate. A contract between the two parties is not required, however, the employer employee relationship has to be real and cannot result from a situation of pure appearance. 8 Analyzing and discussing The fundamental contents of both countries are similar, such as the condition of liability declared by the phase in the cause of his employment in Section 425 of Thai tort law and the phase in the functions for which they have been employed. The distinction between their provision is Thai tort law has Section 426 that entitles the employer to has the right of recourse from the employee who commits the wrongful act, but there is no same provision in French tort law. In addition to liability of employer that based on the hire of service contract which discussed above, Thai tort law also have the provisions are relevant to Section 425, first, for applying to the relationship between principle and agent that the principle has to be jointly liable with his agent for the consequences of a wrongful act committed by the agent, while the agent was doing the principle s business, second, for applying to the relationship between the employer and the contractor in the issue of the hire of property contract that the employer in this situation normally, need not be liable for the damage caused by the contractor, unless there are the special conducts done by the employer invaded to the contractor s work.nonetheless, French tort law does not provide the same kind of provisions. The two provisions as foresaid are Section 427 and Section 428 as follow : Section 427. The two foregoing sections shall apply mutatis mutandis to principle and agent. The liability of principle for the consequences of the wrongful act committed by the agent has been complied with the same doctrines as the liability of employer that enacted in section 425 and See infra p. 452.

7 7 The following remarks by the Thai Bar are collected from the Supreme Court s interpretations that the lower court judges usually think as the judicial rules or judicial precedents that helpful in using as the instrument of decision making correlated to this section : 1.The liability of principle has been enforced when there is an assignment from principle to agent that led agent to contact with the third person merely, that means, If there is no business to do with the third person, then there is no principle s liability. 2. In the case of the one who ask the other to drive his car, this circumstance shall apply to the manner of principle and the agent, even when the principle and the agent have been together. Section 428. An employer is not liable for damage done by the contractor to a third person in the course of the work, unless the employer was at fault in regard to the word ordered or to his instructions or to the selection of the contractor. The employer in the hire of property contract has not been jointly liable with his contractor, unless he is at fault in one of three ways as follow : 1.The fault in regard to the word ordered ( command ) or 2.The fault in regard to his instructions or 3.The fault in regard to the selection of the contractor. The following remarks declared by the writer : 1.The hire of property contract means the contract that the employer hires the contractor to make the property, or to build the building, construction, architecture or something like these. The employer in this situation normally has the right to influence the contractor s working, that why Section 428 in the first sentence provided that the employer is not liable for the damage done by the contractor. The exception of this provision that is the employer involves in the contractor s working, the employer then to be suitable to join the liability with the contractor. 2.The judge has authority to interpret that which conduct is in line of employer s fault.

8 8 3. The employer has not been entitled to reimbursement from the contractor. Although French tort law does not provide such as these provisions, but there is the general rule of vicarious liability in Article 1384 ( 1 ) would have been applied to the liability of the principle and the liability of the employer in the hire of property. B.Liability of parents Thai Section 429. A person, even though incapacitated, on account of minority or Unsoundness of mind is liable for the consequences of his wrongful act. The parents of such person are, or his guardian is, jointly liable with him, unless they or he can prove that proper case in performing their or his duty of supervision has been extended. This section is described about liability for the incapacitated person, the meaning of incapacitated persons in this section are included the adjudged incompetent, the disabled person, a person who has unsoundness of mind, and a minority. The supervisor over these persons then, are not only parent but also the guardian of all kinds of the incapacitated person. Although, there is an exception that the parent or the guardian can prove that proper evidences in performing their duty of appropriated supervision. The following remarks by the Thai Bar are collected from the Supreme Court s interpretations that the lower court judges usually think as the judicial rules or judicial precedents that helpful in using as the instrument of decision making correlated to this section : 1.In case of parent specially, the father of a minor, he has to be the legally father only. 2.The liability of parent is just valid when the minor s conduct is in the parent s cognition. 3.The parents or the guardian have to testify in the dispute that they did their duties based on appropriated supervision.

9 4. The example of appropriated supervision ; 9 - A father ever prohibited his a minority son, not to drive a car but he did not hide the car s key in a save place, his son then took the key and drove the car until hit other person, the father has to be liable for the victim. - A father saw his son held a gun, he then warned the son to collect that gun, later, his son used that gun to shoot the victim, only the father s warning is not the appropriated supervision. French Article 1384 ( 4 ). The father and mother, in so far as they exercise parental authority are jointly and severally liable for the damage caused by their minor children who live with them. Liability of parents in ( 4 ) that holds the father and the mother jointly and severally liable for the damage caused by their minor child living with them and of whom they have the custody. The provision applies to parents of a minor child, under 18 years of age, who lives with them in their home and over whom they exercise their parental rights. Article 1384 ( 4 ) neither applies to grandparents and other family members nor to the tutor. However, the latter might be liable on the basis of the general rule of strict liability for persons. 9 The interesting point that would be recognized is, the parents will always be liable if the child did not know how to behave, it is clearly shown that really strict vicarious liability. Analyzing and discussing In this kind of liability, both Thai and French stand on the same stand point that the parents always have to be responsible for their minor children, notwithstanding, any kind of condition, by the reasons come from the legal issue and the factual issue. Exactly, the parents have no right of recourse from the minors. The main distinction between two countries occurred in three points, first, Section 429 of Thai tort law has been included liability of the guardian of the incapacitated person in this section while Article 1384 ( 4 ) of French Civil Code just declares only the minor, second, in Thai principle, the parents always are responsible to the victim even though their minor child lives with them or not, while ( 4 ) of Article 1384 has limited 9 See supra p. 439.

10 10 only their minor children who live with them, finally, the minor child in Thai law means the child, under 20 years of age, but French law imposes the meaning of the minor child, only under 18 years of age that may be influenced from the Western culture that the teenagers normally live separately from their parents after they are 18 years old. There are two more distinctions between Thai and French tort law. Firstly, the exception of liability. In Section 429 in Thai Civil and Commercial Code provides that if the parents can prove that they have exercised their proper care, while Article 1384 ( 7 ) in French Civil Code provides that the father and mother can prove that they could not prevent the act which gives rise to that liability. Secondly, Section 431 of Thai tort law provided the right of recourse to the one who made the compensation applying to mutatis mutandis but this provision is not applied to the parents. In Thai tort law focus on the father that has been limited only the legitimate father, if he is not, his liability must be applied to Section 430 from the factual duty that he is the one who take care his child. Notation For Thai tort law, there is Section 431 provided that the guardian of the incapacitated person who have already made compensation to a victim for a wrongful act committed by the incapacitated person, he is entitled to reimbursement from the one who has to take the responsibility for that incapacitated person ( if that one occurs ). Notwithstanding, for the parent have no such the same right, because they always are liable for their minor child. C.Liability of teacher and the other supervisors over children Thai Section 430. A teacher, employer or other person who undertakes the supervision of an incapacitated person either permanently or temporary, is jointly liable with such person for any wrongful act committed by the latter whilst under his supervision, provided that it can be proved that he has not exercised proper care.

11 11 This section describes about liability of the supervisors over the disabled persons and their liabilities located by work, contract or fact that is separated from section 429 for example, a teacher is not father of a student but he has the duty to take care his student in school s time. Another example, day care center which has serviced to take care children in day time, the officers of day care center also have duties to take care the children until their parent come to pick up their children. If the wrongful act committed by a student or a child, happened in the school or in the day care center, the person who is liable must be the teacher or the officer of day care center. The special part of this Section is the word employer the employer in this situation means the employer of the minor employer. In Thai, a minor can work as an employee in the hire of service contract, on the condition that must be complied with the special law s provision. Thai tort law then provides liability of the employer for his minor employee, used accordingly to for this kind of the hire of service. The following remarks declared by the writer : 1.The employer in this section means that the employer of the incapacitated person including the minor and the teenager in the hire of service contract. 2. In the dispute, the victim or the plaintiff have the burden of proof for claiming, thus it is different from section 429. Section 431. In case falling under the two foregoing sections the provisions section 426 apply mutatis mutandis. This section means that the guardian of the incapacitated person in Section 429 ( as the foresaid explanation ) and the supervisor of the incapacitated person in Section 430, who have already made compensation to a victim for a wrongful act committed by the incapacitated person, they are entitled to reimbursement from the ones who have to take the responsibility for the incapacitated person in those two sections, such as, the parent of minor child or the guardian of the incapacitated person, for applying to mutatis mutandis from the content in Section 426.

12 Notation 12 The right of recourse in Section 431 can apply to mutatis mutandis, means that the right of recourse is still valid since it is plausible to put in force upon such a situation and the one who made the compensation, for example, the parents of the minor child or the incapacitated person have no right of recourse to their children nevertheless, the children are able to repay or not. French Article 1384 ( 6 ). Teachers and craftsmen, for the damage caused by their pupils and apprentices during the time when they are under their supervision. Article 1384 ( 8 ). As to teachers, the faults, imprudence or negligent conducts invoked against them as having caused the damaging act must be proved by the plaintiff at the trial, in accordance with the general law. About liability of teachers and craftsmen in Article 1384 ( 6 ) First, we are focus on teachers. At the present time, teachers at private schools can be liable, while the victim has to prove a fault of the teacher which means that he has insufficiently educated or supervised to his pupil. There has to be a relationship between the education and the damage, and the pupil has to be under the teacher s supervision at the time he caused the damage. 10 In all cases the teacher s liability will give rise to the vicarious liability upon the situation of employer. public or private Furthermore, there is Article 1384 ( 8 ) declared that the victim or the plaintiff has the duty to prove to the faults or negligent conducts of the teacher at the trial, in accordance with the general law. Second, about craftsmen that are liable for the damage caused by their apprentices during the time when they are under their supervision. Craftsmen are not liable if they can prove that they could not have prevented the act that gave rise to liability. 10 See infra p. 43.

13 13 There is an interesting issue that someone who have to take care a child by an obligation established from a contract that means nurseries and nannies, they have to be liable for the damage caused by the children whom they take care, or not! Furthermore, in fact, sometime the parent s neighbors or the parent s relations who accept to take care a child because of parent s requesting, if the child causes the damage. Are the neighbors and the relations liable to the victim for damage caused by the child whom they was taking care at that time of accident? Analyzing and discussing In Thai, Section 430 provides many kinds of supervisors such as,the teachers, the employer of teenagers, the ones who have duty to take care the children or the other disabled person that we will discuss later, while French Civil Code Article 1384 ( 6 ) provides for the teachers and the craftsmen with the pupils and the apprentices. Comparing between the intention of two codes, we can find that they are similar in the intention to impose the supervisor who should to be liable for any wrongful act committed by the incapacitated person. Later, it is suitable to discuss about the interesting issue as foregoing said, the nursery and nanny or the parent s neighbor and parent s relation, for Thai, the liability of these persons can apply to Section 430 and the provision about the right of recourse in Section 431, while French has no directly provision for this topic, that then would be solve this problem by applying to the general principle of vicarious liability in Article 1384 ( 1 ). About liability of the craftsmen for their apprentices, it is interesting that this provision automatically declares the delicateness in the attempt to regulate the law, for applying to the circumstance that is plausible to happen in the real life. This provision is able to ensure the French that even the damage cause by the few experience apprentice that occurred, the injurer surely has the compensation for healing his injury. D. Liability of supervisors over disabled persons Thai The provision of Thai tort law Section 430 includes liabilities of many kinds of the liable persons, as the partly foresaid describing because in Thai vision, the legislature try to organize all kinds of the disabled person into the same provision for the reason of such a disable person always to be under the custody of the guardian, then that is suitable to added together.

14 French 14 Liability of mentally disabled persons has many similarities with liability for the child 11, in both cases, there is an interesting problem that holding the person who has to be liable for damage.this important problem seems to be solved is also comparable. In France, liable of supervisors over mentally disable persons, that holds an explicit statutory provision in which a trouble mental is no defense against liability, the strict liability rule then applies in these cases. This approach would avoid the complicated balance between the level of supervision on the one hand, and the interests of the child on the other. Analyzing and discussing There is the similarity in this kind of liability between Thai and French that is both countries use the strict liability rule for applying in these cases. The reasons that uphold this alternative are the fact that the disabled persons cannot comply with normal social standard and this is not desirable to let the victim meets the lost caused by the disabled person, by himself. This is not the fairness for the victim. However, in Thai tort law, the victim has to prove by the sufficient evidences to the court that the supervisor of disabled person has not exercised the proper care but there is no this kind of provision in French tort law. The distinction between Thai and French, it is the right of recourse. Section 431 of Thai Civil Code provide the right of recourse for the supervisor of disabled person who has made compensation to a third person for a wrongful act committed by the disabled person, while French tort law does not provide this kind of right. Notwithstanding, the right of recourse in Section 431 can applied merely in the mutatis mutandis situation, that is lower level than the right of recourse in Section 426, in the case of the employer. Comparing with liability of parents, the supervisors are better than the parents because in Section 429 provides that the parents have to bear the burden of proof that they have exercised the proper care in performing their duty. In contrary, the supervisor need not bear that kind of burden of proof. 11 See infra p. 447.

15 Remark 15 From the inspection in both countries civil law, we found the interesting matter that French tort law provides the liability of the craftsmen ( Article 1384 ( 6 ) ) while Thai tort law has no the same provision but Thai tort law provides the liability of the supervisor in the manner of the employer of disabled person ( Section 430 ), while French tort law has no this type of provision also. E. Something about strict liability The structure of fault liability may vary in the legal systems, this goes even more for the structure of strict liability. Although initially rules of strict liability were considered to be exceptions to the rule of fault liability, they have gained a firm foothold in continental tort law during the twentieth century. Thus, strict liability also has the other name that is liability without fault, and vicarious liability is one kind of strict liability. The reason that taking the issue of strict liability into this article comes from, the discovery of vicarious liability that hidden in the strict liability s provisions. This knowledge recognized by analyzing all of tort law s provisions.the interesting provisions of Thai and French strict liability declared as follow : Thai Section 433. If damage is caused by an animal, the owner, or the person who undertake to keep the animal on behalf of the owner, is bound to compensate the injured party for any damage arising therefrom, unless he can prove that he has exercised proper care in keeping it according to its species and nature or other circumstances, or that the damage would have been occasioned notwithstanding, the exercise of such care. Paragraph 2. The person responsible under the foregoing paragraph may exercise a light of recourse against the person who has wrongfully excited or provoked the animal or against the owner of another animal which has caused the excitement or provocation. Section 434. If damage is caused by reason of the defective construction or insufficient maintenance of a building or other structure, the possessor of such building or structure is bound to make compensation, but if the possessor has used proper care to prevent the happening of the damage, the owner is bound to make compensation.

16 16 Paragraph 2. The provisions of the foregoing paragraph apply correspondingly to defects in the planting or propping of tree or bamboos. Paragraph 3. If in case of the foregoing two paragraphs there is also some other person who is responsible for the cause of the damage, the possessor or owner may exercise a right of recourse against such person. Section 436. An occupier of a building is responsible for damage arising from things which fall from it or are thrown into an improper place. Section 437. A person is responsible for injury caused by any conveyance propelled by mechanism which is in his possession or control, unless he proves that the injury results from force majeure or fault of the injured person. Paragraph 2. The same applies to the person who has in his possession things dangerous by nature of destination or on account of their mechanical action. French Article 1384 ( 2 ). However, a person who possesses, regardless of the basis thereof, all or part of a building or of movable property in which a fire has originated is not liable towards third parties for damages caused by that fire unless it is proved that the fire must be attributed to his fault or to the fault of persons for whom he is responsible. Article The owner of an animal, or the person using it, during the period of usage, is liable for the damage the animal has caused, whether the animal was under his custody, or whether it had strayed or escaped. Article The owner of a building is liable for the damage caused by its collapse, where it happens as a result of lack of maintenance or of a defect in its construction. Article A producer is liable for damages caused by a defect in his product, whether he was bound by a contract with the in injured person or not.

17 Analyzing and discussing 17 Section 433, 434 and 437 in the Thai Civil and Commercial Code, although they are in the part of strict liability for the animal, things, building and automobile, but in the way of overlapping declared in the contents of these sections, there are the hidden liabilities of the owners of animal, things, building or automobile in case of the possessor who possess the animal, things, building or automobile in the manner of the owner or for the owner s benefit. These hidden liability can apply to the principle of vicarious liability. Article 1384 ( 2 ) of French tort law, although by considering toward the content that provided in this subparagraph, we then find the hidden liability of the possessor who possesses a building or a movable property in which a fire has originated in the circumstance that it is proved that the fire must be attributed to the fault of persons for whom he is responsible. This hidden liability would be applied to the principle of vicarious liability in the same logic as the provisions in Section 433, 434 and 437 of Thai tort law. French tort law has the provisions of product liability, the principle of product liability is enacted in Article , follow with the detail in Article to Article , while Thai tort law has no the same kind of provision. In cases of product liability, Thailand has the private act, relevant to this issue, and to apply to the general principle of tort law in Section 420. Unit 3 Summary and Conclusion After discussing, we found both of the joint points and the distinct points from two countries that declared both of weak and strong situations. What is the matter? The matter that derived from discussing is the purpose of the tort law which intends to set up the balance of right among people in each society, for leading the peacefulness occurred over the whole nation. As we know, tort law has initiated from the Roman law that prohibited the people to take the revenge among each other, for remedying the victim or the injurer, that is necessary to establish the law or rule that can resolve the damage caused by the tortfeasor.

18 18 The consequence that comes from analyzing and discussing process in unit 2, that is the useful issues which contained in each country, such as some kind of liability that occurred in French tort law but does not occurred in Thai tort law, for example, liability of craftsmen for the damage caused by their apprentices. This is the good idea for Thai drafters in the future when they will amend the Civil and Commercial Code. In contrary, French tort law which has no provision that is relevant to the right of recourse for the employer, the teacher or the supervisor of disabled person who made compensation to the victim. This is the good idea that to be able to remedy the lost of these concurrent tortfeasors. However, the right of recourse merely happened in the situation of mutatis mutandis. The other example from Thai tort law, that is liability of the principle and the agent which enacted in Section 427 of the Thai Civil and Commercial Code, even through only in the mutatis mutandis situation. However, since French tort law does not obviously provide this kind of liability, but from the wording of Article 1384 ( 1 ) in French Civil Code in the phrase the acts of persons for whom he is responsible that might be able to apply to the case of the principle and the agent. Likewise, the provision of French tort law that to be relevant to liability of craftsmen is very interesting issue, it is suitable to extend to other countries. This kind of provision would solve the problems caused by a few experience worker, who mostly has the low wage, furthermore, that be able to encourage the injurer to be confident in getting the compensation. The intelligent matters derived from this discussion are able to improve or to make the next amendment of both Thai and French tort law for the benefit of people in the two countries including the quality of justice in two countries also. Finally, the writer would like to update a new information about Thai vicarious liability. Recently, there is the interesting research named ( my translation ) The review of improving civil and commercial law by Pinit Thipmanee, this research, he commented about vicarious liability, especially, the right to recourse of the employer in Section 426. From the conclusion of research revealed that, in case of a representative of juristic person, is it suitable to have the directly provision about the liability of juristic person for its representative s wrongful act? The purpose of the researcher seemed to desire the new amendment of the provision of wrongful act in the Civil and Commercial Code in nearly future.

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