Legal Problem in Money Recovery by Public Entity

Abstract

          The legal problem concerning money recovery by public entity is a matter of interpretation. The act to recover money by public entity was determined not to be an administrative order. The problem arose when the authoritative bodies, namely, the Court of Justice, the Administrative Court, and the Administrative Procedure Committee interpreted and applied the approach to recover the money differently. In recovering the money, the Court of Justice interpreted the act as a recovery of property and applied the right to follow and recover in accordance to Section 1336 of the Civil and Commercial Code. Whereas, the Administrative Court and the Administrative Procedure Committee applied the principle of undue enrichment under the Civil and Commercial Code in accordance to the Administrative Procedure Act B.E. 2539 (1996). The interpretation in which the exercise of ownership was applied received criticism for being academically incorrect. However, such approach continues to be practiced. Having to set up the proceeding as a follow and recovery of property case, the approach becomes practically problematic in cases proceeding between the public entity and its officials. The authors suggest that a legislative amendment should be put in place to draw a clear line regarding the extent to which money recovery could be done and correct the government agencies’ practices. In addition, the period of prescription should be extended to 3 years and not exceed 10 years; also, the honesty of the recipient should be taken into consideration. Regarding the recovery of money in the case of undue enrichment, interest should be established in the law to deter the Court of Justice from applying the right to follow and recover to the recovery of money