Ownership vs. Possession in Thai Law

A Legal Perspective on Waste Management and Misappropriation Cases

1. Introduction

In Thai criminal law, confusion often arises between ownership (กรรมสิทธิ์) and possession (การครอบครอง), particularly in cases involving entrusted property or contractual custody. This distinction becomes crucial when determining whether the offense of theft or misappropriation (Section 352 of the Thai Penal Code) applies.

The prosecutor’s decision in the “Clean Mahanakorn case” rested on the erroneous assumption that waste has no owner—and therefore, the company could not be a victim of misappropriation. However, under Thai law, lawful possession grants protective rights equivalent to those of ownership in criminal contexts.

2. Legal Definitions

Concept	Legal Foundation	Meaning in Practice
Ownership (กรรมสิทธิ์)	Civil and Commercial Code, Section 1336	The absolute right to use, enjoy, and dispose of a property. Ownership is a real right (สิทธิในทรัพย์) that persists until legally transferred.
Possession (การครอบครอง)	Civil and Commercial Code, Sections 1367–1376	The factual control or custody over a property with intent to treat it as one’s own, or on behalf of another. Possession confers protective rights under both civil and criminal law.

3. Criminal Protection of Possession

Under the Thai Penal Code, both ownership and possession are protected.

• Section 334 (Theft) and Section 352 (Misappropriation) explicitly recognize the rights of “the owner or possessor” (เจ้าของหรือผู้ครอบครอง).

• Therefore, even if a company does not “own” the waste, it is still protected as the lawful possessor under its municipal contract.

This principle prevents employees or agents from exploiting property entrusted to them during their employment.

4. Supreme Court Precedents

📚 Supreme Court Decision No. 2373/2542

A transport company employee sold goods entrusted for delivery.The Court ruled this was misappropriation (Section 352) even though the company was not the owner of the goods — it had lawful possession.

🔹 Application: Clean Mahanakorn, like the transport company, lawfully possessed municipal waste under a service contract.The drivers’ act of selling recyclables constituted misappropriation of property under the company’s lawful possession.

📚 Supreme Court Decision No. 682/2529

A contractor who took materials belonging to a client and sold them was guilty of misappropriation, as the property was entrusted to him under contract.The Court emphasized that lawful custody = criminally protected possession.

🔹 Application: The waste recyclables, once loaded onto the company’s trucks, fall under its entrusted custody. Any sale by staff for personal gain directly violates the Penal Code.

📚 Supreme Court Decision No. 3176/2543

A garbage collection employee who sold collected waste was convicted of misappropriation.The Court reasoned that “although waste is abandoned by its owner, once a collector has lawful possession, it becomes his entrusted property until disposal.”

🔹 Application: This precedent is almost identical to the Clean Mahanakorn case, refuting the prosecutor’s claim that “waste has no owner.”

5. Analytical Comparison

Legal Element	Prosecutor’s Interpretation	Correct Legal Understanding
Ownership of waste	Waste has no owner → cannot be stolen	Once collected under municipal contract, waste is entrusted property under lawful possession
Company’s status	Merely a contractor receiving payment	A lawful possessor responsible for custody and disposal of all waste collected
Criminal element	No “victim” to establish misappropriation	The company is a victim as the possessor under law
Employee’s act	Personal sale of unowned items	Misappropriation of property in lawful possession of employer (Section 352)

6. Conclusion

The prosecutor’s non-prosecution order reflects a fundamental misinterpretation of “possession” under Thai law.While the Clean Mahanakorn company may not hold ownership (กรรมสิทธิ์) over municipal waste, it holds lawful possession (การครอบครองโดยชอบด้วยกฎหมาย), which the Penal Code explicitly protects.

Therefore, any employee or agent selling recyclables for personal benefit commits misappropriation of property entrusted to them—a criminal offense under Section 352 of the Penal Code, as affirmed by Thai Supreme Court precedents.