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A Brief Look on the New Code of Civil Procedure of Cambodia:

A View through Academic Binoculars

(By Senera SAR)

I. INTRODUCTION

After its promulgation dated back to July 2006, Cambodia’s new Code of Civil Procedure

(hereinafter, the new Procedure Code) has functioned in civil justice system of Cambodia for just yet

less than three years.

Its adoption is undeniable proof of the effort of Cambodian government and the major

contribution of Japanese counterpart towards reforming civil justice system in Cambodia through

the introduction of a comprehensive civil procedure code. Although our new Procedure Code may be

evaluated as one amongst modern procedure codes which contains high-standard that can bear

international evaluations even a few decades later after its adoption,1 much, from my personal

viewpoint, remains to be done during the process of its application so that its true spirit can be

realized.

For example, legal interpretation is inevitable and important since laws cannot explicitly

prescribe provisions to govern all civil relationships in a society. However, such legal interpretation

needs, to some extent, to refer to the original source of the law as basis.

Our fledging Procedure Code is much influenced by Japanese laws, such as the Code of Civil

Procedure (1996), Law of Civil Execution (1979) and Law of Provisional Remedy (1989) of Japan,

etc.2 Due to such influences, the Japanese laws can be regarded as parent laws the new Procedure

Code,3 which will become the main sources for any interpretation of our new Procedure Code.

This article aims at brining attention of its readers on the identity of our Code and to

introducing some fundamental principles adopted in our Code from comparative perspective with

Japanese law.

II. THE NEW PROCEDURE CODE AND ITS IDENTIY

1 Japanese Working Group in charge of Drafting Code of Civil Procedure of Cambodia, Textbook on the Code of Civil Procedure of CambodiaTextbook-Part I: Litigation Procedure (Ministry of Justice of Cambodia, 2008), 11.2 Ibid.3 Yoshiko Honma, “Houritsu Kisougo No Kadai,” Houritsu Jihou 82, no. 10 (January 2010): 32.

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Up to the date of the enforcement of the new Procedure Code, the inquisitorial system of trial

procedure had been ensconced in our tradition. Such practice was no difference from other civil law

countries that have so far adopted the inquisitorial model of civil trial system.4 Under inquisitorial

system, the development of facts and the defining of the scope of investigation is primarily the

responsibility of the judge.5

Nonetheless, up to date, there is neither specific term employed in our new law nor any

textbook that can explicitly proclaim the departure of our procedure law system from inquisitorial

one toward a new different system. The following reviews of few basic concepts and principles may,

however, enable us to have some understandings about our new procedure system.

1. The “Parties Principle”

This principle is known in Japanese as “Tōjisha Shugi.” This principle translates the concept

that in the governing of civil litigation, parties’ controlling authority should be recognized, which is

in contrast to the “authority-oriented principle” which lies on the notion that such controlling

authority be relinquished to court.6

To simplify, if “parties principle” applies, it is then up to the parties to decide whether or not

an issue should become the subject matter for adjudication, and such disposition establishes

another principle called “right to dispose” principle.7 Our new Procedure Code, for example,

recognizes this “right to dispose” principle by stipulating provisions that allow a civil action to be

concluded without being based on judgment.

For example, Article 217 prescribes about the discontinuance of action by plaintiff, while

Article 220 similarly sets provisions concerning conclusion of action through compromise settlement,

and Article 221 explicitly adopts the principle of “right to dispose.” This Article 221 stipulates the

provisions that an action can be concluded without judgment, but by a party abandoning his own

claim, or acknowledging the other party’s claim.

Another adoption of “parties principle” in our law is the relinquishment of authority to the

parties and the imposition of duties on the parties concerning the collection of litigation materials

necessary for judgment. As a result of this adoption, there exists another principle that Japanese

4 Jack H. Friedenthal, Mary Kay Kane, and Arthur R. Miller, Civil Procedure, 3rd ed. (West Group, 1999), 2.5 Franklin D. Strier, “Major Problems Endemic to the Adversary System and Proposed Reform,” Western State University Law Review 19 (1992): 463.6 Susumu Ito, Benron Shugi (Mitsuyuki Kōji, 1975), 33.7 Ibid.

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calls “Benron Shugi.”

2. The “Benron Shugi”

“Benron Shugi” which may literally be translated into English as “argument principle” is a

part of the “parties principle,” which puts emphasis on the parties’ powers and responsibilities in

collecting litigation materials.8

For instance, if the case concerns a plaintiff’s claim for repayment of loaned money, whether

or not the court rules that the plaintiff has the right to such claim has to depend on the justifying

materials put in front of the court. The most important things are therefore the arguments that

may lead the court to make decisions on the right to claim of the plaintiff. In short, particular

materials for the court to rule on the subject matter of the adjudication are indispensable. Such

“adjudication materials,” which, in broad meaning, is called “litigation materials” must be acquired,

while the scope of their necessity and the source for acquisition is all important.9 Thus, the issues

here are the scope of necessity of materials and the acquisition of them, and the questions are

where should these materials be obtained and by whom.

If the answers are that parties should be utilized as adjudication materials (source from

which litigation materials are acquired) and that parties should determine the scope of necessity of

the materials, these answers take “Benron Shuig” as premise.

It is party-oriented because the adoption of the principle results in the principle of reasoning

which parties who carry out litigation activities have to provide rationale for all the assertions they

make; that reasoning is carried out based on fact and evidences, which, under “Benron Shugi,” are

in the control of parties.10

Japanese “Benron Shugi” consists of three basic principles which are simply called: (1)

principle 1 (responsibility to assert), (2) principle 2 (binding effect of admission), and (3) principle 3

(prohibition of ex officio examination of evidence).11

Under the principle 1, the court is not allowed to base its judgment on any fact (material for

judgment) that has not been asserted by either party.12 The new Procedure Code adopts this

principle in Article 95.

8 Ibid.9 Ibid. 30.10 Ibid. 46.11 Ibid., 21-22.12 Teiichiro Nakano, Minji Saiban Nyumon, 2nd ed. (Yuhikaku, 2006), 191.

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Meanwhile, principle 2 suggests that any fact which is not disputed by the parties to litigation

must be recognized by the court as it is (if its existence is not contested by the parties, the court

must recognize that it exists, or conversely, if its non-existence is not disputed, the court must not

make any contradictory recognition).13 In other words, the court must base its judgment on this

undisputed fact. This is called “the binding effect of admission.”14Our new Procedure Code explicitly

applies this principle in its Article 123(2).

Finally, the third principle of “Benron Shugi” concerns with the proof level in the civil

procedure. Under this principle, once “Benron Shugi” applies, the parties must offer evidence to

prove the contested facts that they have asserted before it can be determined whether or not those

facts have ever existed.15 Within this essence, court must refrain from examining any evidences not

offered by parties. Our new Procedure Code adopts this principle partially (Article 124(1)). It still

recognizes the inquisitorial practice in some cases (Article 124(2)).

3. The “Adversary System”

The main feature of the adversary system which represents the characteristic of the

Anglo-American procedural system is that it places enormous emphasis and responsibility on the

parties and their lawyers; while the court maintains a relatively passive role throughout the

proceedings.16 Therefore, in civil disputes, generally, it is up to the parties to initiate and instigate

litigation, investigate facts, and present proof and legal arguments to the tribunal.17 As a result,

the function of court is limited to adjudicating the issues raised by the parties on the proof they

have presented;18 with few exceptions, issues not raised, objections not mentioned, and points not

made are waived.19

If we consider “inquisitorial system” and “adversary system” the only dominant systems in

civil procedure, our current procedure system, from comparative view, may have been constructed

on the adversary one. However, as discussed in preceding paragraphs, “Benron Shugi” may

predominantly represent our new system. Yet, any accurate conclusion requires further researches.

Although both the “Benron Shugi” and the “adversary system” put weight on the active role of

parties and their responsibilities, they do not necessarily halt the great disparity in practice.

13 Ibid.14 Ibid.15 Ibid.16 Friedenthal, Kane, and Miller, Civil Procedure, 2.17 Ibid.18 Ibid.19 Friedenthal, Kane, and Miller, Civil Procedure, 2.

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For example, under the Japanese civil procedure system where “Benron Shugi” prevails, a

judicial admission can be established only at preparatory proceedings for oral argument or oral

argument proceeding,20 whereas under the Federal Rules of Civil Procedure of the United States

where adversary system prevails, judicial admission, as one of the discovery devices, takes a

different form.21 Apart from this, judicial admission under Japanese civil procedure system is

treated in fact level, while the same admission may be treated as evidence from adversary system

practice.22

The rationale for digging out this issue of identity of our procedure system herein is because

the fundamental knowledge on distinction and the commonalities of the “Benron Shugi” and the

“adversary systme” may contribute to future development of our civil procedure system.

III. THE NEW PROCEDURE CODE AND ITS DEVELOPMENT

It is predictable that development to the new Procedure Code is inevitable in the future.

A new product usually comes with a manual for the user, yet this is not the case for the

production of a new law. Or, even there was manual, it alone would not be sufficient.

Meanwhile it is impossible to draft a law that can deal with every social issue. Neither is it

possible to perfectly stipulate every provision that does not give right to obscurity. As a result, along

way with its application, interpretation of law is unavoidable. But under any circumstance,

entrusting this phenomenon to be dealt solely by law practitioners, especially judges, is not

sufficient.

In so far as legal interpretation concerns, scholars, in any society, play important role in

developing legal theories. However, up to now, the legal interpretation science in Cambodia still

does not exist,23 as there are not many or almost no scholars in our country specializing in the field

of civil procedure law.

20 Morio Takeshita, “Saiban Jyou No Jihaku,” Minsyou Hou Zasshi 44, no. 3 (1963): 442; Hajime Kaneko and Noboru Oyama, Minji Sosyou Hou Kougi (Seirin Syoin Shinsya, 1970), 235; Koji Shindo, Morio Takeshita, and Akira Ishikawa, Kouza Minji Sosyou Hou: Sinri, vol. 4, 1st ed. (Koubundou, 1985), 163; Ichirou Kasuga, Minji Syouko Hou Ronsyuu (Yuhikaku, 1995), 159.21 Finman Ted, “The Request for Admission in Federal Civil Procedure,” Yale Law Journal 71 (1962): 371; Fleming James, Geoffrey C., Jr. Hazard, and John Leubsdorf, Civil Procedure, 5th ed. (Foundation Press, 2001), 302-303.22 Ted, “The Request for Admission in Federal Civil Procedure”; Herbert E. Greenstone, “Request for Admission by Plaintiff,” American Jurisprudence Trials 4 (1966): 185.23 Honma, “Houritsu Kisougo No Kadai,” 32.

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During my three-year mission with JICA legal and judicial cooperation in support to the

Ministry of Justice in Cambodia, often time that Japanese law experts were sought by Cambodian

law practitioners to consult the issues related to practices and interpretation of provisions of the

new Procedure Code. Such situation is not unfavorable, but its continuance may matter.

Books and Cambodian scholars should be the main sources for consultation at first hand. Yet,

we are facing the shortage of these two interdependent resources.

IV. CONCLUSION

Having the new Procedure Code is a pride of a society like Cambodia and its assisting partner

that strove every single possibility to bring a draft into law. Yet, post-drafting issues may halt the

celebration of victory if the spirit of the law cannot be realized through its application.

To avoid such a situation, it is considerable that the original legal concepts, principles or

philosophies on which our procedure law system is built be transplanted in the understanding of

the law practitioners as well as those involved in law application.

Such mainstream can be seeded on the seedbed of human resources capable of sharing their

knowledge to their society.