Code of Civil Procedure of Cambodia:

Long-awaited Output and Unpredicted Application

After almost a decade from the outset until the completion of drafting process, plus one year after its promulgation on 6 July 2006, the Code of Civil Procedure of Cambodia, hereinafter referred to as CCP, is now on its path to application.1 On one hand, there are expectations that CCP will significantly play active roles in bringing justice to parties in civil disputes, for CCP has embraced so many detailed procedural rules with which courts can comply to resolve civil litigation. On the other hand, there are few concerns on the smooth application.

There are rationales to hail this new CCP.

First, it excludes the unnecessary power of the court clerks, for upon filing a written complaint by the plaintiffs, court clerks can neither refuse to accept the complaint nor to request the complainant to make correction on the written complaint; yet the complaint may only be dismissed by the court’s ruling.2

Second, CCP ensures the transparency in distributing cases to judges. The distribution of cases is to be done in compliance with the distribution order through which a judge in a relative order will handle the case; the one –year distribution order must be determined by ruling of the president of each court in advance and cannot be changed unless the inevitable circumstances so require.3 This provision excludes the power of the president of the court in allocating the cases to any judge on his arbitrary decision.

A part from aforementioned advantages, parties to the litigation can expect a speedy process of the litigation since the new CCP prescribes the maximum period within which the procedure must be in action so that unnecessary delay may be avoided. For instances, CCP prescribes the period within which the preparatory proceeding for oral argument, oral argument or rendering of written

1 The date of the application of this CCP is on 17 July 2007 in Phnom Penh and 27 July 2007 in areas other than

Phnom Penh. This application is due to two fundamental basis: (1) Article 93 of the Constitution which says:

any law approved by the assembly and finally reviewed by the Senate and signed by the King for promulgation

shall go into effect in Phnom Penh ten days after its signing and throughout the country twenty days after its

signing; (2) Article 587 of the CCP says: after promulgation, this law shall be disseminated one year before it

comes into effect. 2 Code of Civil Procedure at Article 78 3 Id. at Article 26

judgment must take place. These mandatory provisions may make the court find no excuse in delaying the procedure.

From this viewpoint, the new Code of Civil Procedure can be, thus, said as a positive contributor to the justice system reform in Cambodia.

However, attention to some particular issues must be paid since these may provoke the doubt about the justice and difficulties in applying this new CCP.

Matter of interpretation by court is one of the grave concerns that we should not take for granted. There are provisions which can be misunderstood and misinterpreted upon application. For example, article 90 of CCP prescribes about the authority to request for explanation（釈明権） by which court can question the parties or request that they present evidences or arguments on the matters asserted. The concern is if in most cases court always use this authority to “request” parties to do so in preparatory proceeding for oral argument, it may turn out to be that court assists the weak party in advancing offensive or defensive measure （攻撃防拠の提出）.It, thus, will be unfair for the party who has tried his best in challenging his counterpart. Other than being passive, court can use the authority to clarify the factual relevance in the case before it can make any judgment. However, this new procedure code has adopted a system known as “adversary system” as a result of which parties have to play active roles in protecting their interests; meanwhile court is a passive adjudicator. In addition to this, there are other provisions which need careful interpretation, or the aim of the provisions will never be achieved otherwise.

A part from this issue, the new CCP brings about a costly litigation procedure to the civil disputed parties in comparison to the former one. Upon filing a complaint, plaintiff has to pay filing fees that will be calculated based on the value of the subject matter of action,4 court costs other than filing fees,5 and party’s cost.6 Other than these fees to be paid, there are more kinds of fees imposed on parties by this new CCP. The method for calculation of value of subject matter of action is also in question. Although there is a soon-to-be-issued regulation, PRAKAS, on method for calculation the matter thereto, that method will not cover all types of claims. Thus, the method for calculation of other subject matters of action than that provided in the PRAKAS will be the responsibility of the court. Yet, whether court can establish a proper formula for

4 Code of Civil Procedure, article 61 5 Code of Civil Procedure, article 62 6 Code of Civil Procedure, article 63

such calculation is in question. The decision of the subject matter of action can result in the burden of payment of filing fees imposed on party/parties. It is too early to predict what reaction will be on the matter. Yet, time will tell.

To some up, the new Code of Civil Procedure makes a difference. However, smooth application is the matter to be followed up.

By Sar Senera

(The article was translated into Japanese and was published in CALE bulletin in 2007)