Introduction to Cambodian Civil Law-Civil Code

Introduction to Basic Cambodian Laws—Cambodian Civil Laws

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REMARK: This article was written for a project and was scheduled to bepublished in a compilation book among several other articles. However, sincewe are still entitled to our right as authors, we decide to publish this articleonline so that those interested in learning about Cambodian civil laws can getsome knowledge. Title is revised.

CIVIL LAWS OF CAMBODIA:

Old Civil Code, Contemporary Civil Laws

I-Old Civil Code

1. Introduction

As a nation deeply influenced, as once used to be under French colonization, by Continental Legal System, Cambodian laws were once compiled into particular sets, known as Codes, one of which was Civil Code.

Civil Code is a set of basic rules governing legal relationship between private parties. In the civil society, there exist two types of legal relationship: property-based relationship and family relationship. The property-based relationship includes the controlling relationship of a person over a thing (Real Right) and the relationship in property transaction between persons (Contract). The family relationship is about the marriage, relatives, relationship between parents and children, and succession—all of which are known as civil matters.

Civil Code is a very necessary instrument for establishing a well-organized society, for it contains most of the provisions needed to regulate every situation of private persons from their birth to death. Depending on the political formation, legal concept and tradition, situation, and tendency of its society, each nation has created different set of civil laws, though the principles used in the drafting might not be very different.

The Civil Code of Cambodia has its history going back to more than a century

ago, a period of which it was promulgated, enforced, revised and implicitly repealed, yet still once in a while adhered to until currently, somehow.

2. Historical Background of Civil Code of Cambodia (1920)


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Before French Colonization (1863-1953), Cambodia was ruled by the Monarchic Regime.

Every important law took its source from the King’s authority. In the interaction between

grassroots, a number of so called “CPĀP’1” plays a very crucial role in the civil matter,

especially.2

After the collapse of Cambodia to French colonization in 1863, the influence of royal family over the reign of the country had faded, yet the French colonization took control over the Khmer nation resulting in the changes of legal system of Cambodia thereto. The dominant French government imported to Cambodia its Romano-Germanique (continental) law system. Significantly, a Napoleon-oriented first civil code of Cambodia was drafted and promulgatedby royal ordinance No. 17 of the King SISOWATH on February 25, 1920 titled as “Civil Code of Cambodia,”3 hereinafter referred to as the old Code.

Not surprisingly, this first Code was influenced by the Code de Napoléon of France and, indifferent from other laws, was written in French language. Therefore, the Code was not familiar to ordinary Khmer people, for only a handful of well educated persons understood French. 4 The principle of “equality before the law” was, thus, not attained. No doubt, “CPĀP” remained the first reference for ordinary Khmer people.5

Seeing such a mess and in the objective of rehabilitating the popularity of Khmer literature, Eng Sot, a then officer of the Ministry of Justice, translated and published the Khmer version of the Civil Code in 1967.6

1 “CPĀP” is a Khmer word. It means “Law”, if literally translated. “CPĀP” as presented here refers to moral

teaching or code of conducts mostly written in the forms of saying or poem. For more detail, see SAVAROS

POU, Guirlande de CPĀP’, Cedoreck (Centre de Documentation et Recherche de la Civilisation Khmère),

1988. 2 See SAVAROS POU, Guirlande de CPĀP’, Cedoreck, 1988.3 This original title in French version is “Nouveau Code Civil,” See Marcel Clairon, NOTIONS

ESSENTIELLES DE DROIT CIVIL KHMER, 1959, at page 104 Formal education at that time was based on French language. However, only a handful of rich city youths

had opportunity to go to those schools. Yet, some middle-classed men went to get informal education in

Buddhist pagodas. 5 See SAVAROS POU, Guirlande de CPĀP’, Cedoreck, 1988.6 See Eng Sot, Study of every article of the Civil Code, 1967, in his forward.


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After approximately four decades of the enforcement, the Code underwent a revision in 1967. French colonization formed, by royal ordinance of April 2, 1956 of Samdech Preah Upayuvareach Norodom Sihanouk, a commission to take charge of this revision. This commission was known in English translation as “Commission for the Reform of Civil Code.”7

The Code contained 1365 articles and was divided into three books: Book I

(Persons), Book II (Liens) and Book III (Obligations). Book I of the Code embraced

provisions concerning civil rights, domicile, absence or disappearance, family, capacity,

and rights and obligations (pertaining to succession matters). Particularly, the section in

respect of family matters, the Code enlists the provisions in relation to engagement,

marriage, divorce, parent-child relationship, adoption and parental power.

This civil code had been in force until 1975 the time at which Cambodia fell in to the control of Maoist Khmer Rouge regime.

The Khmer Rouge ruled the nation with their extreme Moa-oriented doctrine in which the Code and other laws were no longer needed.

After the collapse of this dark regime in 1979, there has been no civil code for Cambodia to apply in civil matters until currently.8 However, in order to govern some particular aspects of civil matters, the Republic of Kampuchea (1979-1989), had produced some legal regulations which are still in force until currently.

II- Contemporary Laws on Civil Matters Applicable in Cambodia

Since 1989 until present, Cambodia has had solely few important laws to deal with civil matters. In civil disputes, the courts rely mainly on those laws to adjudicate the civil disputes.

1. Family Law

The contemporary family law of Cambodia is known as Law on Marriage and Family 1989, hereinafter referred to as the Family Law 1989. This law was adopted by the National Assembly on July 20, 1989 and promulgated by 7 Original version in French is “Commission de Réforme du Code Civil,” See Marcel Clairon, NOTIONS

ESSENTIELLES DE DROIT CIVIL KHMER, 1959, at page 118 The reader should be aware that the date of writing of this article is as of March 2007.


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Chairman of the Council of State on 26 July 1989. This law is primarily based on the article 7 of the Constitution of People Republic of Cambodia (1979-1989) which dictated that:

Men and women shall enjoy equal rights in marriage and family matters. Marriage shall

be made in compliance with the provisions of law and by voluntary basis and monogamous

principle; marriage by duress shall be deemed null and void.9

Although this law was drafted and influenced by the communist ideology, it, to some extent, embraces many provisions that, some of which were absent from the old Code, provide the core values of the contractors to the marriage. This new Law provides dramatic changes which were not found in the old Code.

Freedom to Marriage: The Family Law 1989 recognizes the freedom of every individual to contract a valid marriage complied with the requirements of law. To achieve this aim, the law sets forth provision of prohibition marriage contracted upon force,10 plus, any marriage contracted by force or duress shall be deemed null and void.11 A part from this, the law also recognizes the freedom of adult individual with full capacity to conclude a marriage contract without having to get consent from any particular person(s).12

Equality in Marriage: In compliance with article 7 of the Constitution (of 1979-1989) which says both men and women shall be equal in marriages and in families, 13 the general provision of the Family Law 1989 recognizes the principle of equality of the spouses in marriage tie.14 Unlike that in the old

9 The Constitution of People Republic of Cambodia (1979-1989), article 710 Law on Marriage and Family 1989 (hereinafter referred to as L.M.F1989), article 2: [...] and marriage by

force shall absolutely be prohibited.11 Id. at article 23, paragraph 2: Where any one of the spouses claims that he or she has been forced to marry,

such marriage shall be void. 12 Id. at article 4: A man and woman reaching legal age have the right to self-determine the marriage. [...]. No

one can be [...] prevented from having marriage as long as such marriage is in compliance with standards

provided by this law.13 This article was integrated into article 45 of the contemporary Constitution (1993-present)14 L.M.F 1989, supra note 10, at article 1: [...] Law on Marriage and Family is to regulate and protect the

marriage and family, to ensure equality of the spouses in marriage and family....


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Code which legitimized polygyny, 15 the Family Law 1989 even refuses to recognize polygamy of either of the forms—polyandry or polygyny. A valid marriage, thus, has to be a monogamous marriage.16 This reflects the sex equality in matrimonial relation by which both spouses are treated by law with no difference in status. In compliance with this fundamental basis, the Family Law 1989 guarantees that both spouses, in their valid marriage relation, have the same and equal rights and obligations in every single aspect.

Spousal Rights and Obligations: The whole chapter 4 of the Family Law 1989 entitles the spouses to legal personalities they previously held prior to the marriage. As a result, each spouse enjoys the freedom to choose her or his own profession and to join political, cultural and social activities individually and freely without having to get consent from the other.17 In contrast, the old Code deprived the legal personality of the women after marriage. Any woman who wished to conclude any valid contract should get permission from her husband in advance or the contract would otherwise be regarded as null and void.18 A part from this, married women, in the old Code, were not legible as litigants unless the husbands consented thereto. 19 As a result, husbands were the representatives for their wives in all litigation.

Another significance of the shift in this law is the recognition of property systems which legitimizes the husband and wife to equal opportunity to enjoy the use and dispose the property. There are two property systems recognized under the Family Law 1989: (1) personal property system, and (2) common property system.20 Personal Property refers to the property that a spouse, prior to the marriage, had possessed, or the property he or she has received, during the marriage, as succession or testamentary gift.21 Common Property is known

15 Civil Code of Cambodia 1920 (hereinafter OLD CODE), article 140: a woman shall have only one husband,

141: a man may marry more than one wife. 16 L.M.F1989, supra note 10, at article 24: A marriage shall be void if either one of the spouses is already

married, and if such marriage has not officially been dissolved by divorce.17 L.M.F1989, supra note 10, at article 3118 OLD CODE, supra note 15, at article 194 & 19819 Id. at article195 and 20020 L.M.F 1989, supra note 10, at article 3221 Id. at article 34


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as the property earned by one or both spouses during marriage.22 Each spouse still retains the exclusive right over his or her personal property, meanwhile, they both, during their marriage, have equal accesses to using the common property in accordance with their needs. 23 This principle of equality in property-related aspects is further guaranteed and consolidated by the Constitution of Cambodia (1993) which hailed that the household chores shall be regarded as equal to the work done outside.24 This is quite clear that no matter whom, the husband or wife, will work out-door while the other does the houseworks both are regarded as the contributors to the accrued income of the family; thus, they both have the same right to enjoy the equal shares of the common property.

Accordingly, both spouses are constrained to jointly liable for the claims and other obligations made by them both, or made by one of the spouse yet consented by the other during the marriage.25

Parental Power: The term is a catchall phrase embracing two concepts, legal custody and physical custody over the children, simultaneously. Within the matrimonial tie, both spouses are joint parental power holders over their children. However, the specific rights and obligations of the parents towards their children are absent from the provisions of the Family Law 1989.

Divorce: The Family Law 1989, in comparison with the old Code, is so much modernized,

that one may find similarities in the grounds constituting divorce set for the family laws of

the developed worlds. There exist two types of divorce under this Law, fault-based divorce

and no fault divorce. One spouse may petition to divorce the other on the grounds: (1)

desertion without a good reason and without maintenance of and taking care of the child;

(2) cruelty and beatings, persecutions and looking down on the other spouse or

his or her ancestry; (3) immoral behavior, bad conduct; (4) impotence of penis; and (5) physical separation for more than one year.26

22 Id. at article 3323 Id. at article 3624 Constitution of the Kingdom of Cambodia (1999), article 3625 L.M.F 1989, supra note 10, at article 35.226 Id. at article 39


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A part from these, the husband and wife may agree to divorce by mutual consent, too. 27 This is a far extent from the previous provisions in the old Code which prescribed that the husband may divorce his wife on the grounds that she committed adultery, she had left home uninformed for one night without reasonable excuse, or the step wife(s) severely beat her leaving bruises or injuries on her body, or persecuted or insulted her badly.28 Meanwhile, a wife could only divorce her husband if he failed to properly support the family required by his matrimonial obligations; the husband had left matrimonial home for more than three months without legitimate reasons and without providing support to the wife and children and, furthermore, if the husband evicted her from the matrimonial home without proper reasons.29

Under the Family Law 1989, divorce will result in equal property division and single parental power arrangement. For property division, in principle, the spouses have to discuss the term for division. Nonetheless, if the agreement cannot be reached, the court may order that each spouse accumulate his or her personal properties obtained prior to the marriage, and can subsequently access to half share of the common property earned during marriage. 30

However, under special circumstance and if requested by the party(s), the court may order the different property division method taking into consideration the contribution of each spouse during the marriage and the best interests of the children.31

As a consequence of divorce, post-divorce parental power holder has to be determined. There are two options for this determination one of which is mutual agreement by the spouse and the other one is court decision. Both spouses have to decide whether the father or the mother will hold the parental power. If no agreement is made, the court will choose one from among the two to be parental power holder. When one is relinquished parental power, s/he will assume both the physical custody and the legal custody over the child.32

27 Id. at article 4028 OLD CODE, supra note 15, at article 206.29 Id. at article 20730 L.M.F 1989, supra note 10, at article 7031 Id. at article 7032 However, the concept of legal and physical custody exists neither in the civil laws of Cambodia, nor in the

court decisions.


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There are no guidelines in the law for the court to follow in making decision on the parental power holder issues. Yet, there is a general principle presumption, known in American courts’ precedents as tender-year presumption, referring to an under-five-year-old child33, which the Family Law 1989 directs the court to adhere. When the child subject to being taken care by post-divorce parental power holder is still breastfed, the mother will be privileged to get this parental power.34 It is ambiguous in the Law whether the post-divorce parents may share parental power on the equal basis (joint parental power) over their children. Yet, there is no any proven data on court decisions ordering the joint parental power to be exercised over the children by post-divorce parents. However, the non-custodial parent (parent who is not a parental power holder) is still entitled to visitation right,35 and obligation to pay alimony to either custodial parent or/and the children upon request of the custodial parent or court decision.36

Although there are plenty of provisions dealing with family matters, there are still bundles of provisions needed to govern family matters absent from the contemporary Family Law.

Besides the Family Law 1989, there are some other provisions governing the civil matters, particularly in contractual activities and tortious act.

2. Contract Law

The contract law of Cambodia is governed by the Decree Law No 38 known as “Contract and Other Liabilities.” The Decree Law No 38, hereinafter referred to as the Decree, was adopted by the Council of State in October 28, 1988. Although Cambodia has started its new political regime in 1993 at which Cambodia had its first ever general election organized by the United Nation, the Decree is still in force until currently. The subsistence of the Decree and its enforcement is due to two reasons: (1) lack of substitute law governing

33 SENERA Sar, Parental Power in Cambodian Law: Should Joint Parental Power Continue After Divorce?,

LL.M Thesis, Chapter II, Section 2.1.134 L.M.F 1989, supra note 10, at article 7335 Id. at article 7536 L.M.F 1989, supra note 10, at article 76-77


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contracts; (2) the Constitution still legitimizes its effect unless it is abrogated by new legal text.37

The Decree consists of 138 articles and can be divided into two major parts, one of which is the part related to contracts in particular, while the other is about non-contractual liabilities.

Chapter One: is all about the general features of the contract. It embraces the general provisions, giving the definition of contract, validity and form of the contract, voidness of contracts, effects and interpretation of the contract, statute of limitations for contracts and the execution of the contract.

According to article one of the Decree, contract is an agreement between two or more persons, natural persons or legal entity, to create, modify or terminate one or more obligations which bind them.38 Therefore, party to the contract can either be natural person or legal entity (juristic person). Nonetheless, the Decree fails to define the terms “natural person” and “legal entity.” This article provides that legal entity can be entered into contract by representative, yet it is silent about whether or not a natural person can enter into a contract through his/her representative. Thus, the ambiguity constitutes the active role of the judiciary in determining the validity of a contract concluded by authorized person or representative.

In order to form a valid contract, the parties must satisfy the five elements set forth in article 3 and 4 of the Decree: agreement, capacity, consideration, legality and formality. As article 1 defines contract as an agreement, while article 3 determines that a valid contract must arise of a real and free agreement, thus, agreement is an explicit one.

Agreement is regarded as to have occurred when offer and acceptance are matched.39 Although agreement is reached, but if the parties to the contract are deemed to have no capacity, the contract will be regarded as invalid

37 Constitution of Cambodia 1993, at Chapter XIV, article 139 (old) and Chapter XVI, article 158 (new)

( “[l]aws and standard documents in Cambodia that safeguard properties, rights, freedom and legal private

properties and in conformity with national interests, shall continue to be effective until altered or abrogated

by new texts, except those provisions that are contrary to the spirit of this Constitution” )38 Decree No 38, at article 1 (hereinafter The Decree)39 UNIDROIT, Chapter 2, article 2.1


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thereupon. Persons regarded as having legal capacity under the Decree are those whose age is not less than 18,40 except detainees.41 Minors, however, may also enter into a valid contract, yet with the prerequisite consent of their legal guardians.42 Nevertheless, minors are still able to enter into a valid contract regardless of having consent of the legal guardian for any contracts made by minors just to meet daily primary needs. 43

Beyond what have been mentioned in the preceding paragraphs above, under the Decree, a contract must comply with principle of legality. Legality here refers to the purpose that the contract must be legal and must not be against public policy.44 To be precise, article 5 of the Decree provides that a contract will be invalid if it is illegal, inconsistent with public order or good custom, social interest or principles of social ethics.45

Statute of Limitation: article 25 of the Decree says clear that civil action may be brought against the obligor by the obligee within a period of five years from (1) the date defined in the contract, or (2) the date of entering into the contract if there is no date defined in the contract.

Chapter Two: prescribes the provisions concerning the particular types of contracts which are frequently used. This Chapter contains nine sections each of which specifies each particular type of contract, such as sale, interest bearing loan, secured personal property, contractor contract, carrier contract, bailment contract, loan for use, lease and contract of suretyship. This Chapter, thus, is the major part to govern the contractual relationships of the parties in civil matters. However, because Cambodia lacks of commercial laws governing commercial acts, this Decree is usually referred by the court to deal with commercial disputes, too.

40 The Decree, supra note 38, at article 1441 Id. at article 14, The term “detainee” here, as explained by William R. Wiebe, Esq, also means

“interdicted” known as person with low awareness and intelligence, or a person...[legally] restrained from

administering his own property. See, William R. Wiebe, Esq, INTRODUCTION TO BUSINESS LAW

CONTRACTS SERIES 2 E, 26, footnote 37, 199642 The Decree, supra note 38, at article 1543 Id. at article 15

44 WILLIAM R. WIEBE, Esq, INTRODUCTION TO BUSINESS LAW CONTRACTS SERIES 2 E, 26, 199645 The Decree, supra note 38, at article 5


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Other than the specification on these types of contracts, the Decree provides another chapter to deal with other liabilities other than those set forth in the particular types of contracts mentioned above.

Chapter Three: deals with non-contractual liabilities whereby a person committing civil wrongdoing will be held liable for civil compensation. This chapter consists of 15 articles, from article 121 to article 135, and may be regarded as “tort” provisions since there are no other provisions other than the provisions in chapter three of this Decree Law No 38 may be found.

According this chapter three of the Decree, tortious acts may be categorized as follows:

Tortious act committed by major: the first article (article 121) of this chapter states that any person causing damages to others due to his/her own fault, either through involuntary acts such as carelessness or negligence, must be liable for compensation for such damages.46

Tortious act committed by incompetent person: the insane and minor under 14 years of age are regarded as, under this law, incompetent person; thus, parent, guardian or caregiver of the minor is liable for the damages caused to other person by such incompetent.47 However, the minor whose age is more than 14 but less than 18 years old will be jointly liable with his/her parent for the compensation for damages caused by him or her towards others.48

Tortious act resulting from action of official, staff or worker will cause the

organization or enterprise to which that tortfeasor belongs liable for the compensation for the victim, while that organization may claim thereimbursement from that tortfeasor thereafter

Tortious act caused by animal: will cause the owner or the person who uses

such animal liable for the compensation to the victim even if that animal escapes from the stable or is lost.49

46 The Decree, supra note 38, at article 12147 Id. at article 12348 Id. at article 12449 Id. at article 127


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Tortious act caused by thing: will cause the owner liable for damage incurred

upon others if the owner negligently fails to properly maintain, control or repair the property.50

However, there are conditions based on which the tortfeasor may assert in order to be discharged from tortious responsibility. There are three grounds for assertion two of which are force majeur and victim’s own fault,51 and the other one is a situation at which the victim voluntarily agreed to assume the risk of such damage which does not affect or threaten social interest.52

The Decree provides that the extinctive prescription for claiming compensation

is 3 years,53 yet it fails to specify from which time the period of three years may be used as the basis for calculation. Thus, three years here may be interpreted as from the time the tort occurred or from the time of the awareness of the injured party or his/her representative about the occurrence of the tortious act. A part from this, the Decree fails to provides conditions under which the carelessness or negligence are to be constituted. Thus, the matter of application of these provisions rests heavily on the judge’s interpretation.

In reality, there may be not so many cases concerning the tortious lawsuits

filed under this tort provisions.

Part Two: Cambodia and Its New Era of Civil Laws

Although there are some provisions related to civil matters set forth in Law on

Marriage and Family 1989 and Decree Law No 38 on contracts and other liabilities, Cambodia has been struggling with shortage of sufficient legal provisions in dealing with plenty of civil matters which inevitably happen in Cambodian society. As it is stepping into the WTO, Cambodia, thus, is in need of proper numbers of civil law

I- New Civil Code of Cambodia

50 The Decree, supra note 38, at article 12851 The Decree, supra note 38, at article 13352 Id. at article 13453 Id. at article 135


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With full support from Japanese government through Japan Internal Cooperation Agency, JICA, Cambodia started its plan to draft series of civil laws and compile into a code known as a new civil code which is now (as of the date of writing this text) in the hand of National Assembly. This code is expected to be adopted in no later than this year (year 2007).

There are few reasons for drafting this new civil code (hereinafter referred to as the new Civil Code). As Cambodia had planned to enter WTO, Cambodian government set out a policy on legal and judicial reform which inspired the drafting of the new Civil Code. A part from this, due to the reason that most of legal provisions dealing with civil matters have scattered and are insufficient, compilation of those legal texts followed by updated provisions is required, which makes the new Civil Code a unified, consistent and complete set of civil laws.

The new Civil Code is divided into nine books consisting of 1305 articles. Each

book will be shown in brief as follows.

Book one sets out general provisions embracing 5 articles. The Book one

provides general rules which are fundamental principles for the whole code. Those principles are related to legal relations in civil matters, especially the property-based relation and family relation, principle of equality between men and women, particularly rights over property guaranteed by the Constitution, principle of private autonomy and the principle of good faith, bona fide.

Book two of the new Civil Code comprises of 113 articles. The Book two of the new Civil Code determines types of “persons.” Persons are divided into twocategories: natural person and juristic person. The significant features of natural person under this Book are that natural person is a subject of right and obligation, and of transaction whose legal personality is protected. Beside defining precisely the term “juristic person,” the new Civil Code contains detailed provisions categorizing such said person, requirements for establishment, registration, management and administration, dissolution and liquidation of juristic person. This new Civil Code has detailed provisions on non-profit juristic person. Non-profit juristic persons under this new Civil Code are known as “incorporated association.”

In order to establish incorporation, members shall form article of incorporation

specified by the provisions of this new Civil Code and register thereafter.


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Similarly, incorporated foundation may be established according to the requirements set forth by law, yet it shall also be permitted by public institution, too.

Book three is the main part of the new Civil Code which concerns “real right.” This Book consists of 189 articles. Real right under this new Civil Code is included ownership, right to possess, right to use, right to enjoy fruits and real security right. Ownership provided in this new Civil Code is an exclusive right, which is separated and universal over property subject to this ownership within the scope limited by law. Acquisition of ownership may be made by contract, succession, and extinctive prescription or by other grounds provided by law.54 Ownership may be asserted against the third party only if it complies with the conditions for perfection required by this code or law. Assertion against third party over ownership of immovable may be made only if the transfer of ownership is registered. However, transfer of ownership over movable may be valid against third party only if the possession is transferred therewith. However, to secure the transaction over movable, the new Civil Code embraces the provisions concerning the bona fide acquisition. This means in the event that the transferee obtains, in good faith and without default, the movable subject to the contract by transfer, even if the transferor is not entitled to ownership thereto, the transferee shall be immediately assumed to have ownership over the said immovable. However, there are special provisions concerning lost or stolen items.

Under the new Civil Code, “possession” refers to holding of a thing, while

“holding” means the state of controlling a thing as a matter of fact, whether directly or indirectly.55 Such possession enables the possessor to be assumed as having right over the possessed property; thus, this will prevent the third party from recovering remedy by him or herself. Thus, this practice will sustain the stability of statutory real right. As transfer is a condition to assert the real right against the third party, the new Civil Code also provides particular forms of transfer of possession as follows:

(1) Possession is assigned by delivery of the thing in possession. This form of

assignment of possession is referred to as “actual delivery”. 56

54 New Civil Code 2007 (hereinafter NEW CODE), at article 16055 Id. at Article 22756 Id. at Article 229 (1)


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(2) Possession may be assigned without actual transfer, but merely by

agreement of the parties. In this case, the assignee of possession acquires the indirect possession through [the direct possession of] the assignor. This form of assignment of possession is referred to as “assignment of possession by agreement.” 57

(3) If the assignee of possession currently actually holds the thing directly, possession may be assigned by agreement of the parties alone. In this way, the assignor of possession loses the indirect possession that he had through the holder of the thing. This form of assignment of possession is referred to as “summary delivery”. 58

(4) A person who possesses a thing indirectly through another person may

assign possession to a third party by agreement with such third party and notice to this effect to the person in direct possession. This form of assignment of possession is referred to as “assignment of possession by direction”.59

Book four consists of 207 articles, centering on “obligation,” such as causes,

modification and extinguishments of obligation. According to this new Civil Code, obligation may arise as a result of contract, unilateral legal act, management of affairs without mandate, unjust enrichment, tortious act, and of provisions of law. Most of the provisions of this Book focus in details on obligation arising out of contract.

Book five contains 251 articles all of which provides provisions related to particular contracts and tortious acts which determine the obligations arise as a result thereto.

Obligation arises as a result of a contract is known as “contractual obligation”,

while obligation arises as a result of provisions of law is called “statutory obligation.” According to the new Civil Code, statutory obligation is a result of tortious act, management of affairs without mandate, or unjust enrichment. Together with this determination, the new Civil Code also requires the relation between “cause and effect” of tort, management of affairs without mandate and unjust enrichment which will provoke obligation as a result

57 NEW CODE, supra note 54, at article 229 (2)58 Id, at article 229 (3) 59 Id. at article 229 (4)


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thereof. The provisions related to obligations are drafted based on the fault-base principle, which obviously means “no fault, no obligation.” However, there are exceptional provisions to remedy the victims even though no fault may be proven. Such provisions relate to liability of animal possessor 60 , product liability 61 and liability of dangerous item. 62 This liability is a statutory assumption to enforce on the indirect tortfeasor in order to remedy the victim. This may be called “principle of liability without fault.” There are 13 certain contracts under the new Civil Code: sales, exchange, gift, loan for consumption, lease, loan for use, and mandate, contract for work, contract of employment, bailment, partnership, life annuity and compromise.

Comparatively, the new Civil Code provides more provisions on types of contracts than the Decree Law No 38 does.

Book six comprises of 172 articles, basically giving provisions on “security.”

The Book on security provides two fundamental types of security: real security and personal security. Real security covers right of retention, preferential right created by laws, right on pledge and security interest under a transfer as security established by the agreement between parties concerned. Hypothec and security interest under a transfer as security are real right admitted by contractor(s) who will continue possessory right and enjoy fruits from that collateral. For personal security, there consists of guaranty and joint obligation. Where multiple persons have assumed a joint obligation, the obligee may demand full or partial performance from any individual obligee or from all of the obligees simultaneously or separately.63 As to meet the necessity of free market economy, the new Civil Code also provides the provisions in relation to floating guaranty which refers to the guaranty of prospective obligation as a result of any ongoing legal relation.

Book seven is concerning with relatives, consisting of 207 articles. The new

Civil Code modernizes the Family Law 1989 and establishes numerous provisions with more principles. According to the new Civil Code, relatives refer to the relatives by consanguinity up to six degree, while this refers also

60 NEW CODE, supra note 54, at article 75061 Id. at article 75162 Id. at article 75263 NEW CODE, supra note 54, at article 291


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relatives by affinity up to only three degree.64 A part from the clear distinction on the degree of relatives, the new Civil Code also takes a further step towardsdealing with “engagement” which never exists in the contemporary law, the Family Law 1989. The “engagement” chapter provides articles concerning the formation of engagement, 65 return of engagement gift upon dissolution of engagement66 and liability for proper revocation of engagement.67

In addition to changes in the new Civil Code as described in the preceding paragraphs, there are significant changes which proves the further development in Cambodian family law: (1) age restriction for both opposite sexes regarded as eligible for marriage, and (2) a period within which a divorced woman has to stay in widowhood until when she can legally remarry. In the contemporary law (law on marriage and family 1989), a woman, in principle, may enter into a valid marriage at the age of 18, while a man has to wait, in principle, until he reaches the age of 20.68 However, the new Civil Code provides that both man and woman may contract a valid marriage when they reach age of 18.69 Feminism is apparent in the new Civil Code as it is taking another advanced footstep toward reducing unnecessary long awaited period for remarrying after the first divorce. The new Civil Code requires a woman to stay in widowhood just for 120 days after former divorce so that she can legally remarry. 70 Book seven goes further to providing numerous provisions to govern parent-child relation.

As parent-child relation may also be established by legal relation, this new

Civil Code enlists provisions concerning adoption. In the current law, there is no distinction between full and simple adoption. Yet, this new Civil Code makes it clear between full adoption and simple adoption. As full adoption leads to the termination of relation with blood parents, 71 there are strict conditions prior to the formation of full adoption and post adoption.

64 Id. at article 93865 NEW CODE, supra note 54, at article 94466 Id. at article 94567 Id. at article 94668 L.M.F 1989, supra note 10, at article 569 NEW CODE, supra note 54, at article 948 and article 1770 Id. at article 95071 Id. at article 1007


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Prerequisite condition also includes the “trial period of care,”72 which takes place for six months as a period within which the prospective adopted child will get familiar with prospective adoptive parents. Although full adoption is in effect, the child may not marry his/ her blood parents from whom the formerrelation is terminated.73 On contrary, simple adoption may be effected by any individual whose age is not less than 25 and who complies with minimum criteria set forth in the new Civil Code. Simple adoption does not terminate relation with his/her natural parents, yet the child is still entitled to succession right.74

Book eight deals with succession and it consists of 160 articles. There are two systems of succession: (1) succession system, and (2) liquidation system. The new Civil Code employs the principle of “succession system,” through which a successor will have to succeed all rights and obligations of the decedent at the opening of succession. There are two types of succession under the new Civil Code, “statutory succession” and “testamentary succession.” Succession by law, according to this new Civil Code, constitutes three ranks of successor: first-ranking successor, second-ranking successor and the third-ranking successor. Successor of the first rank is the child of the deceased, and if the deceased has more than one child, each child shall be entitled to equal portion of the inheritance regardless of whether they are natural children or adopted ones.75

There are two noticeable approaches in succession law under this new Civil Code. First, there is no more distinction between legitimate or illegitimate child’s rights to inheritance. This means that as long as it can be proved that one is a child of a deceased, even born out of wedlock, he or she is entitled to inherit the equal portion with other children of the deceased. Second and last, the spouse of the deceased is the successor in every case.76 This means If a person other than the spouse of the deceased is to become a successor of a first rank, or second rank, or third rank, in addition to the spouse, the spouse shall rank equally with such other person. However, the method of calculation of the shares of succession by the spouse when there are other successors in addition to the spouse is as follows:

72 NEW CODE, supra note 54, at article 101373 NEW CODE, supra note 54, at article 95174 Id. at article 102675 Id. at article 1156 76 NEW CODE, supra note 54, at article 1161 (1)


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a) If the successors are the spouse and lineal descendants, the spouse and each of the descendants shall succeed in equal shares;

b) If the successors are the spouse and the decedent's parents, the spouse shall succeed to a one-third share and the parents to a two-thirds share; provided that, if only one of the parents of the decedent is still alive, such parent and the spouse shall succeed in equal shares;

c) If the successors are the spouse and lineal ascendants other than the decedent's parents or siblings or their successors by representation, the spouse shall succeed to a one-half share and the lineal ascendants other than the decedent's parents or siblings or their successors by representation shall succeed to a one-half share.77

According to the new Civil Code, the spouse, especially the female one, of the deceased will no longer suffer from the revocation of rights towards inheritance of his or her spouse as the former spouses in the Old Code did.

A part from the statutory succession described earlier, the new Civil Code admits the freedom of the property owner in disposing his or her property. Thus, testamentary succession is admitted whereby the deceased may, as long as he or she complies with the requirements set forth in this new Civil Code, make will concerning allocation of inheritance which successor(s) will inherit accordingly.78 There are bundles of provisions to protect the interests of the testator and successor in testamentary succession in Book eight.

Besides the detailed provisions on such matters of succession mentioned above, the new Civil Code establishes more provisions on legally secured portion, acceptance and renunciation of succession, partition of succession property, non-existence of successors and recovery of succession.

In short, the new succession law in Cambodia, as integrated into this new Civil Code, is established based on the spirit of respect to the will of the testator, equal rights of successors and non-discrimination against female spouses as well as strict mechanism to inspire the proper interpretation of this law in order to ensure that the rights of concerned people are guaranteed.

Book nine is the final book of this new Civil Code contains a single article, article 1035. It establishes the provision determining the time from which the new Civil Code shall apply and how to deal with transitional matters and other matters when this new Civil Code takes effect.

II-Prospective Application and Anticipated Outcomes

77 NEW CODE, supra note 54, at article 116278 Id. at article 1168


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It is believed that the new Civil Code of Cambodia is one of the best civil codes

containing sufficient provisions to possibly deal in civil matters. To ensure the enforceability of this new Civil Code, other associate laws, particularly procedural laws, such as Law on Bailiff, Law on Personal Status Litigation, Law on Civil Fine and Non-Suit Civil Case Procedural Law are being prepared and expected to be adopted just in time the new Civil Code comes into force. However, smooth application of this new Civil Code is questionable. There are few legitimate reasons for doubting about this.

As Cambodia is struggling with fulfilling the requirements set out by WTO, Cambodia is still bound by obligation to draft and enact more laws. Noticeably, Cambodia usually receives assistance from its donor countries whose legal systems employ common law one. Thus, concept and drafting framework, to some extent, contradict to those employed by new Civil Code which will possibly lead to the conflicting interpretation and application. For example, some latest draft laws whose real purpose is to govern the commercial activities establish provisions extending their scopes to govern civil acts, which are supposed to be and have already been governed by the provisions of the new Civil Code. Hence, if adopted and applied, those special laws will repeal the provisions in the new Civil Code which makes the Civil Code becomes unenforceable concerning those matters. As a result, attempt to harmonize the special draft laws with the new Civil Code has been made dozen of times resulting in hindering the speedy process of adoption of the new Civil Code.

There are more drafts sponsored by common law oriented donor countries

expected to be adopted by the National Assembly of Cambodia. If those drafts do not conform to the general law, the new Civil Code, problems of application of Civil Code will inevitably emerge. Yet, problems may be avoided if Cambodian law drafters and lawmakers learn to distinguish between special and general laws. More importantly, complications may be reduced if they even have a sense of hybridizing the two major legal systems on which the current draft laws are based so that Cambodia can have a nationalized and unique legal system no matters from where Cambodia import those drafts.

By Boren & Senera SAR

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Introduction to Cambodian Civil Law-Civil Code

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Transcript of Introduction to Cambodian Civil Law-Civil Code