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.