Flow of proceedings of court of first instance of civil litigation in Cambodia

1- Filing a suit stage

Civil litigation starts from filing a suit to court (article 75). The matters which are necessary to write down in complaint, are: (1) the identities and address of parties, (2) identities and address of legal representative, (3) content of judgment sought and fact necessary to specify the claim pertaining to article 75, paragraph 2 item A and B. The matters, which are also necessary to write in complaint, are fact necessary to support the claim, article 75, and paragraph 3. These matters are not only let other party knows and understands the plaintiff's demand, but also court can smoothly prepared the point at issue and proceeds litigation.

After court received complaint, the court will distribute the case based on article 26.  This article is new and it will be a big change to Cambodian’s practice. Since the current practice, president of the court has the right to distribute case to each judge. However, article 26; paragraph 1 of CCP stipulates that the distribution of cases within a court and the order of appointment of substitute judge where there is a problem in using a particular judge [in a case] shall be determined in advance for each year by the director of that court.

After the complaint is submitted, court will start examining the complaint (Article 78).  If the complaint lacks some points, court will ask plaintiff to cure his/ her complaint.

In case plaintiff doesn't write as requirement of article75 (2), the court will ask plaintiff to cure it in appropriate time, if she/he doesn't cure such matters, the court will dismiss the complaint without prejudice by ruling, based on article 78, paragraph 1 and 2. 

Even the complaint is not written following as article 75 (3), court cannot dismiss the complaint.

2- Preparatory Proceeding for Oral argument (PPOA)

After the complaint is investigated, the court shall serve such complaint to defendant (article 79, paragraph 1). Then court set a first date of preparatory proceeding for oral argument "PPOA" (article 80, paragraph 1).The court shall set the first date of PPOA in duration of 30 days which counted from the day of submission of complaint (article 80, paragraph 2). PPOA is done in order to arrange and organize the allegations and argument of the parties, to clarify the points at issue in the case, and to organize the evidence pertaining to points at issue (article 103). It is also a step, in which, before we move to Proceeding for Oral Argument (POA).  At the PPOA, court shall be conducted on the date on which both parties can appear (article 105) and court shall respect the principle of La Contradiction, stated in article 3.  PPOA need not be opened to the public. However, the court may permit the attendance of persons determined to have good cause to be present as an observer (article 105, paragraph 2).

Article 104 (Attempt to compromise at preparatory proceedings for oral argument); at PPOA, the court shall first seek to effect a compromise settlement. It is not only PPOA that court try to compromise, but court may attempt to compromise settlement at any stage of the litigation (article 97). In PPOA court can examine documentary evidence to the extent necessary to arrange or simplify disputed issues and evidence (article 106). After PPOA conclusion, party cannot submit new offensive or defensive measure (Article 108), and court shall designate a court date for oral argument (article 113).

3- Proceeding for Oral Argument (POA)

At the first date of POA, court will ask parties to make statement about the result of PPOA (article 116, paragraph 1). POA shall be done in public (article115 paragraph, 2). The court shall guarantee parties the opportunity to attend examination of evidence (article 128, paragraph 1); and court shall respect principle of La Contradiction which stipulated in article 3. POA is an examining stage which is similarity with current practice (trial stage).

Method of examination of evidence:

1. Examination of witnesses (article132)
2. Examination of parties (article140)
3. Expert Testimony ( article 143)
4. Documentary evidence (article148)
5. Inspection (article161)

Note: in principle: if party admitted a fact, such fact doesn't need to be proved by evidence. If one fact is denied, such fact shall be proved by evidence, article 123, paragraph 2. Examination of evidence shall be carried out upon the offering of evidence by the parties, article 124, paragraph 1.

4-  Judgment  

When court concludes the oral argument, the court will issue the final judgment.

Judge shall write judgment which follow article 189 is enough. 

Legal Framwork of NGOs in Cambodia

International Center for Not-for-Profit Law ((ICNL) issued its newsletter related challenge of NGOs in the world. This publication also quoted my article on Legal Framework of NGOs in Cambodia.

Letter from the Editor
This issue of the International Journal of Not-for-Profit Law leads off with a
comprehensive overview of the legal framework for global philanthropy. The report was
commissioned by the Council on Foundations as a contribution to Global Philanthropy
Leadership Initiative, a joint project of the Council on Foundations, the European Foundation
Centre, and the Worldwide Initiative for Grantmaker Support. Prepared by David Moore and
Douglas Rutzen of the International Center for Not-for-Profit Law, the report finds that although
cross-border giving has reached impressive levels, restrictive laws have prevented it from
achieving its full potential. The report examines laws in both donor countries and recipient
countries that have constrained cross-border giving, featuring examples from the United States,
Europe, and elsewhere. It proposes a wide array of options designed to reduce barriers to crossborder
philanthropy, and considers the challenges they may face.

The issue also features a timely look at the laws governing NGOs in Cambodia, by Ke
Bunthoeurn. The author summarizes and analyzes the pertinent rules and sets forth potential
reforms that would bring Cambodian NGO law into line with the country‘s constitution as well
as applicable international agreements. This analysis is presented at a moment in which
controversial and restrictive legislation has been proposed by the Government of Cambodia, with
only belated and so far largely disregarded consultation with civil society organizations, and
without consideration of key recommendations in Mr. Bunthoeurn‘s thoughtful article.

Finally, Myles McGregor-Lowndes provides an update on an important Australian case.
In AID/Watch Inc. v. Commissioner of Taxation, the High Court concluded that seeking to
promote public debate qualifies as a charitable purpose.
We appreciate our authors‘ willingness to share their insights on current issues affecting
freedom of association and civil society.
Stephen Bates
Editor
International Journal of Not-for-Profit Law
sbates@icnl.org

For more information relating this articles please click http://www.icnl.org/knowledge/ijnl/vol13iss1/art_1.htm

Guarantor Obligation in the contract

If law required that person who makes contract must write the content of contract by him/herself, but in reality, the person cannot read or write, what will party do instead of his/her illiterate?

According to Article 900(1) of Civil Code (CC), a guaranty shall be formed when (1) a prospective guarantor undertakes to the obligee that in the event the obligor (principal obligor) fails to perform his obligation (underlying obligation), the prospective guarantor will perform the whole or part of such obligation together with the obligor(guarantor’s obligation), and (2)the obligee accepts such undertaking. Therefore even when the amount of the guaranty obligation is not set forth in the guarantor’s handwriting, the contract of guaranty is still valid but it may be revoked by the guarantor at any moment (Art.901(2)).

If the guarantor is illiterate and could not write the amount of the guaranty obligation, the contract of guaranty is valid but may be revoked at any moment. Therefore counter party is not willing to enter into the contract of guaranty with a prospective guarantor who is illiterate. But it is inconvenient for the illiterate person.

There might be some way for the illiterate person to enter into the contract of guaranty which may not be revoked. In other word, there might be cases in which the judge may consider that there is substantial “guarantor’s handwriting” even if there is no actual handwriting of guarantor. For example in the case that an illiterate person A entered into the contract of guaranty, his/her son B attended him/her and wrote “ I handwrote the amount of the guaranty obligation instead of A because A is illiterate” as well as the amount of the guaranty obligation instead of A. If you, the judge consider this substantially same as “guarantor’s (A’s) handwriting” , A cannot revoke this contract because Art.901(2) does not apply. Whether you should consider this to be A’s handwriting or not depends on the situation. So this is a matter of interpretation of “guarantor’s handwriting”(Art.901(2)) and it’s up to the Cambodian judge’s decision.

In deciding whether it shall be considered as “guarantor’s handwriting” or not, you shall keep the purpose of Art.901(2) in mind.  The purpose of Art.901(2) is to protect an interest of guarantor. Art.901(2) protects an interest of guarantor by requiring his/her handwriting because prospective guarantor becomes more considerate and careful where he/she handwrites the amount of the guaranty obligation in entering into the contract of guaranty. Therefore if the substitute way for the guarantor’s handwriting is against the interest of guarantor, we cannot say this substitute way is substantially same as “guarantor’s handwriting”, so the judge may not consider this substitute way to be “guarantor’s handwriting” . 

Real Rights Resume in Cambodia

It is a lesson for teaching student at university that I did it since last year. It is a only information for you to study about the real right in Cambodia. This lesson is focused on theory which is stated in the new civil code. The civil code in Cambodia was adopted by National Assembly since 2007 but it was not implemented yet because this code need many law to support it.

However the Civil Code will be implemented within this year because the draft law on implementation of it has been reached to national assembly since December 2010.

Please click here to link the document.

If you have any comment on it, I am welcome. 

Legal Framework of NGOs in Cambodia

Since 1995, the Cambodian Government has initiated draft laws on NGOs and Associations in order to govern the conduct and operation of NGO’s. Moreover, in the early of the Royal Government in the 4^th mandate announced on finalize the NGO and Association Law and according to National Strategy Development Plan 2009-2013 also mentioned on NGOs law as in page 26 “A law on NGOs will be passed after wide consultation with all stakeholders” and page 112 “the Royal Government will continue to pursue the adoption and implementation of Law on Non-Government Organizations (NGOs) and in close consultation with relevant agencies and organization.”. Reference to announcement of Royal Government and it strategy plan, NGO’s have reviewed and considered the proposed laws, and believe that their ability to work on important social issues will be significantly hampered. Human Rights NGO’s are seriously concerned that the government is intent on using the proposed NGO law to control and limit their rights and operations. They fear restriction of the human rights of free assembly and restricted freedom of expression – both rights are guaranteed in the Human Rights Declarations signed by the Cambodian Government as well as in the Cambodian Constitution.

However, NGOs are playing an important role for Cambodian society. They are working directly with people in remote areas to provide legal services, capacity building, and other important activities.  Royal Government of Cambodia recognized NGOs’ development role in Cambodia and also put its strategy to work with NGOs as a partnership. However, the relationship between Royal Government of Cambodia and Non Governmental Organization (particularly human rights NGOs) has not been good since 2008. Because of the stated fear that those NGOs could obtain funds or donations from terrorist groups during his term, the Prime Minister sought enactment of a draft NGO Law by the National Assembly in order to control or manage NGO activities. Currently, the draft is under consideration at the Ministry of Interior (MoI) and the Ministry of Foreign Affairs. On August 10, 2010, MoI issued a letter seeking funding for public consultation. 


This is a first edition of book on Legal Framework of NGOs in Cambodia. Please click here (Kh or English) to download the book. 

Local Insight Global Impact

In Cambodia, the government announced that a long-anticipated draft NGO law will soon be made available.  Consistent with ICNL’s policy of strengthening local capacity, we provided a one-month fellowship to a Cambodian lawyer, Bunthoeurn Ke.

Mr. Ke researched how internationally observed principles may support freedom of association and energize

This is an annual report from International Center for Not for Project Law (ICNL) that I was interned over there. In order to know clearly about this matter please see the page 8 of this report.

Please click here to link information.

Thanks