OUTLINE

FOR
CDS PRESENTATION
(February 2009)
TOPIC: Personal Status Litigation Procedure:
Inquisitorial System vs. Party’s Disposition Right

I. What is Civil Procedure?

Civil Procedure deals with just about every other aspect of judicial adjudication of
civil disputes, that is, the process for resolving civil disputes about rights and
duties under the substantive law through formal adjudication by courts staffed by
judges.

II. System of Civil Procedure

1. Inquisitorial System and Its Significant Features
2. Adversary System: Significant Features
a) (Party’s) Disposition Rights Principle—Principle that party can shape the
litigation ((当事者）処分権主義—訴訟は当事者が決まりをつける原則)
- Right to program (when to start and end) Litigation (プロラム設定の処分権
と訴訟終了の処分権)
- Right to request for matters to be adjudicated (申し立て事項と判決事項)
- Withdrawal of suit and Dismissal/Acknowledgment of Claim(訴えの取り下
げと請求の放棄・認諾
- Judicial Compromise Settlement (訴訟上の和解)
b) Oral Argument Principle(弁論主義)
-Fact not asserted by party(s) cannot be basis for judgment—Obligation for
Assertion
-Fact not disputed by parties shall be the basis for judgment—Self-binding
Effect
- To admit a fact disputed by a party as having existed, court shall base on
evidence offered by party(s)—Prohibition of Examination of Evidence on
Court’s Own Authority

III. Systems Employed by Cambodia

1. Prior to July 2007: Inquisitorial System
2. After July 2007: Adversary System—Code of Civil Procedure of Cambodia
(enacted in June 2006 and enforced from July 2007

IV. Personal Status Litigation Procedure (PSLP)

1. Concept of PSLP—Procedure for handling the suits for the formation of, or
the confirmation of the existence or non-existence of a family relationship.

2. Scope of Application
 a) Marital Suits
- Suit for the confirmation of the invalidity of a marriage
- Suit for the cancellation of a marriage
- Suit for a divorce under Article 978 (Grounds for Divorce) of the Civil
Code.
b) Parent-Child Relationship Suits
- Suit for the denial of a father-child relationship
- Suit for an acknowledgement
- Suit for the confirmation of the non-existence of a parent-child
relationship
- Suit for the confirmation of existence or the non-existence of a
mother-child relationship
- Suit for the dissolution of an adoption

V. What are the Problems?

1. Article 21: The court shall, when it renders a judgment in favor of a plaintiff
in a suit seeking the annulment of a marriage or a divorce, ex officio hold a trial for
the designation of the party to have parental authority…
- Paragraph 2 of article 182 (Matters for judgment) of the Code of Civil Procedure
shall not apply to a trial held under paragraph 1…herein.

2. Article 13: A court in personal status litigation may base its judgment on any
facts not alleged by either party, provided, however, that the court shall hear
opinions from the parties regarding such facts.

VI. Why?
1. Exemption of Adversary Principle ( 弁論主義): Assertion of Facts and
Submission of evidence will/ may be useless.
2. Court’s Authority (職権探知): (1) Concerns about Fact Finding Ability, (2)
State budget for Funding the Fact Finding Process
3. Litigation Costs Matter—losing party shall bear the costs incurred by ex
officio fact finding?

VII. Prospective Solution:

- Limit the scope of exercise of (ex officio) authority, by
- Considering each type of personal status case to apply inquisitorial system
and/or adversary system.
VIII. Research Methodology
- Comparative Studies (mainly focused on Japanese related laws)
- Japanese approaches (theoretical and practical issues)
- Possible recommendation to Cambodia