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Saturday, July 4, 2015

Chapter Two COURT - Section I. Jurisdiction

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Chapter Two COURT
Section I. Jurisdiction
7. (Meaning of court having jurisdiction)
A court having jurisdiction, shall mean a court that has the right to receive a complaint, adjudicate an action, and render a judgment.

1 "La Contradiction" is the principle of trial in which all opposing parties sit face to face and are provided an equal opportunity to present their legal or factual assertions.

8. (Jurisdiction conferred by address, etc.)
Actions against the following types of persons shall be brought in the court of first instance that has jurisdiction over the location indicated below:

(a) a natural person:
- [1] his/her domicile; [2] the location of residence, where such natural person does not have a domicile within Cambodia, or where his/her domicile is unknown; or [3] his/her last known domicile, where such natural person does not have a location of residence within Cambodia, or where the location of his/her residence is unknown.

(b) a Cambodian juridical person:
- [1] the location of its administrative headquarters or business office; or [2] the location of the domicile of the entity's representative or other principal person in charge of the operations of the entity, where there is no administrative headquarters or business office.

(c) a foreign juridical person
- [1] the location of the entity's administrative headquarters or business office in Cambodia; or [2] the location of the domicile of the entity's representative or other principal person in charge of the operations of the entity in Cambodia, where there is no administrative headquarters or business office within Cambodia.

9. (Jurisdiction based on property, etc.)
In addition to the courts specified in Article 8 (Jurisdiction conferred by address, etc.), the following types of actions may also be brought in the court having jurisdiction over the location set forth below:

(a) actions demanding performance of obligations:
- the location where the obligations are to be performed;
(b) actions demanding payment of money on bills or checks:
- the location where payment on the bill or check is to be made;
(c) actions demanding performance of obligations against persons who have no domicile in Cambodia, or those whose domicile is unknown:

- the location of the defendant's property which is the subject of the claim or security interest, or which may be seized;

(d) actions demanding performance of obligations against juridical persons that have no administrative headquarters or business office in Cambodia, or those whose administrative headquarters or business office is unknown:

- the location of the defendant's property which is the subject of the claim or security interest, or which may be seized;

(e) actions against persons having an administrative headquarters or business office and pertaining to business transacted therein:

- the location of the administrative headquarters or business office;
(f) actions based in tort:
- the location where the alleged tort occurred;

(g) actions pertaining to immovables:
- the location of the immovable;

(h) action pertaining to registration:
- the location at which the registration is required;

(i) actions pertaining to deceased's estate:
- the location of the domicile of the deceased at the time the inheritance commences, or if such person does not have a domicile in Cambodia or his/her domicile is unknown, the location of his/her residence, or if such person does not have a location of residence in Cambodia or his/her location of residence is unknown, the location of his/her last known domicile.

Section I. Jurisdiction part 10 - 21

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10. (Special jurisdiction in cases involving divorce, parent-child relationships)
1. An action for divorce or an action to confirm the existence or nonexistence of a parent-child relationship shall be heard exclusively by the court of first instance having jurisdiction over the location of the domicile of the person whose statue is related to the action.

2. Where the domicile described in Paragraph 1 is not within Cambodia, or where a domicile within Cambodia is not clear, the location of residence shall be used. Where there is no location of residence, or where such location of residence is unclear, the last known domicile shall be used.

11. (Jurisdiction over joint claims)
Where one action encompasses multiple claims that are subject to the jurisdiction of different courts, all claims may be brought in the court having jurisdiction over one of the claims.

12. (Designation of court having jurisdiction)
Where the court having jurisdiction cannot exercise its jurisdiction for any reason based in law or fact, or if the court having jurisdiction cannot be designated because the jurisdictional district is unclear, the Supreme Court shall, upon motion and by ruling, determine the court having jurisdiction.

13. (Jurisdiction by agreement)
1. An agreement that determines the court having jurisdiction shall be valid only where it is made between merchant(s) and/or juristic person(s) with regard to the court of first instance.

2. The agreement referred to in Paragraph 1 shall not be valid unless it pertains to an action based on a specific legal relationship and is made in writing.

14. (Jurisdiction as a result of failure to raise objection)
Where, at the court of first instance, the defendant makes statements on the merits at the court dates of the preparatory procedure for oral argument or offers argument on the merits at the court dates for oral argument without contesting jurisdiction, the court shall be deemed to have jurisdiction [over the case].

15. (Exception in case of statutory exclusive jurisdiction)
The provisions of Articles 13 (Jurisdiction by agreement) and 14 (Jurisdiction as a result of failure to raise objection) shall not apply to actions regarding which exclusive jurisdiction is conferred by law.

16. (Examination of evidence on court's own authority)
The court may examine evidence on its own authority in regard to matters relating to its jurisdiction.

17. (Time of determination of jurisdiction)
The jurisdiction of the court shall be determined as at the time when a complaint is filed.

18. (Handling of situations where jurisdiction does not exist)
1. Where the court determines that it lacks jurisdiction over all or part of an action, it shall transfer such action or part thereof to a court having jurisdiction, upon motion or on its own authority.

2. The motion for transfer shall be made in writing, except where it is made at a court date. Where such a motion is made, the reasons for the motion shall be clearly stated.

19. (Transfer to avoid delay, etc.)
1. A court of first instance may, even where an action falls under its jurisdiction, upon motion or on its own authority, transfer all or part of such action to another court having jurisdiction if it determines that such a transfer is necessary in order to avoid significant delay in the progress of the action, or in the interest of fairness to the parties. Such transfer shall take into account the location of the domiciles of the parties and the witnesses to be examined, the location of the objects to be inspected, and any other relevant matters.

2. Where a motion is made by a party pursuant to Paragraph 1, the court shall consider the opinion of the other party when making its ruling. When determining on its own authority to order a transfer pursuant to the provisions of Paragraph 1, the court may consider the opinions of the parties.

20. (Restriction on transfer in case of exclusive jurisdiction)
The provisions of Article 19 (Transfer to avoid delay, etc.) shall not apply where the action falls by law under the exclusive jurisdiction of the court before which the action is pending.

21. (Chomtoah Appeal)
A Chomtoah appeal may be made against a ruling ordering a transfer or dismissing a motion to transfer.

22. (Binding effect, etc. of transfer ruling)
1. Where a ruling to transfer an action has become final and binding, the ruling shall be binding on the court to which the action has been transferred.

2. The court to which an action is transferred may not transfer the action to another court.

3. When a ruling to transfer an action has become final and binding, the action shall be deemed pending ab initio before the court to which it has been transferred.

4. When a ruling to transfer an action has become final and binding, the court issuing the ruling to transfer shall forward the record of the case to the court to which the action has been transferred.

Section II. Structure of Courts part 23-25

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Section II. Structure of Courts
23. (Individual and panel systems for trials of first instance)
1. Courts of first instance shall handle cases by a single judge, except for the cases described in Paragraph 2.

2. The following types of cases shall be handled by a panel of judges:
(a) cases in which the value of the subject matter of the action equals or exceeds 5 million riels, and it is determined that adjudication of the case using a panel of judges is appropriate, taking into consideration the number of parties and any other relevant circumstances;

(b) cases in which it is established by law that the case should be heard and adjudicated by a panel of judges.

3. A panel described in Paragraph 2 shall consist of three judges, one of which shall be the presiding judge.

4. Where a panel of judges conducts the trial and decision pursuant to the provisions of subparagraph (a) of Paragraph 2, the panel shall issue a ruling as such.

24. (Deliberations of panel)
1. The deliberations of a panel in a case shall not be open to the public.
2. The deliberations shall be commenced and controlled by the presiding judge.
3. Each judge shall express his/her opinions during the deliberations.
4. The progress of the deliberations, as well as the opinions of the judges and the size of the majority, shall be maintained in strict secrecy.

25. (Decision by panel)
1. A case shall be decided in accordance with the opinions of the majority of the judges comprising the panel.
2. Each judge comprising the panel shall be given an equal vote.

Tuesday, June 30, 2015

Section III. Distribution of Cases and Exclusion and Challenge of Judges, etc. Part 26-31

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Section III. Distribution of Cases and Exclusion and Challenge of Judges, etc.

26. (Distribution of cases)
1. The distribution of cases within a court, and the order of appointment of substitute judges where there is a problem in using a particular judge [in a case] shall be determined in advance for each year by the president of that court.

2. Cases shall be distributed automatically to each judge pursuant to Paragraph 1.

3. The distribution of cases within a court and the order of appointment of substitute judges where there is a problem in using a particular judge, as described in Paragraph 1, shall not be changed during the year except where one judge is deemed to have an excessive workload, or where a judge retires or is transferred, or where there is a continuing problem in using a particular judge due to the long-term absence of the judge or other reasons. Changes made for these reasons shall be decided on by the president of that court.

27. (Exclusion of a judge)
1. A judge shall be excluded from performing his/her duties in any of the following situations:
(a) where the judge or the judge's current or former spouse is a party;
(b) where the judge is a relative by blood of a party within the sixth degree of relationship, or is or was a relative by affinity within the third degree of relationship;

(c) where the judge is the guardian of a party;
(d) Where litigation is or was pending between the judge and a party;
(e) where the judge has become a witness or an expert witness in the case;
(f) where the judge is or was the attorney or assistant for a party in the case; or
(g) where the judge has participated in arbitration in the case, has participated in a prior decision in the case regarding which an appeal was filed or in a decision of an inferior court, or has offered legal advice in the case.

2. Where any of the reasons for exclusion described in Paragraph 1 exist, the court shall render a decision to exclude the judge upon motion or on its own authority.

28. (Challenge of a judge)
1. Any party may challenge a judge where circumstances exist with respect to the judge that would hinder the impartiality of the judge's adjudication.

2. A party who has made oral argument or has made a statement during the preparatory procedure for oral argument before a judge may not challenge that judge. However, this shall not apply where the existence of the ground for challenge was unknown to the party, or where the ground for challenge arose after the making of the argument or statement.

29. (Recusal)
A judge may recuse him/herself or herself from a case with the permission of the director of the court to which the judge belongs where the provisions of Paragraph 1 of Article 27 (Exclusion of a judge) or Paragraph 1 of Article 28 (Challenge of a judge) apply.

30. (Ruling on exclusion or challenge)
1. The exclusion or challenge of a judge shall be determined through a ruling rendered by a panel of judges of the court to which the judge belongs.

2. A judge may not participate in a decision regarding his/her own exclusion or regarding a challenge submitted against him/her. However, the judge may offer an opinion with respect to the motion for exclusion or challenge.

3. A motion for exclusion or challenge shall be made in writing and by establishing to a preliminary showing the existence of the grounds therefor.

4. Where a motion for exclusion or challenge is filed, the proceedings in the case shall be halted until the ruling on the motion becomes final and binding. However, this shall not apply to the preservation of evidence or other urgently needed actions.

5. An appeal may not be filed against a ruling ordering exclusion or granting a challenge.
6. A Chomtoah appeal may be filed against a ruling denying exclusion or challenge.

31. (Mutatis mutandis application to court clerk)
The provisions of this section shall apply mutatis mutandis to court clerks. In such cases, the ruling on a motion for exclusion or challenge shall be rendered by the court to which the court clerk belongs.

Chapter Three PARTIE - Section I. Capacity to be Party and Capacity to Litigate - Part 32-36

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Chapter Three PARTIES
Section I. Capacity to be Party and Capacity to Litigate
32. (Capacity to be party, capacity to litigate, representation of persons lacking capacity to litigate)

1. Persons who are entitled to exercise rights or assume obligations in their names pursuant to the provisions of the Civil Code or other laws may be a plaintiff or defendant in a civil suit.

2. Persons who have the capacity to independently perform [legal acts] pursuant to the provisions of the Civil Code or other laws may file a suit on their own as a plaintiff, answer an action as a defendant, or conduct any other necessary acts of litigation.

3. Minors and persons placed under general guardianship may not conduct valid acts of litigation except through their legal representative. However, this shall not apply where a minor is allowed to perform [legal acts] independently.

4. [Any issues or questions] regarding legal representatives and their authority shall be governed by the provisions of the Civil Code and other laws.

33. (Special provisions regarding acts of litigation performed by person under partial guardianship or legal representative)

1. [A person under partial guardianship or] a legal representative need not obtain the approval of [the guardian or] his supervisor or acquire any other special authorization to conduct acts of litigation in an action or appeal filed by the other party.

2. [A person under partial guardianship or] a legal representative must acquire special authorization to conduct either of the following acts of litigation:
(a) discontinuance of the suit, compromise, or abandonment or admission of the claim; or
(b) discontinuance of Uttor appeal or Satuk appeal.
34. (Special provision regarding capacity of foreign national to litigate)

A foreign national shall be deemed to possess the capacity to litigate if they would otherwise have such capacity under Cambodian law, even if the foreign national lacks the capacity to litigate under the laws of his/her own country.

35. (Measures in case of defect in capacity to litigate)
1. Where there is a defect in the capacity to litigate, in the authority necessary to act as legal representative, or in the authorization to conduct litigation, the court shall order that the defect be corrected within a period designated by the court. In such cases, if there exists a danger that damage will be incurred due to delay, the court may permit the act of litigation to be conducted pro tempore.

2. An act of litigation carried out by a person that suffers from a defect in capacity to litigate, in their authority as a legal representative, or in their authorization necessary to conduct litigation, shall have retroactive effect from the time the act was done, if such act is ratified by such person after the defect has ceased to exist, or by the legal representative.

3. The authority to act as legal representative, and the authorization necessary to conduct litigation, shall be established in writing.

36. (Special representative)
1. A person who intends to conduct litigation against a person lacking the capacity to litigate in cases where that person has no legal representative, or where the legal representative cannot represent that person, may apply to the court before which the action is pending for the appointment of a special representative upon establishing to a preliminary showing that there exists a danger of damage occurring due to delay.

2. The court may, at any time, replace the special representative.
3. A decision to appoint or replace a special representative shall also be notified to the special representative.
4. The special representative shall have the same authorization as a guardian to conduct litigation.

Section II. Joint Litigation Part 39-42

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Section II. Joint Litigation
39. (General requirements for joint litigation)

Where any of the following circumstances are shared among multiple persons, such persons may sue or be sued as joint litigants:
(a) where such persons share common rights or obligations comprising the subject-matter of the action;
(b) where the rights or obligations comprising the subject-matter of the action arise out of the same grounds in fact and law;
(c) where the rights or obligations comprising the subject-matter of the action are of the same type and are based on the same type of grounds in fact and law.

40. (Status of joint litigants in ordinary joint litigation)
Acts of litigation conducted by one joint litigant, acts of litigation conducted by the adversary party against a joint litigant, and events or matters arising with respect to one joint litigant shall have no effect on the other joint litigants.

41. (Rules regarding trial in compulsory joint litigation)
1. Acts of litigation conducted by one joint litigant shall inure to the benefit of all joint litigants, irrespective of the provisions of Article 40 (Status of joint litigants in ordinary joint litigation), where the rights or obligations comprising the subject-matter of the action shall be determined only jointly for all joint litigants.

2. In the circumstances described in Paragraph 1, an act of litigation conducted by the adversary party against one joint litigant shall be effective against all joint litigants. 3. In the circumstances described in Paragraph 1, where grounds for an interruption or suspension of proceedings against one joint litigant exists, such interruption or suspension shall be effective as to all joint litigants.

42. (Nomination of party)
1. Multiple persons having a common interest may nominate one or several among them to serve as plaintiff(s) or defendant(s) on their behalf.

2. Where one or more person(s) are nominated pursuant to Paragraph 1 to serve as plaintiff(s) or defendant(s) while an action is pending, the other parties shall be seceded from the action.

3. Those who nominated the plaintiff(s) or defendant(s) pursuant to Paragraph 1 may revoke such nomination, or replace plaintiff(s) or defendant(s) serving on their behalf.

4. Where one of a group of nominated parties loses the capacity to serve in such capacity due to death or for any other reason, the other nominated parties may conduct acts of litigation on behalf of all.

Section III. Intervention/Participation Part 43-51

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Section III. Intervention/Participation
43. (Assisting intervention)
A third party having a legal interest in the outcome of litigation may participate in the litigation in order to assist one of the parties.

44. (Application for assisting intervention)
1. An application for assisting intervention shall state clearly the party on whose behalf the intervention is sought as well as the reasons for the intervention, and shall be made to the court in which acts of litigation based on intervention are to be conducted.

2. An application for assisting intervention may be made together with acts of litigation that can be conducted by an assisting intervenor.

45. (Objection to assisting intervention, etc.)
1. Where a party objects to an application for assisting intervention, the court shall decide, by ruling, whether to grant or deny the application. In such cases, the prospective assisting intervenor shall show to a preliminary showing the grounds for assisting intervention.

2. The objection referred to in Paragraph 1 may not be raised if such party has made statements during preparatory procedure for oral argument or has made argument during oral argument without raising the objection.
3. A Chomtoah appeal may be made against the ruling described in Paragraph 1.

46. (Acts of litigation by assisting intervenor)
1. An assisting intervenor may advance offensive or defensive measures, raise objections, file appeals, submit motions for retrial, or otherwise conduct any act of litigation in the action. However, this shall not apply to acts that cannot be conducted by the assisted party at the time intervention occurs.

2. An act of litigation conducted by an assisting intervenor shall be invalid if it is inconsistent with an act of litigation conducted by the assisted party.

3. An assisting intervenor may conduct acts of litigation, even where an objection has been raised to such intervention, until a decision denying intervention has become final and binding.

4. Where an act of litigation conducted by an assisting intervenor has been ratified by a party, such act shall be valid even where a decision denying intervention has become final and binding.

47. (Effect of judgment against assisting intervenor)
In an action that has been entered by an assisting intervenor, where a decision adverse to the assisted party has become final and binding, the assisting intervenor is bound by such decision as between the assisted party and the assisting intervenor, except in the following situations:

(a) where the assisting intervenor could not conduct acts of litigation due to the provisions of the second sentence of Paragraph 1 of Article 46 (Acts of litigation by assisting intervenor);
(b) where the acts of litigation conducted by the assisting intervenor were invalid due to the provisions of Paragraph 2 of Article 46 (Acts of litigation by assisting intervenor);
(c) where the assisted party obstructed the acts of litigation conducted by the assisting intervenor;
(d) where the assisted party intentionally or negligently failed to conduct acts of litigation that could not be conducted by the assisting intervenor.

48. (Application of joint litigation principles to a special type of assisting intervention)

1. Where the binding effect of a final judgment is to extend as between an assisting intervenor and the adversary party to the assisted party, the status of the assisting intervenor in the litigation shall be equivalent to that of a joint litigant under Article 41 (Rules regarding trial in compulsory joint litigation).

2. In cases described in Paragraph 1, the provisions of Paragraph 2 of Article 46 (Acts of litigation by assisting intervenor) and of subparagraphs (b) and (c) of Article 47 (Effect of judgment against assisting intervenor) shall not apply.

49. (Intervention as joint litigant)
1. Where the subject-matter of an action is to be determined only jointly between one of the parties and a third person, the third person may intervene in the action as a joint litigant.
2. The provisions of Article 44 (Application for assisting intervention) shall apply mutatis mutandis to applications for intervention under Paragraph 1.
3. Applications for intervention under Paragraph 1 shall be made in writing. 4. The written application described in Paragraph 3 shall be served on the other joint litigants and on the adversary party.

50. (Notice of action)
1. The parties to an action may, at any time, during the pendency of the action give notice of the action to third parties entitled to intervene.
2. Notice of an action shall be made by filing with the court a writing stating the grounds therefor and the current progress of the litigation. The court shall serve this writing on the persons who are to receive it and on the adversary party in the litigation.

3. Even where a person receiving notice of an action does not intervene therein, for purposes of the application of Article 47 (Effect of judgment against assisting intervenor), such person shall be deemed to have intervened at the time intervention became possible.

51. (Action against plaintiff and defendant as joint defendants)
1. A third person who alleges that all or part of the rights comprising the subject-matter of an action between other persons belong to such third person may, at any time during the pendency of the action, file a separate action against both parties to that action as joint defendants with the court of first instance in which the underlying action was filed.

2. Where a separate action is filed pursuant to Paragraph 1 while the underlying action is pending in the court of first instance, the court in which the action was filed may consolidate the two cases.