Nagoya University Graduate School

of Law

CDS Presentation
Date: February 26
Date: 26,, 2009
By:: Senera SAR (D
By (D11)
Major:
M j r: Civil
Major Ci il Procedure
Pr d r
Advisor:: Prof.
Advisor Prof. SAKAI Hajime

1
 R
Research
hTTopic
i

Personal Status Litigation

Procedure:
d
I i i i l SSystem
Inquisitorial
Vs.
Party’ss Disposition Right
Party

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 What is Civil Procedure?

Civil Procedure deals with just about

every other aspect of judicial
adjudication of civil disputes,
disputes that is,is
the process for resolving civil disputes
about
b rights
i h andd duties
d i under
d the
h
substantive law throughg formal
adjudication by courts staffed by judges.
judges.

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 System of Civil Procedure

„ Inquisitorial System

„ Adversary
Ad S
System
t

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 Inquisitorial System ?

Court conducts an active and

independent inquiry into the merits of
each case
case.. This may include having the
judge question and examine witnesses,
as well ll as specifically
ifi ll ordering
d i certain
i
fact--finding.
fact findingg.

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 Adversary System ?
Parties (or
( their lawyers)) control
and shape the litigation
litigation.. Judge sits
solely to decide disputed questions,
most commonly questions of law
and procedure.
procedure. Issues not raised,
objections not mentioned, and
points not made are waived (there
may be some few exceptions)
exceptions)..

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 Fundamental Principles in
Adversary System

Two Basic Principles in Adversary System:

„ Party’s Disposition Rights Principle—

Principle—
principle that party can shape the
litigation.

„ Principle
p of Oral Argument.
g
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Party’ss Disposition Rights Principle ?
Party

„ Right to program (when

( to start and end))
g
Litigation.
„ Right to request for matters to be
adjudicated.
adjudicated
„ Right of Abandonment or Acknowledgment
of Claim.
„ Judicial Compromise Settlement
Settlement.

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 Principle of Oral Argument ?

„ Fact not asserted by party cannot be

basis for jjudgment —Obligation
judgment—
g g for
Assertion..
Assertion
„ Fact not disputed by parties shall be the
judgment—Self
basis for judgment— Self--binding Effect
Effect..
„ To admit a fact disputed by a party as
having existed, court shall base on
party—Prohibition of
evidence offered by party—
Examination of Evidence on Court
Court’ss Own
Authority . 9
Structure of Civil Procedure

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 Litigation Materials?
(Resources for Judgment)

(1) Assertions, Counter-

Counter-Assertions or
Proof of parties during Oral Argument.
Argument

(1) Facts and Evidences necessary for the

judgment.
judgment

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 Systems Employed by
Cambodia

„ Prior to July 2007: Inquisitorial System

„ After July 2007: Adversary System—

System—
Code of Civil Procedure of Cambodia
(enacted in June 2006 and enforced from
July 2007

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 Personal Status Litigation
Procedure (PSLP)?
„ Concept of PSLP
PSLP——Procedure for
handlingg the suits for the formation of,,
or the confirmation of the existence or
non--existence of a family relationship
non relationship..

„ Two Types of Personal Status Suits

Covered by PSLP
PSLP:: (1) Marital Suits, (2)
Parent--Child Relationship Suits
Parent Suits..

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 Marital Suits ?

„ Suit for the confirmation of the

invalidity of a marriage
marriage..
„ S i for
Suit f the
h cancellation
ll i off a marriage
marriage.
i .
„ Suit for a divorce under Article 978
(Grounds for Divorce) of the Civil.
Civil.

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 Parent--Child Relation Suits ?
Parent

„ Suit for the denial of a father-

father-child
relationship
l ti hi
„ Suit for an acknowledgement.
„ Suit for the confirmation of the non-
non-
existence of a parent-
parent-child relationship.
„ Suit for the confirmation of existence or
the non-
non-existence of a mother-
mother-child
relationship.
l i hi
„ Suit for the dissolution of an adoption.
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 Problems?
„ Article 13 (Inquisitorial System)
A court in personal status litigation may base its judgment on
any facts not alleged by either party, provided, however, that
th courtt shall
the h ll hear
h opinions
i i f
from th parties
the ti regarding
di such
h
facts..
facts

„ Article 21 (Trial Regarding Incidental Disposition, etc.

etc.)
The court shall, when it renders a judgment in favor of a
plaintiff in a suit seeking
p g the annulment of a marriage g or a
divorce, ex officio hold a trial for the designation of the party
to have parental authority…
authority…
Paragraph
a ag ap 2 o of a
article
t c e 182
8 ((Matters
atte s for
o judgment)
judg e t) o
of tthe
e Code
of Civil Procedure shall not apply to a trial held under
paragraph 1…herein
herein..

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 Why These Provisions Matter ?

„ Exemption of Adversary Principle

Principle—
—
Assertion of Facts & Submission of Evidence
will/may be useless.

„ Court’s Authority and material concerns—

concerns—
(1) Fact Finding Ability, (2) State budget to
f d th
fund the FFactt Fi
Finding
di P Process.

„ Litig ti Costs
Litigation C t Matter—
Matter
M tt —losing
l i g party t shall
h ll
bear the costs incurred by ex officio fact
finding?
g
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 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.
system

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 Research Methodology
„ Comparative Studies (mainly
( focused on
p
Japanese related laws).

„ J
Japanese approaches
h ((theoretical
h i l&
practical).

„ P ibl recommendation
Possible d ti tto C
Cambodia.
b di

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 THANK YOU

F
FOR

YOUR ATTENTION

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