By Erik Wasson
THE CAMBODIA DAILY
Drafted over years to reflect current law and practice, the new Cambodian civil code submitted last Friday to the National Assembly will not widely change commercial and family relationships, the Japanese expert who advised on its creation said this week.
Nonetheless, Atsushi Kamiki said that Cambodians should be aware that some new rights are created in the code and others are abolished.
"The [civil code] enables to explain...every legal relationship which actually occurs in society in a uniform way," Atsushi Kamiki, Japanese International Cooperation Agency expert, wrote in an email.
In 2004, one of the major points of contention was whether land changed hands when a seller and buyer agreed on the sale, or when the sale was officially recorded in the cadastral register. The original draft of the civil code had stated the former, which departed from current land titling practices, but has now been rewritten to agree with the Land Law.
"Land ownership will be transferred when the transfer of right is registered, if it is done by agreement," Kamiki said, adding that if land passes to an heir, the land automatically becomes the heir's property.
Two important new rights created by the civil code are the ability of a buyer to obtain ownership of moveable property even when a seller does not own the property, and a provision that enables a guarantor to revoke a guarantee without being recorded in an official document, he said.
One important legal right that is abolished is the right of a lender to demand immediate repayment of debt prior to its due date, when a debtor suddenly dies, Kamiki said.
On the subject of marriage, NGOs had recommended in 2001 that the age of marriage consent for men and women be 18, according to Ros Sopheap, the director of the NGO Gender and Development in Cambodia. Currently, men must be 20 years old to marry. The new code lowers the age to 18. The law also disallowed impotent men marrying, but that requirement has been removed as well.
NGOs had also requested that the provision that women cannot remarry up to 300 days after divorce or death of their husbands be removed entirely since modern science can determine paternity of any child she may be carrying.
This provision has been reduced to 120 days in the civil code, unless a woman has a doctor's certificate specifying she is not pregnant.
Discussions and mechanisms for child support and alimony are more extensively explained in the new civil code, and the court can order support for other family members as well.
According to Kamiki, courts may now make a provisional disposition of marriage property while a divorce suit is ongoing. Currently, Cambodians must wait for the often lengthy resolution of a divorce suit to gain child support, child custody and access to property.
NGOs had asked the government to create a separate family court in 2001, but that is not discussed in the civil code.
According to a letter provided by Ros Sopheap, NGOs had requested that marriage notices be posted at the workplaces of newlyweds to discourage bigamy. The details of marriage notification will be dealt with in a later subdecree, the civil code states.
The code clearly explains how members of the public can sue the government when a public official causes them harm in violation of the law. The government will be responsible for the payment of damages and, apparently for the first time, negligence is explicitly included in a provision regarding harmful actions of the state.
Legal expert Lao Mong Hay said that in the interests of encouraging free speech, defamation and libel should have been dealt with in depth in the civil code and excluded from the forthcoming new criminal code.
"Absolutely, it should be included," he said.
Under the section on torts in the draft civil code, parties may sue for mental or emotional damage due to damage to honor or reputation, a clause that could allow remedies for libel if it is removed from the criminal code.
Nonetheless, Atsushi Kamiki said that Cambodians should be aware that some new rights are created in the code and others are abolished.
"The [civil code] enables to explain...every legal relationship which actually occurs in society in a uniform way," Atsushi Kamiki, Japanese International Cooperation Agency expert, wrote in an email.
In 2004, one of the major points of contention was whether land changed hands when a seller and buyer agreed on the sale, or when the sale was officially recorded in the cadastral register. The original draft of the civil code had stated the former, which departed from current land titling practices, but has now been rewritten to agree with the Land Law.
"Land ownership will be transferred when the transfer of right is registered, if it is done by agreement," Kamiki said, adding that if land passes to an heir, the land automatically becomes the heir's property.
Two important new rights created by the civil code are the ability of a buyer to obtain ownership of moveable property even when a seller does not own the property, and a provision that enables a guarantor to revoke a guarantee without being recorded in an official document, he said.
One important legal right that is abolished is the right of a lender to demand immediate repayment of debt prior to its due date, when a debtor suddenly dies, Kamiki said.
On the subject of marriage, NGOs had recommended in 2001 that the age of marriage consent for men and women be 18, according to Ros Sopheap, the director of the NGO Gender and Development in Cambodia. Currently, men must be 20 years old to marry. The new code lowers the age to 18. The law also disallowed impotent men marrying, but that requirement has been removed as well.
NGOs had also requested that the provision that women cannot remarry up to 300 days after divorce or death of their husbands be removed entirely since modern science can determine paternity of any child she may be carrying.
This provision has been reduced to 120 days in the civil code, unless a woman has a doctor's certificate specifying she is not pregnant.
Discussions and mechanisms for child support and alimony are more extensively explained in the new civil code, and the court can order support for other family members as well.
According to Kamiki, courts may now make a provisional disposition of marriage property while a divorce suit is ongoing. Currently, Cambodians must wait for the often lengthy resolution of a divorce suit to gain child support, child custody and access to property.
NGOs had asked the government to create a separate family court in 2001, but that is not discussed in the civil code.
According to a letter provided by Ros Sopheap, NGOs had requested that marriage notices be posted at the workplaces of newlyweds to discourage bigamy. The details of marriage notification will be dealt with in a later subdecree, the civil code states.
The code clearly explains how members of the public can sue the government when a public official causes them harm in violation of the law. The government will be responsible for the payment of damages and, apparently for the first time, negligence is explicitly included in a provision regarding harmful actions of the state.
Legal expert Lao Mong Hay said that in the interests of encouraging free speech, defamation and libel should have been dealt with in depth in the civil code and excluded from the forthcoming new criminal code.
"Absolutely, it should be included," he said.
Under the section on torts in the draft civil code, parties may sue for mental or emotional damage due to damage to honor or reputation, a clause that could allow remedies for libel if it is removed from the criminal code.
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