Conference | Did you say “notary” in Cambodia? – September 20, 2016

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At the request of Henri Capitant Cambodian Association, the notary office in Phnom Penh agreed to hold a conference entitled “Did you say notary in Cambodia?” held at the French Institute in Cambodia. Ms. Minsum Solidar introduced the conference by presenting the notary profession and its evolution over time. Mr. Kan Sothpolin then explained the role and abilities of the notary. As for Mr. Sun Tola, he explained the characteristics of the notarial deed and the specificities of the notarial profession.

This conference is part of the cycle of conferences organized by the Association Henri Capitant which first conference was held on May 10, 2016 conducted by Professor Hisham Mousar, member of our association entitled “The Constitution of the Kingdom of Cambodia, 20 years after its implementation “.

The concept and history of the notary profession in Cambodia

“The notary is a public officer established to receive authentic deed, ensure the date, retain the deposit and issue authentic copies and expeditions.”

Indeed, the term “public officer” means a category of law professionals to whom the state provides the credentials to authenticate acts and special conventions. On behalf of the public officer, the notary is obliged to ensure his impartiality vis-à-vis of both parties.

Although the notarial profession was born in Europe, Middle East and Egypt thousands of years ago, it seems to be a new profession for the Cambodian people and that, despite of his introduction in Cambodia by a royal order in 1954, almost a year after the independence of the Kingdom.

This profession was then abolished in 1975 with the Khmer Rouge communist regime. After the Civil War, no notary survivors were reported on Cambodian soil, the authentication of documents and certifications of signatures have been entrusted to the local and state authorities.

It was not until 2001, 26 years after the assumption of powers of the Khmer Rouge, that a notary was appointed by decree and that, without any law on the status or the ethics of the notaries’ profession.

After the fall of the Khmer Rouge regime and the adoption of the Constitution in 1993 which has established a liberal regime (Article 56) and recognized the private property (Article 44), the building of a state of law made with the technical and financial assistance of the French government has restored a legal system of Roman-Germanic tradition.

A sub-decree dated 2008 established the first notary office. A Prakas dated 2012 then recognized officers responsible for notarial affairs to perform the duties of a notary under the Civil Code and the Civil Procedure Code. Then was created the same year, the Royal School of Notaries and the first graduating class of 15 students notary was launched in 2013.

The role and abilities of the notary

The notary is responsible for preparing authentic acts to achieve the following objectives: balance, efficiency and legal certainty. It also ensures personalized advice, coordination with other legal professionals and the conservation of the notarial deeds.

Due to the lake of law determining the exact tasks and abilities of notaries, the sub-decrees laying down notaries’ office mentioned transactions where the notaries can intervene. Here are some:

  • Certification of signature, fingerprint, copy and translated documents;
  • Authentication of acts and conventions at the request of natural or legal person (cash loans, mortgage, transfers of property rights, adoption, marriage contract, donation and will);

The respective land laws dated 1992 and 2001 also provide the abilities granted to the notary. For example, the ownership transfer of a real estate is enforceable against the third parties provided that the sales contract is writing in the form of a deed issued by the competent authority and registered with the cadastral authority. The sales contract alone, cannot take note of a change of ownership (Article 65). The 2006 Civil Procedure Code and the 2007 Civil Code refer repeatedly to the notarial deed such as the fact that the deed prepared by the notary is enforceable.

What is the interest of the deed?

One cannot speak of the notarial profession without mentioning the quality of deeds, that is to say, their authenticity. Indeed, the documents drawn up by notaries are authentic instruments because of the seal of the public authorities. The French notaries as Cambodian Notaries are respectively nominated by the Minister of Justice in France, and the Royal Government in Cambodia. Because of the authenticity that the notary gives to his deeds, they acquire certain date, probative force and executory force:

  • The certain and indisputable date of the deed – Unlike private document, which is proof of the date only between the parties, their heirs and assigns, the date of the deed is authentic against the third parties. The date of a legal act is of paramount importance in law: it is used to set the starting of periods.

  • The probative force of the deed – The probative force conferred to the deed and the facts that the notary recognized means that it will prevail against third parties. The probative force infer that the deed occupy the first place in the hierarchy of evidences established by the Civil Code.

  • The enforceability of the deed – The enforceability of an authentic act implies that in case of claim on a sum of money established in the act, the creditor could directly pursue the implementation of the commitment subscribed to its advantage by providing enforceable copy of the act to the royal prosecutor of Cambodia without having to produce an execution judgment. The executory force allows considerable saving of time when an execution procedure is being conducted. It is important to note that a private document, even countersigned by a lawyer, is not binding. Then, to obtain the enforcement, a prior judicial authorization “an execution judgment” is required following a long and costly procedure.
  • “La conservation des minutes” – After their establishment, the notarial deeds, are kept by the notary, so that the original is safe from loss and degradation over a period of 40 years according to the law of October 13, 2005 on the archives. The act is archived at the notary office that is able to deliver a copy to his client.
The distinction between the profession of notary and other legal professions

Although the notary is considered as a separate legal profession which is distinct from other legal professions, there is still a lack of knowledge by the Cambodian people on this profession often confused with lawyer. Unlike lawyers who are also authorized to establish legal acts, they never enjoy the authentic character as are the deed acts. In other words, the lawyer acts are acts under private seal.

The prospect of the notarial profession in Cambodia

The notarial profession will play an important role in the building of the rule of law in Cambodia and especially, for securing foreign investments requiring that certain legal transactions relating to real estate and commercial business are materialized in the form of authentic deed.

Although the laws on the status of notaries and the profession’s ethics have not been adopted yet, the Royal Government of Cambodia, in consideration of the importance of the role of the notary in the evolution of the legal landscape, agreed since 2008 to appoint notary offices. It is among these newly established notary offices that the, “Phnom Penh Notary Office” (PPNP) was authorized by Decree No. 138 dated October 1st 2015.

Following the experience of France, where a large majority of the population trusts his notary, investigations prove that “The acts and conventions established by the French notaries are rarely subject to conflicts. According to statistics as of 2006, the French notaries have written over four million and five hundred thousand acts of which only 0.1% (or 1 on 1000) was the subject of litigation.” These figures only strengthen the position of Cambodia to restore and develop the profession.