Under the French protectorate from 1863 to 1949, the Cambodian legal system was rebuilt and is anchored in the Roman-Germanic model. The first Cambodian civil code, enacted February 25, 1920, was written by French experts and naturally strongly inspired by the Napoleonic Code dated 1804. Available only in French, the civil code of 1920 was only accessible to the Cambodian elite and struggled to impose itself to the people of the Kingdom of Cambodia. It took until 1967 for a translation in Khmer of the code (in its first revision). It allowed a real application of the code at all society levels, especially since the prior command of the language, concepts and mechanisms contained in the code had already been acquired by two generations of Cambodian elites. The eighty-six years of protectorate enabled the French to spread its model (this code was in force until the arrival of the Khmer Rouge in 1975).
The new procedural civil code and civil code
In an effort to reform the legal and judicial system, the government of the Kingdom of Cambodia has asked the Japan International Cooperation Agency (JICA) to assist it in the compilation and harmonization of the civil law texts. It should be recalled that the Japanese civil code, itself inspired by the German civil code, is of Romano-Germanic tradition as the French civil code.
Thus, the new civil procedure code and civil code were respectively promulgated in July 2006 and December 2007. However a provision of the new civil code stated that its implementation would require another legal act; this is why the code only entered into force in December 2011. It took three decades after the Khmer Rouge regime for the Kingdom of Cambodia to have a civil code again.
The new civil code, whose purpose is general and covers all aspects of the civil matter, has indeed not only upset the habits of practitioners but also repealed a number of concepts and replaced them with new ones. More than a compilation of old pieces of legislation, the new civil code was meant to be a genuine reform of the entire Cambodian civil law. The long delay between the promulgation and the entry into force of the new code was justified to allow a continuity and consistency of the Cambodian civil law. Unfortunately, if the stated objective was to adapt the legal system to the economic market reforms while respecting the Cambodian traditions and customs, the need for clarity, accessibility and intelligibility of the law for citizens, necessary for legal certainty, however, have not been met.
The difficulties of translation of the new Cambodian civil code
The unavailability of Cambodian-Japanese Legal Translators, or even French-Khmer at the time of writing the new civil code has brought the Japanese experts to use simple translators (non-jurists) to translate in two steps (from Japanese to English and from English to Khmer) the entire new Cambodian civil code. Thus it has received references from the terminology of the common law (the Anglo-American legal system) – a language that legally speaking only express itself in its own legal system. References to both common law and civil law principles then rendered the access to the new civil code extremely difficult for citizens and practitioners who carry on their activities in a mixed and confusing context. The Khmer translation of the the new civil code originally drafted in Japanese by Japanese experts, was a failure because of the use of English as the vehicle language from Japanese to Khmer.
Which role for the Association Henri Capitant in the translation of new Cambodian civil code?
Although the new civil code is in theory, in effect, the understanding issues of the text remain very real and prevent it from being fully implemented.
This is why, the association Henri Capitant Cambodia wishes to support the efforts in order for it to be better understood and correctly applied. In this way, the methodology chosen by the association Henri Capitant Cambodia is simple and summarizes as follows:
- Tapping into the vocabulary of the Khmer Civil Code dated 1920 to propose amendments to the text of the new civil code or to annotate it with comments to each provision issues;
- To achieve this, on the basis of the Franco-Khmer nomenclature dated 1960 when translating the 1920 code, it will then be preceded by the French translation of the entire New civil code;
- Allowing a team of French legal experts to work with Khmer experts legal to find technical paths that will allow to re-enter the text of the fair and correct legal terminologies of the new Cambodian civil code;
- Establish a team of Cambodian jurists with civil law training – for example, former students from the French law branch of the Royal University of Law and Economics (RULE) to organize awareness campaigns, conferences and continuing educational sessions through the country to academics, vocational schools and practitioners.
For more information, please feel free to contact us.
Map : https://casls.uoregon.edu/mosaic/FR_mosaic/africa/FR_U4A3/dmap2.jpg
Civil Code: http://lawcambodia.blogspot.com/2011/12/civil-laws-civil-code-in-cambodia.html