Friday, December 31, 2010

"Power, Money, Values and the Public Good - What Politics Is and What It Should Be"

"Power, Money, Values and the Public Good - What Politics Is and What It Should Be"
Lecture held by H.E. Prof. Dr. Horst Posdorf MEP during the alumni meeting of KAS scholars in Phnom Penh

The lecture on “Power, money, values and the public good – What politics is and what it should be” was held during the alumni meeting of former KAF scholars at the office of the Konrad Adenauer Foundation in Phnom Penh on December 11, 2007. The text of the speech can be downloaded in English.

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Cambodian Artist Speaking Out

We offer this publication as a contribution to a culture of pluralistic and free public debate. Artists all over the world play a role in society beyond providing decorative or entertaining expressions of their creative skills. Their work reflects human social and political reality. And their art communicates this reflection to their audience. Art communicates truth.

What is true and right is often controversial. In restrictive political systems, putting forward the truth about “sensitive issues” - or challenging the powerful with it - is dangerous or illegal. Censorship and self censorship apply; the freedom of expression is restricted. Art is made beyond these restrictions. It must also be free from the compromise of taboo and social etiquette.

Psychologists teach us that speaking the truth builds trust between individuals and in a society at large. Trust in society is often called “social capital” because it is considered a resource for the success of the community. By addressing important human social and political matters in a truthful way, art promotes debates and helps to build trust and to strengthen society. KAS as a political organization supports art projects to promote pluralistic truth-seeking societies.

The Khmer Rouge were radical censors. In their aftermath shaped by “cold war”, civil strive, and post conflict conditions the freedom of expression in Cambodia has been affected. Public debate about the Khmer Rouge legacy has been subject to limitations. The artists presented here overcome these limitations with their art and by speaking out, as the title of this volume implies.



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Social Justice

This volume of the Occasional Papers on Democratic Development looks at the term “social justice” from the perspectives of Buddhist, Muslim and Christian faiths. We have asked outstanding proponents of the Buddhist, Muslim, Catholic and Protestant religious groups in Cambodia to elaborate on the term “social justice”. In addition, a Catholic German parliamentarian has added a European point of view. The Konrad Adenauer Foundation has a mandate to promote democratic political institutions and policies. Why should we address a concept from religious perspectives rather than from a primarily political one? The answer is easy. We would like to emphasise that there is certainly no wish to interfere in the affairs of any religious community in Cambodia. Nor does this volume deal with the relationship between the state and religious organizations as institutions, independent of each other. Our intention here is to deal with issues raised by the links between religion and politics. “Religion and politics” is concerned with two spheres of activity in the life of the same person. Citizens who belong to religious groups are also members of secular society. This dual association generates a close relationship between the religious and the secular spheres. The relationship we intend to look into is the influence of religious belief on secular political preference and decision-making. Religious beliefs have moral, social and political implications. It is inevitable for people of faith to express these through their activities as citizens in the political order. Religious beliefs have secular political validity. As they are thought by their exponents to possess high religious authority, politicians and the state are well advised to take account of these convictions when formulating policies. The concept of social justice is paramount in the policies of a state. During rapid economic growth in Cambodia the gap between rich and poor has widened, as it has in many other countries. How far this trend is to be accepted will influence the policies of the state. In that regard this volume is political in nature. I express my appreciation to all the contributing authors. Heng Monychenda, Director of the independent NGO Buddhism for Development (BfD) deserves particular gratitude for having edited this volume and for having taken great care that difficult religious and philosophical terms were appropriately translated. The KAF has had the great privilege to work with Heng Monychenda for more than two decades. We have always agreed that moral, ethical and religious values are vital for secular economic and political decision-making. Mr. Yi Thon, Secretary General of the Cambodian Inter Religious Council was of great help in organizing a conference in Phnom Penh in August 2007 during which drafts of the papers compiled were presented and discussed. Wolfgang Meyer Country Representative Konrad Adenauer Foundation

For more detail pleast click here http://www.kas.de/wf/doc/kas_14001-1522-2-30.pdf?080619111741

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Rule of Law in Cambodia

RULE OF LAW
Is the Kingdom of Cambodia a rule of law country? How much and what kind of rule of law does Cambodia need in the 21st century? What kind of it will the society be able to put in place? What is the rule of law anyway and is it indispensable? Is the rule of law a Western model that might need adaptation elsewhere? These are some of the questions addressed in this fifth edition of the Konrad-Adenauer-Stiftung Occasional Papers on Democratic Develop-ment.
This volume suggests that there seems to be a consensus in Cambodia that the rule of law is a desirable principle. None of the authors questions its universality. It is claimed that proper implementation of the rule of law promotes economic development. The rule of law is described as a goal of the country’s development policy. Economic growth, political modernization, the protection of human rights, and other worthy objectives are believed to hinge, at least in part, on the rule of law.

However, the debate about the rule of law in the Kingdom of Cambodia is full of controversies. Is the rule of law presently applied or not applied? Some authors express satisfaction with the successes achieved in establishing it after decades without or only weak rule of law. Others complain about serious deficiencies and even allege the powerful to lack interest in introducing the rule of law.

With these papers, we do not intend to provide an academic legal textbook. Rather we want to compile personal statements of outstanding Cambodian personalities on the difficult concept of the rule of law in Cambodia. We would like to contribute to a pluralistic debate on what we consider a central concept for the future of the Cambodian society. We are convinced that the Cambodian society would benefit from more rule of law in the future.

The final chapter is the only one written by a Non-Cambodian. Thus, his contribution has a different objective. It is not an expression of personal views on the rule of law in Cambodia. Rather more, the author provides an overview of the academic debate about the term “rule of law”. We assume, that this contribution will put into perspective the controversies raised by the other authors. It is well understood that neither the author nor the Konrad-Adenauer-Stiftung do not wish to be and cannot be “referees” over any opinion put forward in this book. The Cambodians must come to terms with the rule of law for themselves.

In this volume, some of the most brilliant personalities of Cambodia put forward their ideas. All of them are important opinion leaders. We would be satisfied if we had achieved our objective of contributing to a free, balanced and pluralistic debate and indirectly to improvements in establishing the rule of law.


For detail please click http://www.kas.de/wf/doc/kas_16756-1522-2-30.pdf?090610101238

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Tuesday, December 21, 2010

Managing risk and vulnerability in Cambodia : an assessment and strategy for social protection

This report attempts to provide an analytical and strategic basis for addressing these issues, taking into account changing country needs as well as the social protection activities being undertaken by the Royal Government of Cambodia (RGC) and its partners. Specifically, this study: (i) takes stock of existing knowledge on risk and vulnerability in Cambodia; (ii) examines coping strategies employed by the poor and vulnerable to deal with risk and dampen the effects of shocks; (iii) reviews existing social protection mechanisms; and (iv) lays out priority areas and a proposed agenda for support by the World Bank and other partners in the social protection sector. This report is comprised of four major components or sections: stocktaking of existing knowledge on risk and vulnerability; examination of coping strategies; review of social protection expenditures and programs; and identification of social protection priorities and implications for future support.



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Justice for the Poor

This work on an exploratory study of collective grievances over land and local governance in Cambodia takes social tensions and the localities in which they arise as the starting point for its analysis that the quest for justice must commence with the consideration of existing relations at the local level. Using a comparative case study methodology, it attempts to shed light on the relationships between power and law which emerge around issues of justice in Cambodia. This paper builds on a number of previous anthropological studies dealing with issues of dispute resolution in Cambodian villages. The authors point out that opinions as to the associative capabilities of Cambodian villagers are mixed. There are two main schools of thought. On the one hand, it has been argued that social relations in rural Cambodia are fundamentally atomized, whether because of the brutality of the Khmer Rouge regime, the ensuing civil war or the underlying characteristics of traditional patronage relationships. On the other hand, recent years have also produced a body of evidence that rural Cambodia is experiencing a renewal of associational activity suggestive of a stronger capacity for collective action. In any case, it is clear that these issues require further research; it is hoped that this study will represent a useful contribution in this respect. In trying to generate a more nuanced understanding of the ways in which this process might be supported, the authors of this report have taken.



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Lawyer condemns incitement case

Quoted from Phnom Penh Post Newspaper:

The World Food Programme employee convicted on Sunday of criminal incitement distributed the offending web article to only two of his co-workers, his attorney said yesterday, amid mounting criticism of the “draconian” conviction.

Chou Sokheng, the lawyer for Seng Kunnaka, who works at the WFP’s Russey Keo district warehouse, said his client did not publicly distribute the article.

“He confessed he printed the article to read with his other two co-staffers, but he denied distributing it to the public,” he said.

Seng Kunnaka was sentenced to 6 months jail and fined 1 million riel (US$250) under Article 495 of the new penal code, which came into effect December 10.

The content of the article Seng Kunnaka printed is still unclear. While Chou Sokheng said it contained pictures of government officials, he declined to provide further details. Article 495 outlaws public speech that directly incites actions “seriously” affecting social security, and carries a prison sentence of between six months and two years, even in cases in which incitement is ineffective.

Kor Vandy, the presiding judge, declined to comment yesterday, referring questions to Deputy Prosecutor Chet Khemara, who was unavailable.

But bloggers at the news blog KI-Media, from which Seng Kunnaka is thought to have printed the article, said yesterday they believed he may have printed an article posted on December 17, the same day he was arrested. The article, titled as an opinion piece, shows headshots of Prime Minister Hun Sen and other senior officials with the word “traitors?” written along the side in various languages.

“That’s why the judge refused to talk about it, because then he would be forced to repeat the question we posted,” KI-Media’s administrator Heng Soy said in an email.

Human Rights Watch yesterday expressed deep concern about the conviction of Seng Kunnaka, whose case “probably set an all-new world record for speedy proceedings by the Cambodian courts”, and called on Cambodia’s donors to “wake up”.

“It’s shocking that we now see even a warehouse employee at a UN agency with a print-out of materials from a website can incur the wrath of this increasingly authoritarian Cambodian government,” HRW’s deputy Asia director Phil Robertson said yesterday.

WFP Country Director Jean-Pierre DeMargerie said the agency was “still trying to clarify” the facts of the case.



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Sunday, December 19, 2010

Business Enterprises Comparative Laws

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NGOs Call to Account

The blow is quoted from Phnom Penh Post Newspaper

THE government has made public a draft version of the long-awaited NGO Law, legislation some fear could restrict the activities of groups in the Kingdom’s vast civil society sector.

The law, the passage of which is declared “urgent” in the draft, includes new registration and reporting requirements that apply to local organisations. The undated version of the law released yesterday includes 11 chapters and 58 articles, and will be debated by government officials and NGOs at a consultative meeting organised by the Ministry of Interior on January 10.

“We will be collecting their recommendations before we submit the draft law to the Council of Ministers,” Ministry of Interior spokesman Khieu Sopheak said, adding that the law would “add transparency” to the country’s more than 2,000 NGOs.

“Some NGOs ask the government to be transparent with the people, but these NGOs themselves are not transparent with their staffs,” Khieu Sopheak said. “Some NGOs do not have transparency at all.”

The draft law requires NGOs to submit personal information about their leadership to the Ministry of Interior, and to submit financial statements that may be examined by the Ministry of Economy and Finance and the National Audit Authority. NGOs and associations are also required annually to “generate reports on activities, the status of their budget in the previous year, and action plan for the next year”.

All associations and domestic NGOs must reapply with the government within 180 days of the law’s passage or see their previous registration documents nullified, the draft law states.

“There are some concerns, some positives,” said Ou Virak, president of the Cambodian Centre for Human Rights, who noted that the draft law released yesterday was less restrictive than a 2005 version. He added, however, that the expanded legal framework for registration and reporting could pose a challenge for some groups.

“I’m trying to look at it from [perspective of] the smaller, local, more community-based groups, and I’m just thinking that they are the ones that probably have to be more concerned than us with this draft law,” Ou Virak said. “The registration process, the reporting process, it’s just a lot of these formalities that they may find very difficult.”

NGO leaders said yesterday that they would be analysing the draft law in the coming weeks and would issue a joint statement ahead of the government meeting in January.

“We hope that this is just the start of a consultation, January, because for such a law, I think it’s in the government’s interest to ensure full participation,” said Naly Pilorge, director of local rights group Licadho.

“At least from our point of view, we really hope that this is just the start and not a one-day process.”

Prime Minister Hun Sen said in 2008 that the NGO Law was a priority for his new term, along with the Kingdom’s new Anticorruption Law and penal code.

Licadho has raised concerns about the penal code, which is being introduced this month, claiming that some provisions could restrict freedom of expression and public debate. Pilorge said the group would be reviewing the draft NGO Law against the penal code, the Anticorruption Law and the Demonstration Law “to ensure that all of them are in line with each other”.

Hun Sen has said the NGO Law is needed because “NGOs are out of control … they insult the government just to ensure their financial survival”. He has also voiced fears that terrorist groups could operate in the Kingdom by posing as NGOs.

In a joint statement issued last year, 237 local and international NGOs expressed concern over the proposed law, charging that “the legitimacy of civil society to create space for the ‘voice’ of affected communities is being called into question by the government”.


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Thursday, December 16, 2010

Comment on the Draft Cambodian Penal Code ARTICLE 19 London September 2009

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Comparative Law Method

It's the best for your to understand what is comparative law method...Please click on the title you will be linked to document that you need.


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The Implementation of Cambodia's Laws on Land Tenure

TA Dissertation submitted in fulfillment of the requirements for the degree of
Doctor of Laws
Name of the Student: HAP Phalthy
Course: LL.D. (Comparative Law) Special Program
in Law and Political Science
Student ID Number: 430704135
Academic Supervisor: Frank George Bennett
Sub-supervisors: Yasutomo Morigiwa
Hiroki Nakaya
Date of Submission: June 25, 2010

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DEVELOPMENT OF PROPERTY LAW IN CAMBODIA, VIETNAM AND CHINA: WHAT IS BEHIND THE LEGAL REFORMS IN TRANSITION TO A MARKET ECONOMY?

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A Comparative and Legal Analysis of the Cambodian Law on Monogamy

It's analyzed about the monogamy law. Please enjoy it. Please click on the title you will be linked to the source that you need.


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Cambodia Society of Comparative Law

It would be a good source for you to understand about the law in Cambodia. There are many well known editor in this book.
Thanks



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Analysis of Draft NGO Law

Analysis of Draft NGO Law
1. Various articles
a. Frequently refers to NGOs’ “aid projects or programs” or working in the “public interest”; may indicate reduced areas in which organizations will be permitted to operate
2. Article 8
a. Requires 21 member and 7 leaders for associations
3. Article 10
a. Requirements for charter are burdensome, particularly for new, small or provincial NGOs, and exceed those in Civil Code Article 50. For example:
i. Must detail the structure, mandate, role, duty, organization and function of the applicant’s governing bodies
ii. Must include technical documents, such as the rules of resource and property management, and the rules of dissolution and administering of resources upon dissolution
b. May be impossible for applicant to open bank account until association/NGO is registered
4. Article 17
a. Does not include the factors that should be considered by MoI when deciding on an application
b. Does not provide that associations/NGOs will be registered if MoI fails to rule on application w/in 45 days
c. No appeal of registration denial provided
5. Article 21
a. Unclear when an alliance must be registered
i. For example, it is unclear whether an alliance needs to be registered if two NGOs wish to work together to support a single court case or a single advocacy campaign
ii. Unclear if provisions apply only to formal entities such as CCC or Community Peace Network, or also when two associations work together on an issue of common concern
b. Unclear whether registration of alliance has an effect on legal status of underlying organizations
6. Article 27
a. Unclear under what circumstances alliances must give notice to MoI of projects.
7. Article 30
a. “Budget equivalent” is an unclear term
b. May be impossible to open bank account until NGO is registered
8. Article 32
a. Does not provide that associations/NGOs will be registered if MoI fails to rule on application w/in 45 days
b. No appeal of registration denial provided
9. Article 36
a. Depending on how “collaborate” is interpreted, foreign NGOs may already have this obligation pursuant to MoFA’s MoU:
i. Official translation of MoFA’s MoU requires that foreign NGOs: “Work[ ] in close consultation with counterpart government institutions and local authorities to implement the approved projects or programs In particular, require[d] to inform counterpart while assigning a consultant to work in the field or request visa extension for an expert to complete the job”
ii. Khmer text of MoFA’s MoU requires foreign NGOs to “Work in close consultation and collaboration with counterpart government institutions and local authorities…”
iii. Article 5 of MoFA’s MoU “authorizes” a foreign NGO “to collaborate directly with its Cambodian relevant Ministries and other Government Institutions concerned for the purpose of the project planning implementation, monitoring and evaluation”
b. If the RGC requires close collaboration between foreign NGOs and Cambodian ministries, it will likely be problematic:
i. Will severely delay the work of NGOs
ii. Some ministries might think Article 29 authorizes them to dictate how a foreign NGO works or spends its money
c. Requires registered NGOs and associations to inform the municipal or provincial government if it will be conducting activities in the jurisdiction
i. Provincial or municipal authorities may use this information to regulate or limit NGO activities
10. Article 39
a. “Administrative expenses” is an unclear term
b. Current MoU with MoFA defines “administrative expenses” narrowly and only requires that “average administrative expenses” not exceed 25%
11. Article 41
a. Requires that Cambodian staff be employed to “the maximum extent possible”
i. Same requirement is in MoFA’s MoU, as well as the Labor Law
ii. Combined with Article 39’s requirement that foreign NGOs limit their administrative budget to 25%, this could require that foreign NGOs eliminate some international staff
12. Article 44
a. Requirement that NGOs notify MoI/MoFA every time it changes the status of any employee is unduly burdensome. Requirement should only apply to those employees listed in registration packet.
13. Articles 49 and 50
a. Does not state on what basis a court may postpone or terminate the activities of associations or NGOs
b. Provides no criteria for evaluating whether postponement or termination should be imposed
c. Does not provide for an appeal of the determination that there was a violations
d. Could be selectively applied to entities the government considers unfriendly
e. Appears to violate the provisions of Civil Code Articles 64-65, which specifies the limited bases on which a court may order the dissolution of a juridical person
14. Article 52
a. No guidelines are given as to how the court should distribute the assets of an association or NGO dissolved by court order; could create an incentive for the state to dissolve an association/NGO if it has valuable assets
i. The value of the property reverting to the state should not exceed the value of the exemptions the organization received
ii. Only assets obtained with the assistance of tax exemptions should revert to the state
iii. Funds or property still belonging to foreign donors should be repatriated, instead of being distributed according to the organization’s charter or reverting to the state
15. Article 53
a. Unlike the limited provision regarding domestic NGOs, it appears that a foreign NGO is permanently prohibited from operating for even minor violations of Article 46’s reporting requirements.
16. Article 55
a. Does not include a requirement that the government notify registered NGOs or associations of their obligation to reapply.
b. Unclear on what bases MoI may deny a NGO’s renewal application, or if there is any appeal from such a denial; which could allow discrimination against disfavored associations and NGOs
c. Also unclear how much time MoI has to decide on the renewal application

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Wednesday, December 15, 2010

Update Information about NGO draft law

Please be informed that after negotiation between National/international NGOs with Official of Ministry of Interior (MOI), in principle, MOI agreed to postphone the consulation from 28 Dec 2010 to 10th January 2011. And MOI will release the draft law soon.

Please wait to see the contain of draft law next time.

If you have any comment on the draft law we're welcome.

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BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW

Abstract: In their article, “The End of History for Corporate Law,” Henry Hansmann and Reinier Kraakman proclaimed the triumph of the shareholder primacy norm over competing progressive theories of the corporation.

This Article debunks Hansmann and Kraakman’s “end of history” thesis on both U.S. and Canadian corporate law grounds. A critical examination of high-profile U.S. corporate law jurisprudence indicates that the shareholder primacy norm cannot be supported, even by cases such as Dodge v. Ford and Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., which exist at the foundation of shareholder primacy arguments. Further, Canadian corporate law jurisprudence and the structure of Canadian corporate law statutes reveal the complete lack of support for shareholder primacy arguments north of the forty-ninth parallel, further impeding Hansmann and Kraakman’s claim. This state of affairs demonstrates that Hansmann and Kraakman’s “end of history” thesis is, at best, premature and, at worst, incorrect.

NOTES
Piracy Laws and the Effective Prosecution of Pirates
Diana Chang
[pages 273–288]
Abstract: This Note analyzes the current international legal framework for the punishment and prosecution of maritime piracy. Piracy is an international problem that disrupts global maritime trade and endangers the safe ...
If you want to know it detail please go to website:http://www.bc.edu/schools/law/lawreviews/iclr.html

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Enduring Relevance of Labour Law Research in Current Financial Crisis



The book by Dr. Countouris represents a significant addition to the already expansive bibliography in the field of employment law. The analysis offers a deep and original analysis of the area of evolution of current European employment law. The author has managed to synchronize his work with important developments at the legislative level, namely the new ILO Recommendation on the Employment Relationship and the new EU Green Paper on labour law. At the epicenter of the monograph is the search for offering a clear demarcation of the scope of labour law and in that process the emphasis is placed on the assessment of the degree of protection offered to the subjects of labour law regulation. In this era it is apparent that the financial crisis has a powerful impact on the nature of the employment relations, with the clear danger of relegating employment rights to the sideline in order to ensure the protection of the financial viability of the employers. In this light, the research by the author reveals the full scope of the labour rights and obligations and provides a yardstick for assessing recent proposals and attempts to circumvent fundamental labour rights.
In terms of approach, the author focuses on the recent history of evolution of labour law and operates on the working premise stating that there is a scaling crisis in the regulatory framework of employment law. The route of the problem is rightly identified in the efforts to maintain the binary model of the employment relationship based on the subordinate employment/autonomous self-employment dichotomy. As a corollary, the author then explores and identifies the existence of novel nonconforming and hybrid working arrangements that have surfaced contra to the logic that sees employment relationships as able to be categorised either as subordinate employment or as self-employment variations. The identification of novel employment relationships has the advantage of challenging the traditional perceptions that are centred on the autonomy and subordination formula.
On another level, the emergence of new types of employment relationships has had the effect of influencing in a negative way national labour law systems. More importantly, the new developments in the typology of employment relationships have created a legal gap where national perceptions and the subsequent regulation of employment relationships previously founded on the prevailing notion of dependent and subordinate employment, are now excluding from their scope the new forms of atypical labour relations. Nicola Countouris makes the recognition and understanding of the existence of that legal gap the starting point for advancing ideas for a new evolving symmetry in employment law to accommodate this evolution. In that quest, the author deploys a comparative methodology thus examining the new developments in four key European countries – the United Kingdom, Germany, France and Italy. In that respect, his work has a dual positive effect: emphasis on the modern evolution of the employment relationships and the comparative exegesis of the national approaches to the phenomenon that can provide a paradigm for other regulatory systems, whether national or supranational.
In terms of structure, the monograph balances between theoretical analysis and practical implementation of the therein expressed ideas. In the first chapters, the book examines the employment relationship and the contract of employment in industrialised societies, thus highlighting the significant influencing role of the dichotomy that sees as employment relationships as corresponding to the autonomy and subordination formula. The next step in the analysis is the re-shaping of the personal scope of labour law, where the atypical relationships are introduced as a concept on the basis of the current academic debate on the matter, thus providing a solid theoretical foundation that supports the author’s findings. The author then dedicates a chapter to the characteristics of the atypical employment relationships where the analytical focus is placed on fixed-term, part-time and temporary agency work in Europe. At this stage the monograph makes useful use of the ILO notion of the worker and introduces the ILO parameter to the analysis of the scope of the employment relationship. This is an extremely useful approach since there is the necessary connection with ILO that is in theory the source of inspiration for the evolution of labour law. However, that part of the analysis is self-limited by the next chapter where the personal scope of application of EC social legislation is introduced, thus highlighting the relativity of the ILO regulatory system and the pragmatic significance of the national and supranational (EU) regulatory frameworks. The analysis of the EC regulation of atypical forms of work on the basis of the tension between employment law and employment policy represents the most important part of the argumentation, since there is thorough analysis of new legislative initiatives in the area and a useful description and critique of those developments.
In terms of room for improvement, the monograph could benefit from a deeper assessment of the results of the interplay between different regulatory systems, in order to provide an output description of the convergence and divergence that can be found in all participating systems.
In conclusion, the monograph represents an interesting and timely assessment of the contemporary developments in the field of employment law, with an analytical approach that has a strong comparative element. Moreover, the economic crisis has the effect of magnifying the arguments that the author makes, thus rendering the monograph an important source for attaining a better understanding of the dynamic nature of the employment relationships and of the complex interplay between the ILO, the EU, national systems and the “needs of the market”.
 For more information, please link to http://www.ejcl.org/141/review141-1.html


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ស្លាប់រស់ព្រោះស្នេហ៌! ​ Alive or die because of Love!

ករណីសិក្សា បុរសនារីស្រលាញ់គ្នាអស់ជាច្រើនឆ្នាំមកហើយ ប៉ុន្តែថ្ងៃមួយនារីនោះចេះតែព្រងើយ​កន្តើយ នឹងបុរស ធ្វើអោយបុរសនោះលំបាកចិត្តជាខ្លាំង ពីមួយថ្ងៃទៅមួយថ្ងៃបុរសនោះចេះតែចង់ ជួបនាងនោះ ជាពន់ពេក ពេលខ្លះទ្រាំមិនបានគាត់ទូរស័ព្ទទៅរកនាងនោះជាញយដង។ ទំនាក់ទំនងរវាងបុរស នឹងស្រីនោះហាក់ដូចជាមិនអាចជានានឹង គ្នាវិញបានឡើយ។ បុរសបានធ្លាក់ខ្លួនឈឺ​ដោយសារតែគាត់នឹកនាងខ្លាំងពេក ដោយពេលនឹកនាងម្តងៗគាត់មិនអាចញាំ បាយឆ្ងាញ់ម្តងណាឡើយ ប្រាំខែក្រោយមកគាត់មានរោគឈឺក្រពះហើយបាន ព្យាបាលជំងឺអស់​ប្រាក់​​ជាច្រើន នារីនោះក៏ចិត្តមិនដាច់ដែរ ហើយបានសន្យាថានឹងជានានឹងគ្នាវិញ ប៉ុន្តែមួយខែក្រោយ មកបុរសនោះបានស្លាប់ ដោយសារតែមានវិបត្តិផ្លូវចិត្តនោះ ​ (ដែលបណ្តាលអោយគាត់កើត​ជម្ងឺមហារីកក្រពះ)​​៕ ក្នុងករណីនេះ ឳពុកម្តាយ របស់បុរស​នោះចង់ប្តឹងពី នាងជាសង្សានោះ អោយសងជម្ងឺចិត្ត នឹងប្តឹងពី រឿង ព្រហ្មទណ្ឌ តើករណីនេះអ្នកត្រូវ ផ្តល់យោបល់ដល់ភាគីខាងឳពុក ម្តាយ​ខាងបុរសនោះយ៉ាងម៉េច?
 A man and woman love each other for long timd (5 years). One day, a lady seem want to separate with man and she tries to escape from man. He love her so much and often he  phone call her. However a man became sick because of love (when he miss his fiance, he cannot eat or drink any thing). A man paid much for treating his disease. A lady still has feel love with man too and she promise to live and love each other again. Unfortunately, a month later, a man die because he has cancer of stomach. Parent of man, want to file a complaint to demand damage from his son's fiance and they also seek a criminal case against her as well. If you were a lawyer of parent's man, what would you provide a comment on this case?

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Tuesday, December 14, 2010

Is married man or woman has sex with gay or bi-sexual is an adultery offense? Is a basis for divorce?

Can you provide your comment on infidelity case? case study: a married man or woman has sexual intercourse with same sex, is Cambodian law considered this case as infidelity or not? can his/her married wife/husband divorce based this reason?
តើលោកអ្នកអាចផ្តល់យោបល់លើករណីនៃអំពើផិតក្បត់បានដែរទេ?  ករណីសិក្សា បើនារី រឺបុរសជាប្តីមានសាហាយស្មន់ជាមួយមនុស្សភេទដូចគ្នា  តើច្បាប់ខ្មែរចាត់ទុកជាអំពើផិតក្បត់ដែររឺទេ?  តើប្រពន្ធរឺប្តីអាចយកមូលហេតុនោះមកធ្វើការលែងលះបានដែររឺទេ? យើងរងចាំនូវមតិយោបល់របស់របស់លោក លោកស្រី ចំពោះបញ្ហានេះ៕​
I would like to copy from the comments of people to put there: 
Anwer from Law Student at RULE: សំនួរសួរថា តើការផិតក្បត់ដែលប្រព្រឹត្តជាមួយភេទ ដូចគ្នារវាងសហព័ទ្ធណាមួយ អាចជាមូល ហេតុនៃការលែងលះគ្នាបានដែររឺទេ?
តាមមាត្រា ៩៧៨ កថាខណ្ឌទី១ នៃក្រមរដ្ឋប្បវេណីឆ្នាំ ២០០៧ ចែងថាៈ
១. ប្តី ឬ ប្រព័ន្ធ អាចដាក់ពាក្យបណ្តឹងលែងលះគ្នាបាន តែករណីដែលបានកំណត់ដូចខា...ងក្រោមនេះ៖
ក. បើបានប្រព្រឹត្តអំពើផិត ទៅលើសហព័ទ្ធ។ (…)
តាមមាត្រា ៣៩នៃច្បាប់ស្តីពីអាពាហ៍ពិពាហ៍និងគ្រួសារ ឆ្នាំ១៩៨៩ ចែងថាៈ
ប្តី ឬ ប្រព័ន្ធ អាចប្តឹងសុំលែងលះគ្នាបាន កាលបើមានមូលហេតុគ្រប់គ្រាន់បញ្ជាក់ថា ខ្លួនពុំអាច
រួមរស់ជាមួយគ្នាទៅទៀតបាន។
មូលហេតុជាអាទិ៍ មានដូចខាងក្រោមនេះ ៈ
(...) ៣. មានចរិតផ្ទុយពីសីលធម៌ ឬ ប្រព្រឹត្តអនាចារ (...)។
យោងទៅតាមវិធាននៃច្បាប់ខាងលើ ក្នុងក្រមរដ្ឋប្បវេណី កថាខណ្ឌទី១ ចំណុច ក. បើបានប្រព្រឹត្តអំផិត ទៅលើសហព័ទ្ធ
ត្រង់ចំណុចនេះ មិនបានសំដៅថាជាការផិតរវាង បុរសនិងស្រ្តី ឬភេទដូចគ្នាឡើយ ដូច្នេះយើង
ទាញបានថា អំពើទាំងនោះជាអំពើផិតក្បត់ ។
មួយវិញទៀត អំពើផិតដែលប្រព្រឹត្តឡើងរវាងភេទដូចគ្នា អាចជាអំពើដែលប្រជាជនខ្មែរភាគ
ច្រើនគិតថា ជាអំពើអសីលធម៌ដែរ ជាអំពើមួយគួរឲ្យអាមាស ចំពោះសហព័ទ្ធម្ខាងទៀត មូលហេតុទាំងអស់នេះអាចឲ្យសហព័ទ្ធម្ខាង
ទៀត ធ្វើជាមូលហេតុនៃការលែងលះបាន។
សូមបញ្ចប់។ 

Anonymous: In principle, in civil case, firstly, it should be looked at a special law other than general law. Because a special law stipulate clearly about the points for example, family law is derived from civil code. The family law states only the family matter. Civil code is a general law that governs the private sector. After we read specific law, and you find some points are still vague so we can go to see the general law.

Now I am going to topic: through reviewing family law 1989, it provides the ground for divorces. The either couple may file a complaint to court for divorces unless s/he shall have either reason which states in article 39 “A husband or wife may file a complaint for divorce if there are enough grounds which indicate that he or she cannot continue the conjugal cohabitation”. The grounds for divorce are:
……..
3. immoral behavior, bad conduct: Does s/he made love with same sex is an immoral behavior or bad conduct? A person who is a bi-sexual person considered as immorally in society?
……
We consider the point three above, is it applied for case study? I think it’s not applied because the immorally behavior or bad conduct, it doesn’t define clearly in any law. However, we can see in Khmer dictionary mention about “morality” refers to person who respect old generation, have good conduct… and for “bad conduct” is referred to do something is wrongly as tradition….Therefore, we cannot take above category to apply the case study. However, we can find the reason for divorce in Civil Code. Please see article 978: Husband or wife can bring a suit for divorce only in the following cases:
a) If the other spouse has committed an act of infidelity;
b) ……….

What is infidelity? In Civil Code doesn’t define about the infidelity but law on monogamy law (this law was adopted by national assembly since October 2006) defined about this matter. In article 7 of Monogamy Law mention clearly “it shall be considered as infidelity when making love of a husband whose marriage has not yet been terminated, to a woman besides his wife, or make love between a wife who marriage has not yet been terminated with other man beside her husband.
It shall be considered of infidelity:
- A man whose marriage binding has not yet terminated and who has made loved with other woman
- A woman whose marriage binding has not yet terminated and who has made loved with other man”

Conclusion, the infidelity can be applied only a married husband/wife has sexual intercourse with opposite sex only. It doesn’t apply the same sex.

However, in Civil Code of Japan states in article 770 about the ground for divorce such as Act of unchastity, Malicious Desertion (mala fide desertion), Whereabouts unknown for more then 3 years, Severe mental illness with no possibility of recovery and Other serious causes of matrimonial difficulty. According to Book on Introduction to Family Law of Japan, published by Research and Training Institute of the Ministry of Justice of Japan, printed 1995, page 23 mentioned about Act of Unchasity refers to all acts that violate the faithful duties of a husband and wife. This is generally considered to be broader in scope than Adultery. Therefore, if husband/wife has something is not faithful, other couple can divorce.

In conclusion, through discussed above, the infidelity made by a married husband/wife with the same sex, the other couple cannot put their reason to divorce because in Monogamy Law mentioned about the definition of infidelity but s/he can find other reason to divorce as well such as the matrimonial relationship has otherwise broken down and there is no prospect of reconciliation and other thing which are stipulate in article 39 of family law, 1989 and civil code, article 978.
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Monday, December 13, 2010

NGOs leaders asked government to delay the date of Consultation

The Group of INGO and LNGO concerned about draft of NGOs which will be conducted and hosted by Ministry of Interior. Some leader of NGOs wants to propose the government to delay the date of consultation from 28 Dec this year to 3rd or 4th week of January 2011. Because some NGOs mentioned that they don't have time enough time to prepare and/or date of MoI proposed is kind of urgently. Below are reasons that all NGOs want to delay the date of consultation:

  • This coincides with a major international holiday which will affect many INGO's and lead to key representatives being absent
  • This period coincides with a financial audit year end cut off for many LNGO's who will therefore be exceptionally busy
  • The period of notice between your announcement and the consultation only allows a short time to gather the views of provincial NGO's who's voices are important
  • As a community we will need to have sufficient time to study (and translate) the draft law, which is not enabled by the short timescale between its issue and the consultation day.
To ensure that the law has the wide consultation which is highlighted as so important by the Royal Government of Cambodia strategic plan, we will also need to understand fully the process for consultation, assuming that there may be a process for comments to be fed back on the first draft law, responses to these comments from the Royal Government of Cambodia, and further discussion on those items, leading to the best possible NGO law. We therefore assume that a one-day consultation represents only the first step in this process, and we are keen to work with you in shaping following staggers of the process may be like.

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Saturday, December 11, 2010

ពន្យល់ក្រមព្រហ្មទណ្ឌ ០៩



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Friday, December 10, 2010

Statement of Cambodian Human Rights Action Committe On Human Rights Day

JOINT STATEMENT
Cambodian Civil Society Congratulates the 62nd Anniversary
of Human Rights Day
December 10, 1948 – December 10, 2010
On December 10th 2010, the day which marks the 62nd Anniversary of the Universal Declaration on Human Rights (UDHR), Cambodian Civil Society in collaboration with other international NGOs have the great pleasure to celebrate this year’s Human Rights Day under the main themes: “We all have obligation to protect human rights” and “Stop discrimination against human rights defenders” throughout the Kingdom of Cambodia.
On this occasion, the Cambodian Civil Society would also like to express our deepest appreciations and commemorate heroes and human rights activists around the world as well as in Cambodia who have devoted their efforts and sacrificed a big part of their lives to the cause and for the protection of human rights deserve our greatest thanks.
The Universal Declaration on Human Rights was adopted by the United Nations General Assembly on December 10, 1948. This Declaration sets out a broad range of fundamental human rights and freedoms to which all men and women everywhere in the world are entitled, without distinction. Since it was adopted, the Declaration has come to be considered as “a common standard of achievement for all peoples and all nations.
In its statement in relation to this year’s celebration, the United Nations Head Office of the High Commissioner for Human Rights (OHCHR) has highlighted that “the human rights defenders play most important role in promoting the human rights respect and dare to speak out about various human rights violations including discrimination, exclusion, oppression and violence, etc. Therefore, government has an obligation to open more spaces for freedom of expression as well as to stop discrimination against human rights defenders fulfilling their roles and duties to protect victims of all forms of human rights violations occurring wherever and whenever”. Although the Declaration was adopted and proclaimed 62 years ago setting out the basic premises of international human rights law, millions around the globe continue to fight against human rights violations and discrimination. They endeavour to push United Nations member states to act in accordance with their obligations under the Universal Declaration of Human Rights and other international human rights treaties.
As a member state of the United Nations, the Kingdom of Cambodia is strongly committed to its international obligation by virtue of Article 31 of the 1993 Constitution as saying that: “The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, and the covenants and conventions related to human rights, women’s and children’s rights”. This recognizes the Universal Declaration on Human Rights as part of the Kingdom of Cambodia’s national law.

Due to this recognition, the Royal Government of Cambodia is obliged to promote and respect these international covenants properly and adequately. The Civil Society has noted that there are a number of positive developments with regard to the respect for and promotion of human rights in the Kingdom such as participation in international covenants and the adoption of many laws. This includes laws on anti-corruption, protection and promotion of rights with disabilities, and laws to strengthen the quality and effectiveness of the law enforcement institutions based on national development strategies.
However, there are many remaining serious concerns such as the slow progress of judicial reform towards independence, full competency, fundamental laws development and effective implementation of the law; impunity for human rights violations continues; ongoing land grabbing and forced evictions; threats against human rights defenders, as well as bans or restrictions on the freedom of peaceful assembly and the freedom of expression at public areas. Furthermore, there are ongoing human rights violations, including trafficking in and exploitation of women and children, violations against indigenous people with regard to their property rights of community lands, discrimination against persons with disabilities and violations of labor law rights relating to peaceful assemblies and strikes.
In this respect, the Civil Society wishes to appeal to the Royal Government of Cambodia, National Assembly, Senate, and the courts at all levels to take the following suggested measures:
·         Urgently make and adopt the fundamental laws such as the Law on the Amendment of the Supreme Council of Magistracy, the Law on the Organization and Functioning of the Court and the Law on Statute of Judges and Prosecutors which are necessarily required in order to have a fully-functional rule of law and judicial reform in the country through enhancing efficiency and effectiveness of the judicial institutions and judicial officials at all levels.
·         Open more spaces for the freedom of expression and the freedom of assembly in public places, so as to enhance all activities in public governance for promoting and defending human rights, the rule of law and democracy.
·         Stop discrimination against human rights defenders in demanding for justice and protect victims of human rights violations.
·         Develop a new development vision by taking into consideration of the happiness and interests of the people and to develop step by step a strategy that would minimize the effect to society and the environment.
·         Develop a Land and Housing policy to ensure an appropriate standard of living for all people by insuring adequate housing, health care, basic services, access to education, as well as to put an end to forced evictions in relation to land disputes.
·         Develop a city and economic development plan which takes into account vulnerable populations who live in target areas. Such development must be for all, not only for investors and public authorities.
·         Use peaceful negotiation to resolve disputes while implementing the law effectively instead of continuing to resort to the armed forces to resolve all problems.
·         Strengthen the independence and impartiality of the courts at all levels to guarantee just and fair trials.
·         Promote and respect the rights of laborers through the strengthening of labor conflict resolution mechanisms.
·         Take special actions to promote gender equality in the public systems and eliminate all forms of discrimination against women, in particular women’s rights in the field of politics.
·         Protect and promote the rights of indigenous people as well as those of the minorities, who are living in Cambodia, from being discriminated in all forms.
·         Put an end to and eliminate all forms of trafficking in and exploitation of women and children by effectively implementing the anti-trafficking law.
·         Urge for an effective implementation of the Law on the Defense and Promotion of the Rights of Persons with Disabilities and to ratify the Convention on Rights of Persons with Disabilities.
·         Take special action to prevent all forms of discrimination against persons with HIV/AIDS, as well as ensuring equal access for them in social activities.

  Phnom Penh, December 10, 2010


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Cambodia: Sex trade booming amid Global Financial Crisis



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Human Rights Day Interview with Multi-media Monk, Venerable Sovath on Ho...



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Thursday, December 9, 2010

New Penal Code a Setback for Freedom of Expression Issues

(Dec. 9, 2010 – Phnom Penh) In summer 2010, UN High Commissioner for Human Rights Navi Pillay provoked strong condemnation from the Cambodian government when she criticized the judiciary’s handling of cases involving opposition politicians Mu Sochua and Sam Rainsy.

As of Dec. 10, 2010, the same criticism could make her a criminal in Cambodia.

Under Article 523 of the Penal Code, which comes into effect tomorrow, any person who criticizes a “judicial act or decision” aiming to “endanger Cambodian institutions” can be sentenced to up to six months imprisonment and 1 million riel fine.

The provision is one among several problematic provisions highlighted by LICADHO in a brief analysis of new penal code sections which may potentially affect freedom of expression in Cambodia. The analysis is being released to mark the official enactment of the code, which coincidentally falls on International Human Rights Day.

LICADHO identified nine new penal code provisions which may pose a serious threat to Cambodians’ expressive rights in the future. The penal code was enacted in 2009, but the substantive portions of the new penal code do not come into effect until Dec. 10, 2010.

“Cambodia already took a big step backwards on freedom of expression issues since 2008 said Pilorge Naly, Director of LICADHO. “Unfortunately, with the new penal code taking effect on Dec. 10, we may see two or three steps backward for 2011.”

Attached to this press release are two documents: The first details provisions from the former UNTAC Code which were frequently abused to suppress expressive freedoms. The second analyzes sections of the new Penal Code which may be used to suppress expressive freedoms in the future.

Among the most concerning laws in the new code, all of which carry prison terms:

-    Incitement (Article 495): The crime is defined as incitement to commit a crime or incitement of “serious turmoil in society.” This vague phrasing makes Article 495 similar to the former disinformation provision, which criminalized certain “malicious” disturbances of “the public peace” (UNTAC Code Article 62).

-    Contempt (Article 502): Criminalizes any act, gesture, writing, etc., directed at a public official that affects the “dignity of a person.” The elements are vague and highly subjective; taken to the extreme the article could criminalize all acts which hurt the feelings of public officials.

-    Publication of Comments Intended to Influence a Court (Article 522): The provision could effectively criminalize public advocacy by NGOs and others, who frequently make statements regarding pending trials. See also Article 523, which prohibits criticism of a judicial act or decision after the fact. These articles would also almost certainly outlaw advocacy campaigns such as the one led to the release of scapegoats Born Samnang and Sok Sam Oeun, who were falsely convicted of murdering unionist leader Chea Vichea.

“The scope of these provisions is breathtaking,” said Dr. Pung Chhiv Kek, President of LICADHO. “Articles 522 and 523, for example, could potentially criminalize any criticism of the judiciary.”

The code also carries certain supplementary punishments which may pose a particular threat to expressive freedoms:

-    Most criminal fines are now mandatory, and failure to pay the fine nearly always results in a prison term of up to two years. Thus an individual found guilty of defamation – which carries a mandatory fine but no prison term – may end up in prison anyway.

-    Most provisions carry an array of supplementary punishments, which include provisions open to serious abuse, including:

o    Expulsion from a profession, which may be used to purge teachers, lawyers, journalists, etc., who express dissenting political opinions in the course of their work.

o    Suspension of unspecified “civic rights,” possibly including voting, public speech, movement, etc.

o    Confiscation of property that may have aided certain crimes, including crimes involving speech; could be used to confiscate computers, printing presses and material required to operate NGOs, news outlets and other organizations.

LICADHO’s brief analysis on specific provisions of the penal code will also be included in LICADHO’s upcoming report “Freedom of Expression in Cambodia: The Illusion of Democracy,” which is scheduled to be released later in December.

If you want to know more about this information please see: http://www.licadho-cambodia.org/

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Wednesday, December 8, 2010

Law on personal status litigation (ច្បាប់ស្តីពី បណ្តឹងឋានបុគ្គល)


តើនីតិវិធីបណ្តឹងទាក់ទងនឹងឋានបុគ្គលមានអត្តន័យយ៉ាងណា? 
We would like to summarize the meaning of law on personal status: 

Law on personal status litigation is a special law which derived from code of civil procedure (CCP).  It stipulated the suits and other suits for formation of or the confirmation of the existence or non-existence of, a family relationship[1].

It also exemplifies personal status ligation relating to marital relationships, parental relationships by blood and by adoption as defined in the Civil Code, aimed at clarifying the types and contents of actions relating to personal status to be covered by this law.

CCP has three steps for process one case. First one is the stage of filing a suit, second is Preparatory Proceeding for Oral Argument (PPOA); and third one is proceeding for Oral Argument (POA).  However, the law doesn’t mention about PPOA therefore it means that personal status litigation may start from the stage of POA[2]. POA in principle, it shall be held in open court which publicity may observe but the law is not allowed the court to hold POA in open court except, court deems appropriate.

The concern provision is article 14 stated “A court in personal status litigation may base its judgment on any facts not alleged by either party, provided, however, that the court shall hear opinions from the parties regarding such facts”. By the ways, in article 21 “Notwithstanding the provision of paragraph 1 of Article 532 (The Organs that Grant
Preservative Relief) of the Code of Civil Procedure, in the event of the institution of a personal status litigation, the court may order on its own authority the execution of provisional attachment, provisional disposition and any other preservative relief measures stipulated in Book Seven (Preservative Relief) of the said Code. If this provision stipulated like that it allows judge to issue a judgment difference from party needs. It may unfair for the victim party.

Conclusion, this law gave much discretion to judge to order or adjudicate case which is different from CCP that party is initiative person to lead litigation and have right to deny or acknowledgment the claim but in this law, the judge will not consider what party admitted.


[1] Article 2
[2] Article 16


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What is involuntary homicide offences?

Involuntary offences are often committed in the context of the road and work accidents. An involuntary offence occurs where a person has caused physical harm to another without having wanted to do so, and sometimes without even having foreseen that they might do so. Thus, for an involuntary homicide there will have been no intention to kill. These offense are described in French as involontaire despite the fact that the act itself was voluntary, though the result wast not. For example, in a fatal road accident, the driver was often voluntarily driving at a n excessive speed, though he had not wanted to kill.

In the absence of a requirement of intention, these offences can be analysed as only requiring an actus reus which includes the element of fault, or the fault can be treated as the menes rea.
(Continue) 


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Tuesday, December 7, 2010

តើអ្វីទៅជាកំជាប់ពាក្យ?​

កំជាប់ពាក្យគឺជាពិធីជប់លៀងធ្វើឡើងសម្រាប់អោយញាតិសណ្តាន​ រឺអ្នកដទៃដឹងថា គូភាគីទាំងពីរនឹងរៀបការជាមួយគ្នានាពេលអនាគត៕ តើកំជាប់ពាក្យនេះជាកិច្ចសន្យារបស់របស់គូភាគីរឺ?​បើសិនជាភាគីម្ខាងបដិសេធមិនព្រមរៀបការតើភាគីម្ខាងទៀតអាចទាមទារសំណងនៃការខូតខាតបានដែររឺទេ?
សូមរងចាំទស្សនាភាគបន្ត៕

Monday, December 6, 2010

Reason of divorce case (មូលហេតុនៃការលែងលះ)

Can you provide your comment on infidelity case? case study: a married man or woman has sexual intercourse with same sex, is Cambodian law considered this case as infidelity or not? can his/her married wife/husband divorce based this reason?
We are waiting your idea about this issue...
តើលោកអ្នកអាចផ្តល់យោបល់លើករណីនៃអំពើផិតក្បត់បានដែរទេ?  ករណីសិក្សា បើនារី រឺបុរសជាប្តីមានសាហាយស្មន់ជាមួយមនុស្សភេទដូចគ្នា  តើច្បាប់ខ្មែរចាត់ទុកជាអំពើផិតក្បត់ដែររឺទេ?  តើប្រពន្ធរឺប្តីអាចយកមូលហេតុនោះមកធ្វើការលែងលះបានដែររឺទេ? យើងរងចាំនូវមតិយោបល់របស់របស់លោក លោកស្រី ចំពោះបញ្ហានេះ៕​
I would like to copy from the comments of people to put there: 
Anwer from Law Student at RULE: សំនួរសួរថា តើការផិតក្បត់ដែលប្រព្រឹត្តជាមួយភេទដូចគ្នារវាងសហព័ទ្ធណាមួយ អាចជាមូល ហេតុនៃការលែងលះគ្នាបានដែររឺទេ?
តាមមាត្រា ៩៧៨ កថាខណ្ឌទី១ នៃក្រមរដ្ឋប្បវេណីឆ្នាំ ២០០៧ ចែងថាៈ
១. ប្តី ឬ ប្រព័ន្ធ អាចដាក់ពាក្យបណ្តឹងលែងលះគ្នាបាន តែករណីដែលបានកំណត់ដូចខា...ងក្រោមនេះ៖
ក. បើបានប្រព្រឹត្តអំពើផិត ទៅលើសហព័ទ្ធ។ (…)
តាមមាត្រា ៣៩នៃច្បាប់ស្តីពីអាពាហ៍ពិពាហ៍និងគ្រួសារ ឆ្នាំ១៩៨៩ ចែងថាៈ
ប្តី ឬ ប្រព័ន្ធ អាចប្តឹងសុំលែងលះគ្នាបាន កាលបើមានមូលហេតុគ្រប់គ្រាន់បញ្ជាក់ថា ខ្លួនពុំអាច
រួមរស់ជាមួយគ្នាទៅទៀតបាន។
មូលហេតុជាអាទិ៍ មានដូចខាងក្រោមនេះ ៈ
(...) ៣. មានចរិតផ្ទុយពីសីលធម៌ ឬ ប្រព្រឹត្តអនាចារ (...)។
យោងទៅតាមវិធាននៃច្បាប់ខាងលើ ក្នុងក្រមរដ្ឋប្បវេណី កថាខណ្ឌទី១ ចំណុច ក. បើបានប្រព្រឹត្តអំផិត ទៅលើសហព័ទ្ធ
ត្រង់ចំណុចនេះ មិនបានសំដៅថាជាការផិតរវាង បុរសនិងស្រ្តី ឬភេទដូចគ្នាឡើយ ដូច្នេះយើង
ទាញបានថា អំពើទាំងនោះជាអំពើផិតក្បត់ ។
មួយវិញទៀត អំពើផិតដែលប្រព្រឹត្តឡើងរវាងភេទដូចគ្នា អាចជាអំពើដែលប្រជាជនខ្មែរភាគ
ច្រើនគិតថា ជាអំពើអសីលធម៌ដែរ ជាអំពើមួយគួរឲ្យអាមាស ចំពោះសហព័ទ្ធម្ខាងទៀត មូលហេតុទាំងអស់នេះអាចឲ្យសហព័ទ្ធម្ខាង
ទៀត ធ្វើជាមូលហេតុនៃការលែងលះបាន។
សូមបញ្ចប់។ 

Anonymous: In principle, in civil case, firstly, it should be looked at a special law other than general law. Because a special law stipulate clearly about the points for example, family law is derived from civil code. The family law states only the family matter. Civil code is a general law that governs the private sector. After we read specific law, and you find some points are still vague so we can go to see the general law.

Now I am going to topic: through reviewing family law 1989, it provides the ground for divorces. The either couple may file a complaint to court for divorces unless s/he shall have either reason which states in article 39 “A husband or wife may file a complaint for divorce if there are enough grounds which indicate that he or she cannot continue the conjugal cohabitation”. The grounds for divorce are:
……..
3. immoral behavior, bad conduct: Does s/he made love with same sex is an immoral behavior or bad conduct? A person who is a bi-sexual person considered as immorally in society?
……
We consider the point three above, is it applied for case study? I think it’s not applied because the immorally behavior or bad conduct, it doesn’t define clearly in any law. However, we can see in Khmer dictionary mention about “morality” refers to person who respect old generation, have good conduct… and for “bad conduct” is referred to do something is wrongly as tradition….Therefore, we cannot take above category to apply the case study. However, we can find the reason for divorce in Civil Code. Please see article 978: Husband or wife can bring a suit for divorce only in the following cases:
a) If the other spouse has committed an act of infidelity;
b) ……….

What is infidelity? In Civil Code doesn’t define about the infidelity but law on monogamy law (this law was adopted by national assembly since October 2006) defined about this matter. In article 7 of Monogamy Law mention clearly “it shall be considered as infidelity when making love of a husband whose marriage has not yet been terminated, to a woman besides his wife, or make love between a wife who marriage has not yet been terminated with other man beside her husband.
It shall be considered of infidelity:
- A man whose marriage binding has not yet terminated and who has made loved with other woman
- A woman whose marriage binding has not yet terminated and who has made loved with other man”

Conclusion, the infidelity can be applied only a married husband/wife has sexual intercourse with opposite sex only. It doesn’t apply the same sex.

However, in Civil Code of Japan states in article 770 about the ground for divorce such as Act of unchastity, Malicious Desertion (mala fide desertion), Whereabouts unknown for more then 3 years, Severe mental illness with no possibility of recovery and Other serious causes of matrimonial difficulty. According to Book on Introduction to Family Law of Japan, published by Research and Training Institute of the Ministry of Justice of Japan, printed 1995, page 23 mentioned about Act of Unchasity refers to all acts that violate the faithful duties of a husband and wife. This is generally considered to be broader in scope than Adultery. Therefore, if husband/wife has something is not faithful, other couple can divorce.

In conclusion, through discussed above, the infidelity made by a married husband/wife with the same sex, the other couple cannot put their reason to divorce because in Monogamy Law mentioned about the definition of infidelity but s/he can find other reason to divorce as well such as the matrimonial relationship has otherwise broken down and there is no prospect of reconciliation and other thing which are stipulate in article 39 of family law, 1989 and civil code, article 978.