Monday, September 5, 2011

Demand Procedure in Code of Civil Procedure of Cambodia

Chapter One  Meaning of Demand Procedures
Demand procedures are procedures to grant an obligee a title of execution (Article 350) that is necessary to conduct a compulsory execution with regard to a claim for the payment of money and functionally to substitute for a suit for payment.  Under the civil procedure system, an obligee cannot exercise a claim for payment via execution until it files a suit and obtains a prevailing judgment.  However, it requires a considerable amount of money and time if an obligee files a suit and advocates at the court every time, even for a minor claim that the other party will not contest.  Thus, demand procedures have been established in order to provide for a means to allow an obligee to obtain a title of execution by way of a simple, prompt and inexpensive method without the usual litigation procedures when an obligor does not intend to contest the existence of the claim, but intentionally fails to perform the payment obligation.  For this reason, an obligor shall be given an opportunity, upon a motion of objection, to pursue court proceedings in the usual way if he or she intends to do so.  Demand procedures are a type of special proceedings for which, however, an examination of both parties is not conducted, and where the party filing the motion is called an “obligee” and the other party is called an “obligor.” California Code of Civil Procedure 2005 downloadable Software


Chapter Two  Motion Seeking the Issuance of a Demand Ruling

1.         Court having jurisdiction over a motion for a demand ruling
A motion seeking the issuance of a demand ruling shall be made in the court of first instance having jurisdiction over the corresponding locations provided for below, (1) in cases where the other party is a natural person; the person’s domicile, or where there is no domicile in Cambodia or such domicile is unknown, the location of the person’s residence, (2) in cases where the other party is a domestic juridical person; the juridical person’s main office or place of business, or where there is no office or place of business, the location of the domicile of the entity’s representative or other principal person in charge of the operations of the entity, or (3) in cases where the other party is a foreign juridical person; the juridical person’s main office or place of business within Cambodia, or where there is no office or place of business within Cambodia, the location of the domicile within Cambodia of the entity’s representative or other principal person in charge of the operations of the entity (Article 320, paragraph 1 (c)).  A motion seeking the issuance of a demand ruling with a claim against a person or entity having an office or place of business at a certain location and pertaining to business transacted therein may be filed in the court of first instance having jurisdiction over such a location.  In addition, a motion seeking the issuance of a demand ruling with a claim for the payment of money based on a bill or check, or a claim ancillary thereto may be made in the court of first instance having jurisdiction over the location of the payment of the bill or check (Article 320, paragraph 2).
2.         Requirements for a demand ruling
(1)  A claim should be for the payment of money
A motion seeking the issuance of a demand ruling may be filed only for a claim for the payment of money (main body of Article 319).  This is because, as for this type of claim, if an obligee conducts a compulsory execution by mistake, the resulting damage can be easily restored by monetary compensation.  While a claim is required to be valid, a claim seeking the performance of an obligation in exchange for counter-performance is also allowed.
(2)  A demand should be served in Cambodia in a manner other than serving the notice by publication
A motion for a demand ruling can be filed only if the demand can be served in Cambodia in a manner other than serving by publication (proviso of Article 319). This is in order to give the obligor an opportunity to make a motion for an objection.
(3)  Mutatis mutandis application of the provisions pertaining to a suit
In general, provisions pertaining to a “suit" shall apply mutatis mutandis to motions seeking issuance of a demand ruling except where such provisions are inconsistent with the nature of such a ruling (Article 321).  Therefore, a motion shall include the names and addresses of the parties as well as the ruling sought and the facts necessary to specify the claim (mutatis mutandis application of Article 75, paragraph 2).

3.         Proceedings for a motion and a trial
(1)  Dismissal of a motion for a demand ruling
A demand ruling shall be issued without examination of the obligor (Article 323, paragraph 1).  Where a motion for a demand ruling is not according to the law since it does not satisfy the requirements for a demand ruling (Article 319) or relates to the wrong jurisdiction (Article 320), or it is clear from the substance of the motion that there are no grounds for the claim, the court shall dismiss the motion via a ruling (First sentence of Article 322).  Where a demand ruling cannot be issued as to part of a claim, the above-mentioned provision shall apply to such a part (Second sentence of Article 322).  A motion for an appeal may not be filed against a ruling for a dismissal.  This is because obligees will not be definitely deprived of the means of contesting their rights even when receiving a ruling for a dismissal since they are able to file a suit to seek the issuance of a demand ruling.
(2)  Acceptance of a motion for a demand ruling
When the court determines that the motion is acceptable, the court shall issue a demand ruling.  A demand ruling shall include the names and addresses of the parties, the contents of the main text of the ruling sought and the facts necessary to specify the claim, and an order for the payment of a certain sum of money (Article 324, paragraph 1) as well as a statement to the effect that if no objection to this is brought within two (2) weeks from the date that the obligor was served with the order, the court shall on its own authority make a declaration of provisional execution (Article 324, paragraph 2).  The court shall notify the obligee of the demand ruling and serve the demand ruling on the obligor (Article 325, paragraph 1).  The demand ruling shall take effect when it is served on the obligor (Article 325, paragraph 2 and in cases where a demand ruling cannot be served, see Article 325, paragraphs 3 and 4).

Chapter Three  Objection to a Demand Ruling

1.   Objection to a demand ruling made before a declaration of provisional execution.
(1)  Meaning of an objection to a demand ruling made before the declaration of provisional execution
A demand ruling shall be issued without an examination of the obligor (Article 323, paragraph 1) or a review as to whether a claim exists or not.  Hence, the Code of Civil Procedure stipulates that the obligor may make an objection to a demand ruling before the court that issued it (Article 323, paragraph 2) and that if the objection to a demand ruling is made, a suit shall be deemed filed before the court with regard to a claim to which an objection to the issuance of a demand ruling has been filed (Article 327) in order to ensure that the obligor has an opportunity to contest it.
(2)   In cases where no objection to a demand ruling is made
Where an obligor fails to make an objection to a demand ruling within two (2) weeks of the date of being served such a ruling, the court shall, on its own authority, include in the demand ruling an additional statement regarding the amount of costs incurred in connection with the demand procedure and shall make a declaration of provisional execution thereof (Article 328, paragraph 1).  Furthermore, even if an objection is made but the court issues a ruling dismissing such an objection and it becomes final and binding, the court shall follow the same procedures mentioned above (Article 328, paragraph 1).  The declaration of provisional execution shall be served on both parties (Article 328, paragraph 2).  The ruling demanding payment accompanied by a declaration of provisional execution shall be deemed a title of execution (Article 350, paragraph 2 (d)) based on which, the obligee may conduct an execution.
(3)  In cases where an objection to a demand ruling is made
On the other hand, where a valid objection to the issuance of a demand ruling is brought prior to a declaration of provisional execution, the demand ruling shall lose its legal effect to the extent of the objection raised to it (Article 327, paragraph 1) and no declaration of provisional execution can be made any more.  Where a valid objection is made, a suit shall be deemed filed before the court with regard to a claim as to which the objection to the issuance of a demand ruling has been filed (First sentence of Article 327, paragraph 2).   Thus, the existence of the claim made by an obligee will be reviewed in the course of the court proceedings and a judgment will be made.  In this case, costs incurred in connection with the demand procedures shall be deemed part of the costs of the litigation initiated thereby (Second sentence of Article 327, paragraph 2).

2.    Objection to the issuance of a demand ruling brought after a declaration of provisional execution
(1)  Meaning of an objection to a demand ruling brought after the declaration of provisional execution
If an obligor fails to raise an objection to a demand ruling within two (2) weeks of the date of being served with the ruling, or where the court dismisses an objection to the issuance of a demand via a ruling due to unlawfulness, the court shall make a declaration of provisional execution.  In this case, the obligor may again file a motion for an objection within two (2) weeks of the date of being served with the declaration (Article 329, paragraph 1).  This two-week period may not be extended (Article 329, paragraph 2).  If no objection is made with regard to a demand ruling during this period, the procedure is completed and the demand ruling shall have the effect of a final and binding judgment (Article 333).
(2)  Unlawful objection to a demand ruling
Where the court determines that an objection to the issuance of a demand ruling that was brought after a declaration of provisional execution is unlawful (e.g. where the period for filing an objection has already expired, etc.), the court shall dismiss the objection via a ruling (Article 330, paragraph 1).  An obligor may file a Chomtoah appeal against such a ruling (Article 330, paragraph 2), however, when a ruling to dismiss becomes final and binding, which means that the obligor has not filed a motion of objection nor a Chomtoah appeal, the demand ruling shall have the effect of a final and binding judgment (Article 333).
(3)  Effect of a lawful objection to a ruling
Where a valid objection to the issuance of a demand ruling is brought after a declaration of provisional execution is made, a suit shall be deemed filed before the court that issued the demand ruling with regard to the claim for which the objection to the issuance of a demand ruling has been filed (First sentence of Article 331), and the demand procedure is transferred to the usual court proceedings.  In this case, costs incurred in relation to the demand procedure shall be deemed part of the costs of the litigation initiated thereby (Second sentence of Article 331).
A motion for an objection to a demand ruling raised after the declaration of a provisional execution does not have the effect of invalidating the demand ruling with a declaration of provisional execution that constitutes a title of execution, but rather it has a similar function to an appeal to demand the reversal of the ruling.  Therefore, where a judgment rendered in litigation to which the demand procedures are transferred due to the fact that the filing of the motion for objection conforms to the original demand ruling (i.e. where the court approves the original claim made by an obligee), the court shall uphold the demand ruling that included the declaration of provisional execution (First sentence of Article 332, paragraph 1), provided, however, that this shall not apply where the demand procedure was conducted in violation of the law (Second sentence of Article 332, paragraph 1).  On the other hand, if it is deemed that a claim has no valid grounds, the court shall render a judgment to nullify any demand ruling that includes a declaration of provisional execution (Article 332, paragraph 2).  







Commentary on the Italian Code of Civil ProcedureCommentary on the Italian Code of Civil Procedure











If you need inquiry, please drop your e-mail to cambodianlawjournal@gmail.com. Welcome all comments on this blog
Post a Comment