Tuesday, January 22, 2013

EXAMINATION OF JUDICIAL ADMISSION IN CIVIL PROCEDURE: TOWARDS A MECHANISM BEST FOR ALL



In civil disputes, it is generally up to the parties to initiate and instigate litigation, investigate facts, and present proof and legal arguments to the tribunal. As a result, the function of the court is limited to adjudicating the issues raised by the parties on the proof they have presented and with few exceptions, court will waive the issues, objections or points that parties have failed to raise, mention or make. However, it is not always the case that the parties who have asserted facts must prove the existence of the facts. There are exceptions in which courts employ some facts asserted by a  party as the basis of judgment without requiring parties to prove them. The civil procedural laws of many countries stipulate these exceptions.

Article 179 of the Code of Civil Procedure of Japan, for example, stipulates that the “[f]act admitted by a party before a court shall not be required to be proven.” Similarly, the Code of Civil Procedure of Cambodia prescribes in its Article 123 “[f]act admitted to by a party in court (…) need not be proven by evidence.” In addition, Rule 36 (b) of the Federal Rules of Civil Procedure of the United States of America contain not the similar provisions that specifically mention about the fact, but prescribe more broadly that “[a] matter admitted under [Rule 36] is conclusively established unless the court (…) permits the admission to be withdrawn or amended.”

Japanese scholars and court practices have long developed the theories of admissions, while the Federal Rules of Civil Procedure of America provide how an admission may be established. However, admission is merely a term in our civil procedure code, while its concept is absent and the court practices provide little or no basis for any conception. Leaving such situation remains status quo will harm the civil justice system of Cambodia because courts can arbitrarily presume that there is a judicial admission related to a particular fact that the court could base its judgment on to determine the claim of a party. Therefore, it is necessary that Cambodian scholars introduce a proper admission system to Cambodian civil procedure.

This dissertation serves this purpose. It aims at giving a recommendation on a proper judicial admission system to Cambodia to solve the current problem, the lack of judicial admission system to realize the spirit of our current law and to serve as one among effective tools to apply civil justice system.

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