HISTORY OF THE NOTARY/NOTAIRE COUNSEL
OF THE KINGDOM OF CAMBODIA
The history of the Notary/Notaire profession
dates back to as early as 1539 in France, and in 1946, the Superior Council
of Notaries was established.
The Notary Counsel of the Kingdom of
Cambodia had been existed since 1954 but it was suspended in 1975 on the account
of war. However, on December 4, 2001, the Royal Government of Cambodia decided
to reinstall the Notary System and Mr. Benson Samay, member of the Bar Association
of the Kingdom of Cambodia, was appointed under the Sub Decree No. 505/GnRk/tt
to be the Notary Counsel in addition to his present profession so as to better
the procedures in accordance with international standards of practice.
Because of the French colonized Cambodia,
the legal system follows the French Notary System. The concept of authentication
belongs to Civil Law (whose origin derived mainly from the Roman Law) that is
more profound compared with the Common Law system where any conflict arising
from the contract must be settled in court.
Civil Law is founded on the principle
of pre-eminence or written proof. The law establishes the legal framework to
regulate contractual relationships. The State guarantees the security of the
relationship and protects them by delegating part of its authority to Notary
Counsels for the purpose of administrating the deeds that also enables them
to settle areas of conflict before the deed is actually drawn up.
Authentication is defined, as the set
of qualities given to a deed administered by a Notary Counsel and Authentic
Deeds are proof of the agreement they contain. It has among others a probative
force that has proven its genuineness based on the verified content of the party's
statement. In addition, authentic deeds carry the same weight as a judgment
in the court.
By virtue of this formula and seal affixed
by the Notary Counsel at the end of the deed, it is the State that proclaims
the agreement contained in the deed of the private law and orders all relevant
authorities to give assistance as appropriate for the execution of the deed.
For example a creditor may directly resort
to the services of the Bailiff to enforce collection of the debt without having
to bring the case to court. Based on the authentic deed done by a Notary/Notaire
Counsel, the same procedure can be used by banks and financial institution to
auction both movable and immovable properties. A long litigation process is
thus avoided and this is one of the most significant factors compared with a
private contract or agreement.
Today, security, efficiency and clarity
requirements override the need for simplicity and speed, and hence Authentication
is very important. The Prime Minister of one of the European Economic Community
countries recently reaffirmed the importance of the authentication in his speech
"...it is authentication that gives a contract unequalled legal weight
for the parties involved. An authentic contract is easier to perform because
of the content of the deed which, in view of its precision, avoids conflicts
and because of the executory affixed to it, which makes it effectively enforceable".
Authentic deeds enjoy international recognition
and enforceability. In European Economic Community countries, the Brussels Convention
of 27 September 1968 amended in 1978 makes authentic deeds enforceable at law
outside the territory / country of which they were drawn up, thereby providing
international efficiency and as such also enjoy the international recognition
of probative force.
Notary/Notaire Counsels are independent
from the Authorities appointing them. Notaries play significant and active roles
in drawing up legal documents, providing preliminary council by clarifying the
intention of the parties and informing them about the consequences of their
intentions. The Notary provides impartial advice while ensuring the stability
of agreements and their legality giving intentions of relevant parties’
appropriate legal wording. A record of the Authenticated Deed is kept at the
Notary Counsel for up to 100 years before being filed in the State Archives
or entrusted to the relevant authority appointed by the State.
The most significant role of the Notary
is that a Notary assumes full responsibility for the genuineness and the legal
weight administered by them. They are impartial guarantors of the parties' information
and protection, just like a comprehensive insurance package for the contracts
Authentication opens the way to a more
secure, efficient and liberal society that seeks protection of their respective
legal rights. By facilitating the administration of proof of a contract, authentication
gives legal practice an incomparable and essential added value.
It may be useful to note that Authentic
Deeds fulfill the purpose of providing legal security and the prevention against
lengthy and expensive litigation. Less than 0.05% of notarial deeds become involved
in legal procedures in Civil-law countries compared with Common Law countries
where 30% of deeds come under litigation before the courts.
The fact that Notary/Notaire Counsels
are now found in nearly 80 countries covering nearly 60% of the population shows
that the world's population is moving towards written proof to provide them
the legal protection and needed security measures required in the new society.
Cambodia, a country ravaged by two decades
of war is now reintroducing the Notary in its effort to promote harmony and
stability. As a new ASEAN member, Cambodia strives to improve measures to guarantee
the safety, legal protection of the its people, foreign nationals while at the
same time assures potential investors that their rights are equally protected