~TRODUCTION
TO LAW By
ROLANDO A~REZ LL.B., San Beda College Founding and Managing Partner, Suarez, Paredes, Zamora & Suarez Law Offices; Law Practitioner and Professar of Law · Author: Principles, Comments and Cases in Constitutional Law I; Principles, Comments' and Cases in Constitutional Law II; Agrarian Reform and Social Legislation; · Comparative Study: Roman Law and Philippine Law, First and Second Editions; Introduction to Law, First, Second and Third Editions; Notes and Coniments, Proclamation No.3 and The Provisional Constitution of the Philippines; Agrarian Reforrri,- Co~peratives and Taxation; A Mile to Go {or Genuinè:I;and Reform in the Philippines; Statutory Construction; Torts and Damages
FOURTH EDITION
Publlshed & Dlstrlbuted by
t.IPHR RECEIVEQ -u •
. 8
~· ~
fJATf '
l\,
.•
TABLE OF CONTENTS
.
.
.
>
..
Acknowledgment .............................................. ...............•....... Dedication ····························~······~:~., ..................................;........ Preface to the Fo11:rth Edition .........': ............................. ;........
Chapterr
• •• 111
v vii
·) , ·
'•'j
LAW, ITS CO:NçEPT ANI> CLASSIFICATION Definition of law ............. ,..~··~·························,.~·.-·.'",'"'"············· Classification of law ............................................................... · Sources oflaw •............................................................ ~...........
l 2 4
Chapter II .1·',
:
'
WORLD'S LEGAL SYSTEM . !'
'~
:
The three prevailing legai system .......•...... :......................... Roman Law ................................................................ ~............ Value and importance ofRoman.Law .................................. Politica! History of Rome ........... ;; .......•........................• ,..,,.,. Common law ...............................•.• ;•.o; ••••••• : ••••• ; ••••••••••••••• ;;;...... Mohammedan law .............................. ;...•................•. ~ .........•.. ·· Blending of Legai Systems in the Philippines ....•...............
6 .·:7 .7 9 · 14 14 .14
·'
Chap.ter III LAW AND ITS APPI,.ICATION Court's duty to decide every case .; .... :.................................. Application of laws ........... .............•....... ................................. Statutory construction, its c~ncept, purpose, and effect .•.. Construction distinguished from interpretation ................. Meaning of the rule: "One must iilterpret first before he construes" :... ;.. ;.. ;:......................................... ;......... :..... Intrinsic aids distinguished from: extrinsic aids ..............•.. Purpose of interpretation and coristruction ... i.: •.. ;............... ix
16 17 17 17 18 18 18
When is it necessary and not necess11ry ,to interpret and con~?truct? .~: .. ;.... :.. :.. :........... ~ .. ~:.:~: .......................... . Who interprets the law and who.dete;rmii~es legislative_ ~ntent? ........ , .............. :.... Which prevails ..:.__ the letter of the law or the spirit ofthe law? ..................................................................... . Aids in interpretation· and construction ............................. . Simplification of the rule regarding the use of extrinsic aids ............................................................ .
,T ..........................
ChapterVI
18
19 19 20 24
ChapteriV THE LEGAL PROFESSION AND THE QUALIFICATIONS AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW Qualificatìon for admission to the practice of law ............. . First requirement .................................................................. . Second requirement .............................................................. . Purpose of imposing said requirements .............................. . Procedure for admission to the practice of law .................. . Consequence of failure to pass said examination .............. . Practice of law is more of a privilege than a right ............ . Practice of law is a profession and not a business ............ . The duties of a lawyer .......................................................... . Lawyer's compellsation .......... :.............................................. . Disciplinary power over attorneys ....................................... . Integrated Bar of the Philippines .................................. ,.... .. Integration of the bar defined ............................................... . Legal an d constitutional basis ............................................ .. Supporting arguments in support of constitutionality and legality ................................ ;.................................. .
26 26 27
28 28 29 29 30
31 31 32 33 33 33
33
·chapterV PERSONS Concept of a person ............................. ,................. ;.............. .. Capacity ................................................................................. . When does the personality of a natural person begin? .... .. When does the personality of a private corporation (private juridical person) begin? ................................ .. When is a fetus considered horn? ........................................ . x
35
36
37 38 38
CONCEPT AND NATURE OF MARRIAGE Concept ................................................................................... . Definition of marriage ......................................................... .. Requisites of a valid marriage ............................................ .. Essential requisites ............................................................... . . . l F ormal requ1s1tes .................................................. ,............... .. Requirements if any or both of the contracting parties are between 18 and 21 years old and if any or both are not emancipated by marriage .................. . Requirement if any of the contracting parties is between 21 and 25 years old ...................................... .. Effect if marriage is celebrated within the three (3) months period on the basis of a marriage license issued in violation of the said period ......................... .. Authority of the solemnizing officer .................................... . Marriage license .................................................................... . Formalities of marriage ....................................................... .. Void and voidable marriage ................................................ .. What marriages are void from the beginning? ................. .. What are other voi d marriages? ......................................... .. Essential requisites: (l) Legai capacity and (2) consent freely given ....... ~ ............................................. .. What constitutes fraud as a ground for annulment of marriage ................................................ . Effect of annulment of voidable marriage .......................... . Status of children born-out ofmarriages ab initio ............ . Status of children horn out of voidable marriages ............ . Restrictions and precautions to be observed by the court in issuing the decree of annulment.. .......... . Legal separation ................................................................... .. Grounds for legal separation ............................................... . Within what time should an action for legai separation be filed? ...........·................... ;...................... .. Evidence required as basis for judgment in action for legal separation ........................................... . What is adultery? .................................................................. . What is concubinage? ........................................................... . Requisites for legal separation ............................................ . Effects of legal separation ................................................... .. Effects after filing of the petition (Art. 61, FC) ................ .. xi
42 42 43
44 45
46 47 47 47 48 48 48 50 50 55 56
57 57 58 58 58 58 59 . 59 60 60 60
61 61
Effects during pendency of legai separation (Art. 49, FC) ..... ;............................................................ . ·Effects of the decree of legai separation (Art. 63, FC) .................................................................. . Effects during the proceeding for legal separation or of annulment of marriage ...................................... .. Parent;1l authority is exercised by the parent designated by the court (Art. 213, FC) ....................... . Effect of reconciliation of the parties (Aris. 65 and 66, FC) ...................................................·. In case of breach of mutuai obligation or mutuai help and support ............................................. . In case of breach of mutuai obligation to observe respect an d fidelity ....................................................... . As regards the obligation of the spouse to live together ... . Absolute divorce .................................................................... . Conjugal partnership of gains ............................................. . Definition of paraphernal property ..................................... . Rights and Obligation Between Husband and Wife .......... . What are the duties of husband and wife? ......................... . Scope of duty to live together .............................................. . Mutuai respect and fidelity .................................................. . Mutuai help an d support ...................................................... .
~:~~~reg::q~!xa:~i::;:ri;;·b;·································· gratuit~ title? ............................................................ . What is a mamage settlement? .......................................... . Who are the parties to a marriage settlement? ..............•... Systems that may be adopted by the parties to govern their property relations ................................... . What systems govern? .......................................................... . In the absence of marriage settlement, or when the agreed regime is void, what governs the property relations between husband and wife? ......... . Concept of donation propter nuptias ................................... . Requisites of donation propter nuptias ............................... . Distinctions between donation propter nuptias and ordinary donation .................................................. . Rights and Obligations Between Husband and Wife Common to husband and wife ..................................... . To livc together .....................................: ................................ . Wife may establish a separate domicile .............................. . Other consequences of marriage .......................................... .
xii
ChapterVII 62 62 62 63
THEFAMILY Family defined .. .. .... .. .. .. ... .. .. ..... ... ..... .. .... .. ... .. ... .. ... .. ... ... ......... Family suits are discouraged .... ... .. .. .. .. ... .......... ..... ... .. .. .. ...... Family home defined ............................................................. Advantages of a family home................................................
74 74 74 75
Chapter VIII 63 63 64 64 65 65 66 66 66 66 66 67 67 67 68 68
68 69
69 70 70 70
71 72 72
73
PROPERTY Property defined ..................................................................... Principal classification of property .. .. ... .. .......... ..... ....... ........ Classification of real or immovable properties.. ..... .. .... ..... .. Movable or personal properties ... .. .. ........ .. .. .. .... .. ................. Definition an d concept of ownership ... ... .... .. ... .... .. ........... .. .. Extent of ownership ... .. .. .. ... .. ... ....... .. .. ... ... .. .. ...... .. ..... .... ........ Ownership of a hidden treasure ........................................... Definition of hidden treasure ... ... .. .. .. .. .... .. .. .. ... ...... ....... .. ...... Modes of acquiring ownership ... ..... .... .. .... .. .. .. .... .. ... .. ........... Attributes of ownership ......................................................... Important articles of the New Civil Code on ownership an d possession .. ....... .. ... .. ....... ......... .. .. .... .. ... Effects of possession ..... .. ... ....... .. ..... .. .. ... ... .... ... ... ..... .... ... ......
76 77 77 79 79 80 81 82 82 84 85 87
Chapter IX
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS Elements of a contract ... ... ... .... ... .. .. .. .. ... ... .. .. .. .... ..... ....... .... ... When is a contract perfected? ............................................... Can the contracting parties agree on any term or condition? ......... :........................................ Basic principles to remember apout contracts ..... .. ......... ... . Conce p t of obligation ... .. ... ... .... ... .. .. ..... ... .. .............. .. ......... ..... Sources of obligation ...... .. .... .... ... .... .. .. .. ... ... .. .. ... ... ....... ..... .. ... Nature an d effects of obligations ..... .. ... .. ........ ... ......... .......... Obligation of a perso n obliged to give something .... ... .. ...... Obligation to give a determinate thing ................................ When is a thing specific or determinate and when is it generic or indeterminate? ..................................... Effect of obligation to deliver a specific thing and a generic thing ....... ;............................................... xiii
90 91 91 92 98 99 99 99 100 100 100
Effect of obligation ................................................................ . Effect of obligation not to do ................................................ . Debtor is in default from the time of demand ................... . Effect if there is frau d, negligence or delay ....................... . Kinds of damages .................................................................. . Responsibility arising from fraud (dolo) ............................. . Responsibility arising from negligence (culpa) .................. . Kinds of culpa ........................................................................ . Distinctions between culpa contractual, culpa aquiliana and culpa criminal ..... ;................................ . Is a person responsible for those events which could not be foreseen, or which though foreseen are inevitable? ............................................................... . Kinds of obligation ................................................................ . Definition and illustration ............... ,................................... . Extinguishment of obligations ............................................. .
101 101 101 102 102 102 102 103 103 104 104 104 106
ChapterX SPECIAL CONTRACTS Sale .......................: ................................................................ . Agency .................................................................................... . Partnership ............................................................................ . Loan ........................................................................................ . Pledge an d mortgage ............................................................ . Antichresis .................... ~ ........................................................ . Common carriers .................................................................... .
110 114 119 121 123 124 125
Actual example of an acknowledgment of a will ................ . Qualifications of witnesses to notarial wills ...................... . A will can be revoked or altered .......................................... . In case of supplement or alteration ........... :........................ . In case of revocation ............................................................. .
134 135 135 135 136
ChapterXII TORTS AND DAMAGES ' Definition of a quasi-delict ................................................... . Requisites of a quasi-delict .................................................. . Quasi-delict is a civil wrong ................................................. . The act or omission must be without intent to cause damage ........................................................... . If there is no intention to cause damage ............................ . Distinctions ............................................................................ . What is negligence? .............................................................. . What is the test to determine negligence? ......................... . Degree of care of negligence that is required ..................... . What are the defenses that can be interposed in quasi-delict? .............................................................. . Old cases ............................................................................... . New cases ............................................................................... .
138 139 139 139 139 140 140 142 142 143 144 148
Chapter XIII POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
ChapterXI SUCCESSION Conce pt and definition of succession ................................... . What inheritance includes ................................................... . Kinds of succession ............................................................... . What is a will? ....................................................................... . Characteristics of a will ........................................................ . Wl.o can make a will? ........................................................... . When is a person of sound mind? ........................................ . Wills allowed under the New Civil Code ............................ . Requisites of a valid will ..................................................... .. Actual example of an attestation clause ............................. . Actual example of attestation clause where testator caused some other perso n to write his name ............. . xiv
129 129 130 130 130 131 131 131 131 133 133
Definition ............................................................................... . Constitution ........................................................................... . Basic ptiriciples of the Constitution .................................... . Classifications of the Constitution and its definitions ...... . The 1987 Constitution may be changed ............................. . Due Process of Law .............................................................. .. Procedura! Due Process in Administrative Proceedings .. .. Search an d Seizure ............................................................... . Privacy of Communication and Correspondence ................ . Freedom of Speech and of the Press ................................... . Freedom of Re ligion .............................................................. . Liberty of a bo de and Travel ................................................. . Right to Information ............................................................. . Right of Association .............................................................. . Taking of Private Property for Public U se ......................... . xv
163 165 165 166
171 173 178 179 179 180 181 182 182 184 185
Prohibition against impairment of obligation of contracts ................................................................... .. Free access to courts and quasi-judicial bodies an d adequate legai assistance ..................................... . Right to remain silent and to have competent an d independent counsel ............................................. . Right to bail ...................................................... :................... .. Due Process in Criminal Proceedings ................................ .. Habeas Corpus ...................................................................... .. Speedy disposition of cases before ali judicial, quasi-judicial or administrative bodies ...................... . Rights against self-incrimination ........................................ . Freedom of politica! belief and freedom against involuntary servitude .................................................. .. Right against excessive fines, degrading or inhuman punishments ................................................. . Right against imprisonment for debt or non-payment of poli tax ...................................................................... . Double Jeopardy ................................................................... .. Right against ex post facto law and Bill of Attainder ........ . Police Power ......................................................................... .. Power of Emine n t Domain ................................................... . Power of Taxation ................................................................. . Similarities and distinctions of the three inherent powers of the State ...................................................... .. What is impeachment? ........................................................ .. Who are the impeachable officials under the 1987 Constitution? ....................................................... . What are the grounds for impeachment? .......................... .. Procedure of impeachment .................................................. .. Who can file a complaint for impeachment? ...................... . Can an impeachment proceeding be initiated against the same official more than once within a period of one (l) year? ............................................................... . Who has the sole power and authority to decide ali cases of impeachment? ................................................. . What is the nature of the impeachment proceedings? ...... . What rules apply in an impeachment proceeding? ............ . What is needed in order to convict the person subject of impeachment? ........................................................... . What is the effect of a judgment in case of impeachment? ........................................................... . xvi
186 188 190 191 192 193 194 195 196 196 196 197 198 200 200 200 200 202 202 202 206 206
206 207 207 208
Can President Estrada be prosecuted in case h e is acquitted? ............................................................. .
208
CbapterXIV
CRIMINAL LAW
Historical Background ......................................................... .. Classica! school of thought ................................................... . Positivist school of thought .................................. ;.............. .. Criminallaw .......................................................................... . Basic principles of criminallaw .......................................... . Who incurs criminal liability? ............................................ .. Stages in the commission of felonies .................................. .. Notes ...................................................................................... . Enumeration of ali circumstances that modify or affect criminal liability ............................................ . What is Habitual Intoxication? ........................................... .. What is Illiteracy? ................................................................. . Who are principals? ............................................................. .. Who are accomplices? ........................................................... . Who are accessories? ............................................................. . Modification of the penalty for the violation of B.P. Big. 22 ..................................................................... ,
213 213 213 213 214 214 215 215 215 219 219 220 220 221 227
CbapterXV
REMEDIAL LAW
Attachment ............................................................................ . Preliminary Injunction ......................................................... . Grounds of issuance of Preliminary Injunction ................ .. Receivership ........................................................................... . When to appoint a receiver? ............................................... .. Replevin ................................................................................. . Alimony Pendente Lite ........................................................ .. Special Civil Action .............................................................. .. Special Proceedings ............................................................... . Criminal Procedure ............................................................... . Evidence ................................................................................. .
2G8 208 xvii
234 234 234 235 235 235 236 236 240 260 271
ChapterXVI LABOR LAW AND SOCIAL LEGISLATION Labor laws de fin ed ................................................................ . Social legislation defined ...................................................... . Distinction Between Labor Laws and Social Legislation .. . Labor Laws ............................................................................ . Generai Provisions of the Labor Code of the Philippines .. Emancipation of tenants ...................................................... . Regulation of recruitment an d placement activities ......... . Employment of non-resident aliens ..................................... . Conditions of employment .................................................... . National Labor Relations Commission (NLRC) ................. . U nfair labor practices ........................................................... . Strikes and lockouts ............................................................. . Termination of employment ................................................. . Retirement from the service ................................................ . Thirteenth-month pay .......................................................... . New Social Security Law (SSS) ........................................... . New Government Service Insurance Act (GSIS) ................ . Comprehensive Agrarian Reform Law ................................ .
276 277 277 277 277
278 279 280 281 288 290 293 296 299 299 301 306 308
Chapter l LAW, ITS CONCEPT ANO CLASSIFICATION IMPORTANT TOPICS IN TIDS CHAPTER: l.
Definitìon of law
2.
Classification of law (a) (b)
3.
Natural Law Positive Law
Sources of Law (a) (b) (c) (d)
Legislation Preceden t Custom Court Decision
DISCUSSION 1.
DEFINITION OF LAW
The term "law," in its broadest sense, means any rule of action or norm of conduct applicable .to all kinds of action and to all objects of creation. In this sense therefore, it includes all Iaws, whether they refer to state Iaw, physicai Iaw, divine Iaw and others. In a strict legai sense, Iaw is defined as a ruie of conduct, just and obligatory, Iaid down by legitimate authority for common observance and benefit. (Sanchez Roman, 23) Based on this definition, Iaw has the following elements: l.
xviii
lt is a rule of conduct - Laws serve as guides of an individuai in reiation to his fellowmen and to his community; l
INTRODUCTION TO LAW
2
2.
Law must be just - The chapter on human relations is now precisely embedded in the New Civil Code in order to obtain stability of the social order. Laws, as guides for human conduct, "should run as golden threads through society, to the end that law may approach its supreme ideai which is the sway and dominance of justice" (Report ofthe Code Commission, page 39);
Divine Law
3.
It must be obligatory - If laws are not enforced, the purpose for which they are intended will not be served;
Public Law
4.
Laws must bE? prescribed by legitimate authority - lflaws are not prescribed by legitimate authority, the people could not be expected to observe them. Authority to make laws is conferred upon those duly chosen by the sovereign will of the people. This is in consonance with Section l, Article 2 of the Philippine Constitution which says that "sovereignty resides in the people and all government authority emanates from them";
5.
2.
LAW, ITS CONCEPT AND CLASSIFICATION
a. Divine Positive Law, i. e., Ten Commandments. b. Divine Human Positive Law, i':e., Commandments of the Church.
a. Constitutional Law is the fundamentallaw of the land which defines the powers of the government.
B.
Laws must be ordained for the common benefit - This recognizes the famous Latin maxim of "Salus Populi Est Suprema Lex" - the welfare of the people is the supreme law. Laws should be applied not only to a particular group of citizens. They are supposed to be applied equally to all citizens regardless of their religion, politica! persuasion, or status in life.
CLASSIFICATION OF LAW
NATURAL LAW- This Moral Law - Set of rules which law derives its force and establishes what is right and authority from God. It is what is wrong as dictated by superior to other laws. lt is the human conscience and as binding to the whole world, inspired by the eternai law. in all countries and at ali times.
POSITIVE LAW
b. Administrative Law that law which fixes the organization and determines the competence of the administrative authorities and which regulates the methods by which the functions of the government are performed. c. lnternational Law body of rules which regulates the community of nations.
Physical Law - Universal rule of action that governs the conduct and movement of things which are non-free and material. A.
3
~ 1
Private Law - Body of rules which creates duties, rights and obligations, and the means and methods of settìng courts in motion for the enforcement of a right or of a redress of wrong. (Word$ and Phrases, Vol. 24, 337) a. Substantive private law - those rules which declare legai relations of litigants when the courts have been properly moved
4
INTRODUCTION TO LAW
to action upon facts duly presented to them. (24 Words and Phrases, 337)
b. Procedural or adjective private law refers to the means and methods of setting the courts in motion, making the fact known to them and effectuating their judgments. 3.
SOURCES OF LAW
Law is derived from different sources, namely: (l) legislation; (2) precedent; (3) custom; and (4) court decision. (a) LEGISLA.TION- Before the declaration ofMartial Law in the Philippines on September 21, 1972, the power to legislate laws is vested in the Congress of the Philippines which consists of the Senate and the House ofRepresentatives. Upon the imposition of Martial Law and after the dissolution of the old Congress, the power to legislate law is vested in the President of the Philippines. This is the reason why the President issued presidential decrees and letters of instructions. When the Batasang Pambansa was organized, legislative power is principally vested in this body although the President, under and by virtue of what is known as Amendment No. 6, continued to issue decrees when the exigency of the situation requires and in case of other emergencies. Among many others, this is one of the dictatorial acts that was severely questioned by s0.verallawyers and critics of the past regime. Now, after the People's Revolt on February 22-25, 1986, and in accordance with the wishes and the will of the sovereign Filipino people, the three branches of government operating under the doctrine of separation of powers are restored, with each department being committed to do its utmost share in bringing about a more democratic and efficient system of government that is responsive to the needs of the people. (b) PRECEDENT- This means that the decisions or principles enunciated by a court of competent jurisdiction on a question of law do not only serve as guides but also as authority to be followed by ali other courts of equal or inferior jurisdiction in
LAW, ITS CONCEPT AND CLASSIFICATION
5
ali cases involving the same question until the same is overruled or reversed by a superior court. In the Philippines, this doctrine of stare decisis is not applied and recognized in the same manner that it is applied and recognized in common law countries. However, our New Civil Code provides as follows: "x x x Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legai system of the Philippines. x x x" (Article 8, New Civil Code) (c) . CUSTOM - Customs have the force of law only when they are acknowledged and approved by society through long and uninterrupted usage. In the Philippines, there are severa! requisites before the court considers custom. They are as follows: a.
A custom must be proyed as a fact according to the rules of evidence (Art. 12, NCC);
b.
The custom must not be contrary to Jaw (Art. 11, NCC);
c.
There must be a number of repeated acts and these repeated acts must have been uniformly performed;
d.
There must be a judicial intention to make a rule of social conduct; and
e.
A custom must be acknowledged and approved by society through long and uninterrupted usage. ·
(d) COURT DECISION - Judicial decisions which apply or interpret the constitution and the laws are part of the legai system in the Philippines but they are not laws. However, although judicial decisions are not laws, they are evidence of the meaning and interpretations of the laws. /In the Philippines, we adhere to the doctrine of STARE . DECISIS which means that once a case has been decided one way, then another case involving exactly the same question or point of law should be decided in the same manner. This principle, however, does not necessarily mean that erroneous decisions, or those found to be contrary to law must be perpetuated. On the contrary, they . should be abandoned.
WORLD'S LEGAL SYSTEM
Chapter Il WORLD'S LEGAL SYSTEM
IMPORTANT TOPICS IN THIS CHAPTER:
(8) The Maritime Legai System; (9) The Q-reek Legai System; (10) The Slavic Legai System; (11) The Roman Legai System; (12) The Keltic Legai System; (13) The Japanese Legai System; and (14) The Mohammedan Legai Syste;-. Of the said systems, however, there are thr~e legai systems that have exerted influence to our laws in the past several centuries and which are stili continuously affecting our jurisprudence. The three are: (l) Roman Law; (2) Anglican or Common Law; and (3) Mohammedan Law. Of the three legai systems, Roman Law has greatly influenced Philippine laws. It therefore deserves a more extensive discussion.
l.
The three prevailing legai systems
2.
Roman Law
2.
3.
Value and importance of Roman Law
4.
Politica! history of Rome
Roman Law is the body of rules and principles adopted to guide the Romans in the conduct or observance of their personal and official affairs without necessarily specifying the period or the time when those rules were adopted or promulgated. Roman Law, while in its first stage of growth, was dominated by ritualism and strong religious tenor. It was then referred to as JUS QUIRITIUM. Later, it was referred to as the civil law of the Romans, then known as JUS CIVILE.
(a)
Introduction
(b)
Three periods of Rome's politica! history (b.l)
Monarchy (753-509 B.C.)
(b.2)
Republic (509-31 B.C.)
(b.3)
Empire (31 B.C. -A.D. 1433)
5.
Common Law
6.
Mohammedan Law
7.
Blending of legai systems in the Philippines
DISCUSSION 1.
7
THE THREE PREVAILING LEGAL SYSTEMS
There are many legai systems that have existed in different countries ofthe world, namely: (l) The Mesopotamian Legai System; (2) The Anglican Legai System; (3) TheEgyptian Legai System; (4) The .Romanesque Legai System; (5) TheHebrew Legai System; (6) The Ecclesiastica! Legai System; (7) The _9hinese Legai System; 6
3.
ROMAN LAW
VALUE ANO IMPORTANCE OF ROMAN LAW
Many law students often ask why Roman Law is stili included in the law .curriculum and why it has been and stili is a three-unit subject. Our New Civil Code is basically Roman in origin. Numerous maxims and legal principles stili found in law books are continuously being used and cited by law professors and students and even by law practitioners in their pleadings. It is worthwhile to mention and to remember some of them, thus: l. Ignorantia legis non excusat -
lgnorance of the law
excuses no one; 2. Dura lex sed lex - The law may be harsh, but it is stili the law; 3. Cessante ratione cessat ipsa lex - When the reason for the law ceases, the law also ceases to exist;
8
WORLD'S LEGAL SYSTEM
INTRODUCTION TO LAW
4. Sic utere tuo ut alienum non laedas - The owner o( a thing cannot make use thereof in such a manner as to injure the rights of third person (Art. 431, New Civil Code); 5. Patria potesta - Parental authority; 6. Negotiorum gestio- Unauthorized management; 7. Res perit domino- The thing perishes with.the owner; 8. Jus possidendi - The right to possess; 9. Jus abutendi- The right to abuse; 10. Jus utendi - The right to use;
Roman Law is of enormous value to modern nations. It is at hand, ready for use and able to shed light in' the solution of the numerous complex problems which confront the modern civilized world. (Sherman, Section 6) Roman legai literature is also noted for originality. The style of Roman jurists is simple, clear, brief and precise. Hence, its study helps students of law in acquiring a correct style of legai expression. POLITICAL HISTORY OF ROME (a)
12. Jus disponendi - The right to dispose; 13. Jus uendicandi - The right to recover; 14. Nulla poena sine lege - There is no crime when there is no law punishing it; 15. Salus populi est supreme lex - The welfare of the people is the supreme law;
16. Caueat emptor - Buyers beware; 17. Solutio indebiti - Unjust enrichment;
18. Aedificum solo credit - The building foliows the land; 19. Accessorium siquitur principale principal;
stili exert in our day-to-day life, whether it is in the city or in the remote barrio. The same thing is true to the rest of the world affected by the Roman legai system.
4.
11. Jus fruendi - The right to the fruits;
Land is always
20. .Nullum tempus occurit regi - Time runs not against the sovereign. Modern laws and concepts of persons and family relations, paterna! authority, marriage, divorce, concubinage, legitimation, emancipation, adoption, guardianship, property, avulsion, aliuvion, traditio brevi manu, traditio longa manu, constitutum possessorum, obligations and contracts, nominate and innominate contracts, sale, lease, agency, pledge, deposits, wills and successions, quasi-delicts, quasi-contracts, negotiorum gestio, solutio indebiti and many others are Roman in origin. Notwithstanding the modifications and the enormous improvements that have been made, the Philippines and its citizens cannot remove the great influence that Roman Laws
9
INTRODUCTION
The evolution of Roman Law is better understood and appreciated by associating it with the politica! history of Rome. For around thirteen centuries from the founding of Rome, there were changes in the government as weli as in the mode and the needs of the people. Necessarily, each period has its own extent of politica! and legai development. The importance of associating the politica} history of a people with its laws was recognized by Gaius, a Roman jurist, when he said: "Being about to take up an interpretation of our ancient statutes, I have thought it essential that the law of the Roman people should be traced from the foundation of the city, not because I want 'to write verbose commentarìes, b\lt because in ali matter, I perceive a thing is complete only when ali parts are assembled, and surely the most important part of a thing is its beginning." (Burdick, Principles of Roman Law and Their Relation to Modern Law, p. 87) (b) THREE PERIODS OF ROME'S POLITICAL IDSTORY
Roman politica! history is divided into three periods: Monar· chy (753-509 B.C.), Republic (509-31 B.C.), and the Empire (31 B.C. - 1453 A.D.). The first period starts from the earliest thnes to the abolition of the kingship. The second period starts from the abolition of the
lO
INTRODUCTION TO LAW
monarchy to the unification of Italy. The third period is marked by the breakdown of the old republican form and is characterized by fierce politica! strife.
WORLD'S LEGAL SYSTEM
11
Romulus, from whom the name of the city was derived, is the founder of Rome. The kings who immediately succeeded him are Numa Pompilius Tullus Hostilus and Ancus Maritus. Numa Pompilius was described as a wise and pious ruler and is known to have established the Roman religion and the adding of two months to the ten-month calendar. During the reign of Tullus Hostilus, the Romans conquered Alba Longa, the religious center ofthe Latin people. Under Ancus Maritus, a number of troublesome Latin cities were conquered and their inhabitants were brought to Rome.
They were called consuls which were chosen by an assembly called Comitia Centuriata. lt was made up of divisions apportioned in such a way that the votes of the patricians counted more than the votes of the plebianl:!. The Senate (Comitia Curiata), the most important body, consisted of 300 men who were chosen by the consuls from the patricians. Hence, the plebians were oppresed, barred from office, politica! power, and suffered from unjust debt laws and unfair distribution of territory won by conquest. To seek redress, the plebians in 494 B.C., marched out of Rome and threatened to make a new city. The patricians acceded to the demands of the plebians. The plebians were further granted the right to be represented by new officials, called Tribunes, which had the right to vote on any act of any magistrate which was unjust to any citizen.
Shortly before 600 B.C., Rome was conquered by Etruscan princes from across the Tiber. Tarquinus Priscus-(616 B.C.), the first of the Etruscan kings, drained the city's marshes and improved the Forum, which was the commerciai and political center of the town. He carried on many wars with many neighboring people.
The plebians continued to gain other rights and an assembly oftheir own, called concilium plebis, was recognized. They appointed a ten-man commission called Decemvirs, to put state laws into writing and have them engraved on 12 bronze tablets in 450 B.C. In 445 B.C., the plebians won the right to marry patricians by virtue of Lex Canuleia.
Under Servius Tullius, the second Etruscan king, a treaty was made with the Latin cities which acknowledged Rome as. the head of all Italy.
Sometime in 367 B.C., Licensian laws are passed which revised debt laws, limited holdings to 300 acres of land, and compelled the large landowners to employ a certain proportion of the laborers. In 350 B.C., the plebians were admitted to the dictatorship and extraordinary magistracy whereby supreme power a t criticai times were given to one man.
(b.1) Monarchy (753-509 B.C.)
The last of the kings of Rome, Tarquinus Superbus (Tarquin The Proud), was a tyrant who opposed the people. A rebellion of the aristocracy against him was led by Junius Brutus at about 509 B.C. As a result, the Etruscans were driven from the city and the rest of the Latium, and Rome became a Republic. (b.2) Republic (509-31 B.C.) In this period, constant warfare and conquest prevailed. The reins of government was in the hands of the aristocratic citizens called patricians. At first, the plebians (common citizens) had little to do with the administration of government. Gradually, however, they removed the barrier between them due to their continuing demands for reform. · In the early days of the Republic, the ruling power was divided between two patrician magistrates elected for one year.
The growing power of the plebes was marked by the graduai rise of a new voting body, the Comitia Tributa,. where one man's vote counted as much as another man's vote. While the equalization between the plebians and the patricians was being realized, Rome was gradually extending its power to the leadership of the Italian people. The lands that were conquered by the Romans were welded into one single nation. It did not exploit the conquered cities of Italy for its own interests. Instead, it granted many of them the privileges of human citizenship. Most of this people were given the status of allies. They had self-government and the right to trade and intermarry in Rome. They did not, however-, have the right to vote.
12
INTRODUCTION TO LAW
All of Italy was dotted with colonies of Roman citizens. Most of the colonies retained their full civic rights and nearly one-sixth of all ltaly were annexed and distributed among these Roman citizens. Thus, a common interest in the welfare of Rome spread throughout the Italian Peninsula. The struggles with Carthage ended with Rome's victory. One conquest led to another. U p per Italy, Sicily, Spain, Macedonia, Greece and Asia Minor were subdued and made Roman provinces. Intoxicated by their sudden rise to power, the new generation of states departed from the wise policies of their great predecessors. They fought ruthlessly and ruined the countries they conquered. Most of the conquered lands were administered by governors. The governors committed abuses while administering the government and tried to amass wealth while in office. The exorbitant taxes enriched the greedy collectors and the ancient simplicity of Roman life gave way to luxury and pomp. Morals were undermined and vice and corruption flourished. The peasants were oppressed and were deprived of their landholdings. These events led to a bitter hostility between the aristocratic few and the poor segments of society. A few patriotic statesmen tried in vain to avert the climax. The Gracchi brothers carne forward to the people. They proposed laws to redistribute the public lands and to limit the powers of the corrupt Senate. Both men fell victims to their foes, Tiberius in 133 B.C. and Gaius 12 years later. The death of Tiberius marked the beginning of a century of revolution and civil war that ended in the establishment of the Roman Empire. Great men of action reorganized the state. • Among them were Sulla, Pompey, Cicero, and Caesar. They made themselves masters of the disrupted state, sometimes uniting to make their position secure and sometimes waging savage civil warfare. The thing that saved the ultimate destruction of Rome was the emergence ofthreebrilliant statesmen, Gaius, Julius Caesar and his nephew, Augustus. Scrapping the old republican framework, they remolded the structure into an empire. All power was gradually concentrated in the hands of a single ruler, who was backed by the Roman Army.
WORLD'S LEGAL SYSTEM
13
(b.3) Empire (31 B.C. -A.D. 1433) The reign of Augustus marked the end of the revolutionary period. The establishment of the empire was followed by two centuries of profound peace, and in the provinces responsible men held power. Roman citizens,P.ip was extended to all free men throughout the Empire and Roman law was administered in every court. Augustus was followed by his stepson, Tiberius (A.D. 14-37). His reign was followed by that of Caligula, Claudius, and Nero, the last ruler of the line of Augustus upon whose death ended the first century of peace. After another century, the passion fo:- a life of luxury existed in all classes. Selfishness and self-indulgence had become the first law of life. Slave labor had degraded the once sturdy peasantry to the status of serfs or beggars. The middle class, which once had been the backbone of the nation, had almost disappeared. In Roman society, there were then only the rich and the very poor. For two years, after the two centuries of peace, there were struggles for the throne among the military commanders. The long centuries of the Empire fall naturally into two periods. In the earlier period, usually known as the "Principate," though the emperor is in fact supreme, its power is disguised under republican fo:r:ms. This existed in the period of time stated above. As the disguise vanished in the third century A.D., the period was then called the "Dominate" because the emperor is no longer in theory, merely the princ.eps, or "first citizen"; he is dominus- "master"- ofhis subjects. This undisguised autocracy took piace at about 214 A.D. Diocletian ascended the throne. This emperor introduced important reforms amounting to a change in the Constitution. The Senate was leveled down to that of the city council of Rome, thereby having practically no control over the Emperor himself. From Diocletian's time until its end, the Roman Empire remained an absolute monarchy. He also instituted an administrative division between the Western and Eastern halves of the Empire. This cleavage was accentuated when Emperor Constantine transferred his capitai to Constantinople (Greek City of Byzantium on the Black Sea) in 330 A.D. This marked the graduai disintegration ofthe Western Empire, and in the 5th century, when the last Roman Emperor of the West, Romulus Augustus, was deposed, the Western Empire, finally
14
INTRODUCTION TO LAW
collapsed with the Teutonic invasions (476 A.D.). The Eastern Empire, on the other hand, has a long future still before it, which was only to end with the capture of Constantine by the Turks in 1453 A.D. (Comparative Study: Roman Law and Philippine Law, pp. 3-8, Rolando A. Suarez) 5.
COMMON LAW
Common Law is derived from case law and books of authority. It is an unwritten law which does not emanate from the express will of the legislature. Rather, it is founded on maxims, rules and principles derived from time-honored usages and customs which received acceptance from the courts of law. This legal system has prevailed and is still prevailing in England, Ireland, Australia, Wales, New Zealand, Canada and in the United States.
Chapter 111 LAW ANO ITS APPLICATION
IMPORTANT TOPICS IN THIS CHAPTER: l. Court's duty to decide every case
2. Application of laws and interpretations of laws 3. Statutory construction, its concept, purpose, and effect 4. Construction distinguished from interpretation
6.
MOHAMMEDAN LAW
Mohammedan Law is not strange in the Philippines for it has heen and is still being observed by Muslims in Mindanao provided it does not conflict with the generallaw of the land. It is derived principally from the Koran and from writings of Islamic jurists. The teachings of Mohammed also serve as source of this legal system. Islamic countries who believe in Allah and his prophet Mohammed still observe this legal system. Some of these countries are Iran, Afghanistan, Malaysia, Indonesia, Turkey, those in Africa and others. 7.
BLENDING OF LEGAL SYSTEMS IN THE PHILIPPINES
The three legal systems have met and blended into one legal system in the Philippines. Our New Civil Code is basically Roman in origin. Our procedurallaws are still being observed by Filipino Muslims insofar as they do not conflict with the generai laws of the land.
5. Meaning of the rule: "One must interpret first before he construes" 6. Intrinsic aids distinguished from extrinsic aids 7. Purpose of interpretation and construction 8. When is it necessary and not necessary to interpret and construct? 9. Who interprets the law and who determines legislative intent? 10. Which prevails the law?
the letter of the law or the spirit of
11. Aids in interpretation and conatruction 12. Simplification of the rule regarding the use of extrinsic aids
15
LAW AND ITS APPLICATION
INTRODUCTION TO LAW
16
DISCUSSION 1.
4.
Laws of pleading, practice and procedure are likely liberally construed in order to promote their object and to assist the parties in obtaining just, speedy and inexpensive determination of every action and proceeding;
5.
In case of doubt in the interpretation ~nd applìcation of laws and when ali other rules of statutory construction fail, it is presumed that the lawmaking body intended right and justice to prevail.
COURT'S DUTY TO DECIDE EVERY CASE
A judge cannot decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. (Article 9, New Civ il Code) In other words, he must decide the case assigned to him whether or not he knows what law shall be applied. In case of silence, obscurity or insufficiency of the laws, a judge may stili be guided by the following: l.
Customs which are not contrary to law, public order or public policy;
2.
Court decisions, foreign or local, in similar cases;
3.
Legai opinions of qualified writers and professors;
4.
Generai principles of justice and equity; and
5.
Rules of statutory construction.
In criminal cases, however, it is an established rule that there is no crime when there is no law punishing it -Nulla Poena Sine Lege. Ifthere is no law, therefore, which punishes an act complained of, the judge must dismiss the case.
2.
17
APPLICATION OF LAWS
In applying the law, the court should discover the real intent and purpose of the legislature. If that intent and purpose can be discovered within the law, it is the duty of the court to carry out that intention. If the same cannot be discovered within the law, the court shall be guided by extrinsic aids. 3.
STATUTORY CONSTRUCTION, ITS CONCEPT, PURPOSE ANO EFFECT
STATUTORY CONSTRUCTION DEFINED
Interpretations of Laws It is the duty of the judge to apply the law without fear or favor. In case of doubt in the interpretation or application of the laws, it is presumed that the lawmaking body intended right and justice to prevail. (Article 10, New Civil Code)
There are many rules of statutory construction but in order not to saddle and confuse the beginner in the study of law, it is enough in the meantime to know the most basic rules, namely: l.
When the law and its meaning is clear and unmistakable, there is no need to interpret it any further;
2.
When construction or interpretation is necessary, the court should interpret the law according to the meaning the legislature intended to give it;
3.
If there are two possible interpretations of a law, that which will achieve the ends desired by Congress should be adopted;
Statutory construction is the act or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case, where that intention is rendered doubtful, among others, by reason of the fact that the given case is not explicitly provided for in the law. (Caltex [Philippines], Inc. vs. Palomar, L-19650, September 29, 1966, 18 SCRA247) 4.
CONSTRUCTION DISTINGUISHED FROM INTERPRETATION
Construction and interpretation have the same purpose and that is to ascertain and give effect to the legislative intent. A distinction, however, has been drawn between construction and interpretation. One who interprets makes use of intrinsic aids or those found in the statute itself, while one who constructs makes use of extrinsic aids or those found outside of the written language of the law. Based on this distinction, the basic rule therefore is ONE MUST INTERPRET FIRST BEFORE HE CONSTRUES.
LAW AND ITS APPLICATION
INTRODUCTION TO LAW
18
5.
MEANING OF THE RULE: "ONE MUST INTERPRET FIRST BEFORE HE CONSTRUES"
In trying to ascertain the legislative intent, courts should first be guided by intrinsic aids, or those found in the law itself. If the legislative intent could be ascertained by merely making use of intrinsic aids, there is no need to make use of extrinsic aids, or those found outside of the written language of the law. This is the consistent ruling of the Supreme Court in a long line of cases. (Commissioner of Internal Revenue vs. Limpan lnvestment Corporation, L-28571 and L-28644, July 31, 1970; United Christian Missionary Society vs. Social Security System, L-26712-16, December 17, 1969; Hidalgo vs. Hidalgo, L-25326, May 29, 1970; Casela vs. Court of Appeals) 6.
INTRINSIC AIDS DISTINGUISHED FROM EXTRINSIC AIDS
Intrinsic aids are any of the following: title, preamble, words, phrases and sentences context; punctuation; headings and marginai notes; and legislative definitions and interpretation clauses. All of these are found in the law itself. Extrinsic aids may consist of contemporaneous circumstances, policy, legislative history of the statute, contemporaneous or practical construction, executive construction, legislative construction, judicial construction, and construction by the bar and legai commentators. 7.
PURPOSE OF INTERPRETATION ANO CONSTRUCTION
Interpretation and construction have the same purpose and that is to ascertain and give effect to the legislative intent. 8.
WHEN IS IT NECESSARY ANO NOT NECESSARY TO INTERPRETANO CONSTRUCT?
When Necessary It is necessary to interpret or construct when any of the following reasons exists: l. When the language of the statute is ambiguous, doubtful or obscure when taken in relation to a set of facts; 2.
When reasonable minds disagree as to meaning of the language used in the statute.
19
When Not Necessary lt is not necessary to interpret or construct when the law speaks in clear and categorica! language. The duty of the court, in such a case, is to APPLY THE LAW, NOT TO INTERPRET IT. (Go Ka Toc & Sons vs. Rice & Corn Board, L-23607, May 23, 1967; People vs. Mapa, L-22301, August 30, 1967; Luzon Security Co. vs. De Gracia, L-25659, October 31, 1969) 9.
WHO INTERPRETS THE LAW ANO WHO DETERMINES LEGISLATIVE INTENT?
Anyone can interpret the law. Lawyers, policemen, arbiters, administrative boards and agencies, government as well as private executives are involved from time to time in the interpretation of laws. Their interpretation, however, is not necessarily conclusive nor can they bind the courts. Hence, in many occasions, the decisions of regulatory boards and administrative agencies have been elevated and appealed to the Supreme Court in cases where there is abuse of discretion and authority or when there is violation of due process or denial ~t>substantial justice or erroneous interpretation of the law. fMO,ntrade FMMC Division Employees and Workers Union vs. Bacungan, G.R. No. 48437, September 30, 1986, Second Division, Feria, J.) The judiciary has the delicate task of ascertaining the significance of a constitutional or statutory provision, an executive order, a procedural or a municipal ordinance. lt discharges a role no crucial than the roles played by the two other departments in maintaining the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. Logically and . rightly, it does so with finality through the highest judicial organ, the Supreme Court. What it says is definite and authoritative, binding on those who occupy the lower ranks in the judicial hierarchy. (çmuie vs. Intermediate Appellate Court, G.R. No. 70443, September, Second Division, Gutierrez, Jr., J.) 1O.
WHICH PREVAILS - THE LETTER OF THE LAW OR THE SPIRIT OF THE LAW?
When the language of the law is clear and unequivocal, the court's duty is to apply it, not to interpret it. The Supreme Court, in the case of Chartered Bank Employees Association vs. Ople, G.R.
21
INTRODUCTION TO LAW
LAW AND ITS APPLICATION
No. 44747, August 28, 1985, restated the said rule in more elaborate language. It said: "If the language of the law is clear and unequivocal, then read the law to mean exactly what it says. lf not, look for the intention of the legislature."
Intrinsic aids are any of the following: title; preamble; the words, phrases and sentences context; punctuation; headings and marginai notes; legislative definition and interpretation clauses.
20
What if the letter of the law conflicts with its spirit, which prevails? There are two schools of thought on this matter. In the case of People vs. Sales, et al., f{R. No. 66469, July 29, 1986, Justice Isagani Cruz articulated his thought on this matter. He said: "A too literal reading of law is apt to constrict rather than fulfill" is usually found not in the "letter that killeth but in the spirit that vivifieth," which is not really evanescent or elusive. Judges must look beyond and not be bound by the language of the law seeking to discover by their own lights the reason and the rhyme for its. enactment. That they may properly apply in accordance to its end, they need and must use not only learning but also vision." The thinking of Justice Isagani Cruz is more in line with Artide lO of the Civil Code which says: "In case of doubt in the interpretation or application of the laws, it is presumed that the lawmaking body intended right and justice to prevail." This is also the gist of the decisions of the Supreme Court in the old cases ofTorres vs. Limhays, 56 Phil. 141, De Coster vs. Olondriz and Esendero, 50 Phil. 725, and in the celebrated case of Dominador Aytona vs. Andres Castillo, et al., L19313, January 19, 1962. Former Chief Justice Ramon Aquino, on the other hand, finds it risky to rely on the so-called "spirit of the law." He said: "It is dangerous to rely on the so-called spirit of the law which we cannot Sj;)e nor handle and about which we do not know very much." /Nillanueva vs. Commission on Elections, G.R. No. 54718, December 4, 1985) 11. AIDS IN INTERPRETATION ANO CONSTRUCTION
I. USE INTRINSIC AIDS BEFORE RESORTING TO EXTRINSIC AIDS In determining the intention of the legislature, courts should resort first to intrinsic aids before resorting to extrinsic aids.
l. TITLE - That which expresses the subject matter of the law. It can help in the construction of statutes but it is not controlling and not entitled to much weight. · (Commissioner of Customs vs. Reluvia, G.R. No. L-118860, May 29, 1969)
2. PREAMBLE - That part of the statute following the title and preceding the enacting clause which states the reasons or the objectives of the enactment (Ace Bus Transportation vs. South Hudson Country Blood Bus Owners Association, 177 A. 360). It cannot enlarge or confer powers, or cure inherent defects in the statute. (People vs. Hon. A. Purisima, et al., G.R. Nos. L-42050-66, November 30, 1978) 3. WORDS, PHRASES AND SENTENCES CONTEXTThe intention of the legislature must primarily be determined from the language of the statute and such language consists of the words, phrases and sentences used therein. The meaning of the law should, however, be taken from the generai consideration of the act as a whole and not from any single part, portion or section or from isolated words and phrases, clauses or sentences used. PUNCTUATION - It is an aid of low degree in 4. interpreting the language of a statute and can never control against the intelligible meaning of the written word. However, if the punctuation of the statute gives it a meaning which is reasonable and in apparent accord with the legislative will, it may be used as an additional argument for adopting the literal meaning of the words thus punctuated. 5. HEADINGS AND MARGINAL NOTES - If the meaning of the statute is clear or if the text of the statute is clear they will prevail as against the headings, especially if the headings have been prepared by compilers and not by the legislature. LEGISLATIVE DEFINITION AND INTERPRE· 6. TATION - If the legislature has defined the words used in the statute and has declared the construction to be placed thereon, such definition or construction should be followed by the courts. The rules are as follows: (a)
If a law provides that in case of doubt it should be
INTRODUCTION TO LAW
22
LAW AND ITS APPLICATION
construed or interpreted in a certain manner, the courts should follow such instruction. (b)
In case of conflict between the interpretation clauses and the legislative meaning, as revealed by the statute considered in its totality, the latter shall prevail.
(c)
A term is used throughout the statute in the same sense in which it is first defined.
(d)
Legislative definition of similar terms in other statutes may be resorted to EXCEPT where a particular law expressly declares that its definition therein is limited in application to the statutes in which they appear.
new agrarian law is enacted today and few years from now, there will arise the need to find out why such a law is enacted, the conditions, the prevailing sentiment of the people, the policy of the State, and the executive order issued by the Office ofthe President preceding the legislative enactment will throw light upon the intention ofthe legislature in enacting said law.'The same thing is true if death sentence is imposed for drug pushers and for those currently involved in the so-called "satanism" offenses. The conditions of the times and the very destructive and heinous crimes committed even in broad daylight, whether in the city or in the provinces, will convince future interpreters of the law that such a penalty is needed to protect society. 3. LEGISLATIVE HISTORY OF THE STATUTE- Such history may be found in reports of legislative committees, in the transcript of stenographic notes taken during a hearing, legislative investigation, or legislative debates.
II. EXTRINSIC AIDS Extrinsic aids are of the following: (l) contemporaneous circumstances; (2) policy; (3) legislative history of the statute; (4) contemporaneous or practical construction; (5) executive construction; (6) legislative construction; (7) judicial construction; and (8) construction by the bar and legai commentators.
Are personal opinions of some legislators appropriate aids of construction? As a generai rule, they are not appropriate aids of construction. However, if there is a unanimity among the supporters and oppositors to a bill with respect to the objective sought to be accomplished, the debates may then be used .· as evidence of the purpose of the act.
Extrinsic aids can be resorted to only after the intrinsic aids have been used and exhausted. l. CONTEMPORANEOUS CffiCUMSTANCES- These are the conditions existing at the time the law was enacted:
(a)
History of the times and conditions existing at the time the law was enacted;
(b)
Previous state of the law;
(c)
The evils sought to be remedied or corrected by the law; and
(d)
The customs and usages of the people.
The above-mentioned circumstances constitute the reasons why the law was enacted. Hence, the one interpreting the law should place himself in the position and circumstances of those who used the words in question and be able to feel the atmosphere, the conditions and the reasons why the law was enacted. 2. POLICY - The generai policy of the law or the settled policy of the state may enlighten the interpreter of the law as to the intention of the legislature in enacting the same. Hence, if a
23
4. CONTEMPORANEOUS AND PRACTICAL CONSTRUCTION - Those who lived at or near the time when the law was passed were more acquainted with the conditions and the reasons why that law was enacted. Their understanding and application of the law, especially if the same has been continued arid acquiesced by the judicial tribunals and the legai profession, deserve to be considered by the courts.
!
5. EXECUTIVE CONSTRUCTION- The construction given by the executive department deserves great weight and should be respected if said construction has been formed and observed for a long period of time. The rules to remember are as follows: (a)
Congress is deemed to have been aware of the contemporaneous and practical construction made by the officers charged with the administration and enforcement ofthe law.
24
INTRODUCTION TO LAW
(b)
The courts should respect that contemporaneous construction EXCEPT if it is clearly erroneous.
(c)
Executive construction has more weight if it is rendered by the Chief Legai Adviser of the government who can issue opinions to assist various departments of the govemment charged with the duty to administer the law.
(d)
The opinion, however, of the Chief Legai Adviser is subservient to the ruling of the judiciary which is in charge of applying and interpreting laws.
6. LEGISLATIVE CONSTRUCTION - Legislative construction is entitled to consideration and great weight but it cannot control as against the court~s prerogative to decide on what is the right or wrong interpretation. 7. JUDICIAL CONSTRUCTION- It is presumed that the legislature was acquainted with and had in mind the judicial construction of former statutes on the subject. It is also presumed that the statute was enacted in the light of the judicial construction that the prior enactment had received. With respect to a statute adopted from another state, it is presumed that it was adopted with the construction placed upon i t by courts of that state. Should this construction be followed? It should be followed only if it is reasonable, in harmony with justice and public policy and consistent with the locallaw.
8. CONSTRUCTION BY THE BAR AND LEGAL COMMENTATORS - It is presumed that the meaning publicly given a statute by the members of the legai profession is a true one and regarded as one that should not be lightly changed. (50 Am Jur, p. 312) The opinion and commentaries oftext writers and legai commentators, whether they are Filipinos or foreigners, may also be consulted as, in fact, they are oftentimes cited or made as references in court decisions. 12. SIMPLIFICATION OF THE RULE REGARDING THE USE OF EXTRINSIC AIDS
Extrinsic aids, such as those mentioned above, are entitled to respect, conslderation and weight but the courts are at liberty to decide whether they are applicable or not to the case brought to it for decision.
Chapter IV THE LEGAL PROFESSION ANO THE QUALIFICATIONS ANO PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
IMPORTANT TOPICS IN THIS CHAPTER: l. Qualification for admission to the practice of law
2. First requirement (before admission to the bar) (a)
Citizenship
(b)
Age
(c)
Residence
(d)
Educational qualification
(e)
Moral and other qualifications
(f)
Bar examinations ·
(g)
Oath
(h)
Attorney's roll
3. Second requirement (after admission to the bar) 4. Purpose of imposing said requirements 5. Procedure for admission to the practice of law 6. Consequence of failure to pass said examination 7. Practice of law is more of a privilege than a right 8. Practice of law is a profession and not a business 9. The duties of a lawyer 10. Lawyer's compensation 25
THE LEGAL PROFESSION AND THE QUALIFICATIONS AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
INTRODUCTION TO LAW
26
11.
d.2.5 History
Disciplinary power over attorneys
d.2.6 Economics
12. Integrated Bar of the Philippines
d.3 He must have completed a Bachelor of Laws degree in a law school or university approved and recognized by the Secretary of Education.
13. Integration of the bar defined 14. Legai and constitutional basis 15. Supporting arguments in support of constitutionality and · .legality
e.
Moral and otber qualifications - He must be of good moral character, and that no charges against him, involving moral turpitude have been filed or are pending in any court in the Philippines.
f.
Bar examinations nations.
DISCUSSION 1.
QUALIFICATION FOR ADMISSION TO THE PRACTICE OF I..AW
f.1
There are two basic requirements that should be complied with before a person can engage in the practice of law. 2.
FIRST REQUIREMENT {Before Admission to the Bar)
He should first be admitted to the bar. This requirement is accomplished by complying with the following requirements (Section 2 in relation to Sections 5, 6, and 14, Rule 138, Revised Rules of Court): a.
Citizenship - He must be a citizen of the Philippines;
b.
Age- He must at least be twenty-one (21) years of age;
c.
Residence - He must be a resident of the Philippines;
d.
Education Qualification
g.
d.2.1 Political Science
3.
d.2.4 Spanish
In order that a candidate may be deemed to have passed his examinations successfully, he must have obtained a generai average of 75 percent in any subject. In determining the average, the subjects in the examination shall be given the following relative weights: Civil Law, 15 percent; Labor and Social Legislation, 10 percent; Politica! and International Law, 15 percent; Taxation, 10 percent; Remedial Law, 20 percent; Legai Ethics and Practical Exercises, 5 percent.
Oath - He must take the lawyer's oath before the Supreme Court itself. (Section 17, Rule 138, Revised Rules o{Court)
SECOND REQUIREMENT (After Admission To The Bar)
The lawyer must remain in good and regular standing. This requires the following: (a)
He must be a member of the IBP (Integrated Bar of the Philippines);
(b)
He must regularly pay all IBP membership dues and other lawful assessment;
d.2.2 Logic d.2.3 English
He must pass the bar exami-
b. · Attorney's Roll - He must sign the roll of attorneys and receive from the Clerk of Court of the Supreme Court a certificate of the license to practice. (Sections 18 and 19, Rule 138, Revised Rules of Court)
d.1 He must have completed a four-year high school course which is a prerequisite to a bachelor's degree in arts or sciences; d.2 He must have completed a bachelor's degree with any of the following subjects as major or field of concentration:
27
4.
29
(c)
He must observe faithfully the rules and ethics of the profession;
be examined by the parties in interest, after the court has approved the report.
(d)
He should be subject to judicial disciplinary control.
In order that a candidate may be deemed to have passed his examinations successfully, he must have obtained a generai average of 75 percent in all subjects, without falling belòw 50 percent in any subject. In determining the average, the' subjects in the examination shall be given the following relative weights: Civil Law, 15 percent; Labor and Social Legislation, 10 percent; Mercantile Law, 15 percent; Criminal Law, 10 percent; Politica! and International Law, 15 percent; Taxation, 10 percent; Remedial Law, 20 percent; Legai Ethics and Practical Exercises, 5 percent.
PURPOSE OF IMPOSING SAIO REQUIREMENTS
The said requirements are imposed to see to it that those who are admitted to the practice of law are mentally and morally fit to discharge their duties to their clients, to the courts, and to the public in generai. 5.
THE LEGAL PROFESSION AND THE QUALIFICATIONS AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
INTRODUCTION TO LAW
28
PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
Anyone who desires to be admitted to the practice of law should pass the bar examinations conducted by a committee of bar examiners appointed by the Supreme Court. Examinations for admission to the Bar of the Philippines shall take piace annually in the City of Manila. They shall be held in four days to be designated by the chairman of the committees on bar examiners. The subjects shall be distributed as follows:
First day: Politica! and Intemational Law (moming) and Labor and Social Legislation (aftemoon); Second day: Civil Law (moming) and Taxation (aftemoon);
6.
CONSEQUENCE OF FAILURE TO PASS SAIO EXAMINATION
Candidates who have failed the bar examinations for three times shall be disqualified from taking another examination unless they show to the satisfaction of the court that they have enrolled in and passed regular fourth year classes as well as attended a pre-bar review course in a recognized law school. The professors of the individuai review subjects attended by the candidates under this rule shall certify under oath that the candidates have regularly attended classes and passed the subjects under the same conditions as ordinary students and the ratings obtained by them in the particular subject.
Third day: Mercantile Law (morning) and Criminal Law (afternoon);
7.
Fourth day: Remedial Law (morning) and Legai Ethics and Practical Exercises (afternoon). (Sections 8 and 11, Rule 38, Rules ofCourt)
The practice of law is not a matter of right. It is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. Anyone who is granted the said privilege is expected to maintain the said rigid standards.
The committee ofbar examiners shall be composed of a Justice of the Supreme Court, who shall act as chairman, and who shall be designated by the court to serve f0r one year, and eight members of the Integrated Bar of the Philippines who shall hold office for a period of one year. The names of the members of this committee shall be published in each volume of the official reports. Not later than February 15th after the examination, or as soon thereafter as may be practicable, the committee shall file its report on the result of such examination. The examination papers and notes of the committee shall be filed with the clerk and may there
PRACTICE OF LAW IS MORE OF A PRIVILEGE THAN A RIGHT
In three separate cases, the Supreme Court made the following statements:
Tan vs. Sabandal, B.M. No. 44 Bequia vs. Sabandal, SBC 66, February 24, 1992 Melencio-Herrera "The practice of law is not a matter of right. It is a privilege bestowed upon individuals who are not learned in the law but who are also known to possess good moral character."
30
Legarda vs. Court of Appeals G.R. No. 94457, June 10, 1992 En Banc, Per Curiam . "Lawyers are indispensable part of the whole system of administering justice in this jurisdiction. At a time when strong and disturbing criticisms are being htirled at the legai profession, strict compliance with one's oath of offìce and the canons of professional ethics is imperative." "Lawjrers should be fair, honest, respectable, above suspicion and beyond reproach in dealing with their clients. The profession is not synonymous with an ordinary business profession. It is a matter of public interest." 8.
THE LEGAL PROFESSION AND THE QUALIFICATIONS AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
INTRODUCTION TO LAW
PRACTICE OF LAW IS A PROFESSION ANO NOT A BUSINESS
Law advocacy is not a capitai that yields profits. The returns it gives birth to are simple rewards for job done or service rendered. lt is a calling that, unlike mercantile pursuits which enjoy a greater deal of freedom from government interference, is impressed with public interest, for which it is subject to State regulation. (Metropolitan Bank and Trust Company vs. Court of Appeals, G.R. Nos. 86100-03, January 23, 1990, Second Division, Regalado, J.) Membership in the legai profession is achieved only after a long and laborious study. By years of patience, zeal and ability, the attorney acquires a fixed means of support for himself and his family. This is not to say, however, that the emphasis is on the pecuniary value of this profession but rather on the social prestige and intellectual standing necessarily arising from and attached to the same person of the fact that everyone is deemed an officer of the court. (Conrad vs. Navarro, Adm. Case No. 2033; Ortigas vs. Navarro, Adm. Case No. 2148, May 9, 1990, En Banc, Per Curiam) On the one hand, the profession of an attorney is of great importance to an individuai and the prosperity of his life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other hand, it is extremely desirable that the respectability of the Bar should be maintained and that its harmony with the bench should be preserved. For theses objects, some controlling power, some moderation, and judgment, must be exercised. (Conrad vs. Navarro, Supra; Ortigas vs. Navarro, Supra)
9.
31
THE DUTIES OF A LAWYER
The lawyer has the following duties: l. To maintain allegiance to the Republic of the Philippines and to support the constitution and obey the law~ of the Philippines;
2. To observe and maintain the respect due to the courts of justice and judicial officers; 3. To counsel or maintain such actions or proceedings only as appear to him to be just, and such defense only as he believes to , be honestly debatable under the law; 4. To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law; 5. To maintain inviolate the confidence, and at every perii to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approvai; 6. To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged; 7. Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, · from any corrupt motive or interest; 8. · Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed; 9. In the defense of a person accused of a crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits to the end that no person may be deprived of life or liberty, but by due process of law. 10.
LAWYER'S COMPENSATION
An attorney shall be eiÌtitled to have and recover from his client not more than a 'reasonable compensation for his services, with a view of the importance of the subject matter of the controversy, the extent of the services rendered, and the professional
32
-,
INTRODUCTION TO LAW
• standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the. proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control the amount to be paid therefor unless found by the court to be unconscionabl~ or unreasonable. 11.
THE LEGAL PROFESSION AND THE QUALIFICATIONS AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
33
12. INTEGRATEO BAR OF THE PHILIPPINES
The Supreme Court ordained the integràtion of the Philippine Bar on January 16_, 1973. Under the 1987 Constitution, the Supreme Court has the power, among others to promulgate rules concerning the integrated bar. Artide VIII, Section 5 of the 1987 Constitution provides as follows:
OISCIPLINARY POWER OVER ATTORNEYS
A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct'~n such office, grossly immoral conduct, or by reason of his convict\.tm of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willfùl disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as such attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. The Court of Appeals or the Regional Trial Court may suspend an attorney from practice for any of the causes named in the last preceding section, and after such suspension, such attorney shall not practice his profession until further action of the Supreme Court in the premises. Upon such suspension, the Court of Appeals or the Regional Trial Court shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon the receipt of such certified copy and statement, the Supreme Court shall make full investigation of the fact involved and make such order revoking or extending the suspension, or removing the attorney from his office as such, as the facts warrant. No attorney shall be removed or suspended from the practice of his profession, until he has had full opportunities upon reasonable notice to answer the charges against him, to produce witnesses in his own behalf, and to be heard by himself or counsel. But if upon reasonable notice he fails to appear and answer the accusation, the court may proceed to determine the matter ex parte.
"Sec. 5. The Supreme Court shall have the following powers: x x x "(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, x x x." · 13. INTEGRATION OF THE BAR OEFINEO
This is the official unification of alllawyers in the Philippines under one official national organization which is known and called as INTEGRATED BAR OF THE PHILIPPINES. 14. LEGAL ANO CONSTITUTIONAL BASIS
Section 5(5) of Art. VIII of the 1987 Constitution is the constitutional basis. The legai basis is founded on the principle that - THE INHERENT POWER OF THE SUPREME COURT TO REGULATE THE BAR INCLUDES THE AUTHORITY TO INTEGRATE THE BAR. 15. SUPPORTING ARGUMENTS IN SUPPORT OF CONSTITUTIONALITY ANO LEGALITY (l) To compel a lawyer to be a member of the integrated bar does not violate his constitutional freedom to associate (or the corollary right not to associate).
(2) Integration does not make a lawyer member of any group of which he is not already a member. He became a member of the bar when he passed the bar examinations.
34
INTRODUCTION TO LAW
(3) For the court to prescribe dues to be paid by the members does not mean that the Court levies a tax. "A membership fee in the integrated bar is an exaction for regulation, while the purpose of a tax is revenue. lf the court has the inherent power to regulate the bar; it follows that as an incident to regulation, it may impose a membership fee for that purpose. x x x" (4) The Supreme Court, in order to further the State's legitimate interest in elevating the quality of professional services, may require that the cost of improving the profession in this fashion be shared by the subjects and beneficiaries of the regulatory program - the lawyers.
Chapter V PERSONS
IMPORTANT TOPICS IN THIS CHAPTER:
(5) And because it is a new regulation in exchange for new benefits, it is not retroactive, it is not unequal, it is not unfair. (In re: Integration of the Bar of the Philippines, 22 SCRA 22-28-31, 1973; In re: Edillon, C:.R. No. AC-1928, August 30, 1978)
l.
Concept of a person
2.
Capacity
3.
When does the personality of a natural person begin?
4.
When does the personality of a private corporation (private juridical person) begin?
5.
When is a fetus considered horn?
DISCUSSION 1.
CONCEPT OF A PERSON
In Roman Law,herson is one who is capable of exercising ownership and legai rights and to incur and contract obligations. Under this concept, a slave is not considered a person, he being merely regarded then as a chattel, a thing that can be sold or disposed of a t the discretion of the master. Hence, a slave does not have the legal capacity to exercise ownership and to incur and contract oblig~tions. The old and the new constitutions of the Philippines, on the other hand, guarantee equal protection of the laws and this means that no persons or class of person, whether rich or poor and regardless of his religious belief and politica! persuasion, shall be denied the same protection of the laws which is enjoyed by other persons or other classes of persons in the same place and in like 35
PERSONS
INTRODUCTION TO LAW
36
P- rodigality
circumstances. Special favor or privilege for any individuai or class is pr()hibited. (Sec. l, Art. III, 1987 Constitution) Under the New Civil Code, a person may be a natura! or a juridical person. A natura! person refers to a human being and a juridical person refers to any of the following:
2.
l.
The state and its politica! subdivisions;
2.
Other corporations, institutions and entities for public interest or purposes, created by law;
3.
Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. (Art. 44, New Civil Code)
C - ivil Interdiction Civil interdiction shall deprive the offender during the time ofhis sentences ofthe rights ofparental authority, or guardianship, either as to the person or property of any ward, or maritai authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. (Art. 34, Revised Penal Code) Artide 38 of the New Civil Code speaks of restrictions on capacity to act, while Artide 39 speaks of circumstances which modify or limit capacity to act. Said articles provide as follows: '~t. 38. Minority, insanity or imbecility, the state ofbeing a deaf-mute, prodigality and civil interdiction are mere restrictions oÌl capacity to act, and do not ex:empt the · incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easement."
CAPACITY
In Roman Law, legai capacity is referred to as full proprietary capacity. To bave this kind of capacity, a human being must be free, a citizen and a sui juris. The capacity already acquired and being enjoyed may be lost or diminished. The degree of diminution may either be MAXIMA or MEDIA or MINIMA.
Art. 39. The following circumstances, among others, modi:(y or limit capacity to act: age, insanity, imbecility, the l;irl:g deaf-mute, pe!!_~i_!iprodigality, !.~EJ:ily_r_~l~ti()I1_~! ali«:)J:lag~. ~sence.J.nsolv~~~~J;Dlstee~b.__ill,_ The consequences ofthese circumstances are govemed in this Code, other codes, the Rules of Court, and in speciallaws. Capacity to act is not limited on account of religious belief or political opinion.
state-of
Under the New Civil Code, a person has full or compi~ civil capacity if he has juridical capacity and capacity to actduridical capacity is the fitness to be the subject of legai relations. Capacity to act is the power to do acts with legai effect.
A married woman, twenty-one years of age or over, is qualified for ali acts of civil life, except in cases specified by law."
Artide 37 of the New Civil Code provides as follows:
"Juridical capacity, which is the fitness to be the subject of legai relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legai effect is acquired and may be lost." Capacity to act, unlike juridical capacity, may be restricted or limited. The restrictions are those mentioned in Artide 38 ofthe New Civil Code, to wit:
CODE:MISPC M ...,- inority I - nsanity
S - tate of being deaf-mute
37
3.
QUESTION - WHEN DOES THE PERSONALITY OF A NATURAL PERSON BEGIN?
ANSWER - Personality of a natural person begins at conception (not at birth) provided that birth should occur later. This is on the basis of Artide 40 of the New Civil Code which provides as follows:
''Art. 40. Birth determines personality; but the conceived child shall be considered horn for all purposes that are favorable to it, provided, it be horn later with the conditions specified in the following artide."
38
4.
INTRODUCTION TO LAW
QUESTION - WHEN DOES THE PERSONALITY OF A PRIVATE CORPORATION (PRIVATE JURIDICAL PERSON) BEGIN?
ANSWER - It begins from the moment a certificate of incorporation is granted to it by the Securities and Exchange Commission. From this moment, it has a personality separate and distinct from its stockholders. 5.
QUESTION -
WHEN IS A FETUS CONSIDERED BORN?
ANSWER- Article 41 answers this question. It says: "For civil purposes, the fetus is considered horn if it is alive a t the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed horn if i t dies within twenty-four hours after its complete delivery from the maternal womb." Under Articles 40 and 41 therefore, a conceived child can be a recipient of a donation provided it is favorable to him. This means that if the donation is burdensome to the conceived child, the donation is not considered valid.
NOTE: (l)
(2)
If the fetus had an intra-uterine life of less than seven months, the child must have lived within twenty-four hours after its complete delivery from its maternal womb. (Last sentence, Article 41) If the fetus had an intra-uterine life of at least seven months, it is considered horn if it is alive after its complete delivery from the mother's womb.
Chapter VI l
CONCEPT ANO NATURE OF MARRIAGE IMPORTANT TOPICS IN THIS CHAPTER: l. Concept
2. Definition of marriage 3. Requisites of a valid marriage 4. Essential requisites 5. Effect of absence of essential requisites 6. Effect of absence of formai requisites 7. Effect of defects in any of the essential requisites 8. Effect of irregularity in the formai requisites 9. Requirements if any or both of the contracting parties are between 18 and 21 years old and if any or both are not emancipated by marriage 10. Requirement if any of the contracting parties is between 21 and 25 years old 11.
Effect ifmarriage is celebrated within the three (3) month · period on the basis of a marriage license issued in violation of the said period
12. Authority of the solemnizing officer 13. Marriage license 14. Formalities of marriage 15. Distinctions between a void and voidable marriage 16. What marriages are void from the beginning? 17. What are the other void marriages? 18. Is there a need to file an action for declaration of nullity of the said marriage? 39
INTRODUCTION TO LAW
40
CONCEPT AND NATURE OF MARRIAGE
41
19. Is there a prescriptive period within which said action shall be filed?
39. Parental authority is exercised by the parent designated by the court (Art. 213, FC) "
20. Voidable marriage and grounds for annulment
40. Effect of reconciliation of the parties (Arts. 65 and 66, FC)
21. Essential requisites: (l) Legai capacity and (2) Consent freely given 22. What constitutes fraud as a ground for annulment of marriage? 23. Effects of annulment of voidable marriage 24. Status of children born-out of marriage ab initio 25.
Status of children horn out of voidable marriages
26. Restrictions and precautions to be observed by the court in issuing the decree of annulment 27. Legai separation (a)
Introduction
28. Grounds for legai separation 29. Within what time should an action for legai separation be filed? 30. Evidence rt)quired as basis for judgment in action for legai separation 31. What is adultery? 32. What is concubinage? 33. Requisites for legai separation (a)
Time constraint
(b) (c) (d)
Cooling-off period Reconciliation No legai separation on the basis of stipulation of facts
34. Effects of legai separation
l
41.
In case of breach of mutuai obligation or mutuai help and support
42.
In case of breach oLnutual obligation to observe respect and fidelity
43. As regards the obligation of the spouse to live together 44. Absolute divorce 45. Conjugal partnership of gaini 46. Definition of paraphernal pr<Ìperty 47. What are the duties ofhusband and wife? 48. Scope of duty to live together 49. Mutuai respect and fidelity 50. Mutuai help and support 51. Husband's right to fix residence 52. Can the wife acquire any property by gratuitous title? 53. What is a marriage settlement? 54. Who are the parties to a marriage settlement? 55. · Systems that may be adopted by the parties to govern their property relations (a)
Absolute community
(b)
Relative community of gains (conjugal partnership)
(c)
Absolute separation
(d)
Dotal system
35. Effects after filing of the petition (Art. 61, FC)
56. What systems govern?
36. Effects during pendency of legai separation (Art. 49, FC)
57. In the absence of marriage settlement, or when the agreed regime is void, what governs the property relations between husband and wife?
37. Effects of the decree of legai séparation (Art. 63, FC) 38. Effects during the proceeding for legai separation or for annulment of marriage
58. Concept of donation propter nuptias
INTRODUCTION TO LAW
42
CONCEPT AND NATURE OF MARRIAGE
incidents are governed by law and not subject to stipulation, except that maÌTiage settlements may fix the property relations during the marpage within the limits provided by this Code. (52a)
59. Requisites of donation propter nuptias 60. Distinction between donation propter nuptias and ordinary donation 61. Propter nuptias
62.
43
Ordinary donation
63. Rights and obligations between husband and wife 64. To live together
REQUISITES OF A VALlO MARRIAGE
65. Wife may establish a separate domicile 66. Other consequences of marriage DISCUSSION CONCEPT
The concept ofmarriage both in Roman Law and in the New Civil Code are fundamentally the same. It is regarded as a permanent union of a man and a woman. It is only in that sense that the concept is similar for while the Romans regard marriage as a union of a man and a woman in a lifelong consortium, the New Civil Code carne out with a more strict and conservative concept and definition ofmarriage. Stilllater, the New Family Code amended this definition. DEFINITION OF MARRIAGE
Article 53, New Civil Code
Articles 2 and 3, New Family Code
Art. 53. No marriage shall Art. 2. No marriage shall be be solemnized unless ali these valid, unless these essential requisites are complied with: requisites are present: l. Legai capacity of the l. Legai capacity of the contracting parties who must be contracting parties; , a male and a female; and 2. Their consent, freely 2. Consent freely given in given; . the presence of the solemnizing 3. Authonty of the per- officer. (52a) son performing the marriage; and Art. 3. The formai requisites of marriage are: 4. A marriage license, l. Authority ofthe solemexcept in a marriage of exceptional character. (Sec. la, Art. nizing officer; 3613) 2. A valid marriage
Article 52, NewCivil Code
Article l, New Family Code
license except in the cases provided for in Chapter 2 ofthis Title; an d
Marriage is not a mere contract but an inviolable social institution. Its nature, consequences and incidents are governed by law and not subject to stipulation, except that the marriage settlements may, to a certain extent, fix the property relations during the marriage. (n)
Marriage is a special contract, of permanent union, between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequence, and
3. A marriage ceremony which takes piace with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legai age. (53a, 55a)
45
INTRODUCTION TO LAW
CONCEPT AND NATURE OF MARRIAGE
Hence, unlike an ordinary contract, the parties, both under the New Civil Code and the Family Code, cannot just terminate their marriage as they wish, for the consequences and incidents of marriage are governed by law. Notaries Public who draw or execute documents destroying the inviolability of marriage are subject to disciplinary action.
marriage. This means that both of them must a t least be 18 years of ag~, and that they are not legally prohibited from marrying.
44
UNDER ARTICLES 2 ANO 3 OF THE NEW FAMILY CODE
ESSENTIAL REQUISITES "Art. 2. No marriage shall be valid, unless these essential requisites are present: Legal capacity of the contracting parties who must be a male and a female; (l)
(2) Consent freely given in the presence of the solemnizing officer." (Underscoring supplied)
FORMAL REQUISITES "Art. 3. The forma! requisites of marriage are: (l)
Authority of the solemnizing officer;
(2) Both of them must give consent to the marriage. lt is their consent, not the consent of the parents, that is referred to in Article 2(1). ' FORMAL REQUISITES ABSENCE OF LEGAL AUTHORITY of the solemnizing officer to solemnize marriage ABSENCE OF MARRIAGE LICENSE
Renders the marriage void except when the marriage is contracted with either or both parties believing in good faith at the time of the marriage that the solemnizing officer had the legai authority to do so. RENDERS THE MARRIAGE VOlO
A marriage ceremony must publicly take piace under said conditions but the marriage ceremony may be solemnized elsewhere in the following cases:
A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
l.
In case of marriages contracted at the point of death (articulo mortis);
A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age." (53a, 55a) (Underscoring supplied)
2.
In case of marriages in remote places; or
3.
In case both parties request the solemnizing officer in writing to that effect. (Article 8, Family Code)
(2) (3)
EFFECTS OF THE FOLLOWING: ESSENTIAL REQUISITES
l.
Absence of any of essential or formai requisites;
The absence of any of the said essential requisites renders the contract of marriage void ab initio except as may be provided in Section 35(2) of the Family Code.
2.
Defects in any of the essential requisites; and
3.
Irregularity in the formai requisites.
Hence, it is required that: (l) The contracting parties must be a man and a woman who should have the legai capacity to enter into a contract of
46
CONCEPT AND NATURE OF MARRIAGE
INTRODUCTION TO LAW
Absence of Any of the Essential or Formai Requisites
Defects in Any of the Essential Requisites
The consent shall be manifested in writing by the interested party, who personally appears before the local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oath. (Article 14, Family Code)
Irregularity in the Formai Requisites
It shall render It shall render It shall not affect the marriage void ab the marriage void- the validity ofthe marinitio except as sta- able as provided in riage but the party or ted in Artide 35(2). Artide 45. parties responsible for the irregularity shall be civilly, criminally and administratively liable.
Examples:
Examples:
REQUIREMENT IF ANY OF THE CONTRACTING PARTIES IS BETWEEN 21 ANO 25 YEARS OLO
The party concerned shall be obliged to ask parental advice. lf said advice is not obtained, or if such advice is not favorable, or if the parent or guardian concerned refuses to give any advice, no marriage license shall issue till after three (3) months following the completion of publication of the application for marriage license. (Article 15, Family Code)
Examples:
l. Lack of legai l. Lack of parental l. Lack oflegal age of the witnesses. capacity of ,the consent contracting parties.
2.
EFFECT IF MARRIAGE IS CELEBRATEO WITHIN THE THREE (3) MONTHS PERIOO ON THE BASIS OF A MARRIAGE LICENSE ISSUEO IN VIOLATION OF THE SAIO PERIOO
Lack of consent ,2. Consent of a ,2. Presence of only of any of the parparty is vitiated. one witness. ties to the marriage.
3. The parties are not at least 18 years of age (considered as lack of legai capacity).
47
3. Failure to comply with the procedura! requirements in Artide 12.
The marriage is valid but the parties responsible of the irregularity shall be civilly, criminally and administratively liable. In other words, the same is treated merely as an irregularity. (Article 4, Family Code)
4. Non-absence of the 3-month period as provided in Artide 15.
AUTHORITY OF THE SOLEMNIZING OFFICER
Marriages solemnized by any person not legally authorized to perform marriages are void unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legai authority to do so. (Art. 35[2], Family Code)
5. Requirement if notice in Artide 17 is not complied with. REQUIREMENTS IF ANY OR 80TH OF THE CONTRACTING PARTIES ARE BETWEEN 18 ANO 21 YEARS OLO ANO IF ANY OR 80TH ARE NOT EMANCIPATEO BY MARRIAGE
There is a need of consent to the marriage to be given, in the order mentioned, by the father, the mot:her, the surviving parent or guardian, or persons having legal charge of them.
NOTE: l. ;:!',,
' ~'
Under the Family Code, mayors are exduded from the list of those .w~o, are authorized to solemnize marriage. Later, or under .the New Local Government Code, the
INTRODUCTION TO LAW
48
mayors are now authorizedto solemnize marriage. (Sec. 444[XVIII], Local Government Code)
2.
Any incumbent member of the judiciary may soleiUÀize marriages within the court's jurisdiction. /
3.
If the marriage is celebrated by a priest, imam or
minister of a church, it is required that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect. (Art. 7[2], Family Code)
4.
The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or tempie, or in the office of the consul-general, EXCEPT in cases of marriages in articulo mortis, or .where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. (Art. 8, Family Code)
MARRIAGE LICENSE
Without a marriage license, the marriage is void. But for as long as there is a marriage license, it is immaterial if it is illegally or irregularly obtained. The marriage is valid just the same but the guilty parties shall be civilly, criminally, and administratively liable. (Àrt. 4, third paragraph, Family Code) FORMALITIES OF MARRIAGE
No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and dedare in the presence of not less than two witnesses of legai age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. (Art. 6, Family Code) VOlO ANO VOIOABLE MARRIAGE
The distinctions between a void and voidable marriage as to its concept and its effect are as follows:
CONCEPT AND NATURE OF MARRIAGE
Void marriage
49
Voidable marriage
l. It is void ab initio. lt is void Jl. The marriage is valid until it
from the very beginning and therefore no marriage legally exists.
is annulled. ,
2. The marriage can never be 12. The marriage cari be ratified ratìfied. by free cohabitation. 3. No conjugal partnership is 13. There is conjugal partnercreated. ship unless the marriage settlements provided otherwise . 4. There is no need for ajudicial 4. A judicial decision is needed dedaration that the marriage to annui the marriage. is void. 5. The validity of the marriage 5. The validity of the marriage may be attacked even after may not be attacked after one the death of one party. party dies. 6. The status of children horn J6. out of marriages that are void ab initio - They are illegitimate children except as provided under Artide 54 of the Family Code which provides as follows: Art. 54. Children conceived or horn before the judginent of annulment or absolute nullity of the marriage under Artide 36 has become final and executory shall be considered legitimate. Children conceived or horn of the subsequent marriage under Artide 53 shall likewise be legitimated.
The status of children horn out of voidable marriages: (l) Those conceived before a decree of annulment are Legitimate Children; (2) .Those conceived after a decree of annulment are Illegitimate children.
INTRODUCTION TO LAW
CONCEPT AND NATURE OF MARRIAGE
QUESTION - WHAT MARRIAGES ARE VOID FROM THE BEGINNING?
The petition alleged that Roridel and Reynaldo were married on Aprii 14, 1985, at the San Agustin Church in Manila; that a son, Andre O. Molina was horn; that after a year of marriage, Reynaldo showed signa of "immaturity and irresponsibility" as a husband and a father since he preferred to spend more time with his peers and friends on whom he squandered his money; that he depended on his parents for aid and assistance; and, was never honest with his wife in regard to their finances, resulting in frequent quarrels between them. That sometime in February 1986, Reynaldo was relieved of his job in Manila, and since then, Roridel had been the sole breadwinner ofthe family; that in October 1986, the couple had a very intense quarrel, as a result of which their relationship was estranged; that in March 1987, Roridel resigned from her job in Manila and went to live with her parents in Baguio; that a few weeks later, Reynaldo left Roridel and their child, and had since then abandoned them; that Reynaldo had thus shown that he was psychologically incapable of complying with essential maritai obligations and was highly-immature and a habitually quarrelsome individuai who thought of himself as a king to be served; and that it would be to the couple's best interest to have their marriage declared null and void in order to free them from what appeared to be an incompatible marriage from the start.
50
ANSWER - Under Article 35 of the Family Code, the following marriages shall be void from the beginning: (l)
Those contracted by any party below eighteen years of age even with the consent of parents or guardiana;
(2)
Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legai authority to do so;
(3)
Those solemnized without license, except those covered by the preceding Chapter;
(4)
Those bigamous or polygamous marriages not falling under Articl e 41;
(5)
Those contracted through mistake of one contracting party as to the identity of the other; and
(6)
Those subsequent marriages that are void under Artide 53.
QUESTION- WHAT ARE OTHER VOID MARRIAGES? ANSWER - The following marriages are void: l.
Void because of psychological incapacity "Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential maritai obligations of marriage, shalllikewise be void even if such incapacit.y becomes manifest only after its solemnization."
51
Reynaldo admitted that he and Roridel could no longer live together as husband and wife, but contended that their misunderstandings and frequent quarrels were due to: (l) Roridel's strange behavior of insisting on maintaining her group of friends even after their marriage; (2) Roridel's refusal to perform some of her mari tal duties such as cooking meals; (3) and Roridel's failure to run the household and handle their finances. During the pre-trial on October 17, 1990, the following were stipulated: l.
That the parties herein were legally married on Aprii 14, 1985 at the Church of St. Augustine, Manila;
2.
That out of their marriage, a child named Albert Andre Olaviano Molina was horn on July 29, 1986;
FACTS:
3.
On August 16, 1990, respondent Roridel O. Molina filed a verified petition for declaration of annulment of her marriage to Reynaldo Molina.
That the parties are separated-in-fact for more than three years;
4.
That the petitioner is not asking support for her and her child;
Republic of the Philippines vs. Court of Appeals 198 SCRA268
52
INTRODUCTION TO LAW
5.
That the respondent is not asking for damages;
6.
That the common child of the parties is in the custody of the petitioner wife.
Evidence for herein respondent wife consisted of her own testimony and that of her friends Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G. Lalas, a social worker and of Dr. Theresita Hidalgo-Sison, a psychiatrist of the Baguio Generai Hospital and Medicai Center. She also submitted documents marked as Exhibits "A" to "E-l." Reynaldo did not present any evidence as he appeared only during the pre-trial conference. On May 14, 1991, the trial court rendered judgment declaring the marriage void. The appeal of petitioner was denied by the Court of Appeals which affirmed in toto RTC's decision. Hence, the present recourse.
ISSUE: In his petition, the Solicitor Generai insists that "the Court of Appeals made an erroneous and incorrect interpretation of the phrase 'psychological incapacity' (as provided under Art. 36 of the Family C'lde), and made an incorrect application thereofto the facts ofthe case," adding that the appealed decision tended "to establish in effect the most liberai divorce procedure in the world which is anathema to our culture." In denying the Solicitor General's appeal, the respondent Court relied heavily on the trial court's findings "that the marriage between the parties broke up because of their opposing and conflicting personalities." Then it added its own opinion that "the Civil Code Revision Committee (hereinafter referred to as the Committee) intended to liberalize the application of our civil laws on personal and family rights x x x." It concluded that: "As a ground for annulment of marriage, we view psychological incapacity as a broad range of mental and behavioral conduct on the part of 'irreconcilable differences' and 'conflicting personalities' in no wise constitutes psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; i t is essential that they must be shown to be incapable of doing so, due to some psychological (not physical) illness."
CONCEP'r AND NATURE OF MARRIAGE
53
The evidence adduced by respondent merely showed that she and her husband could not get along with each other. There had been no showing of the gravity of the problem neither its judicial antecedence nor its incurability. The expert testimony of Dr. Sison showed no incurable psychiatric disorder but only incompatibility.
COURT Q-
Is it therefore the recommendation of the psychiatrist based on your findings that it is better for the Court to annui (sic) the marriage?
A- Yes, Your Honor. Q- There is no hope for the marriage? A-
There is no hope, the man is also living with another woman.
Q-
Is it also the stand of the psychiatrist that the parties are psychologically unfit for each other but they are psychologically fit with the other parties?
A- Yes, Your Honor.
Q- Neither are they psychologically unfit for their professions? A- Yes, Your Honor.
In the case of Reynaldo, there is no showing that his alleged personality traits were constitutive of psychological 1ncapacity existing at the time ofmarriage celebration. While some effort was made to prove that there was a failure to fulfill pre-nuptial impressions of"thoughtfulness and gentleness." On Reynaldo's part and of being "conservative, homely and intelligent" on the part of Roridel, such failure of expectation is not indicative of antecedent psychological incapacity. l{ at all, it merely shows love's temporary blindness to the faults and blemishes of the beloved. (ltalics supplied)
2.
Void because of incestuous relationship
Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate: l.
Between ascendants and descendants of any degree; and
2.
Between brothers and sisters, whether of the full or halfblood.
54
INTRODUCTION TO LAW
3.
CONCEPT AND NATURE OF MARRIAGE
Void {or reasons of public policy
authority over the party, in that order, unless after attaining the age of twenty-one (21), such party freely cohabited with the other and both lived together as husband and wife.
Art. 38. The following marriages shall be void from the beginning for reasons of public policy: l.
Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;
2.
Between step-parents and step-children;
3.
Between parents-in-law and children-in-law;
4.
Between the adopting parent and the adopted child;
5.
Between the surviving spouse of adopting parent and the adopted child;
6.
Between the surviving spouse of the adopted child and the adopter;
7.
Between an adopted child and a legitimate child of the adopter;
8.
Between adopted children of the same adopter; and
9.
Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.
Question - Is there a need to file an action for declaration of nullity of the said marriage? Answer - Yes.
Unsound mind - That either party' was of unsound mind, unless such party after coming. to reason, freely cohabited with the other as husband and wife.
3.
Fraud - That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife.
4.
Force, intimidation, undue influence - That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife.
5.
lmpotence- That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable.
6.
Sexually-transmissible disease - That either party was aftlicted with a sexually-transmissible disease found to be serious and appears to be incurable.
LEGAL CAPACITY
Answer - The action or defense for the declaration of absolute nùllity shall not prescribe.
This means that the parties must have the necessàry age and that there must be no impediment caused by a prior existing marriage or by a certain relationship, whether on account of affinity or consanguinity.
Question - What is voidable marriage? Answer - A voidable marriage is one which is valid until it is annulled for any of the following cases, existing at the time of the marriage: No age requirement - That the party in whose behalf i t is sought to have the marriage annulled was eighteen years of age or over but below twenty-one (21) and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental
2.
ESSENTIAL REQUISITES: (l) LEGAL CAPACITY AND (2) CONSENT FREELY GIVEN
Question - Is there a prescriptive period within which said action shall be filed?
l.
55
RULES TO REMEMBER
.,.!
(l) Marriageable age for either male or female shall be 18 years or upwards. (Art. 5, Family Code)
(2) If either or both of the contracting parties (not having been emancipated by previous marriage) are between 18 and 21
57
INTRODUCTION TO LAW
CONCEPT AND NATURE OF MARRIAGE
years old, there must be consent to the marriage by the father, mother, surviving par~nt or guardian or persons having legai charge ofthem, in the order mentioned. (Art. 14, Family Code)
(3) Concealment of sexually transmissible disease, regardless of its nature, existing a t the time of the marriage; or
56
(3) Any contracting party between the age of21 and 25 shall be obliged to ask their parents or guardian for advice, or if it be unfavorable, the marriage license shall not be issued till after three (3) months following the completion of the publication of the application therefor. (Art. 15, Family Code) (4) lf parental consent or parental advice is needed, there mtist be a certificate that the contracting parties have undergone marriage counselling. Failure to attach of marriage counselling shall suspend the completion of the publication of the application. (Art. 16, Family Code) (5) Marriage celebrated without the required license, except when otherwise provided by law like marriage in articulo mortis, shall be null and void. (Art. 35[3], Family Code) o
Marriage contracted'by any party below 18 years of age, even with parental consent, shall be null and void. (Art. 35[1], Family Code) (6)
CONSENT FREELY GIVEN
The consent referred to in Artide 2 of the Family Code refers to the consent of the contracting parties. If there is no consent or when the parties do not have the intention to be bound, the marriage is void. If there is consent, but there was error, fraud, intimidation or force, the marriage is voidable. (Art. 45, Family Code) WHAT CONSTITUTES FRAUD AS A GROUND FOR ANNULMENT OF MARRIAGE
Artide 46 of the Family Code answers this question. It provides as follows: Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; (l)
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism a t the time of the marriage. l
No other misrepresentation or deceits as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. EFFECTS OF ANNULMENT OF VOIDABLE MARRIAGE
It has four effects namely: (l) WITH RESPECT TO EDUCATION AND SUPPORT The court shall provide for their education and support. (Art. 49, Family Code)
(2) WITH RESPECT TO CUSTODY OF CHILDREN- The custody of the children is provided for as the court deems best. (Art. 49, Family Code) (3) WITH RESPECT TO ATTORNEY'S FEES AND LITIGATION EXPENSES- They are taken from the community property, if the action is successful. (Art. 90, NCC) (4) WITH RESPECT TO THE GUILTY PARTY- Damages are assessed against the guilty party in case of annulment due to: (a) Lack of authority of the solemnizing officer concealed from one party; (b). Concealment of impotence, or of a prior marriage stili in force;
(c) Concealment ofincestuous relationship or of quasiincestuous disqualification under Artide 82; (d)
Knowledge of insanity of one party. (Art. 91)
STATUS OF CHILDREN BORN-OUT OF MARRIAGES AB INITIO
They are illegitimate children except as provided under Artide 54 of the Family Code which provides as follows: Art. 54. Children conceived or horn before the judgment of annulment or absolute nullity of the marriage under Artide 36 has become final and executory shall be considered
CONCEPT AND NATURE OF MARRIAGE
INTRODUCTION TO LAW
58
legitimate. Children conceived or horn of the subsequent marriage under Artide 53 shall likewise be legitimate. STATUS OF CHILDREN BORN OUT OF VOIDABLE MARRIAGES
It depends. Those conceived BEFORE an appealable decree of annulment are legitimate children. Those conceived AFTER such decree of annulment are illegitimate children. RESTRICTIONS ANO PRECAUTIONS TO BE OBSERVED BY THE COURT IN ISSUING THE DECREE OF ANNULMENT
Art. 48. In ali cases of annulment or declaration of absolute nullity of marriage, the court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the state to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.
LEGAL SEPARATION INTRODUCTION
In the Philippines, we do not have absolute divorce (divorce a vinculo matrimoni). We only have relative divorce or legai separation (divorce a mensa et thoro). In absolute divorce, the marriage is dissolved and the parties can remarry. In relative divorce or legai separation, however, the marriage bond is not dissolved and the parties are not entitled to remarry. In effect, the parties are merely separated from bed and board .. GROUNDS FOR LEGAL SEPARATION
There are ten (10) grounds for legai separation under Artide 55 of the Family Code, to wit: Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (l)
59
(2) Physical violence or moral pressure to compel the petitioner to change religious or politica! affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six (6) years, even if pardoned; (5)
Drug addiction or habitual alcoholism of the respondent;
(6)
Lesbianism or homosexuality ofthe respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8)
Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one (l) year. For purposes of this Artide, the term "child" shall include a child by nature or by adoption. Under Artide 97 of the Civil Code, there are only two (2) grounds for legai separation, namely: (l) For adultery on the part of the wife and for concubinage on the part of the husband as defined in the Penai Code; or
(2) other.
An attempt by one spouse against the life of the
WITHIN WHAT TIME SHOULD AN ACTION FOR LEGAL SEPARATION BE FILED?
Art. 57 of the Family Code provides that an action for legai separation shall be filed within five years from the time of the occurrence of the cause. EVIDENCE REQUIRED AS BASIS FOR JUDGMENT IN ACTION FOR LEGAL SEPARATION
Simple preponderance of evidence is required. No previous
INTRODUCTION TO LAW
60
CONCEPT AND NATURE OF MARRIAGE
criminal conviction is necessary. No decree oflegal separation shall be based upon a stipulation of facts or a confession of judgment.
Third: Reconciliation "Art. 59. No legai separation may be decreed unless the court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable."
WHAT IS ADULTERY?
Adultery is a crime committed by any married woman who shall have sexual intercourse with a man not her husband; and by a man who has carnai knowledge of her, knowing her to be married, even if the marriage be subsequently declared void. (Art. 333, Revised Penal Code)
Fourth: No Legal Separation on the Basis of Stipulation of Facts "Art. 60. No decree oflegal separation shall be based upon a stipulation of facts or a confession of judgment.
Note: l.
Article 333 of the Revised Penai Code specifies that the crime is committed by a married woman. Therefore, if a woman is single or not married, and she has sexual intercourse with her two or more boyfriends, she cannot be held liable for adultery.
2.
Adultery may be proved by circumstantial evidence.
61
In any case, the Court shall order the prosecuting attorney or fiscal assigned · to i t to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed."
EFFECTS OF LEGAL SEPARATION The effects oflegal separation are those mentioned in Articles 61, 62, 63, 198 and 213 of the Family Code:
WHAT IS CONCUBINAGE?
Any husband who shall keep a mistress in the conjugal dwelling or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other piace, shall be punished by prision correccional in its minimum and maximum periods. (Art. 334, Revised Penal Code)
Art. 61 -
states the effects after the petition for legai separation is filed.
Art. 62 -
states the effects during the pendency of legai separation.
Art. 63 -
states the effects of the decree of legai separation.
REQUISITES FOR LEGAL SEPARATION
Art. 49 -
The requisites for legai separation are those provided in Articles 57, 58, 59 and 60 of the Family Code:
(1st paragraph) states the effects of the pending petition for legai separation.
Art. 198 -
(2nd paragraph) states the effects of a final judgment granting the petition for legal separation.
Art. 213 -
states the effects of separation with respect to parental authority.
First: Time Constraint "Art. 57. An act for legai separation shall be filed within five (5) years from the time of the occurrence of the cause."
Second: Cooling-Off Period "Art. 58. An action for legai separation $hall in no case be tried before six (6) months shall have elapsed since the filing of the petition."
l~~
EFFECTS AFTER FILING OF THE PETITION (ART. 61, FC)
l. Mter the filing of the petition for legai separation, the spouses shall be entitled to live separately from each other.
62
INTRODUCTION TO LAW
··,
2. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the coutt shall have the same powers and. duties as those of a guardian under the Rules of Court. EFFECTS DURING PENDENCY OF LEGAL SEPARATION (ART. 49, FC}
During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support' of the spouses and the custody and support of their coinmon children. The Court shall give paramount consideration to the mora! and materia! welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent. EFFECTS OF THE DECREE OF LEGAL SEPARATION (ART. 63, FC}
l. The spouses shall be entitled to live separately from each other, but the maniage bonds shall not be severed.
2. The absolute community or the cònjugal partnership shall be dissolved and liquidated but. the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2). 3. The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 ofthis Code. 4. The offended spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provision in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. EFFECTS DURING THE PROCEEDING FOR LEGAL SEPARATION OR OF ANNULMENT OF MARRIAGE
During the proceedings for legai separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses
CONCEPT AND NATURE OF MARRIAGE
63
and their children shall be supported from the properties of the absolutP. community or the conjugal partnership. (Art. 198, 1st paragraph) Mter the fina! judgment granting the petition, the obligation of mutuai support between the spouses ceases. Hbwever, in case of legai separation, the court may order that the g\Iilty spouse shall give support to the innocent one, specifying the terms of such order. (Art. 198, 2nd paragraph) PARENTAL AUTHORITY 15 EXERCISED BY THE PARENT DESIGNATED BY THE COURT (ART. 213, FC}
In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen, is unfit. (Art. 213, 1st paragraph) EFFECT OF RECONCILIATION OF THE PARTIES (ARTS. 65 ANO 66, FC)
If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legai separation. (Art. 65)
The reconciliation referred to in the preceding Article shall have the following consequences: (l) - The legai separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and (2)
The final decree of legai separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.
The court's order containing the foregoing shall be recorded in the proper civil registries. IN CASE OF BREACH OF MUTUAL OBLIGATION OR MUTUAL HELP ANO SUPPORT (l)
An action for support may be filed.
CONCEPT AND NATURE OF MARRIAGE
INTRODUCTION TO LAW
64
(2)
An action for receivership, separation of property or for administration by the wife may be filed in case of desertion by the husband.
(3)
Judicial admonition and other measures may be taken by the court. However, the court cannot compel cohabitation.
IN CASE OF BREACH OF MUTUAL OBLIGATION TO OBSERVE RESPECT ANO FIDELITY
(l)
A petition for legai separation may be filed.
(2)
The convicted spouse shall forfeit his or her right to support.
(3)
The guilty spouse shall be disinherited.
(4)
The guilty spouse shall not be capable to succeed.
Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to maritai, parental, or property relations. A spouse is deemed to have abandoned the other when he or she left the conjugal dwelling without intention of returning. The spouse. who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. AS REGARDS THE OBLIGATION OF THE SPOUSE TO LIVE TOGETHER
(l)
The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported. (Art. 127[1})
(2)
When the consent of one spouse to any transaction of
65
the other is required·by.law, judicial authorization.shall be obtained in a summary proceeding. (Art. 127[2]) (3)
In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon petition in a summary: proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfY the latter's share.
ABSOLUTE DIVORCE
Question - Do we have absolute divorce in the Philippines? Answer- We do not have absolute divorce in the Philippines. Muslim divorce was previously declared valid and recognized under Republic Act No. 394 but this law was valid only for a period of 20 years from June 18, 1949. Therefore, actions for absolute divorce between Filipinos or between foreigners or between a Filipino and a foreigner will not prosper in Philippine courts. If said action is brought in a foreign court by a foreigner and the same is granted, the foreign court has jurisdiction to grant the absolute divorce and provided further that said divorce is recognized as valid according to the nationallaw of the parties. If said action is brought in a foreign country by a Fili pino citizen, the same even if granted, will not be recognized in the Philippines. CONJUGAL PARTNERSHIP OF GAINS
Article 106 of the Family Code defines conjugal partnership of gains as follows: Under the regime of conjugàl partnership of gains, the husband and wife piace in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution ofthe marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise · agreed in the marriage settlements.
INTRODUCTION TO LAW
66
OEFINITION OF PARAPHERNAL PROPERTY
Art. 109. The following shall be the exclusive property of each spouse: (l)
That which is brought to the marriage as his or her own;
(2)
That which each acquires during the marriage by gratuitous title;
(3)
That which is acquired by right ofredemption, by barter or by exchange with property belonging to only one of the spouses; and
(4)
CONCEPT AND NATURE OF MARRIAGE
)
That which is purchased with exdusive money of the wife or of the husband.
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND ANDWIFE QUESTION- WHAT ARE THE DUTIES OF BUSBAND ANDWIFE? ANSWER - They are obliged: (l)
To live together;
(2)
To observe mutuai respect and fidelity; and
(3)
To render mutuai help and support.
SCOPE OF OUTY TO LIVE TOGETHER
The husband and the wife have a right to live together and this includes cohabitation and sexual intercourse. With the enactment of Republic Act No. 8353 otherwise known as Anti-Rape Law of 1997, a husband may be held liable for the rape ofhis wife. However, the subsequent forgiveness by the wife shall extinguish the criminalliability except when the marriage is void ab initio. MUTUAL RESPECT ANO FIOELITY
Mutuai respect simply means that each shall respect the other. They can disagree or reprimand each other but it is unlawful for them to inflict force or physical harm, EXCEPT when either of them
67
SURPRISES the other in the act of committing sexual intercourse with another person. Even under this situation, Artide 24 7 of the Revised Penai Code imposes a penalty of destierro to the guilty spouse. '
Infidelity, on the other hand, is a ground for legai separation or disinheritance under Articles 55(8) and 63(4) ofthe Family Code. MUTUAL HELP ANO SUPPORT
Husband do not marry his wife to make the latter his slave and vice-versa. They should help and support each other within their available resources and to see to it that they assist each other in the rearing of their children for civie efficiency and development of moral character. Under Artide 11 of the Revised Penai Code, defense of the spouse is a justifying circumstance provided the other requisites therein are present. HUSBANO'S RIGHT TO FIX RESIOENCE
As a rule, the husband shall fix the residence of the family. However, the wife may establish a separate residence, IF: l.
The husband maltreats her or grossly insults her;
2.
The husband continuously refuses to support her;
3. . The husband is immoderate or barbarie in his demands for sexual intercourse; 4.
The wife is virtually driven out of the conjugal home by the husband; and
5.
The husband continually indulges in illicit relations with another woman.
CAN THE WIFE ACQUIRE ANY PROPERTY BY GRATUITOUS TITLE?
The wife cannot, without the husband's consent, acquire any property by gratuitous title EXCEPT from her ascendants, descendants, parent-in-law and collateral relative within the fourth d egre e.
CONCEPT AND NATURE OF MARRIAGE
INTRODUCTION TO LAW
68
(3)
WHAT IS A MARRIAGE SETTLEMENT?
It is an ante-nuptial contract entered into by the prospective spouses for the purpose of fixing the conditions with respect to their present and future property.
D.
It depends. Ifthe future spouses are of age, they are the parties to the marriage settlement. If one or both of the spouses are minors (under 21), the parties are: (l)
The future spouses even if they are minors;
(2)
The parent or guardian; and
(3)
The family council if there is no guardian or parent.
Family expenses are contributed by each spouse according to stipulation or in proportion to their respective income.
Dotai System (l)
WHO ARE THE PARTIES TO A MARRIAGE SETTLEMENT?
(2) (3) (4)
Property of the wife is managed by the husband during the marriage. Fruits go to the husband. Expenses are bome by the husband. Upon cessation of common life, the property is returned.
WHAT SYSTEMS GOVERN?
Art. 74. The property relations between husband and wife shall be governed in the following order: (l)
SYSTEMS THAT MAY BE ADOPTED BY THE PARTIES TO GOVERN THEIR PROPERTY RELATIONS
A.
B.
C.
69
By marriage settlements executed before the mar-
riage; (2)
By the provisions of this Code; and
(3)
By the local customs.
Absolute Community (l)
Present and future property (with certain exceptions) is to be owned in common.
(2)
Expenses are borne by the common property.
Relative Community of Gains (Conjugal Partnership) (l)
Present property continues to be owned by the respective spouses;
(2)
Future property is separate if acquired gratuitously, but coinmon if acquired by onerous title at the community's expenses; and
(3)
Fruits and earnings are common.
IN THE ABSENCE OF MARRIAGE SETTLEMENT, OR WHEN THE AGREED REGIME IS VOID, WHAT GOVERNS THE PROPERTY RELATIONS BETWEEN HUSBAND ANO WIFE?
The _system of absolute community of property as established by the Family Code shall govern. (Art. 75, New Family Code)
Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of marriage settlement, or when the regime agreed upon is void, the system of absolute community ofproperty as established in this Code shall govern.
(l)
Present and future property is owned by the holder or acquirer.
Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136.
(2)
Fruits are separately owned by the owner of the producing property.
Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed
Absolute Separation
INTRODUCTION TO LAW
70
before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of property. CONCEPT OF DONATION PROPTER NUPTIAS
Propter nuptias (donations by reason of marriage) are those which are made before its celebration, in consideration of the same and in favor of one or both of the future spouses. REQUISITES OF DONATION PROPTER NUPTIAS
The donation must be made:
CONCEPT AND NATURE OF MARRIAGE
(b) The marriage does not take place;
(b) Ingratitude;
(c) The marriage is annulled due to the bad faith of the donee;
(c) Appearance of children.
(d) There is legal separation due to the fault of the donee; (e) Lack ofrequired parental consent to the marriage; . (f) Governed by Statute of
Frauds.
(l)
Before the marriage;
(2)
In favor of either spouses or both; and
(3)
In consideration (by reason) of the marriage.
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE COMMON TO HUSBAND AND WIFE
DISTINCTION BETWEEN DONATION PROPTER NUPTIAS AND ORDINARY DONATION
Art. 69. -
The husband and the wife shall fix the family domicile. In case of disagreement, the court shall decide.
Ordinary Donation
Art. 70. -
The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from their separate properties.
Art. 72. -
When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief.
Art. 73. -
Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds.
Propter Nuptias l. Acceptance is not required.
l. Acceptance is required.
2. The donor can give not more 2. The donor can give not more than 1/5 (Art. 84) made by than what he can give by future spouse. will. 3. It can include future prop-,3. It cannot include future erty. (Art. 84) property. 4. The donor must free the 4. The donor need not free the property except from serviproperty unless the donation tudes unless otherwise stiis onerous. pulated.
5.
71
The donation may be revoked for the following reasons: (a) The condition is not fulfilled;
,5.
The donation may be revoked for the following reasons: (a) Breach of conditions;
INTRODUCTION TO LAW
72
In case of disagreement, the court shall decide whether or not: (l)
The objection is proper; and
(2)
Benefit has accrued to the family prior to the objection or thereafter. If the benefit has accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in good faith.
Art. 68. -
The husband and wife are obliged to live together, observe mutuai love, respect and fidelity, and render mutuai help and support.
TO LIVE TOGETHER
This is both a duty and a right. This includes cohabitation or consortium and sexual intercourse. If there is, however, a legal separation, there is no more duty to have sexual intercourse. WIFE MAY ESTABLISH A SEPARATE DOMICILE
The wife may establish a separate domicile in the following cases: (l) If the husband maltreats her. (Arroyo vs. Vasquez de Arroyo, 42 Phil. 54) .
(2) If the husband grossly insults her. (Talanan vs. Willis, [CA] 35 O.G. 1369) (3) Ifthe husband is immoderate or barbarie in his demands for sexual intercourse. (Goitia vs. Campos-Rueda, 35 Phil. 252) (4) If the husband continuously indulges in illicit relations with another even if the concubine or concubines are not brought into the maritai abode. (Dadivas vs. Villanueva, 54 Phil. 92) (5) nuously
If the husband refuses to support the family or contigambl~s.
(Panuncio vs. Sula, [CA] 34 O.G. 6122)
(6) If the husband insists on living with his own parents. (Del Rosario vs. Del Rosario, CA 4600 O.G. 6122)
CONCEPT AND NATURE OF MARRIAGE
73
(7) If she is virtually driven out of their home by her husband and she is threatened with violence if she should return. (Garcia vs. Santiago and Santiago, 53 Phil. 952) OTHER CONSEQUENCES OF MARRIAGE (l) A husband and wife can chastise or reprimand each other but may not inflict force except when either catches the other in the act of sexual intercourse with another. (Art. 247, Revised Penal Code)
(2) Marriage emancipates a person from parental authority as to person. · (3) A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband without his consent, except in a civil case by one against the other, or in a criminal case for a crime committed by and against the other. (Section 20[b], Rule 130) (4) The husband or the wife during the marriage or afterwards, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage. (Section 21[a], Rule 130) (5) A Filipino woman who marries an alien acquires his nationality if so provided by her husband's laws. (Commonwealth Act No. 63) (6) A foreign woman who marries a Filipino may become a Filipino citizen provided she herself may be lawfully naturalized. (Section 15, Commonwealth Act No. 473) ·
THE FAMILY
75
The family home may be created judicially or extra-judicially. If thus created, it is exempt from: (l) execution; (2) forced sale; and (3) attachment.
Chapter VII 4.
ADVANTAGES OF A FAMILY HOME
lt is exempt from execution, forced sale, or attachment. lt is liable only:
THE FAMILY
(a) (b) home;
IMPORTANT TOPICS IN THIS CHAPTER: l.
Family defined
2.
Family suits are discouraged
3.
Family home defined
4.
Advantages of a family home
For non-payment of taxes; For debts incurred prior to the constitution ofthe family
(c) For debts secured by mortgage on the premises before or after such constitution; and (d) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (Art. 155, FC)
DISCUSSION 1.
FAMILY DEFINED
The family is a basic social institution which public policy cherishes and protects. No custom, practice or agreement which is destructive of the family shall be recognized or given effect. 2.
FAMILY SUITS ARE DISCOURAGED
No suit between of the same family shall prosper unless it should appear from the verified complaint or petition that eamest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed. (Art. 151, FC) 3.
FAMILY HOME DEFINED
Art. 152 of the Family Code defines family home as: "The dwelling house where a person and his family reside, and the land on which it is situated." 74
• •
J
ACC. NO.
b'
• ,
_,_
f~H R
tA\fJ liPRAR'I
PROPERTY
77
Chapter VIli
the possession of man. Things are those same objects before their appropriation by man. The stars and the planets are included in the concept of "things" but since they cannot be appropriated, they cannot be considered property.
PROPERTY
2.
'
PRINCIPAL CLASSIFICATION OF PROPERTY
Under the New Civil Code, property may either be: (l) Immovable or real property; or (2) Movable or personal property.
IMPORTANT TOPICS IN THIS CHAPTER: l. . Property defined
3.
2. Principal classification of property 3. Classification of real or immovable properties
CLASSIFICATION OF REAL OR IMMOVABLE PROPERTIES
CODE: NIDA
(a) by nature (b) by incorporation (c) by destination or purpose (d) by analogy 4. Movable or personal properties
N-ature I-
D - estination A- nalogy
5. Definition and concept of ownership 6. Extent of ownership 7. Ownership of a hidden treasure
l.
Real property by nature - Those which by their very nature are immovable, i.e., (a) land, buildings, roads and construction of all kinds adhered to the soil; and (b) mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either running or _stagnant.
2.
Real property by incorporation- Those which are attached to an immovable in. a fixed manner (i.e., building):
8. Definition of hidden treasure 9. Modes of acquiring ownership
:'~
10. Attributes of ownership 11. Important articles of the New Civil Code on ownership and possession · 12. Effects of possession
DISCUSSION 1.
.~
PROPERTY DEFINED
Things which are or may be the object of appropriation are considered as property. The word "thing'' is broader than the concept of property. More specifically, property refers to things which are ··susceptible to appropriation and alreal,iy possessed and found in \ ,~.w~:,.,.,.:,;...,;.,
~:
~ ' ~- "' 1: ....
. ·-: : :~(
\
i
::
76
ncorporation
•• c;;'_,.,,.~·.•.••.• ~ •
1. ~. ·. .· .·, .. ·.'
t",H i''IJt :· r .,
l~-~"·:·-·--~.,~. ~-~~"~-~!'~- ' ~-~~~
'
t.::.! 1
(a)
Buildings, roads and construction of all kinds adhered to the soil;
(b)
Trees, plants, and growing fruits, while they are attached to the land or form an integrai part of an immovable;
(c)
Everything attached to an immovable in fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object;
PROPERTY
INTRODUCTION TO LAW
78
(d)
3.
(a)
(b)
(c)
4.
Statues, reliefs, paintings, or other objects for use or ornamentation, piaced in buiidings or on Iands by the owner of the immovable in such a manner that it reveais the intention to attach them permanently to the tenements;
4.
Animai houses, pigeon houses, beehives, fish ponds or breeding piaces of similar nature, in case their owner has placed them or preserved them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included; Fertilizer actually used on a piece of land;
(e)
Docks and structures which, through floating, are intended by their nature and object to remain at a fixed piace on a river, lake or coast.
Real property by analogy - This includes rights over immovable property (e.g., servitudes and contracts for public works): Contracts for public works, and servitudes and other real rights over immovable property.
l.
A building whether built on a rented land or not and whether it was built by the owner of the land or not is Real property.
2.
A house is an immovable property but once it is demolished, it ceases to be an Immovable property.
3.
A barong-barong cannot be considered immovabie.
MOVABLE OR PERSONAL PROPERTIES
The following are deemed to be personal properties:
Machinery, receptacies, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the need of the said industry or works;
(d)
(a)
NOTE:
Statues, reliefs, paintings, or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements.
Real property by destination or purpose - Those attached to an immovabie in such a manner that they constitute an ideai identity (i.e., machinery used in a cement plant):
79
5.
l.
Those movables susceptible of appropriation which are not inciuded in the preceding article (e.g., pencii, watch);
2.
Real property which by any special provision of Iaw is considered as personal property (e.g., growing crops);
3.
Forces of nature which are brought under controi by science (e.g., electricity);
4.
In generai, all things which can be transported from piace to place without impairment of the real property to which they are fixed (e.g., picture frame hanging on the wall).
DEFINITION ANO CONCEPT OF OWNERSHIP
Ownership is the right to enjoy and dispose of a thing, without other limitations than those established by law. (Art. 428, New Civil Code) Hence, the ownership is not absolute. It may be restricted by the following limitations: l.
2.
Limitations imposed by law: (a)
Right of way;
(b)
Easement of party wall; and
(c)
Easement of waters.
Limitations imposed by the State: (a)
Power of eminent domain;
(b)
Police power; an d
INTRODUCTION TO LAW
80
(c) 3.
PROPERTY
Power of taxation.
"Art. 437. The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to speciallaws and ordinances. H~ cannot complain of the reasonable requirements of aerial navigation."
Limitations imposed by the owner himself such as those arising from a contract of mortgage, pledge or lease.
ILLUSTRATIONS:
l.
2.
One can own a stereo and use it freely in his house but it does not mean that he can use it in full volume at 2:00 a.m., to the detriment of his neighbors who are already sleeping. This is based on the latin maxim Sic Utere Tuo Ut Alienum Non Laedas. This maxim is expressed in a similar vein in Article 431 of the New Civil Code which says: "The owner of a thing cannot make use thereof in such a manner as to injure the rights of third person."
3.
Maintaining Ihaw-lhaw establishments inside a subdivision area can be abated.
4.
The government has the power to impose taxes on the earnings of its citizens to support the costs of operation of government. lt has also the power to expropriate private properties for public use and provided that just compensation is paid.
5.
6.
De La Salle Alabang is established and situated inside New Alabang Village. In going to and from said school, parents and school children have to pass through the subdivision road of the village. The subdivision developers or the association therein can impose reasonable rules and regulations for security reasons but it cannot absolutely disallow school children living in adjacent subdivisions to pass through the subdivision road going to De La Salle College where they are enrolled and duly admitted.
X mortgaged his house and lotto Y bank. He is bound to observe the conditions of the Contract of Real Estate Mortgage.
EXTENT OF OWNERSHIP
Extent of one's ownership which a person has over a parcel of land is defined in Article 437 which provides as follows:
81
As a rule therefore, the owner of a parcel of land is the owner o( its surface and of everything under it subject only to the following limitations: (a) servitudes; (b) special laws; (c) ordinances; (d) reasonable requirements of aerial navigation; and (e) the Latin maxim of Sic Utere Tuo Ut Alienum Non Laedas. , 7.
OWNERSHIP OF A HIDDEN TREASURE
Article 438 of the New Civil Cqde defines who is the owner of a hidden treasure. lt says: "Art. 438. Hidden treasure belongs to the owner of the land, building, or other property on which it is found." Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions, and by chance, one~half thereof shall be allowed to the finder. If the finder is a trespasser, he shall not be entitled to any share of the treasure. If the things found be of interest to science or the arts, the State may acquire them a t their just price, which shall be. divided in conformity with the rule stated." Simply stated, the law states three (3) instances or situations: l.
The hidden treasure may be found in one's own property;
2.
The hidden treasure may be found on a building;
3.
The hidden treasure may be found on the property of another.
If one finds a hidden treasure in his own land or building, he owns it exclusively. lf the finder is married, the treasure belongs to the conjugal property. If the hidden treasure is found on the land or building of another by chance, the finder owns one-half of the hidden treasure and the other half of the hidden treasure belongs to the owner of the land or building.
82
INTRODUCTION TO LAW
PROPERTY
If the finder is a trespasser, he is not entitled to any share. However, if the things found be of interest to science or the arts, the State may acquire them a t their just price which shall be divided according to the provisions of Art. 438.
2a.l. Alluvion 2a.2. Avulsion 2a.3. Insula Nata 2a.4. Alveus Derelictus
8.
DEFINITION OF HIDDEN TREASURE
It will be noted that accession is not listed in the New Civil Code as a mode of acquiring ownership. In Roman Law, it is a specific mode of acquiring ownership. If anything therefore is acquired by or through accession, it is, on the basis of the New Civil Code, to be treated as acquisition in accordance with law.
3. Prescriptio
DERIVATIVE MODES
NEW CIVIL CODE l.
Originai Modes
l. Occupation
l. Occupation
(a) Animals ferae naturae
(b) N ew things (c) Res Hostis 2. Accessio 2a. N atural Accessio continua
Succession
2. Donation 3. Prescription
(a) Wild animals or those acquired by hunting or fishing
4. Law 5.
(b) Hidden treasure (Thesaurus in Roman Law)
Delivery (Traditio in Roman Law)
NOTES:
(c) Abandoned thing (Res Derelicta in Roman Law)
Roman Law terms mentioned below have their counterparts in the New Civil Code, thus: Animals ferai naturae- Wild animals (Art. 713)
2. Intellectual creation (a) Copyrights on any literacy, dramatic, historical,
(c) Letter '
2b.l.l Inaedificatio 2b.1.2 Satio lmplantatio 2b.2 On personal property: 2b2.1 Commixtio 2b2.2 Confusio 2b2.3 Adjudicatio 2b2.4 Specificatio
The modes of acquisition stated in our New Civil Code are Roman in origin. All those mentioned in Roman Law books as modes of acquisition, except mancipatio and addictio, are stili mentioned in the New Civil Code. This is shown in the comparative list below.
Originai Modes
(b) lnvention or discovery; an d
2b.l. On real property:
MODES OF ACQUIRING OWNERSHIP
ROMANLAW
legai, scientific or other works;
2b. Artificial Accessio continua
''Art. 439. By treasure is understood, for legai purposes, any hidden and unknown deposit of money, jewelry, or other precious objects, the lawful ownership of which does not appear." 9.
83
Res Derelicta- Abandoned property (Art. 719, last paragraph) 1
1
Thesaurus - Hidden Treasure (Art. 438)
INTRODUCTION TO LAW
84
Accessio- Accession (Art. 440) l.
Accessio continua -
Accession by attachment or
PROPERTY
4.
Jus Disponendi - Right to dispose
5.
Jus Vindicandi- Right to recover
85
incorporation l. l
Alluvion- Alluvion (Art. 457)
1.2 Avulsion - Avulsion (Art. 459) 1.3 Insula Nata -
Formation of Islands I (Arts. 464-
465)
1.4 Alveus Derelictus- Change of course ofrivers (Arts. 462-463)
ARTIFICIAL ON REAL PROPERTY: l.
Inaedificatio- Building (Arts. 445 to 446)
2.
Satio lmplantatio - Sowing and Planting (Arts. 445 to 446)
ON PERSONAL PROPERTY:
2.
1O.
l.
Commixtio - mixture of solids (Arts. 472 to 473)
2.
Confusio - mixture of liquids (Arts. 472 to 473)
3.
Adjudicatio - award by court judgment (i.e., damages awarded by the courts like those provided in Article 2206)
4.
Specificatio- specification (Art. 474)
Accessio discreta- Accessio Discreta (Art. 441) l.
N a turai fruits - same concept (Art. 442)
2.
Civil fruits :._ same concept (Art. 442)
3.
Industriai fruits - same concept (Art. 442)
ATTRIBUTES OF OWNERSHIP
l.
Jus Utendi - Right to use
2.
Jus Possidendi - Right to possess
3.
Jus Fruendi - Right to the fruits
ILLUSTRATION:
If X owns a house and lot, he has the right to live there and use i t. If he wants, he can also sell, mortgage or lease it. If he sells, he ceases to have contro!, ownership and possession of the same in favor of the buyer. If he leased the same for one (l) year, he stili retains the ownership but not the possession because his right is transferred to the lessee by virtue of the lease contract. If the lessee fails or refuses to vacate the house and lot after the expiration of the lease contract, the owner can sue the lessee for unlawful detainer because while the possession of the lessee is lawful in the beginning, it became unlawful after he failed and refused to vacate upon demand and after the expiration of the stipulated period. If there are unpaid rentals, the lessor has also the right to demand payment of the same because they are considered fruits of ownership. This right is separate and distinct from the right of the lessor to demand that the lessee vacates the leased premises but these two (2) rights can be subject of and incorporated in one (l) complaint. IMPORTANT ARTICLES OF THE NEW CIVIL CODE ON OWNERSHIP ANO POSSESSION
Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. A, resident of Manila, bought a farm lot in Dasmariiias, Cavite. Because his job is in Manila, A visits his farm lot only during weekends. One Sunday, he visited his farm lot and saw X planting tomatoes in his farm lot. He told him that he owns the lot and he cannot therefore plant tomatoes. X countered by saying that ulthough he is not the owner, he does not want the farm lot to be
87
INTRODUCTION TO LAW
PROPERTY
idle and that is the reason why he planted tomatoes. One thing led to another and they have an altercation. In the process, A lost his temper and he pulled off the tomatoes and threw them away. Simultaneously, A shouted at X and told him to leave his premises. X threw the tomatoes back to the face of A and the latter countered by slapping X on the face. Cooler heads intervened and thereafter, X left the premises.
based on his arrangements with Aviz, then X is a possessor in bad faith.
86
Is A liable for slapping the face of X? It is submitted that A is not liable because his act of slapping X was done in the process of defending himself from an actual aggression.
Self-defense includes .defense of his person and of his rights to property.
Art. 523. Possession is the holding of a thing or the enjoyment of a right. Art. 524. Possession may be exercised on one's own name or in that of another. Art. 525. The possession of things or rights may be had in one (l) or two (2) concepts: either in the concept of owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another person.
11.
EFFECTS OF POSSESSION
Art. 539. Every possessor has right 'to be respected in his possession; and should he be distributed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court. A possessor deprived of the possession through forcible entry may within ten (lO) days from the filing ofthe complaint presenta motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from filing thereof. A possessor, whether he is a possessor in the concept of owner or holder, has three (3) rights under Art. 539, thus: l.
He has the right to be respected on his possession;
2.
If he is disturbed in his possession, he has the right to be protected or restored to his possession by any lawful means;
3.
If he is deprived of his possession through forcible entry, he can secure a writ of preliminary mandatory injunction to restore him in his possession.
Art. 526. He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing.
NOTES: l.
Article 539, second paragraph thereof, states: "A possessor deprived of the possession THROUGH FORCIBLE ENTRY x x x." The remedy, therefore, of securing a writ of preliminary mandatory injunction is not available if the complaint is unlawful detainer.
2.
In forcible entry, the possession is not lawful from the beginning. In unlawful detainer, the possession is lawful in the beginning but it became unlawful after the lessee failed and refused to vacate upon demand and after the contract of lease.
Mistake upon a doubtful or difficult question of law may be the basis of good faith. X rented a car from Aviz, the owner. Although X is not the owner, he is entitled to possess the car during the stipulated period of the lease. If X believes in good faith Aviz' representations that i t is the owner and based on this belief, he is using the car and makes representations to Y, a friend, that he is a lessee, he is a possessor in good faith. If the car is in truth and in fact owned by Z, and X knows that the car he rented is owned by Z, and he continues to use it
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
Chapter IX GENERAL PRINCIPLES ABOUT CONTRACTS ANO OBLIGATIONS
89
(i)
Any third person who includes another to violate the contract shall be liable for damages to the other contracting party.
(j)
In order to judge the intention qf the contracting parties, their contemporaneous and subsequent acts shall be principally considered.
5. Concept of obligation 6. Sources of obligation 7. Nature and effects of obligations 8. Obligation of a person obliged to give something
IMPORTANT TOPICS IN THIS CHAPTER: l.
9. Obligation to give a determinate thing
Elements of a contract
10. When is a thing specific or determinate and when is it generic or indeterminate?
2. When is a contract perfected? 3. Can the contracting parties agree on any term or condition?
11.
4. Basic principles to remember about contracts (a)
As a rule, contracts are perfected by mere consent.
(b)
The contracting parties are bound by the contract they have entered into.
(c) (d)
(e) (f)
Effect of obligation to deliver a specific thing and a generic thing
12. Effect of obligation 13. Effect of obligation not to do 14. Debtor is in default from the time of demand 15. Effect if there is fraud, negligence or delay
Contract takes effect only as between the parties, their assigns and their heirs.
16. Kinds of damages
The parties to a contract may stipulate on anything provided that it is not contrary to law, morals, good customs, public order, and public policy.
17.. Responsibility arising from fraud (dolo) 18. Responsibility arising from negligence (culpa) 19. Kinds of culpa (negligence)
No one may contract in the name of another without authority.
20. Distinctions between culpa contractual, culpa aquiliana and culpa criminal
Obligations arising from contract have the force of law between the contracting parties and should be complied with in good faith.
21. ls a person responsible for those events which could not be foreseen, or which though foreseen are inevitable?
(g)
Obligations derived from law are not presumed.
22. Kinds of obligation
(h)
Contracts are obligatory in whatever form they may have been entered into, provided that ali the requisites for their validity are present.
23. Definition and illustration
l' ~:
':
88
24. Extinguishment of obligations
INTRODUCTION TO LAW
90
DISCUSSION When two (2) persons enter into a written agreement, the terms and conditions they have agreed upon are stated therein. They are bound by the said conditions (Art; 1308) and they should therefore comply with the same in good faith. (Art. 1159) Hence, in a contract of lease, the lessee is bound to pay the agreed rentals in return for the use of the leased premises. The lessor, on the other hand, has the right to demand the payment of the agreed rentals on due date and during the effectivity of the lease. lf this is not complied with by the lessee, the lessor. has the right to demand that the lessee vacate the leased premises. The observance of the conditions provided in a written agreement is premised on the fact that prior to the act, they have discussed the terms of the agreement and subsequently thereafter, they have a meeting of the minds. Hence, Artide 1305 of the New Civil Code defines a contract as follows: "Art. 1305. A contract is a meeting of minds between two (2) persons whereby one binds himself, with respect to the other, to give something orto render some service." 1.
ELEMENTS OF A CONTRACT
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
2.
91
WHEN IS A CONTRACT PERFECTED? It depends.
A consensual contract like sale is perfected by mere consent. (Art. 1315, NCC) A real contract like pledge is perfected by delivery of the thing pledged. (Art. 1316, NCC) A formai contract like donation of a parcel of land where a subdivision chapel shall be built requires a public instrument. (Art. 749, NCC)
3. CAN THE CONTRACTING PARTIES AGREE ON ANY TERM OR CONDITION?
Yes, provided they are not contrary to law, morals, good customs, public order or public policy. (Art. 1306, NCC) LAW
A written agreement of separation between husband and wife is contrary to law. Agreement to pay a rate of interest higher than that imposed by law is void.
CODE: CSC l.
Essential elements
MORALS
(a)
C - onsent
Agreement to pay excessive attorney's fees is immoral.
(b)
S- ubject matter
Promise to marry based on a carnai consideration is immoral.
(c)
C- onsideration GOOD CUSTOMS
Without these essential elements, there can be no contract. 2.
Natural elements- Unless otherwise stipulated, these elements are presumed to exist. Hence, in a contract of sale, warranty against eviction and warranty against hidden defects are presumed to exist.
3.
Accidental elements - Those agreed upon by the parties like agreement to pay in five (5) equal installments.
Agreement between a man and a woman, both between 18 and 21 years old, not to seek parental consent is unlawful and contrary to good customs. Likewise an agreement between a man and a woman, both between 21 and 25 years old, not to seek parental advice is also unlawful and contrary to good customs. In the Philippines, seeking the advise and consent of parents before marriage and if the parties are within the ages prescribed in the New Family Code is an established custom.
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
INTRODUCTION TO LAW
92
PUBLIC ORDER
is not contrary to law, morals, good customs, public order and public policy. (Art. 1306, NCC)
Agreement to have a live performance of nude dancers in Plaza Miranda is contrary to morals, public order and public policy.
6.
PUBLIC POLICY
Agreement exempting a public utility bus operator and the driver from liability in case of accident arising from gross negligence is contrary to law and public policy. 4.
BASIC PRINCIPLES TO REMEMBER ABOUT CONTRACTS l.
As a rule, contracts are perfected by mere consent. (Art. 1315, NCC)
2.
The contracting parties are bound by the contract they have entered into. (Art. 1318, NCC)
3.
As a rule, a contract ta~s effect only as between the parties, their assigns and heirs subject to the foliowing exceptions: (a)
(b) 4.
Except in case where the rights and obligations arising from the contract are not transmissible by their nature or by stipulation and by provision of law (Art. 1311, NCC); and Except where there is a stipulation in favor of a third person.
If there is a stipulation in favor of a third person (Stipulation Pour Autrui), the foliowing requisites must be complied with:
As a rule, an unauthorized person cannot enter into a contract in the name of another. If he wants to do so, the following are required: ' (a)
He must be duly authorized by the person whom he represents, either expressly or impliedly;
(b)
He must have a right to represent said person;
(c)
The contract entered into by him must be subsequently ratified by the person he represents. (Art. 1317, NCC)
7.
Obligatiòns arising from contract have the force ·of law between the contracting parties and should be complied with in good faith. (Art. 1159, NCC)
8.
Contracts are obligatory in whatever form they may have been entered into, provided that ali the requisites for their validity are present. If a certain form is required by law, that requirement is absolute and indispensable. (Art. 1356, NCC)
9.
Any third person who induces another to violate the contract shall be liable for damages to the other contracting party. (Art. 1314, NCC)
10.
In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shali be principaliy considered. (Art. 1317, NCC)
(a)
The contracting parties must have clearly and deliberately conferred a favor upon a third person;
(b)
A mere incidental benefit or interest of a person is not sufficient;
(a}
A third person must communicate his acceptance to the obligor before the revocation of the contract or of the stipulation by the originai parties. (Art. 1311, 2nd paragraph)
Artic e 1315 -:refersto consensual contracts like a contract of sale. This kind of contract is perfected by mere consent. From the moment of perfection, the parties are bound not only to the fulfiliment of what have been expressly stipulated but also to ali the consequences which, according to their nature may be in keeping with good faith, usage and law.
(c)
5.
93
The parties to a contract may stipulate on anything provided that the terms and conditions they have agreed
EXPLANATIONS
A~A~.6-,-CON-~CTS ARE PERFECTED ex B MERE CONSEN"!) ---"" -< . 9 . ""'et<~
J'U.f,P
94
INTRODUCTION TO LAW
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
As already · ed, a real contract is not perfected by mere o•~<·,'-t\ ,,.. uc, Cf./\ o•cv\:."j t.t consent but b delivery. -·/
.J
~---~-----..
f
d
'iO'jl'
Formai con must comply with a· s ecial fo -e'fu:t: i t can be perfected. For instance, if X will donate · o Y in or~ e . , that the latter can build a chapel in said lot, the donation must be ~ in a public instrument. vtw.W (b)
THE CONTRACTING PARTIES ARE BOUNO BY THE CONTRACT THEY HAVE ENTEREO INTO (ART. 1318, NCC)
The reason why a party entered into a contract is precisely to have an evidence or proof of what they have entered into. Without the consent of the other contracting party, one cannot just abandon what has already been agreed upon simply because his friend advised him that it is not beneficiai to him or that he wants it to be changed by another term he wants. If this is allowed or tolerated a contract will be a useless formality and that there will be more confusion and misunderstanding between the parties. Such is not the reason why parties entered into a contract. (c)
(e)
pa<>
Article 1317 does not state whether the person entering into a contract in the name ofthe other is an agent. lt merely says: "No one may contract in the name of another without being authorized by the latter, or unless he.has by law a right to represent him." Assuming however, that the one entering into a said contract is an agent acting for and in behalf of a certain principal, then the following rules shall apply:
A sells his car to B and they executed a Deed of Sale to evidence the same. Article 1311 says that said contract takes effect only as between A and B, their assigns and heirs. Other relatives, not being privies to the contracts, are not therefore bound by the ·· said contract of sale.
(d)
THE PARTIES TO A CONTRACT MAY STIPULATE ON ANYTHING PROVIOEO THAT IT IS NOT CONTRARY TO LAW, MORALS, GOOO CUSTOMS, PUBLIC OROER ANO PUBLIC POLICY
This has been already discussed in this book.
NO ONE MAY CONTRACT IN THE NAME OF ANOTHER WITHOUT AUTHORITY
Article 1317 should be construed in relation to Article 1897.
AS A RULE, A CONTRACT TAKES EFFECT ONLY AS BETWEEN THE PARTIES, THEIR ASSIGNS ANO THEIR HEIRS
If before the delivery of the car, A dies, and it turns out that the car sold by A to B is a car stolen by A from Y, the real owner, B cannot compel the son of A to deliver the car for even during the lifetime of A, he has clearly no right of ownership and possession. The son of A, even if he likes to deliver the car to B, cannot do so for he has equally no right whatsoever to the car.
95
(f)
l.
lf the agent acts with authority and in behalf of the principal, the transaction is valid and the principal is bound. The agent is not personally liable unless he deliberately binds himself. (Art. 1897, NCC)
2.
If the agent acts with authority but not in behalf of the principal and he acts of himself, the principal is not bound, except if the transaction involves things belonging to the principal.
3.
If the agent acts without authority but in behalf of the principal, the transaction is unenforceable. (Art. 1403) However, such transaction may be ratified. If ratified, the transaction is valid from the very beginning. (Art. 1883, 2nd paragraph).
4.
If the agent acts without authority and in behalf of himself, the transaction is valid whether or not the subject matter belongs to the principal, provided that the ·· agent can legally transfer the ownership of the thing a t the time of delivery. Otherwise, the agent will be held liable for eviction.
OBLIGATIONS ARISING FROM CONTRACT HAVE THE FORCE OF LAW BETWEEN THE CONTRACTING PARTIES ANO SHOULO BE COMPLIEO WITH IN GOOO FAITH
If A leases his apartment to B and they executed a formai contract of lease, there are rights and obligations àrising from the sai d contract. A, the lessor, is duty-bound to yield possession of his apartment to B and in return B shall pay A the agreed rentals for the use of the leased premises. Each one of them has a duty and obligation to comply with said contract in good faith.
c'('-' ·h·f)
fo•
96
(g)
/Jr-
l/l~
'J,.t!N
b &~c GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
OBLIGATIONS DERIVED FROM LAW ARE NOT PRESUMED
auction and entry is made by the auctioneer in his sales book, a t the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum.
Legai obligations must be clearly expressed in the law which creates lt for they cannot merely be presumed. (h)
CONTRACTS ARE OBLIGATORY IN WHATEVER FORM THEY MAY HAVE BEEN ENTERED INTO, PROVIDED THAT ALL THE REQUISITES FOR THEIR VALIDITY ARE PRESENT
As a rule, ali contracts are valid regardless of form, provided that ali the essential requisites for their validity are present. However, when a specific form is required for their validity, then that form should be obse11red. A form may be importiil\t for enforceability. Hence, Article 1403 of the New Civil Code pro-rides as follows: :
97
(e)
An agreeme:p.t for the leasing for a longer period than one year, or for the sale of real property or of an interest therein.
(f)
A representation as to the credit of a third person.
3. Those where both parties are incapable of giving consent to a contract. A form may be important for convenience. Hence, Article 1358 ofthe New Civil Code provides as follows:
·l~l
''Art. 1403. The following contracts are unenforceable, unless they are ratified:
"Art. 1358. The following must appear in a public document:
l. Those entered into the name of another person by one who has been given. no authority or legai representation, or who has acted beyond his powers;
l. Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; sales of real property or of an interest therein are governed by Articles 1403, No. 2, and 1405;
2. Those that.dò not comply with the Statute ofFrauds as set forth in this number. In the following cases, an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, òf the agreement cannot be received without the writing, or a secondary evidence of its contents: (a)
An agreement that by its terms is not to be performed within a year from the making thereof.
(b)
A special promise to answer for the debt, default, or miscarriage of another.
(c)
An agreement made in consideration of marriage, other than a mutuai promise to marry.
(d)
An agreement for the sale ofgoods, chattels or things in action, at a price not less than five hundred pesos (P500.00), unless the buyer accepts and receives part of such goods and chattels, or the evidences, or some of them, of such things in action, or pays at the time some part of the purchase money; but when a sale is made by
2. The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership cf gains; The power to administer property, or any other 3. power which has for its object an act appearing or which shouid appear in a public document, or should prejudice a third person; 4. The cession of actions or rights proceeding from an act appearing in a public document. Ali other contracts where the amount involved exceeds five hundred pesos (P500.00) must appear in writing, even a private one. But sales of goods, chattels, or things in action are governed by Articles 1403, No.2 and 1405. (i)
ANY THIRD PERSON WHO INDUCES ANOTHER TO VIOLATE THE CONTRACT SHALL BE LIABLE FOR.DAMAGES TO THE OTHER CONTRACTING PARTY
A third person, if not a party or a privy to the contract, has
INTRODUCTION TO LAW
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
no interest therein whatsoever. This artide (Art. 1314, NCC), penalizes said third person for damages if he induces another to violate 'his contract.
"An obligation is a juridical relation whereby a person (called the creditor) may demand from another (called the debtor), the observance of a determinate conduct (the giving, doing or not doing), and in case of breach, may demand satisfaction from the asseta of the latter."
98
O)
IN OROER TO JUOGE THE INTENTION OF THE CON· TRACTING PARTIES, THEIR CONTEMPORANEOUS ANO SUBSEQUENT ACTS SHALL BE PRINCIPALLY CONSIOEREO
When the terms and conditions are clear and they leave no doubt as to the intention of the contracting parties, the literal m!;)aning of the stipulations shall contro!. The evident intention of the parties prevails over the wordings of the contract. In order to judge this intention, the contemporaneous and subsequent acts of the parties shall be principally considered. (Art. 1314, NCC)
6.
99
SOURCES OF OBLIGATION
Obligation may arise from: (l) law; (2) contracts; (3) quasicontracts; (4) acts or omissions punished by law; and (5) quasidelicts. (Art. 1157, NCC)
L
Obligations arising from law are those expressly provided in the New Civil Code or in speciallaws. These are demandable. (Art. 1158, NCC)
Rules in the interpretation of the contracts are enumerated on Articles 1370 to 1379 of the New Civil Code. Rule 130 of the Revised Rules of Court shall supplement the foregoing rules.
Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. (Art. 1159, NCC)
5.
Obligations arising from criminal offenses are governed by penallaws subject to the provisions ofArt. 2177 and of the pertinent provisions of Chapter 2, Preliminary Title on Human Relations, Title XVII of the New Civil Code. (Art. 1161, NCC)
CONCEPT OF OBLIGATION
There was a time when an obligation was classified into obedential and conventional. Obedential obligations are those imposed by the wili_ o:LGo.d-or_t.h~--~li':"__()_LN~tu.re. Conventional obligations are those resulting from the will or ~f-.-the__ ., contracting parties. This is how seventeenth century civilians
Obligations arising from quasi-contracts shall be subject to the provisions of Chapter l, Title XVII of the New Civil Code.
·cia8-~illedohHgàtion8~
7.
In Roman Law, an obligation arises when one binds himself to give (DARE) or to perform any duty stipulated (PRAESTARE). As used in Roman Law, an obligation is a tie or a bond (vinculum juris) which binds or holds two or more persons together, creating both a duty and a right, the duty of the debtor to pay, and the right of the creditor to be paid.
From the viewpoint of the subject matter of the obligation, i t may either be:
Under the New Civil Code, an obligation is now defined as "a juridical necessity to give, to do or not to do. (3)" This definition, however, has been criticized as defective because it views obligations only from the side ofthe debtor. The better definition of obligation, according to retired Justice J.B.L. Reyes, is that given by Arias Ramos, (4) thus:
8.
NATURE ANO EFFECTS OF OBLIGATIONS
l.
A Real Obligation to give a specific thing or to give a generic thing; or
2.
A Personal Obligation to do or not to do.
OBLIGATION OF A PERSON OBLIGEO TO GIVE SOMETHING
A person obliged to give something has the following obligation: l.
He is obliged to take care of i t with the proper diligence of a good father of a family, EXCEPT if the law or stipulation of the parties requires another standard of care. (Art. 1163, NCC)
100
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
INTRODUCTION TO LAW
3.
NOTES: l.
If the parties have agreed on the kind of diligence to be observed, that which is stipulated shall be observed.
2.
If there is no agreement, the proper diligence of a good father of a family shall be observed.
3.
If the law requires that a specific kind of diligence shall be observed, this prevails over any kind of agreement. EXAMPLE: A stipulation that JD Transit, Inc., will carry its passengers by using ordinary diligence is void for the law specifically requires that a common carrier shall carry its passengers "safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard forali circumstances." (Art. 1755, NCC)
9.
OBLIGATION TO GIVE A DETERMINATE THING
A thing is specific or determinate when it is capable of particular designation.
When the nature of the obligation requires the assumption of risk. (Art. 1174, NCC)
EXAMPLE: l.
'
X is obliged to give Y this book. Before X can deliver it to Y, his library was burned and said book was likewise burned. Here, the obligation to deliver is extinguished. The obligation to deliver a generic thing is not extinguished by fortuitous events.
2. 12.
X is obliged to give Y a ballpen. If said ballpen is lost, it can be replaced by another ballpen.
EFFECT OF OBLIGATION
If a person obliged to do something fails to do it, or if he does it in contravention of the tenor of the obligation, the effects are as follows:
The obligation to give a determinate thing includes the obligation to deliver ali its accessions and accessories, even though they may not have been mentioned. (Art. 1166, NCC) 10. WHEN IS A THING SPECIFIC OR DETERMINATE ANO WHEN IS IT GENERIC OR INDETERMINATE?
101
13.
l.
The obligation shall be executed at his cost (debtor's cost);
2.
It may be decreed that what has been poorly done be undone. (Art. 1167, NCC)
EFFECT OF OBLIGATION NOT TO DO
If the obligation consista in not doing, and the obligor does what has been forbidden him, it shall be undone at his expense. (Art. 1168, NCCJ
EXAMPLE: This Toyota Corolla Car with Plate No. NLX-844. A thing is generic or indeterminate when it refers to a class and cannot be pointed out with particularity. EXAMPLE: A house. 11.
EFFECT OF OBLIGATION TO DELIVER A SPECIFIC THING ANO A GENERIC THING
There is a great difference. The obligation to deliver a specific thing is extinguished by a fortuitous event, EXCEPT in the following cases: l.
When expressly provided by law;
2.
When expressly agreed upon by the parties;
14.
DEBTOR IS IN DEFAULT FROM THE TIME OF DEMAND
Those obliged to deliver or to do something are in default from the time of demand, judicial or extra-judicial. Without this demand, the debtor is not in default. In the foliowing instances, however, demand is not needed: l.
When the obligation expressly so provides;
2.
When the law expressly so provides;
3.
When time is of the essence of the contract;
4.
When demand would be useless, as when the obligor has rendered it beyond his power to perforni. (Art. 1169, NCC)
102
INTRODUCTION TO LAW
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
15. EFFECT IF THERE IS FRAUD, NEGLIGENCE OR DELAY
Those who in the performance of their obligations are guilty of fraud, negligence or delay, and those who in any manner contravene the tenor thereof, ARE LIABLE FOR DAMAGES.
3.
Moral damages
For moral anguish, besmirch~ sleepless nights, serious anxiety, etc.
2.
Exemplary damages
To deter others fronLCOlJlmi@!!g the same !!.et.
3.
Actual damages
To compensate the aggrieved party for actual losses suffered.
4.
Liquidated damages
Damages agreed upon by the parties.
5.
Temperate
When the exact amount of damages cannot be d~ mined.
6.
Nominai
To vindicate a right. The ass~ent of nominai damages is left to the discretion of the court.
~
17. RESPONSIBILITY ARISING FROM FRAUD (DOLO)
18.
l.
It is demandable in ali obligations. Any waiver of an action for future fraud is void. (Art. 1171, NCC)
2.
Liability due to fraud cannot be reduced by the courts.
3.
There is deliberate intention to cause damage.
RESPONSIBILITY ARISING FROM NEGLIGENCE (CULPA) l.
It is also demandable but such liability may be regulated by the courts according to the circumstances.
2.
It can be reduced in certain cases.
There is no deliberate intention to cause damage.
19. KINDS OF CULPA (NEGLIGENCE)
16. KINDS OF DAMAGES l.
103
20.
l.
Culpa contractual or Contractual negligence.
2.
Culpa aquiliana or Quasi-delict.
3.
Culpa criminal or Criminal negligence.
DISTINCTIONS
CULPA CONTRACTUAL
CULPA AQUILIANA l CULPA CRIMINAL
(a) There is a pre- (a) There is no p re-~ (a) There is a pre-existexisting obligation. ing obligation. existing obligation (a contract, either expressed or implied) (b) Preponderance l(b) Preponderance of,(b) The crime m.ust be of evidence is evidence is needed. proven beyond rearequired. sonable doubt. (c) Defense of a good (c) Defense of a good (c) This defense cannot father of a family father of a family in be interposed. If the in the selection the selection of the employee is insoland supervision of employees is a provent or incapable to employees is not per defense of the pay the civil aspect proper and comemployer. or liability, the emplete defense but ployer is subsidiarthis can mitigate ily liable. liability for damages. (d) The existence of a (d) The negligence ofl(d) contract must be the defendant must proved. If it is be proven. proved and it is also proven that the contract was not complied with, it is presumed that the debtor is at fault.
The innocence of the accused is presumed until the contrary is proved.
104
21.
INTRODUCTION TO LAW
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
IS A PERSON RESPONSIBLE FOR THOSE EVENTS WHICH COULD NOT BE FORESEEN, OR WHICH THOUGH FORESEEN ARE INEVITABLE?
. (b) · I will give you my car today but if you fail in the
bar examinations to be given in September 2003, I will be the owner of the tar aga:in. In this example, the condition is a resolutory on~ because the happening of the condition e~tinguishes the obligation.
As a rule, there is no liability for a fortuitous event (that which could not be foreseen, or which even if foreseen was inevitable) EXCEPT IN THE FOLLOWING CASES:
22.
l.
When expressly specified by law;
2.
When expressly stipulated by the parties; and
3.
When the nature of the obligation requires the assumption of risk.
KINDS OF OBLIGATION
l.
Pure obligation as distinguished from conditional obligation.
2.
Alternative obligation as distinguished from facultative obligation.
3.
Joint obligation as distinguished from solidary obligation.
4.
Divisible obligation as distinguished from indivisible obligation.
5. 23.
3.
EXAMPLE:
'!{~
I will give you any of tpe following: My 24 karat gold ring worth P30,000.d'O~ or my Lancer car, 1978 model, worth P30,000.00, .01"" my residential lot in the province worth P30,000.00. In this example, I can give any of the three properties I have mentioned and if I give one of them, I have complied with the obligation.
ii
',f.
4.
2.
I promise to give Marie my 14 karat gold ring worth P15,000.00 but it is agreed that I could give her a secondhand car with the same value as a substitute. 5.
Pure obligation - lt is an obligation without a condition or a term and therefore, it is demandable at once.
X and Y borrowed P1,000.00 from A and it is agreed that they are joint debtors of A. X will only be liable to pay P500.00. This is so because they are joint debtors.
Conditional obligation - It is one with a condition.
(a)
I will give a car to you if you pass the bar examinations in September 2003. In this example, the condition is a suspensive one because the giving of the car depends on the results of the examination to be given in September 2003.
. Joint obligation - In a joint obligation, an obligor answers only for a part of the entire liability. EXAMPLE:
I promise to pay you P100.00 upon demand.
EXAMPLES:
Facultative obligation "'- It is one where only one presentation has been agreed upon but the obligor may render another in substitution. EXAMPLE:
Obligation with a penai clause.
EXAMPLE:
Alternative obligation - It is one where out of the two (2) or more pre~entations which will be given, only one is due.
•.
DEFINITION ANO ILLUSTRATION
l.
105
J
r !;
6.
Solidary obligation - It is done where both or ali of the debtors are liable for the whole liability they have incurred.
i'
EXAMPLE: :f!
X and Y borrowed P1,000~00 fror.J. A and it is agreed that they are solidary debtors. X can be held liable for
106
INTRODUCTION TO LAW
7.
3.
By the condonation or remission of the debt;
4.
By the confusion or merger of the rights of creditor and debtor;
Divisible obligation - A divisible obligation is an
5.
By compensation;
6.
By novation.
EXAMPLE:
A agreed to deliver 500 kilos of rice to B. Here, the subject matter is capable of partial performance in the sense that the parties may agree that A will deliver 250 kilos of rice today and another 250 kilos of rice tomorrow.
Indivisible obligation - It is an obligation which is not capable of partial performance. EXAMPLE:
A agreed to deliver DX Toyota Corolla to Y. Here, the subject matter is not capable ofpartialperformance because the car cannot be divided into two. 9.
Obligation with a penai cause- In obligations with a penai clause, the penalty shall substitute the indemnity for damages and the payment of interest in case of noncompliance. EXAMPLE:
X agreed to finish the painting job of the Cultural Center Building within sixty (60) days. It was stipulated that in case of delay, X will be liable to pay a penalty of Pl,OOO.OO per day of delay. If it turns out therefore that X fails to finish the painting job within sixty (60) days and i t was only on the 65th day that he finished the job, X will be liable to pay a penalty of P5,000.00. 24.
107
the whole Pl,OOO.OO and so with Y. The creditor can run against both or against any one of them because they are solidary debtors. obligation which is capable of partial performance.
8.
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
EXTINGUISHMENT OF OBLIGATIONS
Obligations are extinguished by any of the following reasons: Art. 1231. Obligations are extinguished: l.
By payment or performance;
2.
By the loss of the thing due;
Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory condition, and prescription, are governed elsewhere in this Code.
SPECIAL CONTRACTS
Chapter X
(b)
Article 1544, New Civil Code
l.
Definition
2.
Basic principles to remember
3.
Necessary formalities in creating a partnership
4.
Kinds of partnership
IMPORTANT TOPICS IN THIS CHAPTER:
II.
Article 1916, New Civil Code
III. PARTNERSHIP
SPECIAL CONTRACTS
I.
(a)
109
SALE
(a)
Generai partnership
(b)
Limited partnership
l.
Definition of a contract of sale
(c)
Universal partnership
2.
Essential elements of a contract of sale
(d)
Particular partnership
3.
Form of a contract of sale
5.
Kinds of partners
4.
Brief discussion of the essential requisites
6.
Definition
5.
Requisites of a valid subject matter
6.
Obligations of the seller
7.
Obligations of the buyer
Iv.
AGENCY
LOAN l.
Definition
2.
Kinds of loan
3.
Basic principles to remember
l.
Definition
2.
When is a contract of agency perfected?
l.
Definition
3.
Acceptance of agency between persons who are present and between persons who are absent
2.
Provisions common to pledge and mortgage
3.
Distinction between pledge and real mortgage
4.
Basic principles of agency
4.
Distinction between real mortgage and chattel mortgage
5.
Obligations of the agent
6.
Obligations of the principal
7.
Cases when the principal is not liable for expenses incurred by agent
8.
lmportant articles to remember
V.
PLE.DGE AND MORTGAGE
:~' .)
108
VI. ANTICHRESIS l.
Definition
2.
Distinction between pledge and antichresis
3.
Distinction between antichresis and mortgage
4.
Basic principles
INTRODUCTION TO LAW
110
SPECIAL CONTRACTS
VII. COMMON CARRIERS l.
Definition
2.
Criteria as to whether a carrier is common or private
3.
Vigilance required of a common carrier
4.
Extraordinary vigilance over the goods
5.
Extraordinary diligence for the safety of passengers
DISCUSSION The author has chosen to cover only the contracts discussed in this chapter on account of their usefulness and importance in day-to-day life. Everyday, contracts of sale, agency, partnership, loan, pledge, mortgage and transportation are usually heard and encountered not only by lawyers but also by laymen. 1t is therefore important for a beginner in the study of law to have a basic and working knowledge of the above-mentioned contracts by way of preparing them to a deeper and more det:iiled study of law.
I. SALE 1.
DEFINITION OF A CONTRACT OF SALE
Contract of sale is a contract whereby one of the contracting parties obligates himself to transfer the ownership of an d to deliver a determinate thing, and the other to pay therefore a price certain in money or its equivalent. (Art. 1458, NCC) 2.
ESSENTIAL ELEMENTS OF A CONTRACT OF SALE
The essential elements of a contract of sale are as follows:
CODE: C-S-C C- onsent S - ubject matter C-ause
3.
111
l.
Consent or meeting ofthe minds - The vendor agrees to sell and transfer ownership of his property to the vendee in return for the price the latter agrees to pay the vendor.
2.
Subject matter - The subject matt~r of the contract must be specific. If the parties have not agreed on the subject matter of their transaction, they have no meeting of the minds.
3.
Cause or consideration - The price may be in the form of money or its equivalent, as stated in the last sentence of Art. 1458. Therefore, a check or a promissory note may suffice instead of cash.
FORM OF A CONTRACT OF SALE
No particular form is needed to make a contract of sale valid as. between the parties. For as long as ali the essential requisites for its validity are present, a contract of sale shall be valid and obligatory, regardless of its form. Therefore, a contract of sale may either be oral or in writing. However, there are contracts of sale which must be in writing like a sale of a "piece of land or any interest therein," or a sale of personal property if the price is P500.00 or more, or a sale which will be performed only after a period of more than one (l) year from the execution of the agreement. Hence, the following articles ofthe New Civil Code provide as follows: ~rt. 1874. When a sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be in writ~ng; otherwise, the sale shall be void."
"Art. 1403. The following contracts are unenforceable, unless they are ratified: l. Those entered into the name of another person by one who has been given no authority or legai representation, or who has acted beyond his powers;
2. Those that do not comply with the.Statute ofFrauds as set forth in this number. In the following cases, an agreement hereafter made shall be unenforceable by action,
SPECIAL CONTRACTS
INTRODUCTION TO LAW
112
EXAMPLES:
unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without the writing, or a secondary evidence of its contents: (a)
An agreement that by its terms is not to be performed within a year from the making thereof;
(b)
A special promise to answer for the debt, default, or miscarriage of another;
(c)
An agreement made in consideration of marriage, other than a mutuai promise to marry;
(d)
An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos (P500.00), unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay a t the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum;
(e)
An agreement for the leasing for a longer period than one (l) year, or for the sale of real property or of an interest therein;
(f)
A representation as to the credit of a third person.
3. Those where both parties are incapable of giving consent to a contract.
l.
When A sells his car to B and they are facing each other when B agreed to pay PlO,OOO.OO, the price asked by A, the contract of sale is perfected from the moment A accepted the offer of B unconditionally..
2.
A placed an advertisement in a newspaper to sell his car. B, an interested buyer, called by telephone and told him that he is amenable to pay the price asked by A without condition. From that moment, there is a perfected contract of sale.
3.
A wrote a letter to B and offered to sell his car to him. Upon receipt of said letter, B wrote a letter reply accepting the offer of A and which letter was received by A on February l, 2002 at 7:00 p.m. Before receiviilg the letter, however, A wrote a letter to B and informed him that he is withdrawing his offer. Here, there is no perfected contract of sale because prior to the date and time A received B's letter of acceptance, he had already withdrawn his offer. Clearly, A has already withdrawn his offer before he knew of the acceptance. Therefore, there is no meeting of the minds.
SUBJECT MATTER - The subject matter of the contract of sale must be specific or determinate, not generic or indeterminate. As already stated in the last chapter, a specific thing is a thing which can be designated with particularity. Future things may be the object of sale provided they are already in existence a t the time of the perfection of the contract. 5.
4.
113
REQUISITES OF A VALlO SUBJECT MATTER
BRIEF DISCUSSION OF THE ESSENTIAL REQUISITES
l.
The subject matter must be specific or determinate.
CONSENT - A contract of sale is perfected at the moment there is a meeting of minds and therefore it is perfected by mere consent. Delivery of payment is not essential for the perfection of a contract of sale.
2.
The subject matter must be lawful.
3.
The seller must have the right to transfer the ownership thereof at the time of delivery.
More specifically, the contract of sale is perfected at the moment there is a meeting of the minds upon the thing which is the object of the contract and upon the price. (Art. 1475, 1st par.)
CAUSE OR CONSIDERATION - Witho:ut a lawful cause or consideration, the contract of sale is void. The cause in a contract of sale is a price certain, in money or its equivalent.
INTRODUCTION TO LAW
114
6.
SPECIAL CONTRACTS
OBLIGATIONS OF THE SELLER
2.
The principal obligations of the seller are as follows:
Agency is perfected by the meeting of the offer and acceptance upon the thing and the cause which are to constitute the contract. (Art. 1319, New Civil Code)
l.
To deliver the determinate object of the contract;
2.
To transfer its ownership;
3.
To warrant (against eviction and against hidden defects);
4.
To pay for the expenses of the deed of sale; and
5.
To preserve the thing from the moment of perfection up to the time of delivery.
WHEN IS A CONTRACT OF AGENCY PERFECTED?
Acceptance must be made expressly or impliedly. It may be implied from the acts of the agent, from his silence and from his inaction according to the circumstances. (Art. 1870, NCC) 3.
ACCEPTANCE OR AGENCY BETWEEN PERSONS WHO ARE PRESENTANO BETWEEN PERSONS WHO ARE ABSENT l.
7.
l.
To accept delivery; and
2.
To pay the price the contract.
Between persons who are present - The acceptance of a person may also be implied if the principal delivers his power of attorney to the agent and the latter receives it without any objection.
OBLIGATIONS OF THE BUYER
The principal obligations of the buyer are as follows:
2.
Between persons who are absent - The acceptance of the agency cannot be implied from the silence of the agent, except:
at the time and piace stipulated in
(a)
When the principal transmits his power of attorney to the agent, who receives it without any objection.
(b)
When the principal entrusts to him by letter or telegram a power of attorney with respect to the business in which he is habitually engaged as an agent, and he did not reply to the letter or telegram.
II. AGENCY 1.
115
DEFINITION
Artide 1868 of the N ew Civil Code defines agency as a contract whereby a person binds himself to render some service or to do something in representation of or in behalf of another with the consent or authority of the latter. In Rallos vs. Go Chan & Sons Realty Corporation, et al., G.R. No. L-24332, January 31, 1978, agency was defined as "a relationship between two parties whereby one party called the principal, authorizes another, called the agent, to act for and in his behalf in transactions with third persons." Artide 1868 gives the impression that the agent must always expressly represent the principal. This, of course, is not necessarily true for there are cases when the agent acts in behalf of himself and yet the principal would stili be bound such as when the contract involves things belonging to the principal.
4.
BASiC PRINCIPLES OF AGENCY l.
It has the following characteristics:
(a)
It is a consensual, bilatera!, nominate, principal and preparatory contract;
(b)
lt is consensual because it is perfected by mere consent except when it involves the sale of land or any interest therein. It is bilatera! because the principal and the agent have reciproca! obligations. It is nominate because it has a name designated by law. It is principal because it can exist by itself without depending on another contract. It is preparatory because a contract of agency is preparatory to 1:1. subsequent contract.
INTRODUCTION TO LAW
116
2.
3.
The appointment of an agent by the principal is based on trust. Therefore, the agent is expected to act within the scope of his authority and to act in behalf of his principal. As already explained above, a situation may arise when the agent is authorized by the principal but he acts in behalf of himself. It is also possible that the agent is not authorized but he acts in behalf ofhis principal. Because of these possibilities the foliowing situations may arise, to wit: · (a)
(b)
(c)
(d)
S.
SPECIAL CONTRACTS
The agent acts with authority and in behalf of the principal - The transaction is valid and the principal is bound by the acts of the agent. The agent assumes no personal liability unless he deliberately bound himself. The agent is authorized by the principal but he acts in behalf of himself, not in behalf of the principal - As a rule, the principal is not bound by the acts of the agent except if it involves things belonging to the principal. The agent acts without authority but in behalf of the principal The transaction is unenforceable but i t may be ratified. If ratified, the contract is validated from the very beginning. The agent acts without authority and in his own behalf - The transaction is valid, whether or not the subject matter belongs to the principal provided that the agent can legaliy transfer the ownership of the thing at the time of delivery. Otherwise, he will be held liable for eviction.
6.
117
Art. 1886.
To advance necessary funds, if stipulated, except if principal is insolvent;
Art. 1887.
To act in accordance with the instructions of the principal (in default thereof, he shali do ali that a good father of a good famiÌy would do, as required by the nature of the business);
Art. 1888.
Not to carry out the agency ifits execution would manifestly result in loss or damage to the principal;
Art. 1889.
To be liable for damages, if there being a conflict between his interest and that of the principal, he prefers his own;
Art. 1891.
To render an account of his transaction and to deliver to the principal whatever he may have received by virtue of the agency even though it may not be owing to the principal (stipulation exempting the agent from this obligation is VOID).
OBLIGATIONS OF THE PRINCIPAL- (From Arts. 191 Oto 1913)
CODE: CARI
C- omply A- dvance R- eimburse I - ndemnify
Art. 1910.
To comply with ali the obligations which the agent may have contracted within the scope of his authority.
Art. 1912.
To advance to agent, iflatter requests (1st par.) sums necessary to execute the agency.
OBLIGATIONS OF THE AGENT
Art. 1881.
To act within the scope of his authority;
Art. 1912.
Art. 1884.
To carry out the agency and be liable for damages in case of non-performance; and to finish the business already begun on the death of the principal, should delay entail any danget;
To reimburse the agent for all advances he (2nd par.) made, even if business was not successful (provided agent is free from ali fault).
Art. 1913.
To indemnify the agent forali damages which the
execution of agency may have caused the agent, without his fault or negligence.
7.
119
CASES WHEN PRINCIPAL IS NOT LIABLE FOR EXPENSES INCURRED BY AGENT
(b)
To the first possessor in good faith, if there is no inscription; and
Art. 1918, provides as follows:
(c)
To the person who presenta the oidest titie, ifthere is no first registrant and first possessor in good faith. '
l.
8.
SPECIAL CONTRACTS
INTRODUCTION TO LAW
118
If the agent contravenes instructions of the principai uniess the Iatter wishes to avail himseif of the benefits derived from the contract;
2.
When expenses were due to the fauit of the agent;
3.
When the agent incurred them knowing that unfavorabie resuit wouid ensue, if the principai was not aware thereof;
4.
When stipuiated that the agent bears the expenses, or that the agent wouid be allowed oniy a certain sum.
IMPORTANT ARTICLES TO REMEMBER
Art. 1916. When two persons contract with regard to the same thing, one with the agent and the other with the principai, and the two contracts are incompatibie with each other, that of prior date shall be preferred, without prejudice to the provisions of Art. 1544. Art. 1544. Ifthe same thing shouid have been soid todifferent vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it shouid be movabie property.
CODE:RPO
R - egistrant in good faith P - ossessor in good faith O - Idest titie
III. PARTNERSHIP 1.
DEFINITION
By the contract of partnership, two (2) or more persona bind themseives to contribute money, property, or industry to a common fund, with the intention of dividing the profits among themseives. It may aiso be formed to exercise a profession. (Art. 1767, New Civil Code) 2.
Shouid it be immovabie property, the ownership shall beiong to the person acquiring it who in good faith first recorded it in the Registry of Property. Shouid there be no inscription, the ownership shall pertain to the person who in good faith was first in the possession; and, in the absence thereof, to the person who presents the oidest titie, provided there is good faith.
BASIC PRINCIPLES TO REMEMBER l.
Partnership is based on MUTUAL TRUST by or among the partners. (delectus personarum)
2.
Like a corporation, i t has ·a personaiity separate and distinct from the individuai partners. (Art. 1768, NCC)
3.
The partners may contribute money, property or industry to common fund.
4.
A partnership may be constituted in any form except where immovable property or real rights are contributed thereto, in which case, a public instrument shall be necessary. (Art. 1771, NCC)
5.
A contract of partnership is void, whenever immovabie property is contributed thereto, of an inventory of said property is not made, signed by the parties, and attached to the public instrument.
PREFERENCE: l.
IF PROPERTY IS MOVABLE (a)
2.
To the first possessor in good faith.
IF PROPERTY IS IMMOVABLE (a)
To the first registrant in good faith;
3.
NECESSARY FORMALITIES IN CREATING A PARTNERSHIP l.
A contract of partnership having a capitai of P3,000.00 or more, in money or property, shall appear in a public
120
INTRODUCTION TO LAW
instrument and recorded in the Securities and Exchange Commission. However, even if this is not complied with, the partnership and the members thereof remain liabie to third persons. (Art. 1772, NCC) 2.
4.
lf what is contributed is reai property, an inventory shouid be attached and there must be a public instrument, an inventory of the said property signed by the parties shouid be made, and this inventory shouid be attached to the public instrument. If this is not compiied with, the partnership is void and has no juridicai personality even as between the parties.
SPECIAL CONTRACTS
5.
KINDS OF PARTNERS
A partner may be a capitalist partner or an industriai partner insofar as their contribution to the partnership is concerned. A partner may be a generai partner or a Iimited partner insofar as liabiiity is concerned. e
A person may be a managing partner, silent partner, liquidating partner or a secret partner insofar as participation in the partnership is concerned. 6.
KINDS OF PARTNERSHIP
DEFINITION l.
Capitalist Partner -
The partner who contributes ·money or property to the partnership.
2.
Industriai Partner -
The partner who contributes his industry.
3.
Generai Partner
-
A partner who is liabie beyond the extent ofhis contribution to the partnership.
4.
Limited Partner
-
A partner who is liabie oniy to the extent of his contribution.
5.
Secret Partner
-
A partner whose connection · with the firm is kept secret.
6.
Silent Partner
-
A partner who does not participate in the management of the partnership but who shares profits or Iosses, as the case may be.
7.
Liquidating Partner- A partnership who takes charge of Iiquidating the affairs of the partnership after its dissoiution.
According to liability, a partnership may be generai or limited:
GENERAL PARTNERSHIP - a partnership where ali the parties are generai partners who are liabie even to extent of their individuai properties, after the exhaustion of the partnership assets. LIMITED PARTNERSHIP- A partnership where one partner is a generai partner and the others are limited partners. A Iimited partner is Iiabie oniy to the extent of his contribution. As to its object, a partnership is either universai or particular:
UNIVERSAL PARTNERSmP- This may referto universai partnership of ali present property or to a universai partnership of ali profits. (a)
(b)
Universal partnership of all present property - A partnership of ali present property is that in which the partners contribute ali the property which actualiy beiongs to them to a common fund, with the intention of dividing the same among themseives, as weli as ali the profits which they may acquire therewith. (Art. 1779, 1st par., NCC) Universal partnership of all profits- Comprises ali that the partners may acquire by their industry or work during the existence of the partnership. (Art. 1779, 2nd par., NCC)
PARTICULAR PARTNERSHIP- A particuiar partnership has for its object determinate things, their use of fruits, or specific undertaking, or the exercise of a profession or vocation.
121
Iv. LOAN 1.
DEFINITION
By the contract of Ioan, one of the parties, delivers to another, either something not consumabie so that the Iatter may use the
SPECIAL CONTRACTS
INTRODUCTION TO LAW
122
same for a certain time and return it, in which case the contract is called a commodatum; or money or other consumable thing, upon the condition that the same amount of the same kind and quality shall be paid, in which case the contract is simply called a loan or mutuum.
123
(b)
Ownership goes to the borrower.
(c)
It is a loan for consumption.
(d)
It refers to personal property.
(e)
Same amount that was borrowed shall be returned.
Commodatum is essentially gratuitous. 3.
In commodatum, the bailor retains the ownership of the thing loaned, while in simple loan, ownership passes to the borrower. (Art. 1933, NCC) 2.
KINDS OF LOAN l.
Commodatum- One where the bailor (lender) delivers a non-consumable thing so that the bailee (borrower) may use it for a certain time and return it.
BASIC PRINCIPLES TO REMEMBER l.
A contract of loan is a real contract. Therefore, it is perfected upon delivery of the thing loaded.
2.
Delivery of the thing loaned is essential because the purpose of the contract is either to transfer its use or its ownership.
3.
Commodatum is purely personal and the borrower cannot lend the thing he borrowed to another.
t
EXAMPLE: A borrowed B's car which he will use for three (3) days while taking a vacation in Baguio. B agreed to lend his car to A for free. A should return B's car. 2.
Mutuum or Simple Loan - One where money or other consumable thing is loaned with the obligation of paying the same amount of the same kind and quality. EXAMPLE: IfA borrowed PlOO.OO from B, A should return the same amount.
DISTINCTIONS l.
2.
COMMODATUM
rv. PLEDGE AND MORTGAGE 1.
DEFINITION
Pledge is a real contract whereby one person (called pledgor) delivers a movable to another (called pledgee) as security for the principal obligation and with the understanding that when the obligation is paid or fulfilled, the thing pledged shall be returned by the pledgor to the pledgee. Mortgage is a real contract whereby one person (called the mortgagor) offers his real property as security for the principal obligation and with the understanding that when the obligation is paid or fulfilled, the mortgage or encumbrance on the said property shall be cancelled and released.
(a)
Essentially gratuitous.
(b)
Ownership is retained by the bailor or lender.
(c)
lt is a loan for use or temporary possession.
2.
(d)
It involves real or personal property.
(e)
The same thing that was borrowed shall be returned.
Art. 2085. The following requisites are essential to the contracts of pledge and mortgage:
MUTUUM (a)
May be gratuitous or onerous.
PROVISIONS COMMON TO PLEDGE ANO MORTGAGE
l.
That they be constituted to secure the fulfillment of a principal obligation;
2.
That the pledgor or mortgagor be the absolute owner of the thing pledged or mortgaged;
124
SPECIAL CONTRACTS
INTRODUCTION TO LAW
3.
the right to receive the fruits of an immovable of his debtor, with the obligation to apply them to the payment of the interest, if owing, and thereafter to the principal of his credit x x x."
That the persons constituting the pledge or mortgage have the free disposal of their property, and in the absence thereof, that they be legally authorized for the purpose.
2.
Third persons who are parties to the principal obligation may secure the latter by pledging or mortgaging their own property.
DISTINCTIONS
PLEDGES 3.
DISTINCTIONS
personal property.
PLEDGE
2. Not applicable (no fruits).
Constituted on real property. l. Constit:uted on personali property. (Art. 2094) (Art. 2124)
2. As a rule, mortgage retains 2. The thing pledged must be l placed in the possession of the creditor, or of a third person l by common agreement.
the property.
Constituted in immovables.
ANTICHRESIS
MORTGAGE
l. The creditor acquires the l. The creditor has no right to
right to receive the fruits of an immovable of his debtor.
the fruits.
4.
BASIC PRINCIPLES l.
The amount of the principal and of the interest shall be specified in writing, otherwise, the contract of antichresis is VOID. (Art. 2134, NCC)
2.
The actual market value of the fruits at the time of application thereof to the interest and principal shall be measured of such application. (Art. 2133, NCC)
3.
The creditor is obliged to pay the taxes and charges upon the estate unless otherwise stipulated. (Art. 2135, NCC)
Constituted on movables. obligation.
VI. COMMON CARRIERS V. ANTICHRESIS
1. 1.
DEFINITION
Article 2132 of the New Civil Code defines antichresis as follows: x x x "By the contract of antichresis, the creditor acquires
l l
2. May guarantee future obliga- 2. Cannot guarantee future ti on.
2. The creditor has the right to l the fruits of the immovables.
!~
CHATTEL MORTGAGE l.
immovable property.
DISTINCTIONS
DISTINCTIONS
REAL MORTGAGE l.
3.
1
3. N ot valid against third per- 3. N ot valid against third persons unless a description of sons i~ not registered. (Art. 2125) the thing pledged appear in a public instrument. (Art. 2096, NCC) 4.
ANTICHRESIS
l. Pledge is constituted on l. Antichresis is constituted on
REAL MORTGAGE l.
12l'l
DEFINITION
Art. 1732 of the New Civil Code defines common catriers as follows: x x x "Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting
126
SPECIAL CONTRACTS
INTRODUCTION TO LAW
passengers or goods or both, by land, water, or air, for compensation, offering their services to the public."
COMMON CARRIER
2.
PRIVATE CARRIER
public but only to certain perso ns.
CRITERIA AS TO WHETHER A CARRIER IS COMMON OR PRIVATE
lf the carrier is obliged to carry ali persons applying for passage and there is no legai excuse to refuse, it is a public carrier. Otherwise, it is a private carrier. 3.
4.
VIGILANCE REQUIRED OF A COMMON CARRIER l.
It is bound to observe EXTRAORDINARY DILIGENCE in the vigilance over the goods.
2.
It is bound to observe EXTRAORDINARY DILIGENCE for the safety of its passengers.
EXTRAORDINARY VIGILANCE OVER THE GOODS
Common carriers are responsible for the LOSS, DESTRUCTION OR DETERIORATION of the goods unless the same is due to any of the following causes: l.
Flood, storm, earthquake, lightning, or other natura! disaster or calamity;
2.
Act of the public enemy in war, whether international or civii;
3.
Act or omission of the shipper or owner of the goods;
4.
The character of the goods or defects in the in the containers;
5.
Order or act of competent public authority.
pac~ing
EXTRAORDINARY DILIGENCE FOR THE SAFETY OF PAS· SENGERS
Art. 1755. Acommon carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence ofvery cautious persona, with a'due regard forali the circumstances. .
l. A common carrier offers its l. lt is not available to the
services to the public. (Art. 1732, NCCJ
5.
127
or
~
SUCCESSION
129
DISCUSSION 1.
In the early stages of Roman Làw, the parents wete required to declare before the Comitia Curiata who were'their ,heirs. Their sons and daughters, who were acknowledged as sui heredes or under potestas, have the right to slÙI.ré fri'their estate. Testamentary and intestate successions were already known to the Romans. As between these two kinds of successions, however, intestate succession (ab intestato) was the primitive iilstitution.
Chapter Xl SUCCESSION
From the concept of intestate succession, the concept of testamentary succession grew. By then, the Romans considered it a disgrace to die intestate. If only to avoid intestacy, there was a practice then to execute a testamerit called PER AES ET LIBRAM under and by virtue of which, a person who is not an heir (SUUS HERES) or not a member of the family, was appointed as heir.
IMPORTANT TOPICS IN THIS CHAPTER: l.
CONCEPT ANO DEFINITION OF SUCCESSION
Concept and definition of succession
2. What inheritance includes 3. Kinds of succession
The concept of succession in generai is the same both in Roman Law and under the New Civil Code. It means succeeding or entering into the piace or property rights of another.
4. What is a will? 5. Characteristics of a will
Article 774 of the New Civil Code defines succession as: ~ ' mode of aèquisitibn by virtue< of which the property, ·rights and obligationstò thé exterit ortll,eValue. of the inheritanè.è~ of a. p&rson a:re''tra:rlsmittei:fthtòug:fi his·death to another or othetsì·e'ith~r~~by his will or by operation of law.."
6. Who can make a will? 7. When is a person of sound mind? 8. Wills allowed under the New Civil Code 9. Requisites of a valid will
Based on the said definition, succession has therefore the following elements: (l) lt is a mode ofacquisition; (2).Prope'rty rigl},ts and oblig~tions .~~t ~P:~. ~~te11t of the yall1~ of the i~e~tanc~. ~~a person are transmitted to. another; (3) The same are transm1tted through death; ·and (4) ·Thè transnìissiori is either by'·Win:·o~by opert:ìti6h of law. ··
10. Actual example of an attestation clause 11. Actual example of an attestation clause where testator caused some other person to write his name 12. Actual example of an acknowledgment of a will 13. Qualifications of witnesses to notarial wills 14. A will can be revoked or altered in case of supplement or alteration
!l, Ìl
'ti
15. In case of revocation t!':l
128
!J!·
2.
WHAT INHERITANCE INCLUDES
The inheritance includes ali the property, rights and obligations of a person which are not extinguished by his death. (Art. 776, NCC) In other words, all property and transmissible rights and obligations existing at the time of the death of a person, including accession or those accruing therefrom, are included in the inheritance of a person. (Art. 781, NCC)
130
SUCCESSION
INTRODUCTION TO LAW
his death. Any waiver or restriction of this kind is voi d. (Art. 828, NCC)
The rights to the succession are transmitted from the moment of the death of the decedent. (Art. 777, NCC) 6.
t.•~
3.
4.
KINDS OF SUCCESSION l.
~stamentarySuccession
2.
Legai or Intestate
3.
>Mixed Succession
Succe~sion
(a)
Testamentary Succession;-- Succession which results from the designation ~f an heir, made in a will executed in the form prescribed by law. (Art. 779, NCC)
(b)
Legal or. Intestate Succession - Succession prescribed by operation of law and which takes piace if a person dies without a will, or he has a will but the same is void or has subsequently lost its validity. (Art. 780, NCC)
131
'
6.
The will must be executed voluntarily and freely and without force, duress, fear or threat. The same are grounds for the disallowance of the 'will. (See Art. 839, NCC)
WHO CAN MAKE A WILL?
Ali persons who are not expressly prohibited by law can make a will (Art. 796, NCC). It is essential, however, that the testator must be of a sound mind at the time of the execution of the will (See Art. 798, NCC) and at least 18 years of age or over.. (See Art. 797, NCC) 7. ·; ~f
WHAT IS A WILL?
WHEN IS A PERSON OF SOUND MINO?
To be of sound mind, it is not necessary that the testator be in full possession of ali his reasoning faculties, or that his mind is wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of, the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (Art. 799, NCC)
Autwill is an ~et wh~rel)y a, person is permitted, with the form.alities pr~scribed by l~w, •to ..c;on,trol to ~· certain degreei the disposition ;of his estate, to take effect after his death. (Art•.783,
NCC) 8. 5.,
CHARACTERISTICS OF A WILL l.
A will must comply with the formalities of the law.
2.
The making of a will is strictly a personal act and cannot be left in whole or in part to the discretion of a third person nor can it be accomplished through the instrumentality of an agent or attorney. (See Art. 784, NCC)
3.
It is a formai act because there are legai formalities that should be complied with. (See Art. 783, NCC)
4.
The will is effective only after the death of the testator. (See Art. 777, NCC)
5.
A will may be revoked by the testator at any time before
':!
:!
\r
WILLS ALLOWED UNDER THE NEW CIVIL CODE l.
Ordinary or Notarial Will;
2.
Holographic Will.
Ordinary or Notarial Will - l t is a will which is attested and acknowledged before a Notary Public.
Jf'l
..
. :f ;
i
:t
ti
j}:
;i!!
•tfi
q~~
Holographic Will- It is a will which is entirely written, dated and signed by the hand of the testator himself. l t is subject to no other form and may be made in or out of the Philippines, and need not be witnessed. (See Art. 810, NCC) 9.
REQUISITES OF A VALlO WILL l.
lt must be in writing and executed in the language and dialect known to the testator. (Art. 804, NCC)
132
133
SUCCESSION
INTRODUCTION TO LAW
The will must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence and by his express direction. (Art. 805, NCC, opening par.)
10. ACTUAL EXAMPLE OF AN ATTESTATION CLAUSE
3.
The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. (last sentence of opening paragraph, Art. 805, NCC)
4.
The testator or the person required by him to write his name and the instrumental witnesses of the will, shali also sign each and every page thereof, except the last, on the left margin.
This instrument consists of pages ihcluding this page, , 20 _ , in the Municipality was on this __ day of of Province of , signed by the testator, - - - - - - - - at the bottom of the instrument and at the left-hand margin of each and every page thereof, in the presence of ali and each of us, and thereupon, at his request, have witnessed and signed the will and ali pages thereof in the presence of the testator and of each other.
5.
Ali the pages shali be numbered correlatively in letters placed on the upper part of each page. (See Art. 805, NCC)
2.
6.
7.
ATTESTATION CLAUSE
. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or cause some other person to write under his express direction, in the presence of the instrumental witnesses and ali the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. The attestation shall state: a.
The number and pages used and upon which the will is written;
b.
That the testator signed (or expressly caused another person to sign) the will and evecy page thereof in the presence of the instrumental witnesses;
c.
That the instrumental witnesses witnessed and signed the will and ali the pages thereof in the presence of the testator and of one another.
11. '~
(Name)
(Address)
(Name)
(Address)
(Name)
(Address)
ACTUAL EXAMPLE OF AN ATTESTATION CLAUSE WHERE TESTATOR CAUSED SOME OTHER PERSON TO WRITE HIS NAME
ATTESTATION CLAUSE This instrument consists of _ _ pages including this page, was on this ___ day of , 20_, in the Municipality of Province of , announced and published to us by the testator to be his last will and testament, and said testator caused Mr. to writc his name, under his express direction at the bottom of said instrument and the left-hand margin of each and every page thereof, in the presence of all of us, and we thereupon, at the testator's request, have witnessed and signed the will and all pages thereof in the presence of the testator and of each other.
134
SUCCESSION
INTRODUCTION TO LAW
(Name)
(Address)
(Name)
(Address)
(Name)
(Address)
Witnessed my hand and notarial seal at the piace and on the date first above-stated.
Notary Public Until December 31,20 _ _
12. ACTUAL EXAMPLE OF AN ACKNOWLEDGMENT OF A WILL ;f
2.
135
(Seal and Documentary Stamp) Doc. No. ____ , Page No. ____ , Book No. ____ , Series of 20 ----.,...
ACKNOWLEDGMENT 13.
Republic of the Philippines Province/City of
)
QUALIFICATIONS OF WITNESSES TO NOTARIAL WILLS
A witness to the execution of a notarial wili must be:
) s.s.
(a)
of sound mind;
At the Municipality/City of in said province, on this day of , 20_, personaliy appeared the Testator , and his three (3) instrumental witnesses,
(b)
at least 18 years old;
(c)
not blind;
to wit: ----------------------------' and , ali known to me to be the same persons who executed and attested, respectively, the foregoing Last Will and Testament, consisting of (_) pages, including this one on which this acknowledgment is written, and they ali acknowledged to me that the Testator signed the will and every page thereof on the left margin in the presence of the Testator and of one another, that ali the pages of said will are numbered correlatively in letters placed on the upper part of each page, and that the attestation clause is in a language known to the instrumental witnesses; they further acknowledged to me that the said wili and attestation are their own free and voluntary act and deed. The Community Tax Certificates of the said Testator and three (3) instrumental witnesses were exhibited to me, to wit:
(d)
able to read and write;
(e)
domiciled in the Philippines;
(O
must not have been convicted of falsification of a document, perjury or false testimony.
_____ No.
issued at
on
, 20 ___
_____ No.
issued at
on
, 20 ___
_____ No.
issued at
on
, 20 ___
_ _ _ _ No.
issued at
on
, 20 ___
A WILL CAN BE REVOKED OR ALTERED IN CASE OF SUPPLEMENT OR ALTERATION \
After the execution of a will, another will may be executed either to alter the same or to make an explanation or addition to the will already made. This will is called a codicil which is derived from Latin "codex" and which means a little will. In case of conflict between a will and a codicil, the latter prevails because it expresses the last will and wish of the testator. A codicil shall be executed as in the case of a wili. (Art. 826, NCC)
136
INTRODUCTION TO LAW
IN CASE OF REVOCATION
A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (Art. 828, NCC) However, no will shall be revoked except in the following cases: l.
By implication of law; or
2.
By some will, codici! or other writing executed as provided in case of wills; or
3.
By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. lfburned, torn, cancelled, or obliterated by some other pe~son, without the express direction of the testator, the will may stili be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (Art. 830, NCC)
Chapter Xli TORTS ANO DAMAGES
IMPORTANT TOPICS IN THIS CHAPTER: l. Definition of a quasi-delict
2. Requisites of a quasi-delict 3. Quasi-delict is a civil wrong 4. The act or omission must be without intent to cause damage 5. If there is no intention to cause damage 6. Distinctions (a)
Culpa contractual
(b)
Culpa aquiliana
(c)
Culpa criminal
7. · What is negligence? 8. What is the test to determine negligence? 9. Degree of care of negligence that is required 10. What are the defenses that can be interposed in quasidelict? i'.
(t'
~i!;: ,,
(a)
Last clear chance
(b)
Contributory negligence
(c). Proximate cause of the loss or injury is the negligence of plaintiff
q
137
~f-
138
TORTS AND DAMAGES
INTRODUCTION TO LAW
11.
2.
REQUISITES OF A QUASI-DELICT
(d)
Defense of due diligence in the selection and supervision of employees
(e)
Assumption of risk
(a)
There must be an act or omission;
(f)
Prescription
(b)
Such act or omission causes damage to another;
(g)
Force majeure
(c)
Such act or omission is caused by fault or negligence;
(h)
Fault of engineer, architect or contractor
(d)
There is no pre-existing contractual relation between the parties.
This article states the requisites of a quasi-delict, to wit:
Old cases (a)
Picart vs. Smith, 37 Phil. 813
(b)
Umali vs. Bacani, 69 SCRA 263
3.
(c)
Culion Ice, Fish, etc. vs. Philippine Motors, 55 Phil. 129
(d)
Cangco vs. Manila Railroad, 38 Phil. 768
A quasi-delict is a civil wrong, not a crime, because it is not caused by an intentional or malicious act, but by mere fault or negligence.
(a)
Philippine Long Distance Telephone Company, Inc. vs. Court of Appeals, G.R. No. 57079, September 29, 1989
(b)
Phoenix Construction, Inc. vs. Intermediate Appellate Court, G.R. No. 65295, March 10, 1987
(c)
Vergara vs. Court of Appeals, G.R. No. 77679, September 30, 1987
(d)
Radio Communication of the Philippines, Inc. vs. Court of Appeals, G.R. No. 79525, March 13, 1991
(e)
St. Francis High School, et al. vs. Court of Appeals, G.R. No. 82465, February 25, 1991
DISCUSSION
4.
THE ACT OR OMISSION MUST BE WITHOUT INTENT TO CAUSE DAMAGE
The act or omission must be without intent to cause damage because if there is intent to cause damage, the act or omission becomes a crime. In such a case, the civil liability for such act or omission will be governed by the Revised Penai Code which provides as follows: "Art. 1161. CIVIL OBLIGATIONS ARISING FROM CRIMINAL OFFENSES SHALL BE GOVERNED BY THE PENAL LAWS, SUBJECT TO THE PROVISIONS OF ART. 2177, AND THE PERTINENT PROVISIONS OF CHAPTER 2, PRELIMINARY TITLE, ON HUMAN RELATIONS, AND OF TITLE XVIII OF THIS BOOK, REGULATING DAMAGES."
!'
ih
DEFINITION OF A QUASI-DELICT
Article 2176 of the New Civil Code defines a quasi-delict in this manner: ''Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this chapter."
QUASI-DELICT IS A CIVIL WRONG
It is independent of contract because if the said act or omission is in violation of a contract, then the result would be that there is a mere breach of contract.
12. New cases
1.
139
5.
IF THERE IS NO INTENTION TO CAUSE DAMAGE
If the act or omission that caused the damage was committed unintentionally, it is fault or culpa. Otherwis~; it is dolo, an act that becomes a crime.
6.
TORTS AND DAMAGES
INTRODUCTION TO LAW
140
Based on this definition, the degree of care, precaution and vigilance that should be observed depends on the circumstances of persons, piace and time. That which may ·be considered therefore as sufficient care and precaution in a set of circumstances, may be insufficient in another set of circumstances that confront the same individuai.
DISTINCTIONS CULPA CONTRACTUAL
CULPA AQUILIANA l CULPA CRIMINAL
(a) There is a pre- (a) There is no p re-~ (a) There is no preexisting obligation. existing obligation. existing obligation (express or implied). (b) Preponderance of (b) Preponderance of (b) The crime must be evidence is reevidence is needed. proven beyond reaquired. sonable doubt. (c) Defense of a good (c) Defense of a good l(c) father of a family in father of a family in the selection of the selection of the the employees is employees is a pronot a proper and per defense of the complete defense employer. of the employer.
This defense can not be interposed. If the employee is insolvent or incapable to pay the civil aspect or liability, the employer is subsidiarily liable.
(d) The existence of a (d) The fault or negli- (d) The innocence of gence of the dethe accused is precontract must be fend~nt must be sumed until the proved. If it is also contrary is proved. proven that the proven. contract was not complied with, it is presumed that the debtor is at fault. (e) Negligence is only (e) Negligence is direct, l(e) Negligence is direct, substantive and insubstantive and inincidental to the dependent. dependent. performance of an existing obligation based on a contract. 7.
WHAT IS NEGLIGENCE?
Article 1173 of the New Civil Code defines negligence as the omission of that diligence which is required by the circumstances of persons, place and time.
141
" 1
h f
Hence, when A drives his car in a thickly populated place like Divisoria or Quiapo, he should know, even without being told, that during day time, there are not only plenty of people who cross the streets but that there are also a lot of cars, jeepneys, buses, carts and delivery panels in both sides of the streets. Under the circumstances, A should observe a higher degree of care and precaution because if he does not observe this, there is not only a great possibility but also a great danger that he will hit or injure a pedestrian, or that he will bump or hit another vehicle. A may not be driving his car but a PUB (public utility bus) with one hundred passengers from Manila to Baguio. Here, he will not pass through Divisoria or Quiapo but he will pass through a long highway where vehicles travel at a fast speed, until he reached the dangerous Kennon road, going to Baguio City. Here, he is employed as a driver of a public utility bus which is engaged in the business of transporting passengers, and therefore, the degree of care and diligence required of the carrier is extraordinary diligence, as required by Articles 1733 and 1755 of the New Civil Code.
"Art. 1733. COMMON CARRIERS, FROM THE NATURE OF THEIR BUSINESS AND FOR REASONS OF PUBLIC POLICY, ARE BOUND TO OBSERVE EXTRAORDINARY DILIGENCE IN THE VIGILANCE OVER THE GOODS AND FOR THE SAFETY OF Tl:JE PASSENGERS TRANSPORTED BY THEM, ACCORDING TO ALL THE CIRCUMSTANCES OF EACH CASE. SUCH EXTRAORDINARY DILIGENCE IN VIGILANCE OVER THE GOODS IS FURTHER EXPRESSED IN ARTICLES 1734, 1735,AND 1745, NOS. 5, 6,AND 7, WHILE THE EXTRAORDINARY DILIGENCE FOR THE SAFETY OF THE PASSENGERS IS FURTHER SET FORTH IN ARTICLES 1755 AND 1756."
142
INTRODUCTION TO LAW
"Art. 1755. A COMMON CARRIER IS BOUND TO CARRY THE PASSENGERS SAFELY AS FAR AS HUMAN CARE AND FORESIGHT CAN PROVIDE, USING THE UTMOST DILIGENCE OF VERY CAUTIOUS PERSONS, WITH A DUE REGARD FOR ALL THE CIRCUMSTANCES." Take note that as provided in Artide 1733, common carriers "are bound to observe extraordinary diligence" x x x "according to all circumstances of each case," and as provided in Artide 1755, the common carrier "is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances."
TORTS AND DAMAGES
10. WHAT ARE THE DEFENSES THAT CAN BE INTERPOSED IN QUASI-DELICT?
In the string of cases that have already been decided by the Supreme Court, the following defenses have been interposed and were considered meritorious, to wit: (l)
LAST CLEAR CHANCE - In Picart vs. Smith, the plaintiff who was riding a poney was originally a t faults he being in the wrong side of the bridge, but defendant Smith had the last clear chance to avoid the impending harm by merely swerving. Since he failed to do this, it was he who was held liable for damages.
(2)
CONTRIBUTORY NEGLIGENCE - The defendant may daim that plaintiff's own negligence contributed to his injury. This defense, however, will merely mitigate the award of damages. In the Phoenix case, the driver of the car was on his way home after taking a shot or two of liquor but his negligence is merely contributory and the damages therefore were mitigated.
(3)
PRO:XIMATE CAUSE OF THE LOSS OR INJURY IS THE NEGLIGENCE OF PLAINTIFF- In the Phoenix case, the Supreme Court held that both parties were negligent but the immediate and proximate cause of the accident and ofthe car driver's injuries was the wrongful and negligent manner in which the truck was parked or the truck driver's "lack of due care."
The Supreme Court has therefore defined negligence in this manner: "Negligence is want of care required by the circumstances. It is a relative or comparative, not an absolute term, and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe is a want of ordinary care under the circumstances." (Corliss vs. Manila Railroad Co., L-21291, March 28, 1969) 8.
WHAT IS THE TEST TO DETERMINE NEGLIGENCE?
The test is this: Would a prudent man (in his position) foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to refrain from that course, or to take precaution against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed constitutive fact of negligence. (Picart vs. Smith, 37 Phil. 809) 9.
DEGREE OF CARE OF NEGLIGENCE THAT IS REQUIRED
That standard or degree of care or diligence that should be observed is that which is expected of a good father of a family unless the law or stipulation of the parties requires another standard of care.
143
(4) · DEFENSE OF DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF EMPLOYEES- This is available as a defense only in culpa aquiliana but not in the case of culpa contractual. (5)
ASSUMPTION OF RISK- The defense was allowed in Afialda vs. Hilsole, et al. (85 Phil. 67) but rejected in Ilocos Norte Electric Company vs. Court of Appeals. The maxim "volente non fit injuria" relied upon by petitioner finds no application in the latter case. The court's reasoning is as follows: "It is imperative to note the surrounding circumstances which impelled the deceased to leave thé comforts of a roof and brave the subsiding typhoon. The deceased was on her way to her grocery store to see to it that the goods were not flooded. As such,
144
INTRODUCTION TO LAW
can she be punished for exercising her right to protect her property from the floods by imputing upon her the unfavorable presumption that she assumed the risk of personal injury? Definitely not." (6)
PRESCRIPTION - A motion may be filed on the ground that the action (based on quasi-delict) has already prescribed. This is based on the provision of Artide 1146 ofthe New Civil Code which provides, "following actions must be instituted within four years."
(7)
FORCE MAJEURE - This is a defense that can be interposed by the possessor or user of the animai under Artide 2183.
(8)
FAULT OF ENGINEER, ARCHITECT OR CONTRACTOR - This defense can be interposed by the owner of the building if third persons suffer damages because of defect in construction committed either by the engineer, contractor or architect.
11. OLD CASES
PICART VS. SMITH 37 PHIL. 813 Principle:
"WHERE BOTH PARTIES ARE GUILTY OF NEGLIGENCE, BUT THE NEGLIGENT ACT OF ONE SUCCEEDS THAT OF THE OTHER BY AN APPRECIABLE INTERVAL OF TIME, THE ONE WHO HAS THE LAST REASONABLE OPPORTUNITY TO AVOID THE IMPENDING HARM AND HAS TO DO SO IS CHARGEABLE WITH THE CONSEQUENCES, WITHOUT REFERENCE TO THE PRIOR NEGLIGENCE OF THE OTHER PARTY."
FACTS: Plaintiff Picart was riding a pony on a bridge. He saw an approaching automobile and he improperly pulled his horse over to the railing in the right, the wrong side of the bridge. The driver of the automobile sounded his horn but Picart made no move to go to the right side. He guided his car to the right without
TORTS AND DAMAGES
146
diminution of speed until he was only a few feet away. He turned to the right but passed so dosely to the horse that the latter being frightened, jumped around and was killed by the passing car. Picart was thrown off his horse and suffered contusions. He sued Smith for the value of his animai, medicai expense and damage to his apparel. ISSUE: Who is at fault? HELD: Plaintiff Picart was originally a t fault but d~fendant Smith had the last dear chance to avoid the impending harm by merely swerving. Smith failed to do this and he should therefore be chargeable for the consequence of his acts, without reference to the prior negligence of the other party.
UMALI VS. BACANI 69 SCRA263 Principle:
THE TEST TO DETERMINE THE EXISTENCE OF NEGLIGENCE, AS ENUNCIATED IN PICART VS. SMITH IS THIS: "DID THE DEFENDANT IN DOING THE ALLEGED NEGLIGENT ACT USE THAT REASONABLE CARE AND CAUTION WHICH AN ORDINARILY PRUDENT PERSON WOULD HAVE USED IN THE SAME SITUATION? IF NOT, THEN HE IS GUILTY OF NEGLIGENCE." IN THIS CASE, THE COURT FOUND OUT THAT A SERIES OF NEGLIGENCE WERE COM~TTED BY THE DEFENDANT AND HIS E PLOYEES.
FACTS: As a result a strong typhoon that hit Alcala, Pangasinan on May 14, 1972, Banana plants near Alcala Electric Plant fell on the electric wire which caused it to be cut. One end of the wire was left hanging on the electric post and the other fell on the ground under the fallen banana plants. Knowing this, the Barangay Captain told an employee of the electric plant about it .and asked him to fix it. Manuel Saynes, a boy living nearby, got in contact with the live cut wire which led to his death. Fidel Saynes, father of Manuel Saynes, filed an action for damages against Teodoro Umali, owner and manager of the electric plant.
147
INTRODUCTION TO LAW
TORTS AND DAMAGES
UMALI'S CONTENTION: The death of Manuel is due to a fortuitous event (referring to the strong storm that caused the banana plants to fall and cut the electric wire).
not have occurred if he observed the care and skill of one ordinarily skilled in the particular work which he attempts to do. When a person holds himself out as being competent to do things, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. The defendant was held liable for the value. of the vessel.
146
ISSUE: Is the owner of the electric plant liable for damages?
HELD: Umali was held liable for damages. The employees of Alcala Electric Plant were already aware of the possible damage caused by the storm to the electric lines which is dangerous to life and property, but they did not cut off from the plant the flow of electricity along the lines. They could have done this pending inspection of the wires. Likewise, they did not take the necessary precaution to eliminate the source of danger to the electric line, knowing that all banana plants were standing on elevated ground and which are higher than the electric post. The court also took note of Cipriano Baldomero's negligence. He, being an employee of the electric plant and aware of the live cut wire, did not take the necessary precaution to prevent anybody from approaching the pl ace. CULION ICE, FISH, ETC. VS. PHILIPPINE MOTORS 55 PHIL. 129
. Principle:
WHEN A PERSON HOLDS HIMSELF OUT AS BEING COMPETENT TO DO THINGS, HE WILL BE HELD LIABLE FOR NEGLIGENCE IF HE FAILS TO EXHIBIT THE CARE AND SKILL OF THE ONE ORDINARILY SKILLED IN THE PARTICULAR WORK WHICH HE ATTEMPTS TO DO.
FACTS: The manager of defendant corporation accepted the job of changing the gasoline engine of plaintiff's boat. After installing a new fuel tank and a new carburetor, the boat was taken out for trial. During this period, a back fire occurred in the cylinder of the engine. The boat was ultimately destroyed. Plaintiff filed an action to recover the value of the boat from the defendant. ISSUE: Is that fire an avoidable accident? Who is negligent?
HELD: The burning of the boat resulted from an accident but this accident was in no sense an unavoidable accident. It should
CANGCO VS. MANILA RAILROAD 38 PHIL. 768
Principle:
IF A PRUDENT MAN COULD FORESEE HARM AS A RESULT OF THE COURSE HE WILL ACTUALLY PURSUE, IT IS HIS DUTY TO GUARD AGAINST THE CONSEQUENCES OF HIS ACTS.
FACTS: Plaintiffis residing in San Mateo, Rizal, and he used to ride on defendant's train because of a pass supplied by the company. He was about to alight from the train but his feet carne in contact with a sack of watermelons, and his feet slipped from under him and he fell violently. His body rolled from the platform and was drawn under the moving car, where his right arm was badly crushed and lacerated. Plaintiff sued defendant for damages. The defendant contends, among others, that the said accident would not have happened had plaintiff waited until the train carne to a full stop. ISSUE: Is said contention tenable? Therè is a breach of contract of carriage and MRR failed to exercise due care in not providing for safe exit of passengers. The watermelons are in the platform where they shouldn't be placed, rather they should have been removed from the platform.
HELD: The plaintiff may have assumed the risk from boarding the car under a condition open to his view but it is not fair for him to assume the risk that the motorman, knowing the existence of such a situation, will increase his perii by accelerating his speed before he is planted safely in the platform. Reasonable men give their conduct by the circumstances which are before them or known to them. The situation, as aforementioned, is known to the motorman but he failed to take the precaution which is required of u prudent and reasonable man in a given situation. The defendant was held liable for damages.
INTRODUCTION TO LAW
148
12.
NEW CASES
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, INC. VS. COURT OF APPEALS G.R. NO. 57079, SEPTEMBER 29, 1989 Principle:
THE VICTIM IS SOLELY RESPONSIBLE FOR THE CONSEQUENCE OF HIS IMPRUDENCE. HE HAD THE LAST CLEAR CHANCE OR OPPORTUNITY TO AVOID THE ACCIDENT, NOTWITHSTANDING THE NEGLIGENCE HE IMPUTES TO PLDT FOR LEAVING AN OPEN TRENCH UNCOVERED.
TORTS AND DAMAGES
149
The warning signs could not have completely prevented the accident. The only purpose of said signs was to inform and warn the public of the presence of excavations on the site. Antonio already knew of the presence of said excavations. It was not the lack of knowledge of these excavations which caused the jeep to fall into the excavation but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. He cannot charge PLDT for his injuries where his own failure to exercise due and reasonable care was the cause thereof.
ANTONIO'S NEGLIGENCE IS NOT MERELY CONTRIBUTORY BUT GOES TO THE VERY CAUSE OF THE OCCURRENCE OF THE ACCIDENT, AND WHICH PRECLUDES HIM TO RECOVER DAMAGES.
It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his own protection. Antonio had the last clear chance or opportunity to avoid the accident, notwithstanding the negligence he imputes to PLDT. As a resident of Lacson Street, he passed on that street almost every day and had knowledge of the presence and location of the excavations there. His negligence exposed him to danger. Hence, he is solely responsible for the consequence of his imprudence.
FACTS: Antonio sued PLDT for the injuries he sustained when his jeep ran over a- mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for the installation of its underground conduit system.
PHOENIX CONSTRUCTION, INC. VS. INT. APPELLATE COURT G.R. NO. 65295, MARCH 10, 1987
The complaint alleged that Antonio failed to notice the open trench which was left uncovered because of the creeping darkness and the lack of any warning light signs. Antonio was on the inside lane before it swerved to hit the "accident mound." Antonio is familiar not only of the street but also of the excavations onthe street as it appears that he passes on that street almost everyday. ISSUE: Is Antonio guilty of contributory negligence, and if so, does this merely mitigate the damages he is claiming, or does this preclude his right to recover damages? HELD: The negligence of Antonio was not only contributory to his injuries but goes to the very cause of the occurrence of the accident, as one of its determining factors, and thereby precludes his right to recover damages. The perils of the road were known to and hence assumed by Antonio. By exercising reasonable care and prudence, he could have avoided the injuries, even assuming that there was some alleged negligence on the part of PLDT.
Principle:
THE VICTIM, THE DRIVER OF THE CAR, AND THE DUMP TRUCK OWNED BY PHOENIX, INC. ARE BOTH NEGLIGENT BUT THE IMMEDIATE CAUSE OF THE VICTIM'S INJURY WAS THE WRONGFUL AND NEGLIGENT MANNER IN WHICH THE TRUCK WAS PARKED OR THE TRUCK DRIVER'S LACK OF DUE CARE.
FACTS: After a dinner cocktail meeting with his boss where he had taken a shot or two of liquor, A went home at about 1:30 A.M., driving his car. On his way home after crossing an intersection, his car headlights suddenly failed. He switched his headlights to "bright," and there, he saw a ford dump truck which is about 2 112 meters away from his car. The dump truck is owned by Phoenix, Inc. It was parked on the right hand side of the street, facing the incoming traffic. It partially blocks the way of the incoming traffic. It has no lights and no early warning devices.
150
TORTS AND DAMAGES
INTRODUCTION TO LAW
A tried to avoid a collision by swerving his car to the left but to no avail. His car smashed into the dump truck. As a result, A suffered physical injuries, facial scars, nervous breakdown and loss of two gold bridge dentures. A sued Phoenix and its driver. A'S CONTENTION - The legal and proximate cause of his injuries was the negligent manner in which Phoenix driver had parked the dump truck. HELD: ON THE ISSUE OF NEGLIGENCE AND PROXIMATE CAUSE OF INJURYBoth were negligent but the immediate and proximate cause of the accident and of lù injuries was the wrongful and negligent manner in which the truck was parked or the truck driver's "lack of due care." The collision of .N.s car with the dump truck is a natural and foreseeable consequence of the truck driver's negligence. The negligence of the truck driver, far from being a "passive and static condition" was rather an indispensable and efficient cause. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving, and for having created this risk, the truck driver must be held responsible. .N.s negligence, although later in point of time than the truck driver's negligence, is merely contributory and the damages therefore that he will recover is subject to mitigation by the courts, in accordance with Artide 2179 of the Civil Code. ON THE ISSUE OF DAMAGES - In a suit for damages arising from a quasi-delict where the plaintiff's negligence was contributory, the demands of substantial justice may be satisfied by allocating most of the damages on a 20-80 ratio. Based on this, the following were awarded: (l) 20% ofthe damages awarded by the appellate court shall be borne by the plaintiff;
(2) 80% shall be paid by the driver and his employer who shall be solidarily liable to A; (3) The award of exemplary damages shall be borne exclusively by the defendant Phoenix.
151
ON THE HISTORICAL FUNCTION OF THE LAST CLEAR CHANCE DOCTRINE
The last clear chance doctrine of the common law was imported into our jurisdiction, but it is a matter of debate whether, to what extent, it has found its way into the Civil Code of the Philippines. The historical function of the doctrine in the common law was to mitigate the harassness of another common law doctrine - that of contributory negligence. (Phoenix Construction, !ne. vs. Intermediate Appellate Court, Ibid.) VERGARA VS. COURT OF APPEALS G.R. NO. 77679, SEPTEMBER 30, 1987 Principle:
THE OWNER OF THE CAR CANNOT BE FAULTED BECAUSE HE LOST CONTROL OF HIS CAR WHEN IN ORDER TO AVO ID A HEAD-ON COLLISION WITH A PASSENGER BUS WHICH SUDDENLY SWERVED INTO HIS LANE, HE VEERED HIS CAR TO THE SHOULDER OF THE HIGHWAY AND COLLIDED WITH A PRIVATE JEEP.
FACTS: A and his friend were travelling by car to Manila from Baguio. From the opposite direction, the following were travelling: a tricycle, a passenger bus, a private jeep in that order. The bus tried to overtake the tricycle but in doing so, it swerved into the làne of A. This prompted A to veer his car to the shoulder of the highway to avoid a head-on collision. A, however, lost control of his car causing it to collide with a private jeep. No charges were filed against the owner of the passenger bus. A became the accused in a criminal case of reckless imprudence resulting to damage to property and multiple physical injuries. A claimed that he is not guilty of criminal negligence because he lost control of his car when the bus swerved into his lane. ISSUE: Is the defense of A tenable? HELD: The owner of the car cannot be faulted because he lost control of his car when in order to avoid a head-on collision with a passenger bus which suddenly swerved into his lane, he veered his car to the shoulder of the highway and collided with a private jeep.
153
INTRODUCTION TO LAW
TORTS AND DAMAGES
The real culprit is the passenger bus but there were no charges that were filed. The court held that although A was not criminally negligent, and therefore not held liable for a crime, there is enough evidence to prove that A should havè exercised a little more caution and discretion in reacting to the treat of a head-on collision. For this reason, he was adjudged civilly liable for the hospital expenses and unearned salaries of the victims.
Believing that the transmittal of the aforesaid telegram in that manner was done intentionally and with gross breach of contract resulting in ridicule, contempt, and humiliation of the private respondents and the addressees, including their friends and relatives, the Spouses Timan demanded an explanation.
152
The Timans were not satisfied with the explanation of RCPI, hence, their complaint for damages against RCPI. The trial court decided in favor of the Timans, and the Court of Appeals affirmed the decision of the lower court in toto.
RADIO COMMUNICATION OF THE PHIÌ..IPPINES, INC. VS. COURT OF APPEALS G.R. NO. 79528, MARCH 13, 1991
Principle:
RCPI argued that it stili correctly transmitted the text of the telegram and was received by the addressee on time despite the fact that there was error in the social form and envelope used.
RCPI'S CLAIM OF GOOD FAITH PREDICATED ON THE EXHAUSTION OF SOCIAL CONDOLENCE FORMS IS OF NO MOMENT. GROSS NEGLIGENCE AND CARELESSNESS CAN BE ATTRIBUTED TO DEFENDANT IN NOT SUPPLYING ITS STATIONS WITH ADEQUATE SOCIAL CONDOLENCE FORMS.
RCPI asserted that there was no showing that it has any motive to cause harm or damage to the Timans. ISSUE: Is RCPI guilty of negligence? Is RCPI guilty of bad faith, fraud and malice?
FACTS: Minerva and Flores Timan sent a telegram of condolence to their cousins, Mr. and Mrs. Hilario Medoranda through Radio Communication of the Philippines, Inc. (RCPI), to convey their deepest sympathy for the death of the mother-in-law of Hilario, to wit: "Mr. and Mrs. Hilario Medoranda
(l
l
1ìinidad, Calbayog
May God give you courage and strength to bear your loss, our deepest sympathy to you and members of the family. MINER & FLORY'' The condolence telegram was correctly transmitted as far as the written text was concerned. However, the condolence message as communicated and delivered to the addressee was typewritten on a "HAPPY BIRTHDAY" card and placed inside a "CHRISTMASGRAM" envelope.
HELD: Anyone who avails of the facilities of a telegram company can choose to send his message in the ordinary form or in a social form. In the ordinary form, the text of the message is delivered in an envelope matching the purpose of the occasion and the words and intent of the message. The sender pays a higher amount for the social telegram than for ordinary form. Hence, when RCPI typed the message of condolence in a birthday card and delivered the same in a colorful Christmas gram envelope, it committed a breach of contract as well as gross negligence. It's excuse tliat i t had run out of social condolence cards and envelope is flimsy and unacceptable. It could not have been faulted had it delivered the message in the ordinary form and reimbursed the difference in the cost to the sender. But by transmitting it unfittingly, through other special forms, clearly, albeit outwardly, portraying the opposite feelings of joy arid happiness and thanksgiving, RCPI only exacerbated the sorrowful situation of the addressee and senders. This botchery exposed not only RCPI's gross negligence but also its callousness and disregard for the sentiments of its clientele, which is tantamount to wanton misconduct, for which it must be held liable for damages. It is not surprising that when the Timans' telegraphic message reached their cousin, it became the joke of the Medorandas' friends,
155
INTRODUCTION TO LAW
TORTS AND DAMAGES
relatives, and associates who thought that the unpardonable mixup was a mockery of the death of the mother-in-law of the sender's cousin. Thus, it was not unexpected that because of this unusual incident, which caused much embarrassment and distress to Timans, he suffered nervousness and hypertension resulting in his confinement for three days at the hospital.
after doing so. Nevertheless, Ferdinand went on with the teachers to the beach because of their persuasion.
Under the circumstances, defendant's plea of good faith predicated on the exhaustion of social condolence forms cannot be accepted. Gross negligence or carelessness can be attributed to defendant in not supplying its various stations with such sufficient and adequate social condolence forms when it held out to the public the availability of such social condolence forms and accepted for a fee the transmission of message on said forms. Knowing that there are no such forms as testified to by its material control manager, and entering into a contract for the transmission of message in such forms as testified to by its material control manager, and entering into a contract for the transmission of message in such forms, defendant committed acts of bad faith, fraud and malice.
The school and the teachers were sued for damages by Ferdinand's parents. They contended that the defendants failed to exercise the proper diligence of a good father of a family in preventing their son's drowning, and prayed for actual, moral and exemplary damages, attorney's fees and costs of suit.
154
ST. FRANCIS HIGH SCHOOL, ET AL. VS. COURT OF APPEALS G.R. NO. 82465, FEBRUARY 25, 1991 Principle:
THE SCHOOLAND THE TEACHERSARE NOT NEGLIGENT. THE INCIDENT HAPPENED NOT IN THE SCHOOLAND NOT IN ASCHOOL DAY, AND WHILE THE TEACHERS AND THE STUDENTS WERE HOLDING A PURELY PRNATE AFFAIR, A PICNIC. THE CLASS ADVISER OF THE CLASS WHERE FERDINAND BELONGED, DID HER BEST AND EXERCISED DILIGENCE OF A GOOD FATHER OF A FAMILY TO PREVENT ANY UNTOWARD INCIDENT OR DAMAGES TO ALL STUDENTS.
FACTS: Ferdinand Castillo is a 13-year-old first year high school student at St. Francis High School. He wanted to join a school picnic a t ·a beach but he was not allowed by his parents. He was allowed, however, to bring food to the teachers and to return home
While the teachers and the students were in the water, including Ferdinand, one of the female teachers wJ:to was apparently drowning, was rescued by Ferdinand. Unfortunately, it was Ferdinand himself who drowned.
The trial court rendered judgment against the teachers, ordering all ofthem to pay plaintiffs P30,000.00 as actual damages, P20,000.00 as moral damages, P15,000.00 as attorney's fees and to pay the costs. The case against the school, however, was dismissed. The Court of Appeals ruled that the school and the teachers are guilty of negligence and therefore liable for the death of Ferdinand. ISSUE:
(l)
Are defendants guilty of negligence?
(2)
Is Artide 2180 applicable to this case?
(3)
Is the award of exemplary and moral damages proper?
HELD: ON THE ISSUE OF NEGLIGENCE - The school and the teachers are not guilty of negligence. In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The incident happened not within the school premises, not on a school day, and most importantly, while the teachers and students were holding a purely private affair, a picnic. The incident happened while some members of the class of the school were having a picnic at the beach. The picnic had no permit from the school head or its principal because this .picnic was not a school-sanctioned activity neither is it considered as an extracurricular activity. Mere knowledge by petitioner/principal of the planning of the picnic by the students and their teachers does not in any way show acquiescence or consent to the holding of the same. The application therefore of Artide 2180 has no basis in law and neither is it supported by any jurisprudence. If we were to affirm the findings
156
INTRODUCTION TO LAW
of the appellate court on this score, employers will forever be exposed to the risk and danger of being hailed to Court to answer for the misdeeds or omissions of the employees even if such act or omission be committed while they were not in the performance of their duties. No negligence could be attributable to the teachers to warrant the award of damages to Ferdinand's parents. The class adviser of the class where Ferdinand belonged did her best and exercised diligence of a good father of a family to prevent any untoward incident or damages to ali the students who joined the picnic. In fact, she invited the P.E. instructors and scout masters who have knowledge in first-aid application and swimming. Moreover, the petitioners brought life savers in case of emergency. Petitioners did ali what is humanly possible to save the child.
1t was held that the Court of Appeals committed an error in applying Artide 2180 ofthe Civil Code in rendering the schoolliable for the death of Ferdinand.
Chapter Xlii POLITICAL LAW ANO THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES PARTI BASIC PRINCIPLES ANO DEFINITIONS
IMPORTANT TOPICS IN THIS CHAPTER: l.
ONTHE ISSUE OF AWARDING MORAL OREXEMPLARY DAMAGES- No moral or exemplary damages may be awarded in favor ofFerdinand's parents. The case does not fali under any ofthe grounds to grant moral damages. Petitioners are not guilty of any fault or negligence. Hence, no moral damages can be assessed against them. While it is true that Ferdinand's parents gave their consent to their son to join the picnic, this does not mean that petitioners were already relieved of their duty to observe the required diligence of a good father of a family in ensuring the safety of the children. But here, petitioners were able to prove that they had exercised that required diligence. Hence, the claim for moral or exemplary damages becomes baseless.
MAJORITY OPINION- The majority opinion holds the view that the teachers involved were not in the actual performance of their assigned tasks, hence, any act or omission caused by them cannot bind their employer, St. Francis High School. DISSENTING OPINION - Justice Padilla dissented. He maintained that although the excursion may not have been attended by the appropriate school authorities, the presence or stamp of authority of the school nevertheless pervaded by reason of the participation of not one but of several teachers.
Definition (a)
Politica! Law
(b)
Philippine Politica! Law
(c)
Administrative Law
(d)
Election Law
(e)
Law of Public Officers
(f)
Law on Municipal Corporations PART Il THE 1987 CONSTITUTION
IMPORTANT TOPICS IN THIS CHAPTER: l.
Constitution (a)
2.
What is Constitution?
Basic principles of Constitution (a)
The Constitution is the supreme law of the land
(b)
Being the supreme law of the land, it is the symbol and monument of the people's wili 157
158
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
INTRODUCTION TO LAW
(c)
3.
The Constitution outlines the infrastructure of the government
(d)
The Constitution must be obeyed by ali
(e)
The courts are the ultimate guardians ofthe Constitution
3.
Search and Seizure (a)
Simplification
(b)
Probable Cause (b.l) Basis (b.2) Requirements in determining the existence of probable cause
Classifications of the Constitution and its definition (a)
Written or rigid
(b)
Conventional or cumulative
(c)
Rigid or flexible
4.
Qualities and essential parts of a good written Constitution
5.
The 1987 Constitution may be changed
159
(b.3) Valid warrantless search and seizure 4.
Privacy of Communications and Correspondence (a)
Generai rule and exceptions
(b)
Coverage of the guarantee (b. l) Tangible objects (b.2) Intangible objects
PART 111
5.
BILL OF RIGHTS
IMPORTANT TOPICS IN THIS CHAPTER: l.
2.
Due Process of Law (a)
Definition and purpose
(b)
Person
(c)
Life
(d)
Liberty
(e)
Property
(f)
Requirements of Due Process at a glance
6.
(a)
Meaning of Freedom of Speech and of the Press
(b)
What are included in the Freedom of Expression
(c)
What are included in the terms "speech" and "expression"
(d)
What is included in the term "press"
Freedom of Religion (a)
7.
(f.l)
Substantive
(f.2)
Procedura!
Liberty of Abode and Travel (a)
8.
Religion Defined
Meaning of Liberty of Abode and Travel
Right to Information (a)
Two rights guaranteed by Section 7
(f.2.a)
In administrative proceedings
(b)
Rationale of Section 7
(f.2.b)
In judicial proceedings
(c)
Scope of the right
(d)
Limitations on the Right to Information matters of public concern and on the corollary right to accesa to official records
Equal Protection of Law (a)
Freedom of Speech and of the Press
Requirements of a valid and reasonable classification
INTRODUCTION TO LAW
160
9.
Right of Association (a)
10.
11.
12.
What is the difference?
(c)
Problem
15.
16.
17.
Taking of Private Property for Public Use (a)
Public Use
(b)
Just Compensation
(c)
Fair Market Value
(d)
Due Process of Law
.
18.
Prohibition agai~st impairment of obligation of contracts (a)
What is prohibited under Sec. 16?
(b)
Points to remember
19.
Free access to courts and quasi-judicial bodies and adequate legal assistance Sec. 11 is a collective primary responsibility of all lawyers, judges, prosecutors, legislators and executives in the government including all its employees
(b)
Indigent party
(c)
Indigent distinguished from a pauper
Right to remain silent and to have competent and independent counsel (a)
14.
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
Right of association under the 1987 Constitution and under the 1935 and 1973 Constitutions
(b)
(a)
13.
(
20.
21.
Explan~tion of each right ·
(a)
Generai rule
(b)
Rationale of the Right to Bail
(c)
Bail defined
(d)
Kinds or forms
Due Process in Criminal Proceedings
Habeas Corpus (a)
What is a writ of habeas corpus?
(b)
Applicability of the writ of habeas corpus
Speedy disposition of cases before ali judicial, quasijudicial or administrative bodies (a)
Is there a difference between ·the· right to speedy trial, as guaranteed in Sec. 14(2), Article III, and speedy disposition of cases as guaranteed in Sec. 16?
(b)
Similarity
Rights against self-incrimination (a)
Rationale of Sec. 17
(b)
Purpose
(c)
Applicability
Freedom of politica! belief and freedom against involuntary servitude (a)
What is involuntary servitude?
(b)
When is involuntary servitude permissible?
Right against excessive fines, degrading or inhuman punishment (a)
When is fine considered excessive?
(b)
When is punishment considered cruel?
Right against imprisonment for debt or non-payment of a poll tax (a)
Right to bail 22.
23.
161
What is a poll tax?
bouble Jeopardy (a)
Meaning and requisites
(b)
What are the requisites to constitute double jeopardy?
Right against ex post facto law and bill of attainder (a)
Meaning of ex post facto law and bill of attainder
/, INTRODUCTION TO LAW
162
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
(b)
Characteristics of ex post facto law
(d)
other high crimes
(c)
Scope and applicability of the prohibition against ex post facto law
(e)
graft and corruption
(f)
betrayal of public trust
(d)
What is a bill of attainder
(e)
Characteristics of bill of attainder and bill of pains and penalties
4. Procedure of impeachment 5. Who can file a complaint for impeachment? 6. Can an impeachment proceeding be initiated against the same official more than once within a period of one (l) year?
PART IV THE FUNDAMENTAL ANO INHERENT POWERS OF THE STATE
7. Who has the sole power and authority to decide ali cases of impeachment? 8. What is the nature of the impeachment proceedings?
IMPORTANT TOPICS IN THIS CIIAPTER: l.
2.
163
What are the fundamental and inherent powers of the state?
9. What rules apply in an impeachment proceeding?
(a)
Police Power
10. What is needed in order to convict the person subject of impeachment?
(b)
Power of Eminent Domain
11.
(c)
Power of Taxation
12. Can President Estrada be prosecuted in case he is acquitted?
Similarities and distinctions of the three powers of the State
What is the effect of a judgment in case of impeachment?
DISCUSSION OF PART I PARTY
BASIC PRINCIPLES AND DEFINITION
BRIEF DISCUSSION OF IMPEACHMENT
I.
IMPORTANT TOPICS IN THIS CIIAPTER:
A.
l. What is impeachment?
2. Who are the impeachable officials under the 1987 Constitution? 3. What are the grounds for impeachment and its definition? (a)
culpable violation of the Constitution
(b)
treason
(c)
bribery
DEFINITION
'\i
POLITICAL LAW
Politica! law is that branch of jurisprudence which treats of the science of politics, or the organization of government. (Black's Law Dictionary, Sixth Edition, p. 1158) Our Supreme Court defined politicallaw in more specific tenns by saying that it is the branch of public law which deals with the organization and operation of the governmental organs of the state and defines the relations of the state with the inhabitants of its territory. (People vs. Perfecto, 43 Phil. 887)
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
INTRODUCTION TO LAW
164
B.
C.
ADMINISTRATIVE LAW
It is a study of the laws that regul~e the administrative organization and operations of the governmental organs of the State and determines the competence of the administrative authorities and the remedies available to the individuai in case of violation of his rights. D.
ELECTION LAW
It is a study of the laws, rules and procedures involving the conduct of election of ali public officials who wili exercise the powers of government as allocated to and within their functions and responsibilities. E.
LAW OF PUBLIC OFFICERS
It is a study of the creation, modification and dissolution of public office as weli as the eligibility of public officers, the manner of their election or appointment and assumption of office, their rights, duties, powers, inhibition and liabilities, and the modes of terminating their official relations.
F.
DISCUSSION OF PART II
PHILIPPINE POLITICAL LAW
Philippine Politica! Law, on the other hand, deals specifically with the study of the structure and powers of our government as well as the study of Constitutional Law, Administrative Law, Election Law, Law oi"Public Officers, the Law on Municipal Corporations, ali of which are covered by and included in the study of Philippine Politica! Law.
LAW ON MUNICIPAL CORPORATIONS
This is a study of the generai principles governing municipal corporations, the laws affecting the creation, organization and government of provinces, cities, municipalities and barangays; the scope and application of the powers of municipal corporations, including municipal ordinances, contracts, liabilities, and enterprises.
165
THE 1987 CONSTITUTION 1.
CONSTITUTION
a.
What is Constitution?
Constitu~ is_jt..hody of rules and maxims in accordance with which the powers of sovereignty are habitually exerciséd. Most likely, i t is defined as the supreme law of the land as ordained and established by the people which prescribes the permanent framework ofthe system of government, which establishes basic principles upon which the government is founded, and which defines and allocates to the various organs of government their respective powers and duties. (Justice Malcolm's description, Phil. Constitutional Law, p. 6)
2.
BASIC PRINCIPLES OF THE. CONSTITUTION
a.
The Constitution is the supreme law of the land:
A Constitution is a legislation direct from the people acting in their sovereign capacity, hence, it is more superior than an ordinary law or statute which is merely a legislation from the people's representatives subject to limitations prescribed by the Constitution. No man-made law, therefore, can prevail as against the Constitution. b. Being the supreme law of the land, it is the symbol and monument of the people's will: As such, it should be su.bmitted for ratification of the people following the principle that "x x x sovereignty resides in the people and ali government authority emanates from them.'' (Section 1, Article II, 1973 and 1987 Constitutions) c. The Constitution outlines the infrastructure of the government:
It is through the Constitution that the fundamental powers of the government are established, limited and defined, and by
INTRODUCTION TO LAW
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
which those powers are distributed among the several departments of the government for their safe and useful exercise and for the benefit of the body politic.
(c) Rigid or flexible -A rigid Constitution is one which can be amendedthrough aJormal and difficult process. A/lfgible Constitution is one which can be changed by ordinary legislation.
166
d.
Q - What is the nature of the powers of a Constitutional Convention?
The Constitution must be obeyed by all:
I t governs the poor an d the rich, the governed an d the governors, the mighty and the weak, and regardless of the color of one's skin, his religion or his politica! persuasion. e.
A - There are three theories, thus: (l) The powers of the Constitutional Convention are in the nature of sovereign powers, hence, it is more supreme over the other departments of the government.
The courts are the ultimate guardians of the Constitution:
It is the court that implements the laws prescribed in the Constitution which would certainly gives the people whatever is just and fair as on the case maybe.
\. 1
(2) The Constitutional Convention is inferior to the other departments of the government because it derived its powers from the legislature which created it.
t
(3) It is independent and co-equal with the other departments of government. (Cruz, Constitutional Law, pp. 14-15, 1998 Edition)
'·
t·
3.
CLASSIFICATIONS OF THE CONSTITUTION ANO ITS DEFI· NITION
Q - What are the different kinds of construction of a Constitution?
Q - Classify Constitutions A - A Constitution may be written or unwritten, conventional or cumulative, and rigid or flexible (a) A wdtten or rigid Constitution is one the provisions of which have been reduced to writing and embodied in one or more instruments at a particular time. EXAMPLE: Philippine Constitution. An unwritten Constitution is one which has not been reduced to writing at any specific time but it is the collective product of a graduai political development, consisting of unwritten usages and customary rules, judicial decisions, dieta of statesmen, and legislative enactments of a fundamental character written but scattered in various records without having any compact form in writing. The three most conspicuous historical instances of such constitutions are those of Athens, Rome, and England. The latter is almost the sole example of a progressive modern State retaining such a Constitution. (Malcolm and Laurel, Phil. Constitutional Law, pp. 9-13)
Conventional or Cumulative - A conventional Constitution is enacted deliberately and consciously by a constituent body or ruler at a certain time and piace. A cumulative Constitution is a product of a graduai political development. (b)
167
i
A- Executive Construction - Is the construction and interpretation of laws or statutes by the various executive heads of the various departments of the government. (Gov't. vs. Mun. of Binalonan, 32 Phil. 634)
Contemporaneous Construction by Executive Officers - Construction placed by executive officers on a statute, whose duty is to enforce said statute. (In Re Allen, 2 Phil. 630) Prospective Construction - Is a rule that ali statutes are to be construed as having only prospective operation unless the purpose and intention of the legislature to give them retrospective effect is expressly declared or is necessarily implied from the language used. In every case of doubt, the doubt must be resolved against the retrospective effect. (Lopez vs. Crow, 40 Phil. 997; Laurence vs. Rubio, 43 Phil. 1017; Segovia vs. Noel, 47 Phil. 430)
Q- What is the doctrine of "Stare-Decisis"? A - It means uniformity in judicial decisions. The principle is sometimes applied and sometimes ignored in the field of constitutional law. But it may be said that once an interpretation
168
169
INTRODUCTION TO LAW
POLITICAL LAW AND TRE CONSTITUTION OF TRE REPUBLIC OF TRE PRILIPPINES
has been given the provision of the constitution, it should not be abandoned without grave reasons, for the stability of many iroportant institutions of society depends upon permanence.
2. I t is likely to encroach on the domain of ordinary legislation instead of confining itself to fundamental principles.
The rule applies only with respect to the point actually decided by the case. (Black, Const. Law, 44; Humphrey vs. U.S. 602)
Q - Distinguish "Stare-Decisis" from "Res Jzidicata." A - The first refers to rule of law, while the second refers to settled questiona offact. (Prall vs. Burckhart, 299, Ill. 19, 132 N.E. 280)
Q - What are the advantages and the disadvantages of a written Constitution? A- A written Constitution has its own advantagès and disadvantages.
Its advantages are the following: l. lt serves as the best guide and reference of the people when their rights and liberties are transgressed and violated.
2.
lt provides stability to a nation and its people.
3. With a written law on their side, the people feel more secure and confident that they are well protected against abuse of authority. 4. In times of chaos and politica! uncertainties, it serves as a link and a bridge to pass over to better times. 5. In case of external aggression, it serves as the rallying point and inspiration of the people to protect their country against the invaders, or even against any form of foreign control. 6. lt lays down in clear terms the principles of their politica! creed and aspirations, the policies that govern the state and its people, all of which protect them from frequent and violent fluctuations of public pulse. 7. Both in times of peace and war, i t holds the people together.
Its disadvantages are the following: l. The rules, principles and policies upon which it is based are difficult to change even when they turn out, at times, to be inconvenient.
3. When there is an urgent need for a change, the prescribed rules or procedures tb effect such change often results to bitter or, probably, violent, clashes of opinion.
Q - What are the advantages and disadvantages of R.n unwritten Constitution? A - An unwritten Constitution is advantageous in the sense that it is flexible and elastic. It is not advantageous in the sense that it is subject to perpetuai change at the will of only a few number of people. Q - What is the purpose of a Constitution? A - The purpose of a CoRS..titution is "to prescribe the permanent framew.ork oia"s"Ystem of government, to assign to the different departments their respective powers and duties, and establish certain fixed principles on which government is founded" (Malcolm and Laurel, Philippine Constitutional Law, 7) Likewise, it serves as a security and sanctuary of the rights of all citizens, rich or poor, weak or strong, lettered or unlettered, and regardless of religious and politica! persuasion. In times of peace and war, it holds the state together.
Q - What are the essential parts of a written Constitution? A - A good written Constitution has three essential substantive parts, to wit: l. CONSTITUTION OF LIBERTY: This contains the fundamental civil and politica! rights of the citizens as well as the limitations on the powers of the government to see to it that the said rights are safeguarded. The Bill of Rights, for instance, not only enumerates the rights guaranteed by the Constitution to every citizen but also prescribes the limitations whenever such rights are violated. Artide III, Section 12(2, 3, and 4) of the 1987 Constitution offer exaroples:
"Section 12(2). No torture, force, violence, threat, intimidation, or any other means, which vitiate the free will, shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
170
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
INTRODUCTION TO LAW
Section 12(3). Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.
r
1.11! ,: ' ~: ·i
Section 12(4). The law shall provide for penai and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices and their families." c
i,,,
l
l
3. CONSTITUTION OF SOVEREIGNTY: This contains the provisions on how to amend or revise our Constitution and when such amendment or revision is considered valid. A - A good written Constitution must be broad, brief, and definite. Q - Define each. A - l t must be broad because it must outline an organization of government for the whole state and that unlike a statute, it is intended not merely to meet existing conditions but also to govern the future. While it is true that it will not govern the past, the events that happened in the past, whether recent or too long ago, are lessons that guide the framers of the Constitution on what they think is appropriate to be written in the Constitution. One good example of this is the new definition of judicial power which now includes the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government (1987 Constitution, Article VII, Section 1) which adds teeth to Article VII, Section 18 of the 1987 Constitution, this is now referred to as the expanded jurisdiction of the Supreme Court. Likewise. the · Supreme Court may now "review. in an appropriate proceeding filed by any citizen. the sufficiençy of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Underlining Supplied) (Section 18, paragraph 3) lt is brief because it is not intended to go into details of organization. The details are left to Congress which will be in better position to find out what specific legislation is needed from time to time.
2. CONSTITUTION OF GOVERNMENT: This outlines the organization of the government, enumerating its powers, laying down certain rules relative to its administration, and defining the electorate. Hence, the Constitution allocates unto the three branches of government their respective powers, functions and responsibilities; specifies the constitutional bodies or commissiona as well as their respective powers, functions and responsibilities; and defines the accountability of public officers. ·
Q - What are the requisites of a good written Constitution?
171
lt is definite because vagueness may cause incalculable harm, or it may lead to opposing interpretation which may bring about chaos and violence, instead of peace. Of course, there are constitutional provisions which are worded in generai terms but they are such precisely to give a reasonable leeway for the courts to decide on what is best under the circumstances. The people should repose their faith and trust in the intelligence and wisdom of those in whose hands lies the solemn duty to do what is right and just. 4.
p.;
.ì
ìf
lr
lilt:
i'r·!.i
~t'.,
~f"
THE 1987 CONSTITUTION MAY BE CHANGED
The 1987 can be changed either by amendment or rèvision. This is referred to as formai amendment. A change may also be affected when our courts of justice interpret ambiguously worded provisions of the Constitution to make it conform with realities. This being not in accordance with the formai process of amendment, as called for, it is understood that in so doing, the Supreme Court is merely modifying its interpretations of the ambiguously worded constitutional provisions involved and it does so in accordance with the principle that it has the last word in the construction of any law and even of the Constitution itself.
Q - Distinguish revision from amendment. A - Revision is the rewriting or overhauling of the entire instrument.
Amendment is a change or alteration for the better; an amendment or change within the lines of the originai instrument which will bring about improvement. · · Q - What are the steps required in the !'evision or amendment of the constitution?
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
INTRODUCTION TO LAW
172
A - There are two (2) steps required in the process of revision or amending the Constitution, namely: (l) ~?Eosal; (2) ~ation.
to the Constitution and should not extend to the revision of the entire Constitution, as it would be practically impossible for the voting public to review what have been revised which is more than an amendment but a rewriting or overhauling of the entire ,instrument.)
l. PROPOSAL - Proposal is the motion of initiating suggestions or proposals on amendment or revision, which may either by:
be
(a)
173
Q- What is People's Initiative?
Congress, upon a vote of three-fourths of ali its members; or
(b)
A Constitutional Convention; or
A- I t is a method whereby the people themselves can directly propose amendments to the Constitution.
(c)
The peoples through initiative. (Sections l and 2, Article XVII) .
tion?
Q- Who can propose amendments or revision ofthe ConstituA- Amendments or revisions may be proposed either by (l) Congress or (2) by the Constitutional Convention.
2. RATIFICATION - Ratification is the sovereign act vested in the Filipino people either to reject or approve the proposals to amend or revise the constitution. The ratificatory process is found and outlined in Section 4, Article XVII of the Constitution.
Q - If the proposal is made by Congress, what is the required vote?
Q - How may the constitution be revised?
A- Three-fourths of ali its members.
A - There are two (2) modes of revising the Constitution, to
Q - If the pro posai is made by a Constitutional Convention, what is the required vote?
wit: (a)
By the Congress, upon a vote of three-fourths of ali its Members; or
(b)
By a Constitutional Convention.
IfCongress chooses to cali a Constitutional Convention, it may either: (i)
(ii)
Cali a Constitutional Convention by a vote of two-thirds of ali its Members (Section 3, Article XVII); Submit to the electorate the question of calling such a body by a majority vote of ali its Members. (Ibid.)
A - The convention, once organized, is free to decide the vote required to carry a proposal.
·~
:~
il.
A - Amendment may be effected: By a Congress, upon a vote of three-fourths of ali its Members (Section 1[1], Article XVII); or
(b)
By a Constitutional Convention (Section 1[2], Article XVII);
(c)
By People's Initiative (Section 2, Article XVII). (This system of initiative should be limited only to amendments
1.
DUE PROCESS OF LAW
a.
Q - How may the Constitution be amended? (a)
DISCUSSION OF PART III THE BILL OF RIGHTS
,1:
~~
t1
DEFINITION AND PURPOSE
Through the years, severa! definitions have been written about due process of law. In Darmonth vs. Wordward (4 Wheat, 518 L. ed. 629 [1819]), it was defined as a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after a trial. In the old case of U.S. vs. Lin Su Fan (lO Philippines 104), due process was interpreted to mean: (l)
That there is a law prescribed in harmony with the generai powers of the legislative department of the Government;
174
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
INTRODUCTION TO LAW
(2)
That the law is reasonable in its operation;
(3)
That the law is enforced according to the regular methods of procedures prescribed;
(4)
That the law is applicable alike to all people of the State orto all of a class.
In the famous case of Aquino, Jr. vs. Military Commission (63 SCRA 546), the Supreme Court made a more articulate statement and definition of due process of law, thus: "Due process of law does not necessarily mean a judicial proceedings in the regular courts. The guarantee of due process, viewed in its procedura! aspect, requires no particular form of procedure. It implies due notice to the individuai of the proceedings, an opportunity to defend himself and the problem of the propriety of the deprivation, under the circumstances presented, must be resolved in manner consistent with the essential fairness. It means essentially a fair and impartial trial and reasonable opportunity for the preparation of the defense." The due process clause is a guaranty against any kind of abuse and arbitrariness, by anyone in any of the branches of government. More specifically, the purpose of the due process clause is: (l)
To prevent undue encroachment against the life, liberty an d property of individuals.
(2)
To secure the individuai from the arbitrary exercise of powers of government, unrestrained by the established principles of private rights and distributive justice.
(3)
To protect property from confiscation by legislative enactments from seizure, forfeiture, and destruction without a trial and conviction by the ordinary modes of judicial procedures.
b.
PERSON
In Roman Law, a person is one who is capable of exercising ownership and legai rights to incur and contract obligation. Under this concept, a slave is not considered a person, he being merely regarded as a chattel, a thing that can be sold or disposed of at the discretion of the master. Hence, a slave does not have the legai capacity to exercise ownership to incur and contract obligations.
175
Under the New Civil Code, a person may be natura! or a juridical person. A natura! person refers to a human being and a juridical person refers to any of the following: (l)
The State and its politica! subdivisions;
(2)
Other corporations, institutions and entities for public interest or purpose created by law; their personality begins as soon as they have been constituted according to the law;
(3)
Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member. (Article 44, New Civil Code)
Under our Constitution, natural and artificial persons are covered iind protected by the due process clause, except that with respect to artificial persons, the protection is only insofar as their property is concerned. (South Bell and Co. vs. Natividad, 40 Phil. 136) c.
LIFE
The right to life is not merely a right to the preservation of life itself but also to the security of the limbs and organs of the human body against any unlawful harm. This constitutional guarantee includes the rights of an individuai to pursue a lawful calling or occupation; to express, write or even paint his ideas for as long as he does not unlawfully transgress the rights of others; to exercise his freedom of choice, whether this is in the area of politics, religion, marriage, philosophy and employment, or even in the planning of his family, and in generai, to do and perform any lawful act or activity which, in his judgment, will make his life worth living. Under the new Constitution, the right to life may further be construed to mean and to include an "improved quality of life" (Section 9, Article II), "full respect for human rights" and the "dignity of every human person" (Section 11, Article Il), "just and dynamic social order" to ensure "the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all" (Section 9, Article 11), "the right to health" and "balanced and healthful
INTRODUCTION TO LAW
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
ecology in accord with rhythm and harmony of nature" (Sections 15 and 16, Article Il), the right to "socialjustice," (Section 10, Article Il) the "right of workers" and the promotion of their welfare" (Section 18, Article Il), and "equal access to opportunities for public service" (Section 26, Article 11).
of one's employment or profession (Century Textile Mills, !ne. vs. NLRC, 161 SCRA 528), the rights arising from a perfected mining daim, or a perfected homestead, or a final judgment, are protected and cannot be taken away from the owner without due process of law.
176
Ali these are declared principles and state policies the promotion and enforcement of which are guaranteed by the express provision of Artide II of the 1987 Constitution. In that sense, they could reasonably be daimed as part of the right to life, to hold otherwise would, in effect, render nugatory the very assurance and undertaking of the State to promote and guarantee the same to ali citizens alike, without discrimination. d.
LIBERTY
Liberty refers to something which is more than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose, and to act in such manner, not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness; to pursue such callings and avocations as may be most suitable to develop his capacities, and give to them their highest enjoyment, within the bounds of law. (Munn vs. Illinois, 94 U.S. 143) A person is free to do anything he wants provided he does not violate the law and the better rights of others. This freedom, however, should be construed as freedom to do right, and never wrong, according to Apolinario Mabini, hence, in exercising this freedom, one should be "guided by reason and the upright and honorable conscience of the individuai; commanding obedience to those rightfully placed in power and acknowledge as the most fit to guide." e.
f.
177
REQUIREMENTS OF DUE PROCESSATA GLANCE
The due process clause should be interpreted both as a substantive and as a procedura! guard. l.
~~
1),: ,'~ ~~
.. i
f:
J
~'~l
i'~
t
PROPERTY
SUBSTANTIVE
Substantive due process is a guarantee that life, liberty and property shall not be taken away from anyone without due process of law. Ifa law is invoked to take away one's liberty and property, the more specific concern of substantive due process is not to find out whether said law is being enforced in accordance with procedura! formalities but whether or not the said law is a proper exercise of legislative power. This will necessarily require the following. There must be a valid law upon which it is based: (a)
The law must have been passed or approved to accomplish a valid governmental objective.
(b)
The objective must be pursued in a lawful manner.
(c)
The law as well as the means to accomplish the objective must be valid and not oppressive.
2.
PROCEDURAL
Procedura! due process refers to the regular methods of procedure to be observed before one's life, liberty or property can be taken away from him. Simply stated, it means that the procedure to be observed must be fair. Procedura! due process therefore is a guarantee to obtain a fair trial in a court of justice according to the mode of proceeding applicable to each case. Now, this indudes not only any court of justice but also any and ali administrative boards, bodies or tribunals.
Property refers to things which are susceptible of appropriation, and which are already possessed and found in the possession of man. (Castan, 8th ed., Part II, pp. 367-369) It could either be immovable or real property, as enumerated in Artide 415 of the Civil Code, or movable or personal property, as enumerated in Artides 416 and 417 of the Civil Code. Ali those properties, induding the right to own and possess the same, as well as the right to acquire, or use it for any lawful purpose and by any lawful means, the right to earn a living, the right to the fruits
THE TWO (2) ASPECTS OF PROCEDURAL DUE PROCESS ARE THE FOLLOWING: l) fl'
PROCEDURAL DUE PROCESS IN ADMINISTRATIVE PROCEEDINGS
INTRODUCTION TO LAW
178
2)
PROCEDURAL DUE PROCESS IN JUDICIAL PROCEEDINGS
The requirements of due process in judicial proceedings, as laid down in Banco Filipino vs. Palanca (37 Phil. 921) are as follows: l.
There must be an impartial court or tribunal clothed with judicial power to hear and determine the matter before i t;
2.
Jurisdiction must be lawfully acquired over the person of the defendant and over the property which is subject matter of the proceeding;
3.
The defendant must be given an opportunity to be heard; and
4.
Judgment must be rendered upon lawful hearing.
PROCEDURAL DUE PROCESS IN ADMINISTRATIVE PROCEEDINGS
The requirements of due process in administrative proceedings, as laid down in Ang Tibay· vs. Court of Industriai Relations (69 Phil. 635), are as follows. l.
The right to a hearing, which includes the right to present one's case and submit evidence in support thereof;
2.
The tribunal must consider the evidence presented;
3.
The decision must have something to support itself;
4.
The evidence must be substantial;
5.
The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected;
6.
7.
The tribunal or body or any of its judges must act on its own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision; and The board or body should, in all controversia! questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered.
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
179
SEARCH ANO SEIZURE
There are actually three (3) rights mentioned in Section 2, Artide III of the Constitution thus: l. One is the right of the people to be secure in their persons. houses. papers. and effects against unreasonable searches and seizures of whatever nature and for any purposes. The right is "inviolable."
2. No search warrant shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complaint and the witnesses he may produce, and particularly describing the piace to be searched and the persons or things to be seized.
No warrant of arrest shall issue except upon 3. probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Compressed in the second sentence of Section 2 which says, "and no search warrant or warrant of arrest shall issue except upon probable cause xxx.''} PRIVACY OF COMMUNICATION ANDCORRESPONDENCE RULE ANO EXCEPTIONS GENERAL RULE:
The privacy of communication and correspondence shall be inviolable. EXCEPTIONS:
(l)
Except upon lawful order of the court; or
(2)
When public safety or order requires otherwise as prescribed by law.
COVERAGE OF THE GUARANTEE
The constitutional protection to privacy or communication and correspondence includes tangible or intangible objects.
180
INTRODUCTION TO LAW
EXAMPLE: l.
2.
Tangible objects - Letters, telegrams, signals, cables, telephone, client's file and other documents. Intangible objects- Under Republic Act No. 4200, it is illegal for any person, not authorized by ali the parties to any private communication by means of tape recorder. (People vs. Sy Juco, 64 Phil. 667) FREEDOM OF SPEECH AND OF THE PRESS
MI:ANING OF FREEOOM OF SPEECH ANO OF THE PRESS
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
181
2.
The right of peaceful picketing. (Cafeteria Employees Union vs. Angeles, 64 Suppt. Crt. 126)
3.
The right to a lawful strike.
4.
The right to disseminate information concerning the facts of a labor dispute.
5.
Expression by means of radio, television, and motion picture.
6.
The right to express grievances against the government; to criticize the affairs of government.
7.
The right to display posters, notices, flags and banners.
Freedom of speech and that of the press implies, the right to freely utter and publish whatever the citizen may please, and to be protected from any responsibility for so doing, except so far as such publication, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation or pecuniary interests of individuals. (Cooley's Const. Limitations, 8th ed., 886; U.8. vs. Sotto, 38 Phil. 666)
WHAT IS INCLUOEO IN THE TERM "PRESS"
WHAT ARE INCLUOEO IN THE FREEOOM OF EXPRI:SSION?
In broad sense, religion includes any form of belief in regard to the relation of human beings to some supernatural powers, or as defined in Aglipay vs. Ruiz (64 Phil. 201), it is a "profession of faith to an active pÒwer that binds and elevates man to his creator." Persons holding the same religious beliefs are generally associated in groups which may or may not be organized as corporations.
It includes the following:
2.
Free speech and free press Freedom of assembly
3.
Freedom of petition
4.
Freedom of religion
5. 6.
Right of association or right to form associations Right to religious freedom
l.
WHAT ARE INCLUOEO IN THE TERMS "SPEECH" ANO "EXPRESSION"
The terms include the following: l.
The right to freely utter, print and publish any statement without previous censorship of the government. (U.S. vs. Sotto, 38 Phil. 666)
They include newspapers, magazines, journals, books and any sort of publication. FREEDOM OF RELIGION RELIGION OEFINEO
In a more specific or restricted sense, religion is a system of belief, or worship, or philosophy not necessarily in the existence of God, or power of a more superior being, but in a philosophy or way of life detached from any reverence or obedience to God. There are those who pray in any piace of their choice for they believe that the tempie of God is not necessarily the altar we know with ali images of saints, but a piace where they could meditate and talk to their own God without the intercession of any priest or pastor. In ali these instances, their faith and way of life, is their religion which the Constitution guarantees to be inviolable. The reason for this is because the Constitution guarantees the freedom
182
INTRODUCTION TO LAW
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
to believe, this is being absolute. What is regulated and subject to the police power of the State is when that belief is translated into action and the acts or acts performed is harmful to the better rights of others.
It is in the pursuit or exercise of this right that the people are granted the right to know and to be informed "on matters of public concern."
LIBERTY OF ABODE AND TRAVEL
l t is through the exercise of this right that those in govemment are on their toes, so to speak, for they are awar~ that the vigilant public, assisted by broadcast and print media, are all.there watching them, particularly the performance oftheir functions and responsibilities.
MEANING OF LIBERTY OF ABOOE ANO TRAVEL
It is the right of a person to have his home or to maintain or change his home, dwelling, residence or habitation in whatever piace he has chosen, within the limits prescribed by law (First Sentence, Section 6), and to go where he pleases without interference from anyone, except in the interest of national security, public safety, or public health, as may be provided by law. (Second Sentence, Section 6) The exceptions aforementioned means that the liberty of abode and travel is subject to the police power of the State. RIGHT TO INFORMATION TWO RIGHTS GUARANTEEO BY SECTION 7
The two rights guaranteed by Section 7 are (l) the right to information on matters of public concern (First Sentence, Section 7); and (2) the right to access to official records, and to documents, and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development. RATIONALE OF SECTION 7
The strength of a democratic and republican government, such as ours, depends on the active support and cooperation of the sovereign people who choose and elect the officers who will represent them. Just as they are the ones upon whose hands lie the sovereign will and authority to put them from there; they are undoubtedly entitled to know, a t the very least, if they are served or not served weli; if the government entrusted to their care is properly managed or not; if the funds and properties which the people own are properly kept and spent.
183
They know that sooner or later, they will be exposed to the fulllight ofpublic scrutiny. (Valmonte vs. Belmonte, Jr., 170 SCRA 256 [1989]). They will be more cautious and careful, and more than this, transparent in their dealings and transactions. SCOPE OF THE RIGHT
The right to information includes the right to be informed "matters ofpublic concern." This, in turn, includes access "to offi.cial records and documents and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development." LIMITATIONS ON THE RIGHT TO INFORMATION MATTERS OF PUBLIC CONCERN ANO ON THE COROLLARY RIGHT TO ACCESS TO OFFICIAL RECOROS
Said rights are "subject to such limitations as may be provided by law." The limitations referred to may either be a limitation imposed by statutory law, or by any regulation which a particular office may impose to maintain order and efficiency or to insure the safety of the records in its custody. Among the many government offices whose records are usually inspected, examined or copied, are the records, of the Securities and Exchange Commission, Registry of Deeds, Courts in alllevels, Land Registration Authority, N ational Bureau of Investigation, N ational Intelligence Administration, N ational Labor Commission and other quasi-judicial offices, Social Security System, Government Service Insurance System, Department of Labor and Employment, Bureau of Domestic 'l'rade, Department of Foreign Affairs and their auxiliary offices, and the N ational Archives, among others. From day to day, thousands of people go to these offices for such purposes.
184
INTRODUCTION TO LAW
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
Access to officiai records of sdd offices and other government offices for that matter is guaranteed by Section 7, but it reserves the right to impose reguiations which are necessary preciseiy to protect the safety of the documents in their possession. With the advent of computer and modern technoiogy, for instance, the records in the Securities and Exchange Commission, or that of the Land Registration Authority, are now in microfiims and researchers are now required to pay some fees to have copies, upon proper appiication.
2.
Even without the said constitutionai provision, the right of associatiòn is part and parcei of the freedom of expression and assembly, and like the latter, it is · subject to limitations imposed by Iaw and to the dominant police power of the state. PROBLEM:
Another controi and reguiation which the government may impose happens when there is an imperative need to preserve confidentiality, or to protect nationai security. In such cases, the higher interest of the State, or of the government, is a t stake and may not be prejudiced oniy or the benefit of convenience of orte or a few persons.
1.
CAN THE LAWYER'S NAME IN THE ROLL OF ATTORNEYS BE CANCELLEO FOR HIS FAILURE TO PAY HIS MEMBERSHIP DUES IN THE INTEGRATEO BAR OF THE PHILIPPINES? ·r:
,{
RIGHT OF ASSOCIATION UNOER THE 1987 CONSTITUTION ANO UNOER THE 1935 ANO 1973 CONSTITUTIONS
1935 CONSTITUTION Article III, Section 1(6)
1973 CONSTITUTION Article IV, Section 7
1987 CONSTITUTION Article III, Section 8
"T h e right t o form. association or societies for purposes not contrary to law shall not be abridged."
"The right to form association or societies for purposes not contrary to law shall not be abridged."
"The right of the people, including those employed in the public or private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged."
WHAT IS THE OIFFERENCE?
Ali the said provisions guarantee the right to form associations or societies for purposes not contrary to Iaw. Section 8, Artide III of the present Constitution, however, mereiy maj{es an emphasis (l) that the right of association is a "right of the people, including those empioyed in the public and private sectors; and (2) that the said right now includes to form unions." ·
In other words, controis and system are in piace not to prohibit access, but to reguiate access. Without these, the safety of the documents will not be assured and it will be more inconvenient to the peopie who seek access to officiai records.
RIGHT OF ASSOCIATION
185
~ :~~ ·ili 'h'
'
f!· '~-·!
ì !:
~
Bar integration does not compei a Iawyer to associate with anyone. l t is his choice to attend or not to attend meetings of the Integrated Bar, to vote or not to vote in the eiection of officers of the Integrated Bar of the Philippines. The only compulsion to which a lawyer is subjected to is the payment of the annual dues. Even on the assumption that Integrated Bar compeis a Iawyer to pay his annuai dues, this is justified as a valid exercise of the police power of the state. Admission to the practice of Iaw is not a right but a priviiege. (In re Marcia[ Edillion, 84 SCRA 554) TAKING OF PRIVATE PROPERTY FOR PUBLIC USE Private property can be taken from its owner but subject to the following conditions: l.
That the private property is taken for public use.
2.
That the owner of the said property shouid be paid just compensation.
186
3.
POLITICAL LAW AND THE CONSTI'l'UTION OF THE REPUBLIC OF THE PHILIPPINES
INTRODUCTION TO LAW
3.
That due process of law shall be observed in the taking of the said property.
4.
That the taking shall only be exercised by the State or by those to whom the power bas been lawfully delegated.
1.
Under this provision, the contracting parties are free to enter into any kind of contract they choose and they are likewise free to "establish such stipulations, clauses, terms and conditions as they may deem convenient." This right, however, is not absolute. It is subject to the limitation that the said stipulations, clauses, terms and conditions "are not contrary to law, morals, good customs, public order, or public policy."
Just compensation - It is a fair and full equivalent of the loss sustained. It is the market value to which must be added the consequential damages, if any, or from which must be deducted his consequential benefit, if any. (Manila Railway. Co. vs. Fabie, 17 Phil. 207; Manila Railway Co. vs. Ve{asquez, 32 Phil; 286) · ·
Due process of law - It is a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. (Darmouth vs. Wood Mart, 4 Wheat, 518 L. ed. 629) PROHIBITION AGAINST IMPAIRMENT OF OBLIGATION OF CONTRACTS
B.
'il
~
f
t:
Article 1311, New Civil Code
Article 1311. Contracts take effect only between. the parties, their assigns and heirs, except in case . where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent. lf a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a third person. (1257a) GENERAL RULE: Contracts take effect only between the parties and their heirs. EXCEPTION: Except in case where the rights and obligations arising from contract are not transmissible by their nature or by its stipulation or by provision of law. C.
To have a clearer understanding of Section 10, a law student should know the following basic principles about contracts.
Article 1306, New Civil Code
Article 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.
Public use - Public use is synonymous with public benefit, public utility, or public advantage, and to authorize the exercise of the power of eminent domain to promote such public benefit, etc., especially where the interest involved are of considerable magnitude. (Guido vs. Rural Progress Administration, 84 Phil. 847)
Fair Market value - It is the price at which a willing seller would sell and a willing buyer would buy, neither being under normal pressure. (Manila Railroad Co. vs. Caligsihan, 40 Phil. 326; Municipality of Bustos vs. Santos, C.A.-G.R. No. 22547-R, June 29, 1962)
WHAT 15 PROHIBITED? A.
TERMS USED
Republic Act No. 7160, otherwise known as the Local Government Code, provides that the amount to be paid for the expropriated property shall be determined by the proper court based on the fair market value at the time of the taking of the property. The value determined by the assessor may, however, be contested in court.
187
The freedom of contract is both a constitutional and statutory right.
To uphold this right, the courts should move with the necessary
188
189
INTRODUCTION TO LAW
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
caution and prudence in holding contracts void. (People vs. Pomar, 46 Phil. 440; Ferrazini vs. Gsell, 34 Phil. 697)
At a time when the costs of living have become so expensive, it has become so difficult for the poor to afford even the basic necessities of life. Food, shelter, clothing and education, for instance, are no longer sufficiently enjoyed by many people both in the city and in the countryside. With more reason therefore that a greater number of people find it more difficult to sustain 'costs of medicines, hospitalization and doctor's fees, as well as costs of a court .suit and attorney's fees.
D.
Obligations arising from contracts
"Article 1159. Obligations arising from contracts have the· force of law between the contracting parties and should be complied within good faith." 2.
POINT5 TO REMEMBER:
A.
PARTIES HAVE NO VESTED RIGHT IN PARTICULAR REMEDIES OR MODES OF PROCEDURE.
Reason: Particular remedies and modes of procedure is an exercise of the police power of the state. Besides, it is within the power of the legislature to enact laws which will provide particular remedies or modes of procedure if they are in its judgment necessary under the circumstances. EXAMPLE:
Passage of a law providing for the suspension or post-ponement in the payment of obligation. The moratorium, however, should not be an unreasonable length of time, otherwise, i t is an infringement of the provision against the infringement of contract.
The burden of prosecuting or defending a cause of action, whether in a civil, criminal labor or administrative proceedings, have discouraged many citizens to go into litigation. Some who have tried to litigate have been disappointed either because the same has become tedious, prolonged and expensive, or because they have not obtained justice. To compound these problema, some officers and employees of government are not serving poor litigants with vigilance, courtesy, efficiency and dedication. Ali these add to the pain and burden of those who are precisely suffering from poverty. This is a collective primary responsibility of alllawyers, judges, prosecutors, legislators, and executives in government including all its employees. They should do everything possible to make their good influence felt by those in the lower echelons of government, particularly those employed in the judiciary. They should be reminded of the following:
''A HUNGRY MAN KNOWS NO LAW EXCEPT THE LAW OF SURVIVAL. A PERSON WHO IS OPPRESSED AND A VICTIM OF INJUSTICE FORGETS THE LAW. HE TAKES THE LAW IN HIS HANDS. AN OPPRESSED HUNGRY MAN SUFFERS MORE. HE IS LIABLE TO RUN AMOCK. HE LOST HIS LAST HOPE."
FREE ACCESS TO COURTS AND QUASI-JUDICIAL BODIES AND ADEQUATE LEGAL ASSISTANCE 1.
5ECTION 11 15 A COLLECTIVE PRIMARY RE5PON51BILITY OF ALL LAWYER5,. JUDGE5, PR05ECUTOR5, LEGI5LATOR5 ANO EXECUTIVE5 IN THE GOVERNMENT INCLUDING ALL IT5 EMPLOYEE5
This is one guarantee in the Bill of Rights which should better be implemented and complied with by everyone having to do in the administration of justice, by every employee in the judièial and quasi-judicial agencies of our government, and by all lawyers who are handling cases, either as counsel for the plaintiff or for the defense.
2.
WHO 15 AN INDIGENT PARTY?
An indigent party is one who is authorized by the court to prosecute his action or defense as an indigent upon an ex parte application and hearing showing that he has no money or property sufficient and available for food, shelter and basic necessities for himself and his family. (Section 21, Rule 3 of 1997 Rules of Civil Procedure)
190
3.
INTRODUCTION TO LAW
-~
INDIGENT DISTINGUISHED FROM A PAUPER
A pauper is a person so poor that he must be supported at public's expense. (Philippine Legal Encyclopedia, by Jose Agaton R. Sibal) The Supreme Court, however, gave a broader meaning to this word, as applied to statutes or provisions on the right to sue. An applicant for leave to sue in forma pauperis need not to be a pauper, the fact that he is able-bodied and may earn the necessary money is no answer to his statement that he has no sufficient means to prosecute the action or to secure the costs. (lbid.) As distinguished from indigent. The difference between "paupers" and "indigent" persons is that the latter are persons who have no property or source of income sufficient for their support aside from their own labor, though self-supporting when able to work and in employment. (lbid.) RIGHT TO REMAIN SILENT AND TO HAVE COMPETENTANDINDEPENDENTCOUNSEL EXPLANATION OF EACH RIGHT
A.
191
must also explain the effects in practical terms. (People vs. Rojas, 147 SCRA 169[1987]) The police investigator should explain a meaningful information rather than just a ceremonial and perfunctory recitation of an abstract constitutional principle. (lbid~) RIGHT TO BAIL 1.
SIMPLIFICATION OF SECTION 13
GENERAL RULE: Before conviction, ali persons shali be available by sufficient sureties. Before conviction, ali persons shall be released on recognizance as may be provided by law. EXCEPTION: The said rule shali not apply to those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong.
RIGHT TO REMAIN SILENT
A person under investigation has the right to refuse to answer any question. More than this, his silence may not be used against him. (People vs. Alegre and Gordoncillo, 94 SCRA 109, 118 [Nov. 7, 1979]) B.
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
RIGHT TO COUNSEL
The right of a person under investigation is to have "competent and independent counsel preferably by his own choice."
2.
RATIONALE OF THE RIGHT TO BAIL
An accused is presumed innocent until his guilt is proven beyond reasonable doubt by final judgment. The right to bail gives the accused not only an opportunity to obtain provisional liberty but also the chance to prepare for trial while continuing his usual work or employment. The bail posted by the accused for his provisionalliberty is, in effect, an assurance that the accused will attend the court proceedings, particularly when his presence is required.
The purpose of the right to counsel during custodia! investigation is to preclude the slightest coercion as would lead the accused to admit something else. (People vs. Eranoria, 209 SCRA 577, June 8, 1992; People vs. Remollo, 227 SCRA 375, October 22, 1993)
In short, the purpose of the bail is to relieve the accused from imprisonment until his conviction, and at the same time his appearance at the trial is secured. (Almeda vs. Villaluz, 66 SCRA 38 [1975])
C.
3.
RIGHT TO BE INFORMED OF ONE'S RIGHT
It is not enough that a police officer will just repeat to the person under investigation the provisions of the Constitution. He
BAIL DEFINED
Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his
,~ ~
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
INTRODUCTION TO LAW
192
appearance before any court as required under the conditions hereinafter specified. (Section 1, Rule 114, New Rules of Court) Bail may be given in the form of corporate surety, property bond, cash or deposit or recognizance. (lbid.) 4.
KINDS OR FORMS OF BAIL
A. BAIL BOND -An obligation given by the accused with one or more sureties, with the condition to be avoided upon the performance by the accused of such acts as he may legally be required to perform. (Villasemor vs. Abana, 21 SCRA 312) ·•..
It may be given in the form of: l.
Corporate Surety (Section 10, Rule 114, Rules of Court)
2.
Property Bond (Section 11, Rule 114, Rules of Court)
3.
Cash Deposit (Section 14, Rule 114, New Rules o{Court)
4.
Recognizance (Section 15, Rule 114, New Rules of Court)
B. RECOGNIZANCE - It is a bond or similar obligation made and recorded before a court by which a person binds himself to perform some act or fulfill some condition at a specified time. (Philippine Legal Encyclopedia, p. 837, by Jose Agaton R. Sibal)
l.
The accused shall be presumed innocent until the contrary is proved.
2.
The accused shall enjoy the right to be heard by himself and counsel.
3.
To be informed of the nature and value of accusation against him.
4.
To have speedy, impartial and public trial.
5.
To meet the witnesses face to face.
To have compulsory process.
7.
To secure the attendance of witnesses and the production of evidence in his behalf.
HABEAS CORPUS 1.
WHAT IS A WRIT OF HABEAS CORPUS?
It is a writ of order directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and piace, with the day and the cause of his detention, to do, submit to, and receive whatsoever the court ofjudge awarding the writ shali consider in that behalf. · · It is a special proceeding the applicability of which is defined by Section l, Rule 102 ofthe Revised Rules ofCourt in the following manner:
"Section 1. 1b what habeas corpus extends. - Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld (rom the person entitled thereto."
SIMPLIFICATION
Section 14, paragraph l, speaks of due process in criminal cases or proceedings. Section 14, paragraph 2, specifies the rights of the accused in ali criminal prosecutions namely:
6.
However, after arraignment, trial may proceed notwith· standing the absence of the accused. PROVIDED (l) that he has been duly notified and (2) that his failure to appear is unjustifiable.
DUE PROCESS IN CRIMINAL PROCEEDINGS 1.
193
2.
APPLICABILITY OF THE WRIT OF HABEAS CORPUS
The above-quoted provision of the Rules of Court states that a writ of habeas corpus may be availed of in "ali cases of illegal confinement or detention by which any person is deprived of bis liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." ·
v-l•
194
·v
INTRODUCTION TO LAW
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
RIGHT AGAINST SELF-INCRIMINATION
SPEEDY DISPOSITION OF CASES BEFORE ALL JUDICIAL, QUASI-JUDICIAL OR ADMINISTRATIVE BODIES 1.
1.
IS THERE A OIFFERENCE BETWEEN THE RIGHT TO SPEEOY TRIAL, AS GUARANTEEO IN SECTION 14(2), ARTICLE 111, ANO SPEEOY OISPOSITION OF CASES, AS GUARANTEEO IN SECTION 16?
There is a difference. The right to speedy trial particularly refer to criminal prosecutions which are at the trial stage, while the right to speedy disposition of cases applies to all cases before judicial, quasi-judicial or administrative bodies.
i_,
SPEEDY DISPOSITION OF CASES
l. The right to speedy trial is l. The right to speedy dispowhat provided under Artide sition of cases is provided IV, Section 14(2), of the 1935 under Artide IV, Section 16, of the 1973 Constitution, and Constitution. now found likewise in Artide III, Section 16, of the 1987 Constitution.
The right against self-incrimination ìs a mandatory and substantive right established on broad grounds of public policy and humanity. Policy because it would place the witness against the strongest temptation to commit perjury, of humanity because it would be to extort a confession of truth by a kind of duress every specie and degree of which the laws abhor. (Chavez vs. Court of Appeals, 24 SCRA 663)
·:i•'
,,ifi
~ :!
f
rl':.~ '
No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him (Section 12[2}, Article III, 1987 Constitution) and "any confession or admission obtairied in violation of this or Section 17 hereof shull be inadmissible in evidence against him." (Section 12[3], Article III, 1987 Constitution)
~~ ,:
2.
----
··----
-----
------
-
-
---
···--
----
PURPOSE OF THE PRIVILEGE
The basic purposes of the right against self-incrimination are as follows:
2. The right to speedy trial 2. It covers all phases of the pertains only to criminal proceedings, whether judiprosecutions which are at the cial, quasi-judicial or admitrial stage. nistrative. This right is therefore broader than speedy trial and applies to civil, criminal and administrative cases. L__----
RATIONALE OF SECTION 17
In fact, Artide III, Section 12(1) guarantees that "any person under investigation for the commission of an offense shall have the right to be informed of his right TO REMAIN SILENT."
More specifically, here are the differences: SPEEDY TRIAL
195
l.
For humanitarian reasons to prevent a witness or accused from being coerced, whether physically, morally ami/or psychologically into incriminating himself, and
2.
To protect the witness or accused from committing perjury, because the first law of nature is self-incrimination. (Galman vs. Pumaran, 138 SCRA 294)
-------~--
SIMILARITY
Both rights are beyond quantification, as they cannot be measured in terms of days, months or even years. Both rights are given a relative concept consistent with reasonable delays considering the circumstances in each case. (Martin vs. Ver, 123 SCRA 745)
3.
APPLICABILITY OF SAIO RIGHT
The right is available not only in criminal prosecutions but; also in other proceedings, whether they are civil, administrative or legislative investigations. (lbid.) In fact, said right may be claimed not only by a person accused of an offense but also by any witness who is asked an incriminating question.
INTRODUCTION TO LAW
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
FREEDOM OF POLITICAL BELIEF AND FREEDOM AGAINST INVOLUNTARY SERVITUDE
to their property on the occupation on which they may be engaged. (Villanueva vs. City of Iloilo, 26 SCRA 578)
196
1.
WHAT IS INVOLUNTARY SERVITUDE?
It is a condition where one is forced to work for another against his will and whether he is paid or not. 2.
WHEN IS INVOLUNTARY SERVITUDE PERMISSIBLE?
It is permissible when the following conditions exists: l.
lf it is a punishment for a crime whereof the party shall have been duly convicted. (Section 18[2])
2.
If it is so required to defend the State. (Section 4, Article Il)
3.
If it so needed under the principle of posse comitatus. (U.S. vs. Pompaya, 31 Phil. 245) RIGHT AGAINST EXCESSIVE FINES, DEGRADING OR INHUMAN PUNISHMENT
1.
WHEN IS FINE CONSIDERED EXCESSIVE?
A fine is considered excessive where it is clearly shown that the nature of the violation compared with the fine is disproportionate, or if it exceeds the utmost limit of the punishment which the vindication of the law demands. (U.S. vs. Valera, 26 Phil. 598) Punishment is cruel if i t is flagrantly and plainly oppressive, wholly disproportionate to the nature of the offense as to shock the moral sense of the community (People vs. Etista, 93 Phil. 647), or when it involves torture or lingering death. (People vs. Puda, 133 SCRA l) RIGHT AGAINST IMPRISONMENT FOR DEBT OR NON-PAYMENT OF A POLL TAX 1.
WHAT IS A POLL TAX?
It is a tax of fixed amount upon ali persons or upon persons of certain class, resident within a specific territory, without regard
197
DOUBLE JEOPARDY 1.
MEANING OF DOUBLE JEOPARDY
When an accused is either acquitted, or convicted, or the case against him is dismissed or otherwise terminated without his express consent, by a court of competent jurisdiction, upon a complaint on information or when formai charge sufficient in form and substance to sustain a conviction and after the accused has pleaded to the charge, THE CONVICTION ON ACQUITTAL OF THE ACCUSED ON THE DISMISSAL OF THE CASE SHALL BE A BAR TO ANOTHER PROSECUTION FOR THE SAME OFFENSE. After the said conviction, acquittal or dismissal, and the said elements being present, double jeopardy can be invoked to defeat a second prosecution for the same offense. (Section 21, Article III, in relation to Rule 117, Section 7, New Rules of Court) 2.
WHAT ARE THE REQUISITES TO CONSTITUTE DOUBLE JEOPARDY?
In order that an accused may not be subjected to another trial and punishment for the same offense, the following requisites must be complied with, to wit: l.
There must be a valid complaint or information;
2.
Said complaint or information must be filed in court of a competent jurisdiction;
3.
The accused has pleaded guilty to the charge; and
4.
The accused has been acquitted or the case dismissed or terminated without his express consent. (People VH. Vergara, 41 SCAD 13, 221 SCRA 560; People vs. Navallo, 234 SCRA 175)
198
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
INTRODUCTION TO LAW
RIGHT AGAINST EX POST FACTO LAW AND BILL OF ATTAINDER
3.
199
SCOPE ANO APPLICABILITY OF THE PROHIBITION AGAINST EX POST FACTO LAW
The prohibition applies only to: 1.
MEANING OF EX POST FACTO LAW:
l.
Criminal legislation which affects the substantial right to the accused (Tolentino vs. Angeles, 99 Phil. 309, 318; Santos vs. Secretary of Public Works and Commissiona, C-16049, March 18, 1967);
2.
Criminal procedural law prejudicial to the accused.
In Latin, ex post facto law means "From something done afterwards." It is any law which makes an innocent act a crime after the act was commit.ted. The Supreme Court. made a comprehensive meaning of an ex post facto law, thus: It is one which l.
2.
Aggravates a crime, or makes it greater than it was, when committed;
3.
Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed;
4.
Alters the legai rules of evidence, and authorizes conviction upon less or different testimony than the law required a t the time of the commission of the offense;
5.
6.
2.
Makes criminal an act before the passage ofthe law and which was innocent when done, and punishes such an act;
4.
It is ~ac.t which inflicts punishment without judicial trial. (Cunning vs. Missouri, 4 Wall. 277, 323; 18 L. ed., 356-363; People vs. Carlos, 78 Phil. 535, June 30, 1947; People vs. Terrer, 48 SCRA 382 and 397, Dee. 27, 1972) 5.
Assuming to regulate civil rights and remedies not only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (Philippine Legal Encyclopedia by Jose A.gaton R. Sibal, p. 3.l1, citing In re Kay Villegas Kami, Inc., 35 SCRA 429)
2.
That it is retroactive in its operation;
3.
That it alters the situation for the accused party to his disadvantage (Cooley's Const. Law, 8th ed., 542);
4.
lts enforcement is prejudicial to the accused.
l.
They are convictions and sentences pronounced by the legislative department, instead of the judicial department;
2.
The sentence pronounced and the punishment inflicted are determined by no previous law or fixed rule; and
3.
The investigation into the guilt of the accused, if any such were made, was not necessarily or generally conducted in his presence or that of his counsel, and no recognized rule of evidence governed the inquiry. (Ex Parte Garland, 4 Wall. 388, 18 L. ed. 366)
THE FUNOAMENTAL ANO INHERENT POWERS OF THE STATE
The characteristics of an ex post facto law are the following: That it relates to criminal matters;
CHARACTERISTICS OF BILL OF ATTAINOER ANO BILL OF PAINS ANO PENALTIES
PART IV
CHARACTERISTICS OF AN EX POST FACTO LAW
l.
WHAT IS A BILL OF ATTAINOER?
1.
WHAT ARE THE FUNOAMENTAL ANO INHERENT POWERS OF THE STATE?
They are the following: (l) police power; (2) power of eminent domain; and (3) power of taxation.
INTRODUCTION TO LAW
200
2.
f:XPLANATION OF EACH POWER
A.
POLICE POWER
It is the sovereign power to promote and protect the generai weifare. It is the "most pervasive and the Ieast limitabie of the three powers of the State (Ynot vs. Intermediate Court of Appeals, 148 SCRA 659), the most essentiai, consistent and illimitabie which enabies the State to prohibit ali hurtfui things to the comfort, safety and weifare of society." (Lozarro vs. Martinez, 146 SCRA 323) If is aiso referred to as the law of overwhelming necessity. B.
POWER OF EMINENT DOMAIN
It is an inherent power of the State that enabies it to forcibiy acquire private property, which is intended for public use, upon the payment of just compensation to the owner.
C.
POWER OF TAXATION
It is the inherent power of the State to raise revenues to defray the expenses of government or for any public purpose. This can be done through the imposition of burdens or imposition on persona, properties, services, occupations or transactions. 3.
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
SIMILARITIES OF THE THREE INHERENT POWERS OF THE STATE
CODE: I - I - I - E-L
4. )
'
l
201.
THE THREE POWERS DIFFER IN THE FOLLOWING
CODE: N- P - E - R N - ature (As to nature of compensation) P-
roperty (As to nature of property)
E - xercise of power (As to how the power is exercised) R - eguiated (As to w ha,' is regulated) AS TO NATURE OF COMPENSATION
In Police Power - The compensation of the person subjected to police power is the intangibie aitruistic feeling that he has contributed to the generai weifare. In Eminent Domain and Taxation compensation of the property taken.
There is full and just
In Taxation- There is corresponding protection and pubiic improvement for the taxes paid. AS TO NATURE OF PROPERTY
In Police Power - Police power invoives destruction and confiscation of property which are noxious. In Eminent Domain and Taxation for pubiic use.
The property taken is
AS TO HOW THE POWER IS EXERCISED
I -
nterference (They are the three methods by which the State interferes with private rights).
I -
nherent (They are inherent in the State and they may be exercised by the State without the need of express constitutional grant)
Eminent Domain upon valid deiegation.
I-
ndispensabie and indestructibie (They are not only necessary but also indispensable and indestructible as the State itself)
AS TO WHAT IS REGULATED
Police Power and Taxation - They are inherentiy exercisabie oniy by the government. It may be exercised by private entities
In Police Power - It regulates Iiberty and property.
E - quivaient compensation (They presuppose equivalent compensation)
In Eminent Domain and Taxation private rights oniy.
L - egisiative in character (They are exercised primarily by the legislative)
Bail is the security given for the reiease of a person in custody of the Iaw, furnished by him or a bondsman, conditioned upon his
They are addressed to
T
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
INTRODUCTION TO LAW
202
Q - What is treason?
appearance before any court as required under the conditions hereinafter specified. (Section l, Rule 114, Rules of Court) f
Bail may be given in the form of corporate surety, property bond, cash deposit or recognizance. (lbid.) PARTV BRIEF DISCUSSION OF IMPEACHMENT
Q - What is impeachment? A - It is ,.a m!;lthod of national inquest into the conduct of public men. It is also referred to as an extraordinary process of removal exercised by the legislature over a selected member of officials. Q - Who are the impeachable officials under the 1987 Constitution? A - l.
President;
2.
Vice-President;
3.
Members of Supreme Court;
4.
Members of Constitutional Commissiona. (Section 2, Article II, 1987 Constitution)
203
l i
A - It is a crime committed by any person who, owing allegiance to the government of the Philippines, levies war against it or adheres to its enemies, giving them aid and comfort. (Article 114, Revised Penal Code) ' Q - What is bribery? A - lt is a crime committed by any public officer who shall agree to perform an act, whether or not constituting a crime, or refrain from doing an act which he is officially required to do in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by him personally or through the mediation of another, or who shall accept gifts offered to him by reason of his office. (Articles 210-211, Ibid.)
Q - What are other high crimes? A - They refer to those offenses which "like treason and bribery, are of so serious and enormous a nature as to strike at the very life or the orderly workings of the government." According to Justice lsagani Cruz, rape and murder, although as serious as treason and bribery, may be probably excluded from the definition.
Q - What are the grounds for impeachment?
Q - What is graft and corruption?
A- The grounds for impeachment are:
A-
l.
Culpable violation of the Constitution;
2.
Treason;
Th~y are enumerated in the Anti-Graft and Corrupt Practices Act, which was in force at the time of the adoption of the Constitution. Section 3 of the Republic Act No. 3019, as amended, provides as follows:
3.
Graft and Corruption;
a)
4.
Other high crimes, or betrayal of public trust.
An act of persuading, inducing, or influencing another public officer or tolerates such acts which are tantamount to the violation of the rules and regulations of a competent authority or on those susceptible to the latter's official duties.
b)
Directly or indirectly requests or accepts gift or any other form which benefits himself or another person in connection with any transaction or contract between the Government and the other party within which he may legally intervene.
Q - What is culpable violation of the Constitution? A - It is defined as wrongful, intentional or willful disregard of the fundamental law. The act must be deliberate and motivated by bad faith to constitute a ground for impeachment. Hence, a mere mistake in the proper construction of the Constitution cannot be considered a valid ground for impeachment.
204
INTRODUCTION TO LAW
c)
d)
e)
f)
g)
h)
i)
Directly or indirectly requesting or receiving any gift, present or other pecuniary or materia! benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act.
~ l Jl!
~'JIT
Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him or for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest of giving undue advantage in favor of or discriminating against any other interested party. Entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. Directly or indirectly having a financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approvai of a board, panel or group of
Interest for personal gain shrul be presumed against those public officers responsible for the approvai of manifestly unlawful, inequitable, or irregular transactions or acts by the board, panel or group to which they belong.
.i'•
.~1;
:~
i~
'li,,
.} l•
205
which he is a member, and which exercises discretion in such approvai, even if he votes against the same or does not participate in the action of the board, committee, panel or group.
•,1!,
Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefit, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. These provisions shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
j)
Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege, or advantage, or of mere representative or dummy of one who is not so qualified or entitled.
k)
Divulging valuable information of a confidential character, acquired by reason of his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. "The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending officer, be punished under Section 9 of this Act and shall · be permanently or temporarily disqualified, in the discretion of the Court, from transacting business in any form with the government."
Q - What is betrayal of public trust? A- Is a new ground added by the Constitutional Commission presumably to cover other ali manner of offenses unbecoming a public functionary but not punishable by the criminal statutes. '
EXAMPLE: Inexcusable negligence of duty, tyrannical abuse of authority, breach of official duty by malfeasance or, misfeasance, cronyism, favoritism, obstruction of justice.
206
INTRODUCTION TO LAW
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
iJj Q - What is the procedure of impeachment? A- Section 3, Article 11 of the 1987 Constitution provides for the procedure of impeachment. These are the foliowing rules: l.
2.
The House of Representatives shali have the exclusive power to initiate ali cases of impeachment by a vote of 1/ 3 of its members.
;.1 w
~
!l! 1
.~ !i
··l
The Senate has the sole power to try and decide ali cases of impeachment case and "no person shali be convicted without the concurrence oftwo-thirds of ali the members of the Senate."
Q - Who has the sole power to try and decide ali cases of impeachment?
i
f! ~l
207
j
A- Section 3(6), Article 11 of the 1987 Constitution provides as foliows: "The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President ofthe Philippines is on trial, the Chief Justice ofthe Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the members of the Senate."
Q - Who can file a complaint for impeachment?
Q - What is the nature of the impeachment proceedings?
A- Section 3(2), Article XI, states that "a verified complaint for impeachment may be filed by (a) any Member of the House of Representatives or (b) by any citizen upon a resolution of endorsement by any Member thereof."
A- Justice Isagani Cruz said: "Impeachment proceedings are in a sense of judicial and penal in character. Hence, the Constitutional rights of the accused as guaranteed in Article III, such as the right to due process and against selfincrimination, are available in these proceedings. The Rules of Court, while not strictly applicable as the Congress is not a court of justice, are nonetheless observed in the conduct of the trial. As in ordinary criminal actions, proof beyond reasonable doubt is necessary for conviction."
ft;
'.fii
Procedure: l.
2.
3.
Said resolution of endorsement shali be included in the Order of Business within ten (10) session days, and referred to the proper Committee within three (3) session days thereafter. The Committee, after the hearing, and by majority vote of all its Members, shali submit its report to the House within sixty (60) session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten (10) session days from receipt thereof.
;:r 'l
On the basis of the ongoing impeachment trial, I am more inclined to submit that while impeachment proceeding is in a sense judicial in character, it is not necessarily penai in character for i t is clear that in case of conviction of President Estrada, he shall be punishable only by: l.
Removal from office; and
2.
Disqualification to hold any office under the Republic of the Philippines. (Section 3[7], Article XI of the 1987 Constitution)
Q - Can an impeachment proceeding be initiated against the same official more than once within a period of one year?
The said penalty is more of a penalty in an administrative proceedings than in a criminal proceeding.
A- No. Section 3(5) provides that "No impeachment proceedings shali be initiated against the same official more than once within a period of one ye~r." This is intended to prevent impeachment from beginning an instrument of mere harassment.
"Judgment in cases o{ impeachment shall not extend further than removal f!"om office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law."
Section 3(7), Article XI provides in full:
208
INTRODUCTION TO LAW
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF TRE PHILIPPINES
209
··il
The fact that the last sentence of Section 3(7), provides for a situation where a party convicted "shall be nevertheless liable and subject to prosec\ltion trial, and punishment according to the law" does not make impeachment a criminal proceeding because it is clear that it is only in case of his conviction that President Estrada shall be liable and subject to prosecution, trial and punishment. It is only from there when the President will be subject to a criminal proceeding.
l
fti
:l!
Q - What rules apply in an impeachment proceeding?
Q - What is needed in order to convict the person subject ofimpeachment?
Q - What is the effect of a judgment in case of impeachment?
A- No. Reason: While it is true that he is already resigned and
if
lr
•f!
,ir ~'
A - (l) Sectlon 7(3), Article XI, specifies the following effects:
a.
Removal from office;
b.
Disqualification to hold any office under the Republic of the Philippines;
c.
In addition, the party convicted shall nevertheless be liable and subject to prosecution, trial and punishment according to law.
Q -C an President Estrada be prosecuted in case be is acquitted? A- No, because the last sentence of Section 3(7), Article XI, states
that it is only in case of his conviction by the impeachment court that he shall be liable to prosecution, trial and punishment according to law. This means that if he is acquitted, he cannot be liable and subject to prosecution, trial, and punishment. Q -In case President Estrada case convicted in the impeachment proceeding and thereafter criminally prosecuted for the offense which warranted bis
A- No. As already stated, the penalty which the Senate may impose shall be limited to removal from office and disqualification to hold any office under the Republic of the Philippines. This penalty is beyond the reach of the President's power of executive clemency, but does not piace the offense which wa'rranted his conviction on impeachment, the officer cannot plead the defense of double jeopardy. Q - If President Estrada resigned before the rendition of judgment by the impeachment court, does bis resignation piace him beyond reach of impeachment for offenses committed during bis tenure?
A- The rules of the present Senate. The Rules of Court shall · supplement the rules of the Senate whenever it is practicable.
A- Section 3(6) "x x x No person shall be convicted without the concurrence of two-thirds of ali the members of the Senate."
conviction on impeachment, can be plead the defense of double jeopardy?
:
can no longer be removed from his office, there is stili a penalty which can be imposed even after his resignation and that is the penalty of "disqualification to hold any office under the Republic of the Philippines." Q - During the process of impeachment trial, can President Estrada be suspended pendente lite? A- This has no precedent in our jurisdiction. I t is my opinion that the penalty of preventive suspension pendente lite may be imposed for the following reasons: l.
As aforementioned, the impeachment trial is judicial and administrative in character because precisely of the penalty provided in Section 3(7), Artide XI;
2.
The purpose of suspension pendente lite is precisely to prevent the officer sought to be suspended from possibly using his influence against any and ali officials of the government and thereby help him influence the outcome of the proceeding. It is for this reason that suspension pendente lite may be justified.
In the U.S., this was raised during the deliberation of the Constitutional Convention of 1887 (when a proposal was submitted to provide for such preventive suspension). This was rejected for being considered an unnecessary molestation.
As we see it now, it cannot be considered an "unnecessary molestation." It is considered necessity to protect the interest
210
POLITICAL LAW AND THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
INTRODUCTION TO LAW
In the said case of Avelino vs. Cuenco, then Senate President Avelino motu proprio adjourned a session of the Senate leaving twelve (12) other Senators in the session hall. The twelve (12) Members continued the meeting and replaced Senate President Avelino with Senator Cuenco as acting President. Senator Avelino contended that Senator Cuenco was not validly elected because the twelve (12) Senators did not constitute a majority, or a quorum of the twenty-four-man Senate.
ofthe greater number ofFilipino people considering the gravity of the charges and the offenses committed.
Q -Is the judgment of Congress in an impeachment proceeding subject to judicial review? A - As a rule, it is not subject to judicial review precisely because · of the Constitutional provision that the Senate has the "sole power to try, and decide ali cases of impeachment." However, the courts may annui the proceedings if there is a showing of a grave abuse of discretion committed by the Congress or of non-compliance of the procedura! requirements of the Constitution. EXAMPLE: l.
When the charges are instituted without a verified complaint; or by less than one-third (113) of ali the members of the House of Representatives; or where the judgment of conviction is supported by less than a twothirds (2/3) vote in the Senate.
Q - Can the subject of conviction in the impeachment be subject to the pardoning power of the President? A- It is not subject to the pardoning power of the President. However, if the convicted official is prosecuted later on in an ordinary criminal action and later on found guilty, the decision may be the subject of pardon by the President.
Q - Section 3(6), Article XI, states that no person shall be convicted without the concurrence of two-thirds of all the members of the Senate. Does this referto two-thirds of twenty-four or two-thirds of twenty-two? A - The Constitution merely states "two-thirds of ali the Members of the Senate without any specification as to whether it is two-thirds of the regular membership of twenty-four or twothirds of the present members of the Senate." This will be a test case in the Supreme Court. However, the old case of Avelino vs. Cuenco gives us a guide on what constitutes a quorum in the Senate.
211
,,
The Supreme Court ruled that twelve (12) Senators were sufficient to constitute a quorum thereby using the principle of majority of twenty-three (23), and not twenty-four (24) Senators. The reason given by the Supreme Court is that one Senator was then outside of the Philippines being then in the U.S. and for this reason, he is therefore outside the coercive jurisdiction of the smaller number of the Senators who could adjourn from day to day and compel the attendance of absent members in such manner and under such penalties as the Senate might provide. There is more reason that this doctrine will be held applicable because Justice Marcelo Fernan is not only outside of Philippine territory. He already died and therefore he cannot in any way be capable of voting in the first piace. In the case of Gloria Macapagal-Arroyo, she was already elected Vice-President of the Republic of the Philippines and for this reason she is no longer capable to participate in the impeachment proceeding as a Senator and therefore no longer capable to vote. The actual reality is that the present membership of the Senate is only twenty-two (22) and therefore the constitutional requirement ofconcurrence oftwo-thirds(2/3) should be two-thirds (2/3) of the present members of the Senate who are actually participating in the impeachment proceeding. As a matter of fact, on the basis of the submission, I may even submit that Senator Barbers who is not actually participating in the impeachment trial may not be able to be included because he is outside not only of the territorial jurisdiction of the Senate but also outside the coercive jurisdiction of the smaller number of Members.
JIl'
CRIMINAL LAW
,i l 1
213
(13) What is illiteracy? (14) Who are criminally liable?
Chapter XIV
(15) Who are considered principals, accomplices, and accessories? (16) Points to remember
CRIMINAL LAW
(17) Enumeration of all circumstances that modify or affect criminal liability
.i·'.·l' '
IMPORTANT TOPICS IN THIS CHAPT:ER:
(a)
Article 11
Justifying circumstances
(b)
Article 12
Circumstances which exempt · from criminalliability
(c)
Article 13
-
Mitigating circumstances
3. Definition of Criminal Law
(d)
Article 14
-
Aggravating circumstances
4. Basic principles of Criminal Law
(e)
Article 15
-
Their concept
l. Historical background
(a)
Classica! school of thought
(b)
Positivist school of thought
5. Who incurs criminalliability?
8.
7.
Notes Circumstances that modify or affect criminal liability
(2)
Six justifying circumstances
(3)
Important distinction to remember
(4)
Burden of proof
(5)
The defendant must rely on the strength of his evidence
(6)
Effect of justifying and exempting circumstances
(7)
Mitigating circumstances
tfk
(8)
Aggravating circumstances
il
(9)
Kinds of aggravating circumstances
(11) Alternative circumstances
DISCUSSION
,~.
(l)
(10) What should be alleged and proven?
Modification of the penalty for the violation of B.P. Blg. 22
6. Stages in the commission of felonies
i!F
ur'l'' 'l;
l.
HISTORICAL BACKGROUND:
\,
Our revised Penai Code was based on the Spanish Penai Code of 1870. lt is based on the classica! school of thought, as distinguished from the positivist school of thought.
l!
Classical School of Thought - This school of thought assumes that men have free will: that they know what is right and what is wrong; and as rational beings, they are guided by thought that a crime carries with it a corresponding penalty.
"il
i'
lf~
\!!
Positivist School ofThought- This school ofthought views a criminal merely as a sick man who needs reformation and cure instead of punishment.
f
'·
CRIMINAL LAW
(12) What is habitual intoxication?
l t is that branch of public law which defines crimes, treats of their nature and provides for their punishment.
214
CRIMINAL LAW
INTRODUCTION TO LAW
wrongfui act done be different from that which he intended;
BASIC PRINCIPLES OF CRIMINAL LAW
l.
There is no crime when there is no law punishing it. In other words, any and ali offenses must be defined by law.
2.
As a rule, penallaws are prospective in effect.
3.
Penai Iaws and those of public security and safety shali be obiigatory upon ali who Iive or sojourn in Philippine territory subject to the principles ofinternationaliaw and to treaty stipulations.
4.
As a ruie, our Revised Penai Code shali be enforced not oniy within the Phiiippine Archipeiago, including its atmosphere, its interior waters and maritime zone, but aiso outside of its jurisdiction, against those who: (a)
Should commit an offense while on a Philippine ship or airship;
(b)
Should forge or counterfeit any coin or currency note of the Philippine Islands, or obligations and securities issued by the Government of the Philippine Isiands;
(c)
Shouid be Iiable for acts connected with the introduction into these islands of the obiigations and securities mentioned on the preceding number;
(d)
While being public officers or empioyees, shouid commit an offense in the exercise of their functions; or
(e)
Shouid commit any of the crimes against nationai security and the law of the nations, defined in Title One of Book Two of this Code.
2.
Attempted - There is an attempt when the offender coìnmences the commission of a felony directly by overt acts, and does not perform ali the acts of execution which should produce the felony by reason of some cause of accident than his own spontaneous desistance. (Art. 6, third paragraph, Revised Penal Code) Frustrated - It is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. (Art. 6, 2nd paragraph, RPC) Consummated - It is consummated when ali the elements necessary for its execution and accomplishment are present. (Art. 6, 2nd paragraph, RPC)
NOTES: l.
WHO INCURS CRIMINAL LIABILITY?
l.
By any person committing a felony (delicto) although the
ctrcumstances that modify or affect criminal liability - The circumstances modifying or affecting criminalliability are the following:
Except as provided in treaties and laws of preferentiai application.
Criminai liability shall be
By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.
STAGES IN THE COMMISSION OF FELONIES
EXCEPTION:
Art. 4. Criminal Liability incurred:
215
2.
(a)
Justifying Circumstances (Art. 11, RPC)
(b)
Exempting Circumstances (Art. 12, RPC)
(c)
Mitigating Circumstances (Art. 13, RPC)
(d)
Aggravating Circumstances (Art. 14, RPC)
(e)
Alternative Circumstances (Art. 15, RPC)
Six (6) justifying circumstances - The six (6) justifying circumstances are as follows: (a)
Self-defense;
216
INTRODUCTION TO LAW
1
CRIMINAL LAW
217
(jl
(b)
Defense of relatives;
(c)
Defense of strangers;
(d)
Avoidance of greater evil or injury;
(e)
Fulfillment of duty or exercise of a right;
(f)
Obedience to a lawful order.
2.
If the actor succeeds in proving the exempting circumstance he/she invokes, he/she is relieved from criminal Iiability but not from civil Iiability under Art. 101 of the Revised Penai Code.
jfj
3.
4.
Important distinction to remember- Ifthere is a circumstance justifying the act of the accused, he is exempt from both civil and criminal liability. An exempting circumstance frees the accused only from criminal liability but not from civil liability. Burden ofproof- IfA killed B and he admitted this with a qualification that he was merely compelled to do it in the course of defending himself, he has the burden to prove the element of self-defense.
5.
Defendant must rely on the strength of his evidence In proving self-defense, the defendant must rely on the strength of his own evidence and not on the weakness of the prosecution; for even if it were weak, it could not be disbelieved after the accused had admitted the killing.
6.
Detailed distinction betweenjustifying and exempting circumstances: Justifying Circumstances: l.
2.
The act is voluntary but there is no malice because the actor acted in good faith, being compelled by some lawful motive. If the actor succeeds in proving the justifying circumstances he/she invokes, he is relieved from both criminal and civil liability.
Exempting Circumstances: l.
There is likewise no malice because the act is not voluntary, or the actor has no intelligence, or the act complained of was accidentally done or the omission was avoidable.
··~
However, there is no civil liability attached to the exempting circumstances mentioned in paragraphs 4 and 7 of Art. 12 of the Revised Penal Code. · NOTE: "Article 101 of the Revised Penai Code provides as follows The exemption from criminai liability established in subdivisions l, 2, 3, 5, and 6 of Article 12 and in subdivision 4 of Article 11 of this Code does not include exemption from civiliiability, which shall be enforced subject to the following rules: First: In case of subdivisions l, 2, and 3 ofArticle 12 of civil liability for acts committed by an imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or contro!, uniess it appears that there was no fault or negiigence on their part. Second: In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount for which each one shall be liable. When the respective shares cannot be equitably determined, even approximateiy, or when the liability is also attached to the Government, or to the majority of the inhabitants of the town, and, in ali events, whenever the damage has been caused with the consent of the authorities or their agents, indemnification shall be made in the manner prescribed by speciai laws or regulations. Third: In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing the fear shall be primarily liable and secondarily, or if there be no such persons, those doing the act shall be liabie, saving always to the latter that part of their property exempt from execution.
218
7.
8.
9.
INTRODUCTION TO LAW
CRIMINAL LAW
Mitigating Circumstances - These are any of the circumstances mentioned in Article 13 of the Revised Penai Code which, if proven, reduces the penalty. Generai or specific mitigating circumstances may reduce the penalty to. the minimum period or it may be lowered by one degree as provided in Articles 62 and 64 depending on the presence of generic or specific aggravating circumstances which offset them. Special or privileged mitigating circumstances may reduce the penalty by one or two degrees as provided in Articles 67 and 69 of the Revised Penai Code (i.e., minority and incomplete justification and exemption).
tance must be alleged in the information because it is an integrai part of the offense. If the same is not alleged in the information but proven in the triai, it cannot be used in . changing the Iegai character of the offense charged and convicting the accused of a higher offense. In such a case, it can oniy be treated as a generic aggravating circumstance. 11. Alternative Circumstances -Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. They are: (l) reiationship; (2) intoxication; and (3) the degree ofinstruction and education of the offender.
Aggravating Circumstances - They are circumstances which, if proven, increase the penalty because they indicate the unusual criminality or perversity and dangerousness of the offender.
Example: IfA is accidentally drunk at the time he shot B, his drunkenness is considered as a mitigating circumstance. But if N.s drunkenness is intentionai or habituai, this is considered as an aggravating circumstance.
Kinds of aggravating circumstances: (a)
(b)
Generic or Ordinary - The effect of generic aggravating circumstances is inherent in the crime, not necessarily qualifying (i.e., Trespass in robbery with force).
WHAT IS HABITUAL INTOXICATION?
A habituai drunkard is one given to intoxication by excessive use of intoxicating drinks. Habit shouid be actuai and confirmed. It is unnecessary that it be a matter of daily occurrence. It Iessens individuai resistance to evii thought and undermines will power, making its victim a potential evii-doer.
Qualifying - The effect of a qualifying aggravating circumstance is not oniy to give the crime its proper and exciusive name but aiso to piace the author thereof in such a situation as to deserve no other penaity than that specially prescribed for said crime (i.e., treachery). The presence of this quaiifying aggravating circumstance makes the killing murder instead of homicide.
WHAT I.S ILLITERACY?
Illiteracy means Iack of instruction and Iow intelligence. Mere illiteracy is not sufficient to constitute the mitigating circumstance of Iack of instruction. There must aiso be Iack of intelligence.
NOTE: (c)
lO.
219
lnherent- These are circumstances which are inherent in the crime. Hence, trespass is inherent in the crime of robbery with force upon things. Abuse of con{idence is inherent in the crime of estafa. Likewise, relationship is inherent in the crime of parricide.
Example: IfA is unschooied and cannot sign his name, this does not necessarily mean that A is entitled to a mitigating circumstance of Iack of instruction if it is proven that he is exceptionally intelligent and mentally aiert to the extent that he realizes the full consequences of his acts. On the other hand, ifA is abie to sign his name but he is so densely ignorant and of Iow intelligence that he does not reaiize the full consequence of his criminai act, he may still be entitled to the benefit of a mitigating circumstance.
What should be alleged and proven -A generic aggravating circumstance may be proven during the triai even if it is not alleged in the information and even if there is an objection being raised by the defense. However, a qualifying circums/,W
;~l
:,
INTRODUCTION TO LAW
220
CRIMINAL LAW
221
l'
Il
12. Who are criminally liable? -Artide 16 of the Revised Penai Code answers this question. It provides as follows:
Article 16. The following are criminally liabie for grave and Iess grave feionies: l.
Principais;
2.
Accomplices; and
3.
Accessories.
The following are criminally Iiabie for light feionies: l.
Principais;
2.
Accomplices.
13. Who are considered principals, accomplices and accessories? - They are those defined in Artides 17, 18 and 19 of the Revised Penai Code, thus:
'
WHO ARE ACCESSORIES?
f
, l l
l
l ;i
l l
Article 19. Accessories are those who, having knowiedge of the commission of the crime, and without having participated therein, either as principais or accomplices, take part subsequent to its commission in any of the following mann~rs: l.
By profiting themseives or assisting the offender to profit by the effects of the crime.
2.
By conceaiing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.
3.
By harboring, concealing, or assisting in the escape of the principai of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.
jl n1 ·'' :H, i'
~~: [ti Ifi
Ì·
WHO ARE PRINCIPALS?
Article 17. The following are considered principais: l.
Those who take a direct part in the execution of the act;
2.
Those who directly force or ihduce others to commit it;
3.
Those who cooperate in the commission of the offense by another act without which it wouid not have been accomplished.
CODE: l.
Principai by direct participation
2.
Principai by inducement
3.
Principai by cooperation
WHO ARE ACCOMPLICES?
Article 18. Accomplices are those persona, who, not being induded in Artide 17, cooperate in the execution of the offense by previous or simuitaneous acts.
i 'l
r
·\ i
(P
~ rl
1.1
·
~~~l
POINTS TO REMEMBER:
l.
Nulla Poene Sine Lege - There is no crime when there is no Iaw punishing it.
2.
A person, to be guilty of a crime, must commit that crime himseif or he must, in some manner, participate in its commission or in the fruits thereof.
.L , 'lf !,i
n
3. - Oniy naturai persona are criminally liabie. ·Judiciai persona are not criminally liabie but the President or other officers of the corporation may be criminally liabie in those instances when they have knowingiy permitted or committed crimes such as estafa and faisification. 4.
There are no accessories in light feionies.
ARTICLES 11, 12, 13, 14, AND 15 ARE HEREIN QUOTED IN FULL: Art. 11- Justifying Circumstances Art. 12- Exempting Circumstances Art. 13- Mitigating Circumstances
First: That the evil sought to be avoided actually exists;
Art. 14 - Aggravating Circùmstances Art. 15- Alternative Circumstances
Second: That the injury feared be greater than that done to avoid it;
CODE:
l
Third: That there be no other · practical and less harmful means of preventing it.
J - ustifying
E- xempting
5.
Any person who acts in the fulfillment of a duty or in the lawful exercise of a· right or office.
6.
Any person who acts in obedience to an order issued by a superior for some lawful purpose.
M - itigating A- ggravating A-lternative
Art. 11. Justifying circumstances. - The following do not incur any criminal liability: l.
Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
Art. 12. Circumstances which exempt from criminal liability. - The following are exempt from criminalliability: l.
First: Unlawful aggression;
Third: Lack of sufficient provocation on the part of the person defending himself. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural, or adopted brothers or sisters or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the provocation was given by the person attacked, that the one making defense had no part therein.
3.
Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this artide are present and that the person defending be not induced by revenge, resentment, or other evil motive.
4.
Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present:
An imbecile or an insane person, unless the latter has acted during a lucid interval. When the imbecile or an insane person has committed an act which the law defines as a felony (de lieto), the court shall order his confinement in one of the hospitals or asylums established for persons thus afllicted, which he shall not be permitted to leave without first obtaining the permission of the same court.
Second: Reasonable necessity of the means employed to prevent or repel it;
2.
223
CRIMINAL LAW
INTRODUCTION TO LAW
222
2.
A person under nine (9) years of age.
3.
A person over nine (9) years of age and under fifteen (15), unless she has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of Artide 80 of this Code. When such minor is adjudged to be criminally irresponsible, the court, in conformity with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education; otherwise, he shall be committed to the care of some institution or person mentioned in said Artide 80.
4.
Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it.
5.
Any person who acts under the compulsion of an irresistible force.
6.
Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury.
7.
Any person w ho fails to perform an act required by law, when prevented by some lawful or insuperable cause.
Art. 18. Mitigating Circumstances. -
2.
means of action, defense, or communication with his fellow beings. 9.
Such illness of the offender as would diminish the exercise ofthe will-power ofthe offender without however depriving him of consciousness of his acts.
10.
And, finally, any other circumstance of a similar nature and analogous to those above mentioned.
The. following are
mitigating circumstances: l.
225
CRIMINAL LAW
INTRODUCTION TO LAW
224
Those mentioned in the preceding chapter, when all the requisites necessary to justify the act orto exempt from criminalliability in the respective cases are not attendant. That the offender is under eighteen (18) years (Rep. Act No. 147 amending Art. 80 has reduced the age of 18 to 16. The minor offender who is under 18 is entitled to a privilege mitigating circumstance [Art. 68], but if he is 16 or over, his sentence will not be suspended [Art. 80]) of age or over seventy (70) years, In the case of the minor, he shall be proceeded against in accordance with the provisions of Artide 80.
3.
That the offender had no intention to commit so grave a wrong as that committed.
4.
That sufficient provocation or threat on the part of the offended party immediately preceded the act.
5.
That the act was cominitted in the immediate vindication of a grave offense, to the one committing the felony (delicto), his spouse, ascendants, descendants, legitimate, natural, or adopted brothers or sisters, or relatives within the same degrees.
6.
That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.
7.
That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution.
8.
That the offender is deaf and dumb, blind, or otherwise suffering some physical defect which thus restricts his
Art. 14. Aggravating Circumstances. aggravating circumstances:
~
The following are
l.
That advantage be taken by the offender of his public position.
2.
That the crime be committed in contempt ofor with insult to the public authorities.
3.
That the act be committed with insult or in disregard of the respect due to the offended party on account of his rank, age, or sex, or that it be committed in the dwelling of the offended party, if the latter has not given provocation.
4.
That the act be committed with abuse of confidence or obvious ungratefulness.
5.
That the crime be committed in the palace of the Chief Executive, or in his presence, or where pu,blic authorities are engaged on the discharge of their duties, or in a place dedicated to religious worship.
6.
That the crime be committed in the nighttime, or in an uninhabited piace, or by a band, whenever such circumstances may facilitate the commission of the offense. Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band.
7.
That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemie or othor calamity or misfortune.
8.
That the crime be committed with the aid of armed men or persons who insure or afford impunity.
CRIMINAL LAW
INTRODUCTION TO LAW
226
9.
10.
11. 12.
A recidivist is one who, a t the time of his trial for one crime,.shall have been previously convicted by a final judgment of another crime embraced in the same title of this Code. That the offender has been previously punished for an offense to which the. law attaches an equal or greater penalty or for two (2) or more crimes to which it attaches a lighter penalty. That the crime be committed in consideration of a price, reward or promise.
That the act be committed with evident premeditation.
14.
That craft, fraud, or disguise be employed.
15.
That advantage be taken of superior strength, or means be employed to weaken the defense.
17. 18.
That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the' crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. That means be employed or circumstances brought about which add ignominy to the natural effects of the act. That the crime be committed after an unlawful entry. There is an unlawful entry when an entrance is effected by a way not intended for the purpose.
19.
That as a means to the commission of a crime a wall, roof, floor, door, or window be broken.
20.
That the crime be committed with the aid of persons under fifteen (15) years of age or by means of motor vehicles, airships, or other similar means.
That the wrong done in the commission of the crime be deliberately augmented by causin.g other wrong not necessary for its commission.
Art. 15. Their concept- Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. They are the relationship, intoxication and the degree of instruction and education of the offender. The alternative circumstance of relationship shall be taken into consideration when the offended party is the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender.
.That the crime be committed by means of inundation, fire, poison, explosion, stranding a vessel or intentional damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin.
13.
16.
21.
That the accused is a recidivist.
227
The intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the pian to commit said felony; but when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance. !t.
f
MODIFICATION OF THE PENALTY FOR THE VIOLATION OF B.P. BLG. 22
~l
Sec. l. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that h e does not have sufficient funds in or credit with the drawee bank for the payment of such check is subsequently dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty (30) days but not more than one (l) year, or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos (P200,000.00), or both such fine and imprisonment at the discretion of the court. (B.P. Blg. 22, 1st paragraph, RTC)
;i
In Eduardo Vaca vs. Court of Appeals (G.R. No. 181714, November 16, 1998, 100 SCAD 763, 298 SCRA 656, 664), the Supreme Court through Mr. Justice Vicente V. Mendoza, modified the sentence imposed for violation of B.P. Big. 22 by deleting the
228
INTRODUCTION TO LAW
·•
penalty of imprisonment and imposing only the penalty of fine in an amount double the amount of the check. Likewise, the case of Rosa Lim vs. People of the Philippines (G.R. No. 180088, September 18, 2000), the Supreme Court en banc, also deleted the penalty of imprisonment and sentenced the drawer of the bounced check to the maximum of the fine allowed by B.P. Big. 22, i.e., P200,000, and concluded that such would best serve the ends of criminal justice.
Chapter XV REMEDIAL LAW IMPORTANT TOPICS IN TWS CHAPTER: l.
2.
3. 4.
The New Rules of Court (a)
Civil Procedure
(b)
Provisional Remedies
(c)
Special Civil Action
(d)
Criminal Procedure
(e)
Evidence
Different kinds of special civil action, special proceedings and provisional remedies (a)
Provisional remedies
(b)
Special civil action
(c)
Special proceedings
(d)
Remedies in civil cases
Attachment · Preliminary Injunction (a)
Grounds for issuance of preliminary injunction
5.
Receivership
6.
Replevin
7.
Alimony pendente lite
8.
Special civil action (a)
Interpleader
(b)
Declaratory relief
(c)
Certiorari, prohibition, mandamus 229
REMEDIAL LAW
INTRODUCTION TO LAW
230
9. 10.
231
(d)
Quo warranto
(d)
Elements of jurisdiction in criminal actions
(e)
Eminent domain
(e)
Distinction between complaint and information
(f)
Foreclosure of mortgage
(f)
How is criminal action commenced
(g)
Partition of real estate
(h)
Duplicity of the offense
(h)
Forcible entry and unlawful detainer
(i)
Where shall a criminal action be instituted and tried
(i)
Contempt
(j)
Who are authorized to conduct a preliminary investigation
(k)
Information
Brief explanation of each Special proceedings (a)
Settlement of estate of deceased persons
(b)
Petition for probate of will and issuance of letters testamentary
l'
ll
11.
'
(c)
Petition for letters of administration
(d)
Petition for escheat
(e)
Petition for guardianship
(f)
Petition for appointment of trustees
(g)
Petition for adoption of minors
(h)
Petition for hospitalization of insane persons
(i)
Petition for habeas corpus
(j)
Petition for change of name Petition for voluntary dissolution of corporation
(k)
li l l !
i
(o)
Cancellation of entries in the civil registry
Kinds of evidence
(b)
What is the best evidence rule?
(c)
What is the parol evidence rule?
(d)
What is hearsay evidence?
(e)
Exceptions to the hearsay rule
(f)
Rules concerning admission to the practice of la w
Remedial law, as the term itself suggests, provides for the remedies and the procedures to be observed by way of enforcing rights and obligations. While substantive law creates rights, remedial law provides for the procedure of enforcing said rights. That makes remedial law more complicated to both law students and to law practitioners. For law students, study of remedial law becomes more difficult because experience proves that procedura} law can only be more appreciated and understood when a lawyer is involved in the actual application of the legai remedies.
Judicial approvai of voluntary recognition of minor natura! children (m) Petition for judicial constitution of family home Petition for appointment of administrative and/or trustee for the estate of absentee
(a)
DISCUSSION
(l)
(n)
Evidence
Briefly, the New Rules ofCourt are divided into different parta, to wit:
11.
Brief explanation of each
l.
Civil Procedure
12.
Criminal procedure
2.
Provisional Remedies
(a)
Definition
3.
Special Civil Actions
(b)
Criminal jurisdiction
4.
Special Proceedings
(c)
How is the court's jurisdiction determined
5.
Criminal Procedure
!qj
,,"
REMEDIAL LAW
INTRODUCTION TO LAW
232
6.
Evidente
7.
Rules concerning admission to the practice of law
233
SPECIAL PROCEEDINGS l. Settlement of estate of deceased persons
2. Escheat DISCUSSION OF EACH:
3. Guardianship and custody of children
CIVIL PROCEDURE
4. Trustees
It treats of the enforcement and protection of rights in civil cases. There are two (2) kinds of civil action:
5. Adoption
(a)
Ordinary Civil Action - Example: collection case, abatement of nuisance, breach of contract.
(b)
Special Civil Action - Example: Quo warranto, certiorari, mandamus, proh~bition, declaratory relief, partition, foreclosure of mortgage, interpleader, eminent domain.
DIFFERENT KINDS OF SPECIAL CIVIL ACTION, SPECIAL PROCEEDINGS ANO PROVISIONAL REMEDIES
PROVISIONAL REMEDIES l.
Attachment
2.
Preliminary lnjunction
3.
Receivership
4.
Replevin (delivery of personal property)
5.
Alimony pendente lite (support pending litigation)
6. Rescission and revocation of adoption 7. Hospitalization of insane persons 8. Habeas corpus 9. Change of name 10. Voluntary dissolution of corporation 11.
12. Constitution of family home 13. Declaration of absence and death 14.
Interpleader
2.
Declaratory relief and similar remedies
3.
Certiorari, prohibition, mandamus
4.
Quo warranto
5.
Eminent domain
6.
Foreclosure of mortgage
7.
Partition
8. 9.
Cancellation or correction of entries in the civil registry
REMEDIES IN CIVIL CASES A person civilly aggrieved may: l.
File an action, either an ordinary civil action or a special éivil action; or
2.
File a special proceeding.
SPECIAL CIVIL ACTION l.
JudiciaJ approvai of voluntary recognition of minor natural (or spurious children)
They are the remedies which may be availed of by the petitioner which are temporary in character because they are subject to some modifications that may be ordered when judgment is finally rendered. The provisional remedies mentioned in the Rules of Court are as follows: l.
Attachment
Forcible entry
2.
Preliminary injunction
Contempt
3.
Receivership
234
REMEDIAL LAW
INTRODUCTION TO LAW
r
4.
Replevin
5.
Alimony pendente lite
3.
EXPLANATION OF EACH:
235
That the defendant is doing, threatening, or is about to do, or is procuring or suffering to be done some act probably in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual. (Section 3, Rule, 58)
ATTACHMENT
It is a provisional remedy which is ancillary to a principal action whereby a plaintiff or any proper party may, at the commencement of the action or at any time thereafter, have the property of the adverse party attached or taken into legai custody as security for the satisfaction of the judgment that may be recovered.
There are three (3) kinds of attachment, namely:
RECEIVERSHIP
It is a provisional remedy whereby the court appoints a receiver to hold the real or personal property in litigation during its pendency with power to possess, take hold of, control, and to dispose of the same as may be allowed by the court in proper cases. WHEN TO APPOINT A RECEIVER?
(a)
Preliminary Attachment- An attachment which is given a t the beginning of an action or during its pendency or before the finality of the judgment.
l.
When a corporation has been dissolved, or insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.
(b)
Garnishment- An attachment allowing the plaintiff to reach credits, whether money or property, belonging to or owned by the debtor or owing to him from someone who is not a party to the litigation. The latter is, in effect, ordered to pay the new creditors, not the old creditors.
2.
When the party applying for the appointment of a receiver has an interest in the property involved which may be lost, removed, or materially injured.
3.
When in a case of foreclosure of a mortgage: (a) the property is in danger of being wasted or materially injured and its value is probably insufficient to discharge the mortgage debt; (b) there was a stipulation for receivership in the mortgage contract.
4.
When there is already a judgment BUT: (a) the property has to be preserved during the appeal; (b) the judgment could not be executed; or (c) the judgment obligor refuses to apply his property in satisfaction of the judgment or otherwise to make the judgment effective.
5.
In all other cases when receivership would be convenient and feasible. (Section l, Rule 59)
(c)
Final Attachment- An attachment given by the court to enforce or satisfy a final and executory judgment.
PRELIMINARY INJUNCTION
It is an order granted at any stage of an action prior to the finality of a judgment requiring a person to refrain from a particular act or requiring the performance of a particular act. GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION
l.
2.
That the plaintiff is entitled to the relief deman:ded, and the whole or part of such relief consists in restraining the commission or continuance of the acts complained of, or in the performance of an act or acts either for a limited period or perpetually. That the commission or continuance of some acts complained of during the litigation or non-performance thereof would probably work injustice to the plaintiff.
RE PLEVI N
lt is a provisional remedy whereby the plaintiff petitions the court to compel in the meantime the delivery to him of such personal property mentioned in his complaint. The plaintiff may ask for this remedy at the commencemeilt of the action, or at any time before the answer.
HEMI~DIAL
INTRODUCTION TO LAW
236
Requirements: l. The plaintiff must show by his own affidavit or that of some other person who personally knows the fact: (a)
That the plaintiff is the owner of the property claimed particularly describing it, or is entitled to the possession thereof;
(b)
That the property is WRONGFULLY DETAINED by the defendant (the cause of detention must be alleged according to the petitioner's best knowledge, information and belief);
(c)
LAW
6.
Foreclosure of mortgage
7.
Partition of real estate
8.
Forcible entry and unlawful detainer
9.
Contempt
237
EXPLANATION OF EACH INTERPLEADER
It is a special civil action whereby a person who has property in bis possession or an obligation to render, either on whole or in part, but who claims no interest in the subject matter or whose interest in whole or in part is not disputed by others, goes to court and asks that conflicting claimants to the property or obligation be required to litigate their conflicting claims in order to determine who is entitled to the same.
That it has: (a) not been taken for a tax assessment or fine pursuant to law; or (b) not seized under execution or attachment of the property of the plaintiff, or if so seized, that it is EXEMPT trom such seizure; and (c) the actual value ofthe property. (Sec. 2, Rule 60)
DECLARATORY RELIEF ALIMONY PENDENTE LITE
This is also known as support pending litigation. It is a provisional remedy whereby the plaintiff, at the commencement of the proper action, or at any time afterwards but prior to final judgment, may file an application for alimony pendente lite stating the grounds for the claim and the financial conditions ofboth parties and shall be accomplished by affidavits, depositions, or other authentic documenta in support thereof.
li
(l
It is a special civil action instituted by any person interested under a deed, will, contract, or other written instrument, or whose right are affected by statute, executive order or regulation, or ordinance before breach or violation thereof in order to determine any question of construction or validity arising under the instrument or statute and for a declaration of his right or duties thereunder. CERTIORARI
SPECIAL CIVIL ACTION
It is an action whereby one party sues another to enforce or
protect a right or to prevent the commission of a wrong by following special rules of procedure. The special civil actions are as follows:
,,
i'!'i
'j
It is a special civil action directed against any tribunal, board or officer exercising judicial functions claiming that said tribunal, board or officer has acted without jurisdiction, in excess of jurisdiction or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law. All these must be alleged by the plaintiff in a verified petition :filed in the proper court and praying that judgment be rendered annulling or modifying the proceedings, as the law requires.
l.
lnterpleader
2.
Declaratory relief
3.
Certiorari, prohibition, mandamus
PROHIBITION
4.
Quo warranto
5.
Eminent domain
It is a special civil action directed against any tribunal, corporation, board or person whether exercising judicial or ministerial
238
INTRODUCTION TO LAW
functions claiming that said tribuna!, corporation, board or persons acted without jurisdiction or with grave abuse of discretion and there is no appeal, nor any plain, 'speedy, and adequate remedy in the ordinary course of law. All these must be alleged by the plaintiff through a verified petition filed in the proper court and praying that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter specified therein. MANDAMUS
It is a special civil action directed against any tribuna!, corporation, board or person claiming that said tribuna!, corporation, board or person has unlawfully neglected the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station or has excluded another from the use and enjoyment of the right or office to which such other is entitled and there is no other plain, speedy, and adequate remedy in the ordinary course of law. All these must be alleged by the plaintiff through a verified petition filed in the proper court and praying that judgment be rendered commanding the defendant immediately, or at some other specified time, to do the act required to be done to protect the life of the petitioner and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendants.
REMEDIAL LAW
239
(c)
Quo warranto may involve a defendant which is a private perso n.
(d)
Quo warranto proceeding may be brought in the name of a corporation.
(e)
Quo warranto proceeding may involve an appointive public office. Here, the issue is the legality of the appointment and therefore, whoever was legally appointed will be entitled to occupy the office.
(f)
Quo warranto proceeding may involve an elective office. Here, the issue is the qualification or eligibility of the candidate.
l
EMINENT DOMAIN
It is the right of the state or any duly authorized entity to take private property for public use or purpose provided just compensation is given and due process is observed. FORECLOSURE OF MORTGAGE
It is the process by which the mortgagee-creditor is allowed to have the mortgaged property foreclosed and sold in order that the indebtedness may be paid out of the proceeds of sai d sale.
QUO WARRANTO
KINDS OF FORECLOSURE
It is a special civil action whereby a person claiming to be entitled to a public office or position files an action against a usurper challenging the authority of the latter in holding said public office or position.
l.
Judicial foreclosure - This is a special civil action referred to in Rule 68 of the Revised Rules of Court. AB the term itself implies, this requires a court litigation.
2.
Extra-judicial foreclosure - This is a process of foreclosure provided in Act No. 3135 as amended by Act No. 4118. As the term itself implies, this process does not require court litigation.
KINDS OF QUO WARRANTO
(a)
(b)
Quo warranto may be brought in the name of the Republic of the Philippines. Here, the right of the defendant to the office is passed upon by the court.
PARTITION OF REAL ESTATE
Quo warranto proceeding may be brought in the name of a private person. Here, the plaintiff must prove his own right. If he cannot prove his own right, the right of the defendant will not be passed upon by the court.
lt is a process of dividing or assigning property owned in common among the various co-owners thereof in proportion to their respective interest in the property. Partition may be done judicially or extra-judicially.
240
INTRODUCTION TO LAW
FORCIBLE ENTRY
It is a special civil action whereby the plaintiff prays for the recovery of materia! or physical possession of real property because he was deprived of his possession thereof by force, intimidation, strategy, threat, or stealth. This action must be brought within one (l) year from the unlawful deprivation. Ifnot brought within one (l) year, the possession of the property may stili be recovered through an accion publiciana, not through an action of forcible entry.
REMEDIAL LAW
(9)
CONTEMPT
It is a misbehavior committed in the presence of or so near a judge or court as to obstruct or interrupt the proceeding before the judge or court, in which case, it is called direct contempt, or it may be any other improper conduct tending to degrade or interfere with the administration of justice, in which case, it is called indirect contempt. SPECIAL PROCEEDINGS
It is a civil remedy taken to establish the status or right of party or to establish a particular fact.
The special proceedings are as follows: (l)
Settlement of estate of deceased persons
(2)
Petition for probate of will and issuance of letters testamentary
(3)
Petition for letters of administration
(4)
Petition for escheat
(5)
Petition for guardianship
(6)
Petition for appointment of trustees
(7)
Petition for adoption of minors
(8)
Petition for hospitalization of insane persons
Petition for habeas corpus
(lO)
Petition for change of name
(11)
Petition for voluntary dissolution of corporation
(12)
Judicial approvai of voluntary recognition of minor natura! children
(13)
Petition for judicial constitution of family home
(14)
Petition for appointment of administrative and/or trustee for the estate of absentee
(15)
Petition for correction of entries in the civil registry
UNLAWFUL DETAINER
It is a special civil action filed by a plaintiff and who prays to recover the possession of real property from a person unlawfully withholding possession of the same.
241
EXPLANATION OF EACH SEITLEMENT OF ESTATE OF DECEASED PERSON
An estate can be summarily settled in two (2) ways: (l)
Extra-judicial settlement of estate by agreement of the heirs; and
(2)
Summary settlement of estate whose gross value is PlO,OOO.OO or less.
EXTRA-JUDICIAL ARRANGEMENT OF THE HEIRS
There are severa! requisites, to wit: (l)
The decedent left no will;
(2)
The decedent left no debts (this is presumed ifno creditor files a petition within two (2) years after the death of the deceased) (Last sentence of Section l, Rule 47);
(3)
A public instrument should be filed with the Register of Deeds;
(4)
All the heirs must be of age, or if they are minors, they should be represented by theirjudicial or legai representatives duly authorized for the purpose;
(5)
Ali the said heirs must agree. lf the heirs disagree, the heirs may do so through an ordinary action of partition (Section 1, Rule 74);
242
INTRODUCTION TO LAW
(6)
(7)
The parties to an extra-judicial settlement of estate must file a bond with the Register of Deeds in an amount equivalent to the value of personal property involved as certified to under oath by the parties concerned and conditioned upon the paymeri.t of any just claim filed with the Register of Deeds (Section 1, Rule 74); The fact of extra-judicial settlement on administration shall be published in a newspaper of generai circulation. However, no extra-judicial settlement shall be binding upon any person who has not participated or had no notice thereof.
SUMMARY SETTLEMENT OF ESTATE WHOSE GROSS VALUE IS P1 0,000.00 OR LESS (l)
There can only be summary settlement of estate if the gross value of the same is PlO,OOO.OO or less. lf this requirement is complied with, the heirs may apply to the competent court, after the regular publication, to proceed with the summary partition and after paying all the known obligations, to partition all the property among the heirs, without appointing an administrator. (a)
Competent Court: Refers to the Court of First Instance having jurisdiction of the estate. (CFI is now referred to as RTC).
(b)
Publication: The notice about the said summary settlement shall be published once a week for three (3) consecutive weeks in a newspaper of generai publication on the province where the property is situated.
(c)
(2)
Hearing: the hearing shall be held not less than one (l) month or more than three (3) months from the date of last publication of notice.
There can only be summary settlement regardless of whether the deceased person died with or without a will, provided that the gross value of his estate does not exceed PlO,OOO.OO or less.
REMEDIAL LAW
243
PETITION FOR PROBATE OF WILL ANO ISSUANCE OF LETTERS TESTAMENTA~Y
Probate is the process of proving before a competent court that the will of a deceased person was duly executed and that said decedent possessed testamentary capacity at the time of the execution of the will and when all these are proved, the will of the decedent shall be submitted for approvai of the said court. BASIC POINTS TO REMEMBER
(l)
No will shall pass either real or personal property unless it is provided and allowed in accordance with the rules of Court. (Art. 838, 1st par., New Civil Code)
(2)
There is no prescriptive period for institution of probate proceedings bE::cause the same is established not primarily for the interest of the heirs but principally to protect the expressed wishes of the testator.
(3)
The probate of a will is conclusive as to its due execution and as to the testamentary capacity of the testator but not as to the validity of any provisions made in the will. Hence, after a will has been probated by a competent court, the law will not admit evidence to overthrow the legai presumption that it is genuine.
PETITION FOR LETTERS OF ADMINISTRATION
Who may petition for the allowance of the will? Section l, Rule 76 of the New Rules of Court, enumerates the persons who may file a petition for the allowance of a will and they are as follows: (a)
Executor;
(b)
Devisee or legatee in a will;
(c)
Any other person interested in the estate;
(d)
The testator himself, may, during his lifetime, petition for the allowance of his will. (2nd par., Sec. 1, Rule 47)
244
INTRODUCTION TO LAW
When can the above persons petition for the allowance ofthe will? They may, a t any time, after the death of the testator petition to the court having jurisdiction to have the will allowed whether the same be in his possession or not, is lost, or destroyed. DEFINITION OF TERMS w~
EXECUTOR - The person appointed by the testator in his .
ADMINISTRATOR - The person appointed by the court in case there is no will. ADMINISTRATOR WITH A WILL ANNEXED - The person appointed by the court because although there is a will, said person's will does not appoint any executor, or if one is appointed, said person is either incapacitated or not willing to serve. PERSONS DISQUALIFIED OR INCOMPETENT TO SERVE AS EXECUTOR OR AS AN ADMINISTRATOR
l.
Minors;
2.
Non-residents of the Philippines;
3.
Those who are unfit to execute the duties of the trust because of: (a)
drunkenness;
(b)
improvidence;
(c)
want of understanding;
(d)
want of integrity; and
(e)
conviction of an offense involving moral turpitude. (Sec. l, Rule 78)
PETITION FOR ESCHEAT
Escheat is a special proceeding whereby the real and personal property of a person who dies without a will or any legai heir becomes the property of the state upon his death.
REMEDIAL LAW
245
PETITION FOR GUARDIANSHIP
Guardianship is the relationship existing between the guardian and the ward or it might refer to the duty or authority of a guardian in relation to his ward.
Who may petition for appointment of a gitardian for a resident of the Republic of the Philippines? Section l, Rule 93 ofthe New Rules ofCourt enumerates those who may petition for the appointment of a guardian and they are as follows: (l)
Any relative, friend or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian;
(2)
The minor himself is fourteen (14) years of age or over;
(3)
An officer of the Federai Administration of the United States in the Philippines in favor of a ward thereof; and
(4)
The Director ofHealth, in favor of an insane person who should be hospitalized, or in favor of an isolated leper. (Sec. l, Rule 93)
PETITION FOR APPOINTMENT OF TRUSTEE DEFINITION OF TERMS TRU~TEE - Is a person appointed by the court to carry out the effect of the provisions of the will as if he had been appointed by the testator and in its technical sense, the trustee is a person who holds the trust for the benefit of another.
TRUSTOR - Is a person who establishes a trust. BENEFICIARY has been created.
ls a person for whose benefit the trust
DUTIES OF A TRUSTEE
(l)
To return to the court a true inventory of ali real and personal property or estate that comes to his possession or knowledge;
246
INTRODUCTION TO LAW
REMEDIAL LAW
247
(2)
To faithfully discharge his trust;
PETITION FOR HOSPITALIZATION OF INSANE PERSONS
(3)
To render upon oath a true account of the property in his hands; and
(4)
To settle his accounts in court and to pay over and deliver ali the estate remaining in his hands.
Hearing and Judgment - The court shall make an order of commitment upon satisfactory proof in open court on the date fixed in the order, that the commitment applied for is for the public welfare or for the welfare of the insane person, arid that his relatives are unable for any reason to take proper custody and care of him. The court shall order his commitment to such hospital or other piace for the insane as may be recommended by the Director of Health. The court shall make proper provisions for the custody or property or money belonging to the insane until a guardian be properly appointed. (Sec. 3, Rule 101, Rules of Court)
PETITION FOR ADOPTION OF MINORS
Adoption is a judicial act which creates a relationship between two (2) persons similar to that which results from legitimate paternity and filiation. In adoption, a person who has no child of his own, has the opportunity to have one by creating the relation of paternity and filiation through legai process. BASIC POINTS TO REMEMBER
l.
Every person of age, who is in full possession of his civil rights may adopt; (Art. 334, New Civil Code)
2.
Any person, even if of age, may be adopted provided the adopter is 16 years older. (Art. 337, New Civil Code of the Philippines) The following cannot adopt:
PETITION FOR HABEAS CORPUS
This is a writ directed to a person detaining another and commanding him to produce the body of the prisoner at a certain time and piace and to state the cause of his capture and detention. Habeas corpus is a remedy to relieve persons from unlawful restraint. BASIC POINTS TO REMEMBER
It is not the writ itself but only its privilege that may be suspended. For as long as a petition for habeas corpus is filed, and the court finds that it is in proper form, it will issue the writ as a matter of course.
(l)
Those who have legitimate, legitimated, acknowledged natura! children by legai fiction;
(2)
The guardian, with respect to the ward, before the final approvai of his accounts;
(3)
A married person, without the consent of the otl;ler spouse;
(4)
Non-resident alien;
POWER TO SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS
(5)
Resident aliens with whose government the Republic of the Philippines has broken diplomatic relations;
1973 CONSTITUTION
(6)
Any person who has been convicted of a crime involving moral turpitude, when the penalty imposed was six (6) months imprisonment or more.
If ~ssued, what will be the order of the Court? The Court will order the production of the pers
Article VII, Sec. 9 provides as follows: "Sec. 9 - The President shall be Commander-in-Chief of ali Armed Forces of the Philippines and, whenever it becomes necessary, he may cali out such armed forces to prevent or suppress lawless violence, invasion, insurrection,
248
REMEDIAL LAW
INTRODUCTION TO LAW
or rebellion. In case of invasbn, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or piace the Philippines or any part thereof under martiallaw. 1987 CONSTITUTION Article VII, Sec. 18 provides as foliows:
"Sec. 18 - The President shali be the Commander-inChief of ali armed forces of the Philippines and, whenever it becomes necessary, he may cali out such armed forces to preyent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, fora period not exceeding sixty (60) days, suspend the privilege of the writ of habeas corpus or piace the Philippines or any part thereof under martiallaw." l. The Supreme Court rulings on the issues of whether or not the courts can inquire on the presidential suspension of the privilege of the writ of habeas corpus are as follows:
The first two (2) leading cases on this point are the cases of Barcelon vs. Baker (5 Phil. 87) and Montenegro vs. Castaneda (91 Phil. 882). In both cases, the Supreme Court decided that the President's decision to suspend the privilege of the writ of habeas corpus is "final and conclusive upon the courts andali other pesons." The Barcelon rule was enunciated in this jurisdiction in 1905 whereas the Montenegro rule, which reiterated the Barcelon rule, was enunciated in 1952. This ruling continued to prevail until1971 until our Supreme Court carne out with another ruling in the case of Lansang vs. Garcia, 42 SCRA 448. In the case of Lansang vs. Garcia, the Supreme Court ruled that courts are aliowed to inquire whether or not a presidential suspension of the privilege of the writ of habeas corpus is arbitrary in order to determine its constitutional sufficiency. The Lansang doctrine, however, was abandoned on account of the decision rendered by the Supreme Court on cases docketed as G.R. No. 61388 entitled, "In the Matter of Dra. Aurora Parong, et al., Josefina Garcia-Padilla, petitioner vs. Minister Juan Ponce Enrile, Gen. Favian Ver, Gen. Fidel V. Ramos, and Lt. Col. Miguel Coronel, respondents decided onApril20, 1983, and G.R. No. 61016
249
entitled, "In the Matter of Petition for Habeas Corpus of Horacio R. Morales, Jr., petitioner vs. Minister Juan Ponce Enrile, Gen. Fabian C. Ver, Col. Galileo Kintanar, respondents. Promulgated on Aprii 26, 1983, or six (6) days after the Padilla decision was promulgated. In the Padilla case, nine (9) justices voted to abandon the doctrine in the Lansang case and these justices are as foliows: Justice Pacifico de Castro, Efren Plana, Juvenal Guerrero, Felix Makasiar, Venecio Escolin, Conrado Velasquez, Vicente Abad Santos, Hugo Gutierrez, Jr., and Lorenzo Relova. Two (2) justices voted to retain the doctrine in the Lansang case and they are Chief Justice Enrique Fernando and Justice Claudio Teehankee. The majority decision reverted to the Barcelon and Montenegro rule as above-mentioned. In the Morales case, the justices who previously voted in the Padilla case in favor of abandoning the doctrine in the Lansang case maintained their position. Three (3) justices voted to retain the Lansang doctrine and they are Chief Justice Enrique Fernando and Justices Claudio Teehankee and Hermogenes Concepcion. 2. Now, under Sec. 18, Art VII of the Ne w Constitution, the military powers of the President are more defined and specific. The originai authority of the Commander-in-Chief, as provided in the 1973 Constitution, is changed as follows: (l)
He may cali out the armed forces to prevent or suppress . lawless violence, invasion or rebellion only.
(2)
The grounds for the suspension of the privilege of the writ of habeas corpus and the proclamation of martial law are now limited only to invasion or rebellion.
(3)
The duration of such suspension or proclamation shali not exceed sixty (60) days, following which it shali be automaticaliy lifted.
(4)
Within forty-eight (48) hours after such suspension or proclamation, the President shall personally or in writing report his action to Congress.
(5)
The Congress may then, by a majority vote of ali its members voting jointly, revoke his action. The revocation may not be set aside by the President.
INTRODUCTION TO LAW
250
(6)
By the same vote and in the same manner, the Congress may, upon the initiative of the President, extend his suspension or proclamation for a period to be determined by the Congress if the invasion or rebellion shall continue and the public safety requires the extension.
(7)
The action ofthe President and Congress shall be subject to review by the Supreme Court which shall have the authority to determine the sufficiency of the factual basis of such action. This matter is no longer considered a political question and may be raised in an appropriate proceeding by any citizen. Moreover, the Supreme Court must decide the challenge within thirty (30) days from the time it is file d.
(8)
Martiallaw does not automatically suspend the privilege of the writ of habeas corpus or the operation of the Constitution. The civil courts and the legislative bodies shall remain open. Military courts and agencies are not conferred jurisdiction over civilians where the civil courts are functioning.
(9)
The suspension of the privilege of the writ of habeas corpus shall apply only to persons facing charges of rebellion or offenses inherent in or directly connected with invasion.
(10) Any person arrested for such offense must be judicially charged therewith within three (3) days. Otherwise, he shall be released. 3. A brief background of Supreme Court rulings on the issue of whether there is right to bail during the suspension of the privilege of the said writ are as follows:
Garcia Padilla vs. Enrile (G.R. No. 61388) The right to bail cannot be invoked during the suspension of the privilege .of habeas corpus. Associate Justice Pacifico P. De Castro who wrote the Padilla decision for the court reasoned out in this vein:
"Realistically, a person engaged in the rebellion does not, upon being arrested or captured, ceases to be as committed to
REMEDIAL LAW
251
the cause of the movement. Through a grand conspiracy as is of the essence of how rebellion is committed involving a great mass of confederates bound together by a common goal, he remains in a state of continued participation in the criminal act or design. His heart still beats with th~ same emotion for the success of the movement of which he éontinues to be an ardent adherent and ally. lt is simple logic then to hold that there should be no legal compulsion for a captured rebel to be charged in court, only to be released on bail, while he is, realistically and legally, still as much engaged in carrying on actively to attain their goal of overthrowing the established regime. lt is, likewise, all too well-known that when the rebel forces capture government troopers or kidnap private individuals, they do not accord to them any of the rights now being demanded by the herein petitioners, particularly to be set at liberty upon the filing of bail. As a matter of common knowledge, captives of the rebels or insurgents are not only given the right to be released, but also denied trial of any kind. In some instances, they may even be liquidated unceremoniously. What is then sought by the suspension of the privilege of the writ of habeas corpus, is, among others, to put the government forces on equal fighting terms with the rebels, by authorizing the detention of their own rebel or dissident captives as the rebellion goes on. In this way, the advantage of the rebellion forces ha ve over those of the government, as when they resort to guerrilla tactics with sophisticated weapons, is, at least minimized, thereby enhancing the latter's chances of beating their enemy. lt would, therefore, seem to be ignoring realities in the name of misplaced magnanimity and compassion, and for the sake of humanity, to grant the demand for respect of rights supposedly guaranteed by the Constitution by those who themselves seek to destroy that very same instrument, trampling over it already as they are still waging war against the government. This stark actuality gives added force and substance to the rationale of the suspension of the privilege of the writ of habeas corpus in case of invasion, insurrection, rebellion, or imminent danger thereof, when public safety requires it.
252
253
INTRODUCTION TO LAW
REMEDIAL LAW
4. In a book I have written, entitled, ''What is our right and what is our power as a people," I expressed my dissent to the abovementioned ruling in this manner.
appropriately its own? Moreover, it is not the particular right of the individuai that is protected or being protected. Rather, it is the doctrine of separation of powers itself and the system of checks and balances as well as the very constitution itself which guarantees all of these that the judiciary protects. If, in th~ exercise of this duty, an individuai or group of individuals are directly or indirectly benefited, it is because they are part and parcel of the state and of the government which they have chosen. After all, the government may come and go at any time but the people who compose the state remains. They are actually the ones who work to no end just so that the nation and the state can survive.
On the issue of bail, the two (2) reasons given by Associate Justice Pacifico P. de Castro and which are quoted above, are not, in my honest opinion, sufficient justifications to deny the right to bail for the following reasons:
First: In G.R. No. 61388 entitled "In the matter ofthe Petition for the Issuance of the Writ of Habeas Corpus for Dra. Aurora Parong, et al., Hosefina Garcia-Padilla, petitioner vs. Minister Juan Ponce Enrile, Gen. Fabian C. Ver," Gen. Fidel V. Ramos, and Lt. Col. Miguel Coronel, respondents, records show that Dra. Aurora Parong is charged with the crime of illegal possession of firearms. This is clearly a bailable offense. The same thing is true with respect to the other detainees. No amount of legal nicety nor the issuance of a Presidential Commitment Order can prevail over a clear constitutional guarantee expressed in Section 18, Artide IV of the New Constitution which reads: xxx
"Sec. 18 - All persons except those charged with capital offenses when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties. Excessive bail shall not be required. (Underlining Supplied) Since it is clear that the said detainee is charged with a bailable offense and since it is clear from the above-quoted constitutional provision that she is qualified to be bailable, there should be no reason nor any barrier to deny the petition for bail.
Second: While the President has the power to suspend the privilege of habeas corpus under and by virtue of the exceptions in Section 15, Article IV of the New Constitution, it is, on the other hand, the power of the courts to grant bail to qualified persons no t falling under the exceptions mentioned in Section 18, Article IV. I see no justification to the statement that "the duty of the judiciary to protect individual rights must yield to the power of the executive to protect the state x x x." Ten (10) or one hundred (100) detention prisoners, or even more, even granting that they are rebels, cannot overwhelm the vast powers of the government. It will not make a serious difference if they are granted the right to bail. Besides, why should the judiciary yield a power and a duty which is
l l
iltfil
.]l,·H f
Third: In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. x x x (Sec. 19, Article IV, 1987 Constitution) If one's right to bail is denied, the abovequoted constitutional right will be defeated and rendered useless. The detainee, for as long as he is detained, cannot effectively prepare his case and his defense. Added to this is the fact that during the entire period of his detention and untii the case is finally decided, he is, in the eyes of the la w, stili presumed innocent. The contrary has yet to be proven and yet during the interegnum between the inquiry and the final judgment, he has already lost the battie. Even before the trial starts, he is already in a very disadvantageous position. While the government, with all the powers à.nd facilities in its command, is thoroughly preparing its case and its evidence, the detainee suffers the physical and mental burden of being kept inside the prison cell. Even granting for the sake of argument that he is given a chance to confer with his counsel, the disadvantage in any respect stili works against the detainee. This is very evident and clear and any contradiction of reaiity will only make the truth very obvious . PETITION FOR CHANGE OF NAME
A person desiring to change his name can file his petition with the locai civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. (R.A. No. 9048)
illll INTRODUCTION TO LAW
254
REMEDIAL LAW
256
!l' :Il
l'
JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN
CONTENTS OF PETITION FOR CHANGE OF NAME
l.
The petition for change of name shall be in the form of an affidavit, subscribed and sworn to before any person authorized to administer oaths. The petition for change of first name or nickname may be aliowed in any of the foliowing cases: (a)
The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;
(b)
The new first name or nickname has been habitualiy and continuously used by the petitioner and he has been publicly known by that first names or nicknames in the community; or
(c)
The change wili avoid confusion.
VENUE:
Where judicial approvai of a voluntary recognition of a minor natura! child is required, such child or his parents shali obtain the same by filing a petition to that effect with the Court of First Instance of the province in which the child resides. In the City of Manila, the petition shali be filed on the Juvenile and Domestic Relations Court. (Sec. l, Rule 105, New Rules of Court)
Ilii CONTENTS OF PETITION
i
PETITION FOR VOLUNTARY DISSOLUTION OF CORPORATION
A petition for voluntary dissolution of a corporation shali be filed in the CFI of the province where the principal office of the corporation is situated. (Sec. l, Rule 104) (CFI is now referred to asRTC) Requirements: l.
It must be signed by a majority of its Board of Directors, or other officers managing its affairs.
2.
It must be verified by the President or Secretary or one of the directors.
3.
It must set forth ali claims and demands against the said corporation.
4.
A statement that its dissolution was resolved: (a)
By the majority of the members (if non-stock),
(b)
Or by the affirmative vote of the stockholders holding and representing two-thirds (2/3) of ali the shares of stock issued or subscribed (if a stock .corporation) at a meeting of its members or stockholders calied for that purpose. (Sec. l, Rule 104)
'11111
The petition for judicial approvai of a voluntary recognition of a minor natura! child shall contain the foliowing aliegations: (l)
The jurisdictional facts;
(2)
The names and residences of the parents who acknowledge the child, or of either of them, and their compulsory heirs, and the person or persons with whom the child lives;
(3)
The fact that the recognition made by the parent or parents took piace in a statement before court of record or in an authentic writing, copy of the statement or writing being attached to the petition. (Sec. 2, Rule l 05, New Rules of Court)
l .... Il
WHO MAY RECOGNIZE A NATURAL CHILO?
A natura! child may be recognized by the father and mother jointly, or by only one of them. (Art. 276, New Civil Code of the Philippines)
WAYS OF VOLUNTARY RECOGNITION
Recognition shali be made in the record of birth, a will, ll statement before a court of record, or in any authentic writing. (Art . 278, New Civ il Code of the Philippines)
256
INTRODUCTION TO LAW
REMEDIAL LAW
NOTE: l.
2.
3.
4.
(b)
A child who is of age cannot be recognized without his consent. When the recognition of a minor does not take piace in a record of birth or in a will, judicial approvai shall be necessary. A minor can in any case, impugn the recognition within four (4) years following the attainment of his majority. (Art. 281, New Civil Code) A recognized natural child has the right: (l) To b~ar the surname of the parent recognizing him; (2) To receive support from such parent, in conformity with Artide 291; (3) To receive in a proper case, the hereditary portion which is determined in this Code. (Art. 282, New Civil Code)
In cases ofrape, abduction or sedudion, when the period of the offense coincides more or less with that of the conception;
(2)
When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter or of his family;
(3)
When the child was conceived during the time when the mother cohabited with the supposed father;
( 4)
When the child has in his favor any evidence or proof that the defendant is his father. (Art. 283, New Civil Code)
Recognition by operation oflaw (i.e., natural children by legai fiction such as those mentioned)n Artide 89 of the New Civil Code).
(4)
Automatic recognition such as that mentioned in Article 271 of the New Civil Code.
''Art. 271 - Only natural children who have been recognized by the parents before or after, the celebration of the marriage, or have been declared natural children by final judgment, may be considered legitimated by subsequent marriage. lf a natural child is recognized or judicially declared as natural, such recognition or declaration shall extend to his or her brothers or sisters of full blood; Provided, That the consent of the latter shall be implied if they do not impugn the recognition within four (4) years {rom the t ime of su c h recognition, or in case they are minors, within four (4) years following the attainment o{ majority." WHO MAY PETITION DECLARATION OF ABSENCE?
Kinds of recognition (l)
Recognition may either refer to recognition of (a) a natural child, or (h) recognition of a spurious child. (a)
(b) (2)
'!
. i
l
Natural child - It is a child horn outside of wedlock of parents who, a t the time of conception of the former, were not disqualified by any impediment to marry each other.
l!
Spurious child- It is an illegitimate child other than natural.
i
Voluntary recognition of a natural child or voluntary recognition of a spurious child;
After the lapse of two (2) years from his disappearance and without any news about the absentee or since the receipt of the last news, or offive (5) years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and appointment of a trustee or administrator may be applied for by any of the follQwing: (a)
The spouse present;
(b)
The heirs instituted in a will, who may present an authentic copy of the same;
(c)
The relatives who would succeed by the law ofintestacy; and
(d)
Those who have over the property of the absentee some rights subordinated to the condition of his. death. (Sec. 2, Rule 107, New Rules of Court)
l
i
Recognition may also be categorized as follows: (a)
Compulsory recognition of a natural child. In this case, a formai declaration of filiation is made by the court.
(3)
In any of the following cases, the father is obliged to recognize the child as his natural child: (l)
257
o
l ì
7''"
i,j
REMEDIAL LAW
INTRODUCTION TO LAW
258
CODE:
(g)
Legitimations;
2 years - Should lapse before declaration of absence can be made. This period applies to an absentee who has no administrator.
(h)
Adoptions;
(i)
Acknowledgments of natura! children;
5 years - Should lapse before declaration of absence can be made. This period applies if the absentee has an administrator.
(j)
Naturalization;
(k)
Election, loss or recovery of citizenship;
(l)
Civil interdiction;
CONTENTS OF PETITION
The petition for the appointment of a representative, or for declaration of absence and the appointment of a trustee or an administrator, must show the following: (a)
The jurisdictional facts;
(b)
The names, ages, and residences of the heirs instituted in a will, copy of which shall be presented, and of the relatives who would succeed by the law of intestacy;
(c)
The names and residences of creditors and others who may have any adverse interest ovel' the property of the absentee;
(d)
The probable value, location and character ofthe property belonging to the absentee.
CANCELLATION OF ENTRIES IN THE CIVIL REGISTRY ENTRIES SUBJECT TO CANCELLATION OR CORRECTION
(m) Judicial determination of filiation; (n)
Voluntary emancipation of a minor; and
(o)
Changes of name.
WHO MAY FILE A PETITION FOR CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY?
Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil registry, may file a verified petition for the cancellation or correction of any entry related thereto, with the Court of First Instance of the province where the corresponding civìl registry is located (CF! is now referred to as RTC) NOTE: WHAT CHANGES ARE AUTHORIZED?
l.
Changes that are authorized are those changes which are merely clerical in nature. Those which affect civil status, nationality or citizenship are not authorized. Ali these and other substantial changes should be threshed out in a proper action.
2.
Notice and Publication- Upon the filing ofthe petition, the court shall, by an order, fix the time and piace for the hearing of the same, and cause reasonable notice thereof to be given to the person named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of generai circulation in the province. (Sec. 4, Rule 108, New Rules of Court)
Upon good and valid grounds, the following entries in the civil registry may be cancelled or corrected: (a)
Births;
(b)
Marriages;
(c)
Deaths;
(d)
Legai separation;
(e)
Judgments of annulments of marriage;
(f)
Judgments declaring marriages void from the beginning;
259
CRIMINAL PROCEDURE DEFINITION
261
REMEDIAL LAW
INTRODUCTION TO LAW
260
REQUISITES FOR VALlO EXERCISE OF CRIMINAL JURISDICTION
Before a court can validly exercise its power to hear and try a case, the following requisites must be present: l
Criminal procedure is a part of remedial law which provides for the apprehension, prosecution, conviction or acquittal, as the case may be, of a person who is accused of having committed a crime.
(a)
There must be jurisdiction over the subject matter;
(b)
There must be jurisdiction over the territory where the offense was committed; and
(c)
There must bejurisdiction over the person ofthe accused.
CRIMINAL JURISDICTION
Jurisdiction over the subject matter is conferred by law.
Criminal jurisdiction is the authority to hear and try a particular offense and impose the punishment for it.
Jurisdiction over the territory means that an accused can be tried only in the piace where he committed the crime or where any of the essential ingredients of the crime took piace.
HOW IS THE COURT'S JURISDICTION DETERMINED?
Jurisdiction over the person of the accused may be obtained by voluntary appearance or surrender of the accused or by arrest.
The generai rule is that the jurisdiction of a court is determined by:
DISTINCTION
(a)
The geographical limits of the territory over which it presides;
(b)
The actions (civil and criminal) is empowered to hear and decide.
ELEMENTS OF JURISDICTION IN CRIMINAL ACTIONS
The elements of jurisdiction of a trial court over the subject matter in a criminal case are: (a) (b)
The nature of the offense and/or penalty attached thereto. The fact that the offense has been committed within the territorial jurisdiction of the court.
COMPLAINT
INFORMATION
l. A sworn statement charging l. A written statement of
a person with an offense, subscribed by the offended party, any peace officer and other employee ofthe government or governmental institution in-charge of the enforcement or execution of the law.
accusation charging a person with an offense subscribed by the Fiscal and filed with the Court.
2. Filed either in court or in the 2. Filed directly with the Court. Fiscal's Office. WHO MUST PROSECUTE CRIMINAL ACTION?
Non-concurrence of either of these two (2) elements may be challenged by an accused at any stage of the proceedings in the court below or on appeal.
AS A RULE: A criminal action either commenced by complaint or by information shall be prosecuted under the discretion and control of the Fiscal.
In the absence of any of the said elements, a judgment of conviction is null and void. (U.S. vs. Jayme, 24 Phil. 90, 93)
EXCEPTION: However, when there is no Fiscal available in the Municipal Trial Court, the following persor.s may prosecute the case:
ì' REMEDIAL LAW
INTRODUCTION TO LAW
262
(a)
The offended party;
(b)
Any peace officer; and
(c)
Public officer charged with the enforcement of the law violated.
IN CASE OF OEATH OR INCAPACITY OF THE OFFENOEO PARTY, ANO THE LATTE~ HAS NO PARENTS, GRANOPARENTS, OR GUAROIAN, WHO SHALL INSTITUTE THE CRIMINAL ACTION IN HER BEHALF?
Sllch authority shall cease in the following manner: (a)
Upon intervention of the Fiscal; or
(b)
Upon elevation of the case to the Regional Trial Court.
The State. (Sec. 5, 3rd paragraph of the Revised Rules on Criminal Procedure) IN CASE THE OFFENOEO PARTY IS A MINOR, CAN SHE INSTITUTE THE PROSECUTION OF THE ABOVE OFFENSES?
HOW IS CRIMINAL ACTION A COMMENCEO?
lt is "commenced either by complaint or information in the name of the People of the Philippines against all persons who appear to be responsible therefor.
Yes, unless she is incompetent or incapable of doing so upon grounds other than her minority. IN CASE THE OFFENOEO PARTY WHO IS A MINOR FAILS TO FILE A COMPLAINT, WHO CAN FILE THE SAME?
WHAT ARE THE CRIMES THAT SHALL BE PROSECUTEO ONLY UPON THE COMPLAINT OF THE OFFENOEO SPOUSE?
Her parents, grandparents, or guardian may file the same.
The crimes of adultery and concubinage shall not be prosecuted, except upon a complaint filed by the offended spouse.
WHAT SHOULO A COMPLAINT OR INFORMATION STATE?
WHEN THE OFFENOEO PARTY PROSECUTES A CRIMINAL PROSECUTION FOR AOULTERY ANO CONCUBINAGE, WHO SHOULO BE IMPLEAOEO?
The offended party cannot institute criminal prosecution for said crimes without including both guilty parties, if they are both alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders. WHAT ARE THE CRIMES THAT SHALL BE PROSECUTEO ONLY UPON THE COMPLAINT OF THE OFFENOEO PARTY, OR HER PARENTS, GRANOPARENTS, OR GUAROIAN?
The offense of seduction, abduction, or acts of lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be.
263
'l
l
"Sec. 8. Designation of the offense - The complaint or information shall state the designation of the offense given by the statute aver the acts or omissions constituting the offense and SPECIFY ITS QUALIFYING AND AGGRAVATING CIRCUMSTANCES. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Sec. 9. Cause of accusation - The acts or omissione complained of as constituting the oft'ense and the aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as ITS QUALIFYING AND AGGRAVATING CIRCUMSTANCES and for the court to pronounce judgment."
ilf:
264
REMEDIAL LAW
INTRODUCTION TO LAW
IF THERE IS AN ERROR IN THE NAME OR IDENTITY OF THE ACCUSED, HOW SHOULD IT BE RAISED?
If in the course of the proceeding, the true name of the accused is disclosed by him, or appears in the other manner to the court, the true name of the accused shall be inserted in the complaint or information and record.
DUPLICITY OF THE OFFENSE
,
A complaint or information must charge but one offense .
.
lllì
EXCEPTION: Except in cases in which existing laws prescribe a single punishment for various offense.
~~
WHERE SHALL A CRIMiNAL ACTION BE INSTITUTED ANO TRIED?
ftr
1
WHAT IS THE OTHER WAY OF IDENTIFYING THE NAME OF THE OFFENDED PARTY?
l!g
l.
Subject to existing laws, in ali criminal prosecutions, the action shall be instituted and tried in the court of the municipality or territory wherein the offense was committed or any one of the essential ingredients thereof took place;
2.
Where an offense is committed on a railroad train, in an aircraft, or in any other public or private vehicle while in the course of its trip, the criminal action may be instituted and tried in the courts of any municipality or territory where such train, aircraft or other vehicle passed during such trip, including the piace of departure and arrivai;
3.
Where an offense is committed on board a vessel in the course of its voyage, the criminal action may be instituted and tried in the proper court of the first port of entry or of any municipality or territory through which the vessel passed during such voyage subject to the generally accepted principles of international law;
4. ·
Other crimes committed outside the Philippines but punishable therein under Artide 2 of the Revised Penai Code shall be cognizable by the proper court in which ·the charge is first filed.
»1·: 'li ìi\
~ .(:
He must be described under a fictitious name. (a)
(b)
(c)
In case of offenses against property, if the name of the offended party is unknown, the property, subject matter of the offense, must be described with such particularity as to properly identify the particular offense charged. If in the course of the trial, the true name of the person against whom or against whose property the offense was committed is disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information, or record. If the offended party is a corporation or any other juridical person, it is sufficient to state the name of such corporation or juridical person, or any name or designation by which it has been or is known, or by which it may be identified, without necessity of averring that it is a corporation, or that it is organized in accordance with the law.
IS IT NECESSARY TO STATE THE EXACT TIME WHEN THE ALLEGED OFFENSE WAS COMMITTED?
No. (Sec. 11, Rule 110 of the Revised Rule on Criminal Procedure) · · EXCEPTION: Except when time is a materia! ingredient of the offense. In such case, the act may be alleged to have been committed at any time or near to the actual date at which the offense was committed or the information or complaint will permit.
265
!.•
•
l l[l
!'w l
RULE 111
1985
2000 as amended
"Sec. l. Institution of cri"Sec. l. Institution of cri· minai and civil actions." minai ànd civil actions." When a .criminal action is When a t::riminal action is instituted, the civil action for the instituted, the civil action for the
rr
n 266
INTRODUCTION TO LAW
J
REMEDIAL LAW
)i
267
n
recovery of civil liability is impliedly instituted with the criminai action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the cri minai action.
recovery of civil liability ARISING FROM OFFENSE CHARGED shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the _civii action prior Such civil action includes to the criminai action. recovery of indemnity under the Such civil action includes Revised Penai Code, and recovery of indemnity under the damages under ArtiCles 32, 33, Revised Penai Code, and dama34 and 2176 of the Civil Code of ges under Articles 32, 33, 34 and the Philippines arising from the 2176 of the Civil Code of the act or omission of the accused. Philippines arising from the act A waiver of any of the civii or omission of the accused. The reservation of the right actions extinguishes the others. The institution of, or the reser- to institute the separate civil vation of the right to file, any of actions shall be made before the said civil actions separateiy prosecution starts to present its waive the others. evidence and under circumThe reservation of the right stances affording the offended to institute the separate civil party a reasonabie opportunity to actions shall be made before the make such reservation. prosecution starts to pres~nt the EXCEPT AS OTHERWISE evidence and. under cucum- PROVIDED IN THESE RULES, stances affordmg the offe?-ded NO FILING FEES SHALL BE party a reasonable o~portumty to REQUIRED FOR ACTUAL DAmake such reservatwn. MAGES. In no case may the offended NO COUNTERCLAIM, party recover damages twice for CROSSCLAIM, OR THIRD the same act or omission of the PARTY COMPLAINT MAY BE accused. FILED BY THE ACCUSED IN When the offended party THE CRIMINAL CASE. BUT seeks to enforce civil liability ANY CAUSE OR ACTION against the accused by way of WHICH COULD HAVE BEEN moral, nominai, temperate or THE SUBJECT THEREOF MAY exempiary damages, the 'filing BE LITIGATED IN A SEPAfees for such civil action as RATE CIVIL ACTION. provided in these Rules shall
~
~
l}
li
'l 1;
l
!\::
.. '
'
1 ,·i
~~ w
i-
ii
qjl
constitute a first lien on the (A) THE CRIMINAL judgment except in an award for ACTION FOR VIOLATION OF actuai damages. BATAS PAMBANSA BLG. 22 SHALL BE DEEMED TO IN. In cases wherem the amou~t CLUDE THE CORRESPONDofdamag~s, other than ac~uai, 1s ING CIVIL ACTION, NO ~lleged .m the compiamt. or RESERVATION TO FILE SUCH m~ormatwn, the corre.spondmg CIVIL ACTION SEPARATELY filmg fees shall be pa1d by ~he SHALL BE ALLOWED. offended party upon the fihng thereof in court for trial. UPON FILING OF THE " . • AFORESAID JOINT CRIMINAL Sec. ~·. Ins~Itution of AND CIVIL ACTIONS, THE separate Civd acbon. OFFENDED PARTY SHALL Except in the cases provided PAY IN FULL THE FILING for in Section 3 hereof, after the FEES BASED ON THE criminal action has been com- AMOUNT OF THE CHECK menced, the civil action which INVOLVED, WHICH SHALL BE has been reserved cannot be CONSIDERED AS THE instituted until finai judgment ACTUAL DAMAGES CLAIMED. has been rendered in the WHERE THE COMPLAINT OR criminal action. INFORMATION ALSO SEEKS TO RECOVER LIQUIDATED (a) Whenev~r t~e offended MOAL, NOMINAL, TEMPEp.a~ty s~all have ~nsbtute.d the RATE OR EXEMPLARY DAc~VII acbon as proVIded for ~n the MAGES, THE OFFENDED PARf1rst paragraph of ~ecbon l TY SHALL PAY ADDITIONAL h~re?f befo~e the filmg ?f .the FILING FEES BASED ON THE cn~mai. acbon and the cnmmal AMOUNTS ALLEGED THEREactwn 1s subse~ue~tl.y co.m- IN, IF THE AMOUNTS SUBSEmenced, the pendm~ CIVII acbon QUENTLY AWARDED BY THE shall be suspended,.m whatev?r COURT, THE FILING FEES stage ?ef?re fina~ Judgment m BASED ON THE AMOUNT the cnmmal actwn. has been AWARDED SHALL CONSTI~endered. However, 1f no finai TUTE A FIRST LIEN ON THE JUdgment has been rendered by JUDGMENT the trial court in the civil action, · the same may be consolidated WHERE THE CIVIL with the criminal action upon ACTION HAS BEEN FILED application with the court trying SEPARATELY AND TRIAL the criminai action. If the appli- THEREOF HAS NOTYET COMcation is granted, the evidence MENCED, IT MAY BE CONSOpresented and admitted in the LIDATED WITH THE CRIMI-
r ~~
268
REMEDIAL LAW
INTRODUCTION TO LAW
269
:l
civil action shall be deemed automatically reproduced in the criminal action, without prejudice to the admission of addìtional evidence that any party may wish to present. In case of consolidation, both the criminal and civil actions shall be tried and decided jointly.
NAL ACTION. UPON APPLICATION WITH THE COURT TRYING THE LATTER CASE IF THE APPLICATION IS GRANTED THE TRIAL OF BOTH ACTIONS SHALL PROCEED IN ACCORDANCE WITH SECTION 2 OF THIS RULE GOVERNING CONSOLIDATION OF THE CIVILAND CRI(b) Extinction of the penai MINAL ACTIONS." action does not carry with it extinction ofthe civil, unless the "Sec. 2. Institution of extinction proceeds from a separate civil action." declaration in a final judgment . . ~ tf h' h th . .1 Except m cases prov1ded for a e tac rom w 1c e CIVI . . , th· thtth · d'd t · t m Sectwn 3 hereof, after :..he m1g anse 1 no ex1s . . . 1 ac t'w n h as b een comcnm1na menced, the civil action which has been reserved cannot be instituted initial judgment on the merits has been entered in the criminal action. (a) Whenever the offended party shall have instituted the civil action as provided for in the first paragraph of Section l hereof before the filing of the criminal and the criminal action is subsequently commenced, the pending civil action shall be suspended, in whatever stage before judgment on the merits has been entered. However, if no judgment on the merits has been entered by the trial court in the civil action, the same may be consolidated with the criminal action upon application with the court trying the criminal action upon. If the application is granted, the evidence presented and admitted in the civil action shall
li
be deemed automatically reproduced in the criminal action, without prejudice to the admission of additional evidence that any party may wish to present. In case of consolidation, both the crimìnal and the civil actions shall be tried and decided jointly.
!l
li
(b) Extinction of the penai action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist.
'!1
1
!~!
CHANGES AT A GLANCE
1985
!l,\i
;iil'
l. Under the 1985 Rule, the Il. action for recovery of civil liability arising from crime including the civil liability under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission are deemed impliedly instituted with the criminal action unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.
2. li
2000 as amended
Under the former rule, a waiver of any of these three
,2.
Under the present rule only the civilliability arising from the offense charged is deemed instituted with the criminal unless the offended party waives the civil action, re-s.erves his right to institute it separately, or institutes the civil action prior to the criminal action.
A waiver ofany ofthese three (3) civil actions extinguishes
r1
\:l 270
INTRODUCTION TO LAW
REMEDIAL LAW
l (3) civil actions extinguishes the others. The institution of, or the reservation of, the right to .file any sai d ci vii actions separately waives the others. 3. The former rule does not include Batas Pambansa Big. 22.
the others is no longer provided in the present rule.
3. The present rule also incorporated Circular 57-97 on the filing of action for violation of Batas Pambansa Big. 22 mandating the inclusion of the corresponding civil action for which the filing fee shall be paid based on the amount of the check involved.
INFORMATION
l
l.
A written accusation charging a person with an offense subscribed by the Fiscal and filed with the Courts.
2.
Filed directly with the Court.
WHO MUST PROSECUTE CRIMINAL ACTIONS?
l.
l
(a)
Provincia! or City Fiscal and their Assistants;
(b)
Judges ofthe Municipal Trial Courts and Municipal Trial Courts;
(c)
National and Regional State Prosecutors; and
(d)
Other officers as may be authorized by the law.
Their authority to conduct preliminary investigation shall include ali crimes cognizable by the proper court in their respective territorial jurisdiction. (Sec. 2, Rule 112) DISTINCTIONS COMPLAINT
l.
2.
A sworn statement charging a person with an offense, subscribed by the offended party,. any peace officer and other employee of the government or governmental institution in-charge of the enforcement or execution of the law violated. Filed either in court or in the Fiscal's Office.
Criminal actions commenced by complaint or by information They shall be prosecuted under the direction and control of the Fiscal.
2.
Adultery and concubinage They shall not be prosecuted except upon a complaint filed by the offended spouse. The Fiscal cannot prosecute those crimes on own initiative. The offended party must implead both the guilty parties, if they are both alive.
his
WHO ARE AUTHORIZED TO CONDUCT A PRELIMINARY INVESTIGATION?
The following may conduct a preliminary investigation, to wit:
271
3.
Seduction, abduction, rape, acts of lasciviousness They shall not be prosecuted except upon a complaint filed by the offended party, or her parents, or her grandparents, or guardian nor in any case if the offender has been expressly pardoned by the abovenamed persons, as the case may be.
EVIDENCE It is the means sanctioned in the Rules of ascertaining in judicial proceeding the truth respecting a matter of fact. KINDS OF EVIDENCE
l.
Documentary evidence - Such as documents, papers or any written letter or communication.
2.
Testimoniai evidence - Oral or written testimony or statement of a witness.
3.
Real evidence- That which may be exhibited to or viewed by the Court such as the knife or gun used to kill Mr.A.
272
INTRODUCTION TO LAW
4.
Circumstantial evidence - It proves a fact from circumstances surrounding a particular incident or situation.
5.
Corroborative evidence - Additional evidence of the same kind tending to prove the same fact.
6.
Cumulative evidence. - Additional evidence of a different kind tending to prove a fact.
7.
Prima facie evidence - Evidence sufficient to prove an issue unless rebutted by other evidence.
8.
Expert evidence - That given by a person who has a specialized knowledge of a particular field in connection with which his testimony is requested.
REMEDIAL LAW
273
COPIES OF AN ORIGINAL ARE REGARDED AS ORIGINALS
When an entry is repeated in the regular course of business, one being copied from another a t or near the time of the transaction, all the entries are equally regarded as originals. WHAT IS THE PAROL EVIDENCE RULE?
Rule 130, Section 7 of the New Rules of Court defines the parol evidence as follows:
WHAT IS THE BEST EVIDENCE RULE?
"Sec. 7. Evidence of written agreements - When terms of an agreement have been reduced to writing, it is to be considered as containing all such terms, and, therefore, there can be, between the parties and their successors-in-interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases:
Under the best evidence rule, the contents of the document being offered. in evidence cannot be proved unless the originai is produced or its absence accounted for. The reason for the rule is to prevent uncertainty, ambiguity and fraud.
(a) Where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of the parties, or the validity of the agreement is put in issue by the pleadings;
Rule 130, Section 2 of the New Rules of Court provides as follows:
(b) Where there is an intrinsic ambiguity in the writing. The term agreement includes will."
"Sec. 2. Originai writing must be produced; exceptions - There can be no evidence of a writing the contents of which is the subject of inquiry, other than the · original writing itself, except in the following cases: (a) When the original has been lost, destroyed or cannot be produced in court; (b) When the original is in the possession of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original is a record or other document in the custody of a public officer; (d) When the origina l has been recorded in an existing record a certified copy of which is made evidence by law; (e) When the origina[ consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole."
WHAT IS HEARSAY EVIDENCE?
Hearsay evidence is that which a witness says he merely heard from another. It is an evidence that the witness heard soniething from another but it is not an evidence that what was ·heard was true. As a rule, hearsay evidence is not admissible as evidence. EXCEPTIONS TO THE HEARSAY RULE
l. Dying declarations;
2. Statements of a deceased person against his pecuniary or moral interest; 3. Statements about pedigree, family reputation or tradition about pedigree; 4. Statement about matters of public or generai interest, or common reputation; 5. Statements as part of the res gestae;
274
INTRODUCTION TO LAW
6. ·Entries in the course of business, or in the performance ofduty; 7. Official written statements;
Chapter XVI
8. Commerciallists and similar lists; 9. Learned treaties; and
LABOR LAW ANO SOCIAL LEGISLATION
10. Testimony at a former trial. (Secs. 31 to 41, Rule 140) RULES CONCERNING ADMISSION TO THE PRACTICE OF LAW
Section 5(5), Artide X of the New Constitution provides as follows:
IMPORTANT TOPICS UNDER THE LABOR CODE OF THE PHILIP· PINES:
l.
"Sec. 5. ·The Supreme Court shall ha ve the following powers:
Distinction between labor laws and social legislation (a)
Labor laws
(b)
Sociallegislation
xxx
2.
Generai provisions of the Labor Code of the Philippines
(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the National Assembly. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. x x x"
3.
Emancipation of tenants
4.
Regulation of Recruitment and Placement Activities
5.
Employment of non-resident aliens
6.
Conditions of employment (a)
Hours of work
(b)
Weekly rest period
(c)
Holidays, Service Incentive Leaves and Service Charges
(d)
Wages (d.l) Minimum wage rate (d.2) Forms of payments (d.3) Time of payment (d.4) Piace of payment (d.5) Prohibitions regarding wages (d.6) Wage studies and determination 275
LABOR LAW AND SOCIAL LEGISLATION
INTRODUCTION TO LAW
276
(e) 7.
8.
9. 10.
2.
Employment of minors Jurisdiction of Labor Arbiters and the Commission
(b)
Technical rules not binding
(c)
Appeal from decision of NLRC
Unfair labor practices (a)
Unfair labor practices of employers
(b)
Unfair labor practices of labor organizations
Strikes and lockouts
SOCIAL LEGISLATION DEFINED
Social legislation refers to those laws that are designed to uplift the condition of workers or employees as members of the community and as human bèings with recognized dignity. They are designed to secure the future of the worker as well as his family because of what happens to the worker arising from the hazards, incidents or effects of employment.
National Labor Relations Commission (NLRC) (a)
277
EXAMPLES: Social Security Act, the Medicare Act and provisiòns on compensation for injuries sustained by workers or employees in the course of or arising from employment.
,, l
DISTINCTION BETWEEN LABOR LAWS AND SOCIAL LEGISLATION
Termination of employment
1.
LABOR LAWS
(a)
Regular and casual employment
(b)
Probationary employment
(l)
They affect the work of the employee.
(c)
Termination by employer
(2)
Generally covers employment for profit or gain ..
(d)
Clasure of establishment and reduction of personnel
(3)
They directly affect matters of actual employment like wages and hours of labor.
(e)
Disease as ground for termination
(4)
(f)
Termination by employee
They are designed to meet the daily needs of an employee for sustenance.
11.
Retirement from the service
12.
13th-month pay
'·
SOCIAL LEGISLATION
IMPORTANT SOCIAL LEGISLATIONS l.
New Social Security Law (SSS)
2.
New Government Service Insurance System (GSIS)
3.
Comprehensive Agrarian Reform Law
(l)
They affect the life of the employee.
(2)
They cover employment for gain or even non-profit enterprises.
(3)
They govern the effect of employment like payment of compensation for injuries sustained while at work, medicai services available to an employee who gets sick.
(4)
They involve long-range plans, benefits or aspects.
!
DISCUSSION 1.
LABOR LAWS DEFINED
Labor laws are those laws that govern the rights and obligations of employers and employees, providing as well for the rules by which such rights and obligations may be enforced.
2. . GENERAL PROVISIONS OF THE LABOR CODE OF THE PHILIPPINES
(A) Declaration of Basic Policy The state shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race
278
INTRODUCTION TO LAW
LABOR LAW AND SOCIAL LEGISLATION
or creed, and regulate the relations between workers and employees. The state shall assure the rights of workers to self-organization, collective bargaining, security of tenure and just and human conditions of work. (Article 3, New Labor Code)
small landowners (Section 2, 7th paragraph, R.A. No. 6657); 5.
Protection of the rights of subsistent fisherman, especially of local communities, to the preferential use of commerciai marine and fishing resources, both inland and offshores (Section 2, 8th paragraph, R.A. No. 6657);
6.
The State shall be guided by the principles that land has a social function and land ownership has a social responsibility. Owners of agricultural land have the obligation to cultivate directly or through labor administration, the lands they own and thereby make the land productive. (Section 2, 9th paragraph, R.A. No. 6657)
(B) Construction in Favor Of Labor Ali doubts in the implementation and interpretation of the provisions of this code, including its implementing rules and regulations, shall be resolved in favor of labor. (Article 4, New Labor Code) 3.
279
EMANCIPATION OF TENANTS
(A) Law Enacted Republic Act No. 6657, otherwise known as the "Comprehensive Agrarian Reform Law of 1988."
(B) Policy of the State The policy of the state is to pursue a Comprehensive Agrarian Reform Program (CARP). The welfare ofthe landless farmers and farmworkers will receive the highest consideration to promote social justice and to move the nation toward sound rural development and industrializations and the establishment of owner cultivatorship of economie size farms as the basis of Philippine agriculture. (Section 2, 1st paragraph, R.A. No. 6657)
(C) Principles Declared Under Republic Act No. 6657 l.
2.
(D) Coverage of Carp It shall cover, regardless of tenurial arrangement and commodity produced, ali public and private agricultural lands, as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for agriculture. (Section 4, R.A. No. 6657)
(E) Priorities The Department of Agrarian Reform (DAR) in coordination with the Presidential Agrarian Reform Council (PARC) shall pian and program the acquisition and distribution of ali agricultural lands through a period of ten (10) years from the effectivity of R. A. No. 6657. (Section 7, R.A. No. 6657)
Equitable distribution and ownership of land (Section 2, 2nd paragraph, R.A. No. 6657); Just distribution of ali agricultural lands, subject to priorities and retention limits, taking into account ecologica!, developmental, and equity considerations, and subject to the payment of just compensation (Section 2, 3rd paragraph, R.A. No. 6657);
3.
Application of the principles of agrarian reform, or sterwardship, whenever applicable in accordance with law (Section 2, 5th paragraph, R.A. No. 6657);
4.
Formation and maintenance of economic-size family farms to be constituted by individuai beneficiaries and
(F) Distribution Limit No qualified beneficiary may own more than three(3) hectares of agriculturalland. (Section 23, R.A. No. 6657) 4.
REGULATION OF RECRUITMENT ANO PLACEMENT ACTI· VITI ES
(a)
Pursuant to national development objectives and in order to harness and maximize the use of private sector resources initiative in the development and implemen· tation of a comprehensive employment program, the private employment sector shall participate in the
280
LABOR LAW AND SOCIAL LEGISLATION
INTRODUCTION TO LAW
6.
recruitment and placement of workers, locally and overseas, under such guidelines, rules and regulations as may be issued by the Secretary of Labor. (Article 25, Labor Code of the Philippines) (b)
Travel· agencies and sales agencies of airline companies are prohibited from engaging in the business of recruitment and placement of workers for overseas employment whether for profit or not. (Article 26, Labor Code of the Philippines)
(c)
Only Filipino citizens or corporations, partnership or entities at least seventy-five percent (75%) of the aùthorized and voting capitai stock of which is owned and controlled by Filipino citizens shall be permitted to participate in the recruitment and placement of workers, locally or overseas. (Article 27, Labor Code of the Philippines)
CONDITIONS OF EMPLOYMENT
(A) Bours of Work Article 83. Normal Hours of Work - The nomial hours of work of any employee shall not exceed eight (8) hours a day. Article 84. Hours Worked - Hours worked shall include (a) all time during which an employee is required fu be on duty or to beat a prescribed work piace, and (b) ali the time during which an employee is suffered or permitted to work. Rest period of short duration during working hours shall be counted as hours worked. Said provisions shall apply to all employees in ali establishments and undertaking whether for profit or not.
Exceptions Said provisions do not apply to: l.
5.
EMPLOYMENT OF NON-RESIDENT ALIENS
(A) Non-resident Aliens Need Employment Permit Any alien seeking admission to the Philippines for employment purposes and any domestic or foreign employer who desires to engage an alien for employment in the Philippines shall obtain an employment permit from the Department of Labor. (Article 40, Labor Code of the Philippines)
l'll
ii :
li i
!
~:
' ;j:.
Probibition Against Transfer of Employment
l.
Mter the issuance of an employment permit, the alien shall not transfer to another job or change his employer without prior approvai of the Secretary of Labor.
2.
Any non-resident alien who shall take up employment in violation of the provision of this Title and its implementing rules and regulations shall be punished in accordance with the provisions of Articles 289 ;md 290 of the Labor Code.
In addition, the alien worker shall be subject to deportation after service of his sentence. (Article 41,. Labor Code of the Philippines)
.
'~ il
!
(B)
281
2. 3.
4. 5. 6. 7.
(B)
:tf
lll
Govemment employees Managerial employees Field personnel Members of the family of the employer who are dependent on him for support Domestic helpers Persons in the personnel service of another Workers who are paid by the results as determined by the secretary of Labor and Employment in appropriate regulations. (Article 82, Labor Code of the Philippines)
Weekly Rest Period
It shall be the duty of every employer, whether operating for profit or not, to provide each of his employees a rest period of not less than twenty-four consecutive hours after every six (6) consecutive normal work days. (Article 91, Labor Code of the Philippines)
Why is there no definite rest day that is fixed by the Labor Code? Before the enactment ofthe Labor Code, the Blue Sunday Law prohibited commerciai, industriai and agricultural establishments
INTRODUCTION TO LAW .,
282
LABOR LAW AND SOCIAL LEGISLATION
(c)
from opening on Sundays to give employees a weekly rest. This was however, assailed by religious minorities as unconstitutional and discriminatory because they worship and rest on other days than Sunday. For this reason, no definite rest day was fixed by the Labor Code.
Can an employer require work on a rest day? Yes, but only in the following cases, as. specified by Articie 92 of the Labor Code, thus: (a)
(b)
(c)
(d)
A)
In case of actual or impending emergencies caused by serious accident, fire, flood, typhoon, earthquake, epidemie or other disaster or calamity to prevent loss of life and property or imminent danger to the public safety; In case ofurgent work to be performed on the machinery, equipment or installation, to avoid serious loss which the employer would otherwise suffer; In the event of abnormal pressure of work due to special circumstances, where the employer cannot ordinarily be expected to resort to other measures; To prevent loss or damage to perishable goods;
(e)
Where the nature ofwork requires continuous operations and stoppage of work may result in irreparable injury or loss to the employer; and
(f)
Under other circumstances analogous or similar to the foregoing as determined by the Secretary of Labor and Employment.
b: (.r~
~~
B)
(C) Holidays, Service Incentive Leaves and Service Cbarges RIGHT TO HOLIDAY PAY
Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers.
(b)
The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular ra~.
As used in this article "holiday" includes New Year's Day, Maundy Thursday, Good Friday, the ninth of Aprii, the first of May, the twelfth of June, the fourth of July, twenty-sixth of August, the thirtieth of November, tho twenty-fifth and thirtieth of December, and the day designated by law for holding generai election. (Article 94, Labor Code of the Philippines)
Regular holidays New Year's Day
January l
Maundy Thursday
Movable date
Good Friday
Movable date
Araw ng Kagitingan (Bataan and Corregidor Day)
April9
Labor Day
May l
Independence
June 12
National Heroes Day
Last Sunday of August
Bonifacio Day
November 30
Christmas Day
December 25
Rizal Day
December 30
Nationwide special days Ali Saints Day
November l
Last Day of the Year
December 31
RIGHT TO SERVICE INCENTIVE LEAVE (a)
Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.
(b)
This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than ten (10) employees or in establishments exempted from granting this benefit by the Secretary of Labor after
l
ii
:·J
(a)
283
:i·i~ i
.!H
LABOR LAW AND SOCIAL LEGISLATION
INTRODUCTION TO LAW
284
(c)
285
considering the viability or financial condition of such establishment.
Under Wage Order No. NCR-03, the pertinent portion of the wage order states as follows:
The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action. (Article 95, Labor Code of the Philippines)
"All private sector workers and employees in the National Capitai Region receiving one hundred fifty-four pesos (Pl54.00) per day payable as follows: AMOUNT OF INCREASE
DATE OF EFFECTIVITY
RIGHT TO SERVICE CHARGES
All services charge collected by hotels, restaurants and similar establishments shall be distributed a t the rate of eighty-five percent (85%) for all covered employees and fifteen percent (15%) for management. The share of the employees shall be equally distributed among them. In case the service charge is abolished, the share of the covered employees shall be considered integrated in their wages. (Article 95, Labor Code of the Philippines)
Pl7.00
Fifteen days after publication of wage order
PlO.OO
Aprii l, 1994
The following are exempted from this provision upon proper application, thus: l.
Exporting firms, including indirect exporters with existing forward contracts with their foreign buyers, principals at the time of effectivity of this wage order may be exempt during the lifetime of the said contract but not to exceed twelve (12) months from the effectivity of this order.
2.
Retaillservice establishments regularly employing not more than ten (10) workers.
3.
Distressed firms as defined in the NPWC Revised Guidelines on Exemption.
(D) WAGES . (d.l)
MINIMUM WAGE RATE
jl' t-~
HISTORICAL BACKGROUND
Under Republic Act No. 602, otherwise known as the Minimum Wage Law which took effect on Aprii 6, 1951, the minimum wage was P4.00 for non-agricultural and P2.50 for agricultural workers. This was increased by P2.00 under Republic Act No. 4180 and by· another P2.00 under Republic Act No. 6129, which took effect on June 17, 1970. The minimum wage was increased through presidential decrees and letter of instructions during the Martial Law regime, such as Presidential Decree Nos. 928, 1389, 1614, 1634, 1678 and 1713, and Wage Nos. l, 2, 4 and 6, and Letter of Instructions No. 174. Now, the minimum wage rates are fixed in Republic Act No. 6727, known as the Wage Rationalization Law. Under this law, Regional 'l'ripartite wage and productivity Boards were constituted. These boards fix, if necessary, a feasible minimum wage, apart from the NationalCapital Region in Manila and in about two Autonomous Regions.
·}1
(d.2) FORMS OF PAYMENTS
!,.
J l;
.ll j
l
No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tickets, chits or any object other than legai tender, even when expressly requested by the employee. Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary of Labor or as stipulated in a collective bargaining agreement. (Article 102, Labor Code ofthe Philippines)
LABOR LAW AND SOCIAL LEGISLATION
INTRODUCTION TO LAW
286
(d.3)
TIME OF PAYMENT
Wages shall be paid at least once every tw'? (2) weeks or twice a month at intervals not exceeding sixteen (16) days. If on account of force majeure or circumstances beyond the employer's contro!, payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased. No employer shall make payment with less frequency than once a month. The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the following conditions, in the absence of a collective bargaining agreement or arbitration award: l.
2.
That payments are made at intervals not exceeding sixteen (16) days, in proportion to the amount of work completed; and
For union dues, in cases where the rigbt of the worker or bis union to cbeck-off bas been recognized by the employer or autborized in writing by tbe individuai worker concerned; and
iii.
In .cases wbere tbe employer is autborized by law or regulations issued by tbe Secretary ofLabor. (Articles112 and 113, Labor Code of the Philippines) (d.6)
WAGE STUDIES ~'1) DETERMINATION
Tbe Wage Commission in tbe Department of Labor sball conduct a continuing study of wage rates in tbe various agricultural and non-agricultural industries ali over tbe country. The results of sucb study sball be periodically disseminated to tbe govemment, labor and management sectors for tbeir information and guidance.
,IJl ·•J
If after sucb study, tbe Commission is of tbe opinion tbat a substantial number of employees in a given industry are receiving wages wbicb, altbougb complying witb tbe minimum provided by law, are less tban sufficient to maintain tbem in bealtb, efficiency and generai well-being, taking into account, among otbers, the peculiar circumstances of tbe industry and its geograpbicallocation, tbe Commission sball, witb tbe approvai of the Secretary of Labor, proceed to determine wbetber a wage recommendation sball be issued. (Article 120, Labor Code of the Philippines)
{r
PLACE OF PAYMENT
Payment of wages shall be made at or near the place of undertaking, except as otherwise provided by such regulations as the Secretary of Labor may prescribe under conditions to ensure greater protection of wages. (Article 104, Labor Code of the Philippines)
(E) Employment of Minors Minimum employable age -(a) No cbild below fifteen (15) years of age shall be employed, except wben be works directly under the sole responsibility of his parents or guardian, and bis employment does not in any way interfere witb bis scbooling.
(d.5) PROHIBITIONS REGARDING WAGES No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, or oblige his employees to purchase merchandise, commodities, or other property from the employer or from any other person, or otherwise make use of any store or services of such employer or any other person.
(b) Any person between fifteen (15) and eigbteen (18) years of age may be employed for sucb number of bours and such periods of the day as determined by tbe Secretary of Labor in appropriate regulations. (c) Tbe foregoing provisions sball in no case allow the employment of a person below eigbteen (18) years of age in an undertaking wbicb is bazardous or deleterious in nature as determined by tbe Secretary of Labor.
No employer, in his own behalf or in behalf of any person, shall make any deduction from the wages of his employees, except: i.
ii.
!~~
That ·final settlement is made upon completion of the work. (Article 103, Labor Code of the Philippines) (d.4)
287
In case where the worker is insured with his consent by the employer, and the deduction is to recompense the employer for the amount paid by him as premium on the insurance;
Prohibition against child discrimination - No employer sball discriminate against any person in respect to terms and conditions ·tnl
l
289
INTRODUCTION TO LAW
LABOR LAW AND SOCIAL LEGISLATION
of employment on account of his age. (Articles 139 and 140, Labor Code of the Philippines)
and executory unless appealed to the Commission by any or both of the parties within ten (10) days from receipt of such awards, orders, or decisions. Such appeal may be entertained only on any ofthe following grounds (Article 223, Labor Code ofthe Philippines):
288
7.
NLRC (NATIONAL LABOR RELATIONS COMMISSION)
Jurisdiction of Labor Arbiters and the Commission - (a) The Labor Arbiters shall have the originai and exclusive jurisdiction to hear and decide within thirty (30) working days after submission of the case by the parties for decision, the following cases involving all workers whether agricultural or non-agricultural (Article 217, Labor Code of the Philippines): (l)
Unfair labor practices cases;
(2) Those that workers may file involving wages, hours of work and other terms and conditions of employment; (3) All money claims of workers, including those based oli. non-payment or underpayment of wages, overtime compensation, separation pay and other benefits provided by law or appropriate agreement, except claims for employees compensation, social security, medicare and maternity benefits; (4)
Cases involving household services; and
(a) lf there is prima facie evidence of abu.se of discretion on the part of the Labor Arbiter or compulsory arbitrator; :>~>
(c) Appeal from decision of NLRC. - Decisions, awards, or orders of the Labor Arbiters or compulsory arbitrators are final
(b) Ifthe decision, order, or award was secured through fraud or coercion, including graft and corruption; (c)
·!lì
!
·m f~ì
>l! ~M
l~
Il l
(5) Cases arising from any violation of Article 265 of this Code, including questiona involving the legality of strikes and lockouts. (b) Technical rules not binding. -In proceeding before the Commission or any ·of the Labor Arbiters, the rules of evidence prevailing in courts of law or equity shall not be controlling and it is the spirit and intention of this Code that the Commission and its members and the Labor Arbiters shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure, all in the interest of due process. In any proceeding before the Commission of any Labor Arbiter, the parties may be represented by legai counsel but it shall be the duty of the Chairman, any Commissioner or any Labor Arbiter to exercise complete control of the proceedings at all stages. (Article 221, Labor Code of the Philippines)
i
If made purely on questiona oflaw; and
(d) lf serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant. To discourage frivolous or dilatory appeals, the Commission or the Labor Arbiter shall impose reasonable penalty, including fines or censures, upon the e:rring parties. In all cases, the appellant shall furnish a copy of the memorandum of appeal to the other party who shall file an answer not later than ten (10) days from receipt thereof. The Commission shall decide all cases within twenty (20) working days from receipt of the answer of the appellee. The decision of the Commission is appealable to the Secretary of Labor on any of the following grounds: (a)
lf there is a prima facie evidence of abuse of discretion;
(b)
If made purely on questiona oflaw; and
(c) If there is a showing that the national security or social and economie stability is threatened.
'il!'
!:
·"{
The decision of the Commission shall be immediately executory, even pending appeal, unless stayed by an order of the Secretary of Labor for special reasons. The decision of the Secretary of Labor shall be inimediately executory; Provided, That the President of the Philippines may assume jurisdiction over any cases which he considera national interest cases. ·
ìUti
The Philippine Constabulary and other law enforcement agencies may be deputized. by the Secretary of Labor in the enforcement of orders, decisions or awards. (As amended by P.D. No. 1367; referto P.D. No. 1391)
290
8.
INTRODUCTION TO LAW
LABOR LAW AND SOCIAL LEGISLATION
UNFAIR LABOR PRACTICES
(a) To interfere with, restrain, or coerce employees in the exercise of their right to self-organization;
CONCEPT OF UNFAIR LABOR PRACTICE AND PROCEDURE FOR PROSECUTION THEREOF
(b) To require as a condition for employment that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs;
Unfair labor practices violate the constitutional right of workers and employees to self-organization, and inimicai to the legitimate interests of both labor and management, including their right to bargain collectively. They disrupt industriai peace and hinder the promotion of healthy and stable labor-management relations.
(c) To contract out services or functions being performed by union members when such will interfere with, restrain, or coerce employees in the exercise of their right to self-organization; (d) To initiate, dominate, assist or otherwise interfere with the information of administration of any labor organization, including the giving of financial or other support to i t or its organizers or officers;
Consequently, unfair labor practices are not only violations of the civil rights ofboth labor and management but are also criminal offenses against that State which shall be subject to prosecution and punishment as herein provided. Subject to the exercise by the President (Prime Minister), or by the Minister of Labor, of the powers vested in them by Articles 264 and 265 of this Code, the civil aspects of ali cases involving unfair labor practices, which may include claims for damages other affirmative relief, shall be under the jurisdiction of the labor arbiters. They shall resolve such cases within thirty (30) working days from the time they are submitted for decision.
,j !;111
,.i'd l! IJ! t''
'lÌ
~~l
Recovery of civil liability in the administrative proceedings shall bar recovery under the Civil Code.
!j
lì
·,~i
No criminal prosecution under this Title may be instituted without a final judgment, finding that an unfair labor practice was committed, having been first obtained in the preceding paragraph. During the pendency of such administrative proceeding, the running of the period of prescription of the criminal offense herein penalized shall be considered interrupted: Prouided, howeuer, That the final judgment in the administrative proceedings ·shall not be binding in the criminal case nor be considered as evidence of guilt but merely as proof of compliance of the requirements therein set forth. (As amended by B.P. Blg. 70) (Article 247, Labor Code ofthe Philippines) UNFAIR LABOR PRACTICES OF EMPLOYERS
It shall be unlawful for an employer to commit any of the following unfair la.bor practices (Article 248, Labor Code of the Philippines):
291
\li
·~q
,Il
1:
!11; 'n.
t
~Ili
')Uf;
(e) To discriminate in regard to hire or tenure of employment or any term of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall prevent the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except of those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees belonging to an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement. Prouided, That the individuai authorization required under Artide 242, paragraph (0) ofthis Code shall not apply to non-members of the recognized collective bargaining agent;
!
To dismiss, discharge, or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;
·.'lil;i .
(g) To violate the duty to bargain collectively as prescribed by this Code;
,_,
'' ti
(f)
(h) To pay negotiation or attorney's fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or (i)
To violate a collective bargaining agreement.
292
INTRODUCTION TO LAW
LABOR LAW AND SOCIAL LEGISLATION
The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnership who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Blg. 130)
9.
(a) To restrain or coerce employees in the exercise of their right to self-organization: Provided, That the labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention or membership; (b) To cause or attempt to cause an employer to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on any ground other than the usual terms and conditions under which membership continuation is made available to another member; (c) To violate the duty, or refuse to bargain collectively with the employers, provided that it is the representative of the employees; (d) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other things of value, and the nature of an exaction, for services which are not performed or not to be performed, including the demand for a fee for union negotiation;
}
'~~.,
i~
3 ~~
~
li'i k
~
,i
y
"
~
u ~ ~
.,l 'l
:~
·l'i ;'r{
(e) To ask for or accept negotiation or attorney's fee from employers as part of the settlement of any issue in collective bargaining or any other dispute; or (f)
STRIKES ANO LOCKOUTS
Strikes, picketing, and lockouts - (a) It is the policy of tho State to encourage free trade unionism and free collectivo bargaining. (Article 263, Philippine Labor Relation:s Law)
UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS
It shall be unlawful for a labor organization, its officers, agents or representatives to commit any of the following unfair labor practices:
29:4
To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding, only the officers, members of the governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. (As amended by Batas Pambansa Blg. 130) (Article 249, Labor Code of the Philippines) ~~i
(b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutuai benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. (c) In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Department a t least 30 days before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (d) The notice must be in accordance with such implementing rules and regulations as the Secretary of Labor and Employment may promulgate. (e) During the cooling-off period, it shall be the duty of the Secretary to exert ali efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of notice, the labor union may strike or the employer may declare a lockout. (f) A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. Thc decision shall be
294
INTRODUCTION TO LAW
LABOR LAW AND SOCIAL LEGISLATION
valid for the duration of the dispute based on substantially the same grounds considered with the strike or lockout vote was taken. The Department may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Department the results of the voting a t least seven (7) days before the intended strike or lockout, subject to the cooling-off period herein provided.
from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/ or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under paih of immediate disciplinary action, including dismissal or loss of employment status, or payment by the locking-out employer of backwages, damages or other affirmative relief, even criminal prosecution against either or both of them.
(g) When in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining an impending strike or lockout as specified in the assumption or certification order. lf one has already taken piace a t the time of assumption or certification, all striking or locked out employees shall have immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medicai institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however, legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medicai institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medicai and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to ensure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment is mandated to immediately assume, within twenty-four (24) hours
~~
l
29ti
The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time in assuming jurisdictìon over any such labor dispute in order to settle or terminate the same. (h) Before or at any state of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. i'
'-· l
.l:
)lt<
~
l
' l
~:
:!"
lj
1
., .!...~
(i) The Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall decide to resolve the dispute within thirty (30) calendar days from the date of the assumption of jurisdiction or the certification or submission of the dispute, as the case may be. The decision of the President, the Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall be final and executory ten (10) calendar days after receipt thereof by the parties .
;
illlf
Prohibited activities- (a) No labor organization or employer shall declare a strike or lockout without first having bargained collectively in accordance with Title VII of this Book or without first having filed the notice required in the preceding Article or without the necessary strike or lockout vote first having been obtained and reported to the Department. (Article 264, Philippine Labor Relations Law) No strike or lockout shall be declared after assumption of jurisdiction by the President or the Secretary or after certification or submission of the dispute to compulsory or voluntary arbitration or during the pendency of cases involving the same grounds for the strike or lockout.
296
INTRODUCTION TO LAW
LABOR LAW AND SOCIAL LEGISLATION
Any worker whose employm:mt has been terminated as a consequence of an unlawful lockout shall be entitled to reinstatement with full backwages. Any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission ofillegal acts during a strike may be declared to have lost his employment status: Provided, That mere participation of a worker in a lawful strike shall not constitute sufficient ground for termination of his employment, even ifa replacement has been hired by the empl9yer during such lawful strike.
inclusive of allowances, and to his other benefits or their monetory equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, lbid.) (Article 279, Philippine Labor Relations Law)
(b) No person shall obstruct, impede, or interfere with by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any labor controversy or in the exercise of the right of self-organization or collective bargaining, or shall aid or abet such obstruction or interference.
REGULAR ANO CASUAL EMPLOYMENT .
~j
!
(c) No employer shall use or employ any strike-breaker, nor shall any person be employed as a strike-breaker. (d) No public official or employee, including officers and personnel of the New Armed Forces of the Philippines of the Integrated N ational Police, or arme d perso n, shall bring in, introduce or escort in any manner any individuai who see:ks to replace strikers in entering or leaving the premises of a strike area, or work in place of the strikers. The Police Force shall keep out of the picket lines unless actual violence or other criminal acts occur therein: Provided, That nothing herein shall be interpreted to prevent any public officer from taking any measure necessary to maintain peace and order, protect life and property, and/or enforce the law and legai order.
ifl ·cl p
ti,,
;
,/lÌ
In regular cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An Employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages,
This provision of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasoned in nature and the employment is for the duration of the season. An employment shall be deemed casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such actually exists. (Article 280, Philippine Labor Relations Law) PROBATIONARY EMPLOYMENT
(e) No person engaged in picketing shall commit any act of violence, coercion or intimidation, or obstruct the free ingress to or egress from the employer's premises for lawful purposes, or obstruct thoroughfares. 10. TERMINATION OF EMPLOYMENT
297
Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of any employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualifY as a regular employee in accordance with reasonable standards made known by the employer to time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employeè. (Article 281, Philippine Labor Relations Law) TERMINATION BY EMPLOYER
An employer may terminate an employee for any of the following causes:
298
INTRODUCTION TO LAW
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or represèntative in connection with his work; (b)
Gross and habitual neglect by the employee ofhis duties;
LABOR LAW AND SOCIAL LEGISLATION
ii
:lf
:j l
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family. of his duly authorized representative; and (e) Other causes analogous to the foregoing. (Article 282, Philippine Labor Relations Law) CLOSURE OF ESTABLISHMENT ANO REDUCTION OF PERSONNEL
The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Department of Labor and Employment at least one (l) month before the intended date thereof. In case of termination due to the installation of laborserving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent of at least his one (l) month pay or at least one (l) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses in cases of closures or cessation of operation of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent. to one (l) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (l) whole year. (Article 283, Philippine Labor Relations Law)
299
he is paid separation pay equivalent to at least one (l) month salary orto one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered aa one (l) whole year. (Article 284, Philippine Labor Relations Law) TERMINATION BY EMPLOYEE ·
J
(a) An employee may terminate without just cause the employer-employee relationship by serving a written notice on the employer at least one (l) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages. (b) An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes: (l) Serious insult by the employer ofhis representative on the honor and person of the employee;
(2) Inhuman and unbearable treatment accorded the employee by the employer or his representative; (3) Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and (4) Other causes analogous to any of the foregoing. (Article 285, Philippine Labor Relations Law)
11. RETIREMENT FROM THE SERVICE Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract. In case of retirement, the employee shall be entitled to receive such retirement benefits as he may be earned under existing laws and any collective bargaining or other agreement. (Article 287, Philippine Labor Relations Law)
DISEASE AS GROUND FOR TERMINATION
An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continuos employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That
12.
THIRTEENTH MONTH PAY
The thirteenth month pay shall not be less than one-twelfth (1112) ofthe total basic salary eamed by an employee within a year. It is not to be considered as part of the regular wage for purposes
300
INTRODUCTION TO LAW
l
LABOR LAW AND SOCIAL LEGISLATION
301
of computing overtime and premium compensation, SSS, Medicare and company retirement plans, unless expressly stipulated to be a part pursuant to a collective bargaining agreement between the employer and the worker or by existing practice or policy by the employer.
b.2) Employer of household helpers and persons in the personal service of another in relation to such workers;
For purposes of computing the same, the "basic salary'' shall include all remuneration or earnings paid by his employer for services rendered but does not include allowances and monetary benefits which are not considered or integrated as part of the regular or basic salary, such as cash equivalent of unused vacation and sick leave credits, overtime, premium, night differential and holiday pay and cost-of-living allowances. However, the salary related benefit should be included as part of the basic salary in the computation of the 13th-month pay if by individuai or collective agreement, company practice or policy, the same are treated as part of the basic salary.
b.4) Employers of those who are paid on pùrely commission, boundary, or task basis, and those who are paid fixed amount for performing specific work, irrespective of the time consumed in the performance thereof, except when the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance insofar as such workers are concerned.
(a)
b.3) Employer already paying their employees 13th-month pay or more in the calendar year or its equivalent at the time of this issuance; and
The term "its equivalent" as used in paragraph (c) shall include Christmas bonus, mid-year bonus, cash bonuses and other payment amounting to not less than 1/12 of the basic salary but shall not include cash and stock dividends, costs-of-living allowances and all the other allowances regularly enjoyed by the employee, as well as non-monetary benefits. Where an employer pays less than l/12th of the employees basic salary, the employers shall pay the difference.
NATURE OF THIRTEENTH MONTH PAY
The court has held that for covered employers, the payment of a 13th moth pay is a mandatory statutory obligation, whereas, Christmas or mid-year bonuses are contractual obligations, such that if there exists no agreement between the employer and the workers, or practice or policy of the employer, granting the Christmas or mid-year bonus, the same will not accrue. The grant of 14th-month pay is not likewise a statutory obligation but purely a management prerogative and only the 13th-month pay is mandated by law to be paid. It is now a basic labor standard benefit and cannot be substituted by the grant by the employer of food and electricity to his employees. (Framalis Farms vs. Minister of Labor and Employment, 177 SCRA 89)
As used herein, workers paid on piece-rate shall refer to those who are paid a standard amount for every piece-rate or unit of work performed that is more or less regularly replicated, without regard to the time spent in producing the same. (Section 3, Rules Implementing P.D. No. 851) (Rules Implementing P.D. 851) IMPORTANT SOCIAL LEGISLATIONS (1)
BACKGROUND
The Social Security Law was approved on June 18, 1957, and implemented on September l, 1957.
(b) EMPLOYERS EXEMPTED FROM COVERAGE
Membership in the Social Security System does not emanate from a bilaterial or consensual agreement where the rights and obligations of the parties are defined, but from a legai imposition to provide social security to working men.
The following employers are not covered by the Presidential Decree No. 851: b.l) The Government and any of its politica! subdivisions, including government-owned and controlled corporations, except those corporations operating essentially as private subsidiaries of the Government;
SOCIAL SECURITY LAW
,j
:il
As conceived, and as it is now being implemented, the employees are mandated during their productive years to part with a portion of their earnings which, together with the contributions
302
303
INTRODUCTION TO LAW
LABOR LAW AND SOCIAL LEGISLATION
required of their employers, are accumulated and held in. reserve by the system to answer for the payment of benefits when they become due.
assigned or working. lt is the employer and not the business that is subject to Social Security compulsory coverage.
SCOPE OF THE SYSTEM
(a) SEC. 9. Compulsory Coverage - (a) Coverage in the SSS shali be compulsory upon ali employees not over sixty (60) years of age of their employer; Provided, That any benefit already earned by employees under private benefits plan existing at the time of the approvai of this Act shali not be discontinued, reduced or otherwise impaired; Provided, further, That private plans which are existing and in force at the time of the compulsory coverage shali be integrated with the plan of the SSS in such a way where the employer's contribution to his private plan is more than that required of him in this Act he shali pay to the SSS only the contnbution required of him and he shali continue his contributions to such private plan less his contribution to the SSS so that the einployer's total contribution to his private benefit pian and to the SSS shali be the same as his contribution to his private plan before the compulsory coverage; Provided, further, That any changes, adjustments, modifications, eliminations or improvements in the benefits to be available under the remaining private plan, which may be necessary to adopt by reason of the reduced contributions thereto as a result of the integration, shali be subject to agreements between the employers and employees concerned; Provided, further, That the private benefit plan which the employer shali continue for his employees shali remain under the employer's management and control unless there is an existing agreement to the contrary: Provided, finally, That nothing in this Act shali be construed as a limitation of the right of employers and employees to agree on and adopt benefits which are over and above those provided under this Act. (As amended by Sec. 5, R.A. No. 1792; and Sec. 5, R.A. No. 2658 and Sec. 2, R.A. No. 4587) (Sec. 9[a], R.A. 1161 as amended) (b) Filipino recruited in the Philippines by foreign-based employers for employment abroad may be covered by the SSS on a voluntary basis. (As amended by Sec. 2, Pres. Decree No. 177, S1973 and Sec. 6, Pres. Decree No. 735-S-1975) (Sec. 9[b], R.A. 1161, as amended) In determining coverage of an employer operating different businesses, it is immaterial as to which business the employee is
SEC. 9-A. Compulsory Coverage of the Self-employed. - Coverage in the SSS shali also be compulsory upon ali selfemployed persons earning Pl,SOO or more per annum; Provided, That the effectivity of coverage of certain gtoup of self-employed shali be determined by the Commission under such rules and regulations it may prescribe; Provided, further, That the efl'ectivity of the coverage of the foliowing self-employed persons shall be in accordance with Section lO(b) hereof: l.
Ali self-employed professionals licensed by the Professional Regulations Commission or those licensed to practice law.
2.
Partners and single proprietors of businesses.
3.
Actors and actresses, directors, scriptwriters and news correspondents who do not fali within the definitions of the term "employee" in Section S(d) ofthis Act.
4.
Professional athletes, coaches, trainers licensed by the Games and Amusements Boards as well as jockeys and trainers licensed by the Philippine Racing Commission.
Unless otherwise specified herein, ali provisions of the SSS Law applicable to covered employees shall also be applicable to the covered self-employed persons. (As amended by Section 3, Pres. Decree No. 1636, S-1979) 555. BENEFITS
l. Dependents' Pension - The dependents' pension shall be equivalent to 10 percent of the monthly pension for each dependent child but not exceeding five, beginning with the youngest and without substitution. (As amended by Sec. 4, P.D. No. 1202, S· 1977) (Sec. 12-A, as amended by Sec. 4, P.D. No. 1202, S-1977; [a), R.A. 1161, as amended.)
2.
Retirement Benefits -
(a) A covered employee who had paid at least 120 monthly contributions prior to the semester of his retirement, and; (2.a.l) Who has reached the age of 60 years and is not receiving monthly compensation of a t least P300 or;
304
INTRODUCTION TO LAW
\
t
LABOR LAW AND SOCIAL LEGISLATION
305
l
IIt
(2.a.2) Who has reached the age of 65 years, shall be entitled for as long as he lives to the monthly pension, Provided, That his dependents horn before his retirement of a marriage subsisting when he was 57 years old shall be entitled to the dependents' pension. (As amended by Sec. 4, P. D. No. 1202, S-1977) (Sec. 12-B, as amended by Sec. 4, P.D. No. 1202, S-1977) (b) A covered member who is 60 years old at retirement and who does not qualify for pension benefits under paragraph (a) above, shall be entitled to lump sum benefit equal to the total contributioris paid by him and on his behalf; Provided, That he is separated from employment and is not continuing payment of contributions to the SSS on his own. (Sec. 12-B[b], as amended by Sec. 4, P.D. No. 1202, S-1977)
m 'Il
;[
iì
il
:l
;l~<~
(c) The monthly pension shall be reduced upon the reemployment of a retired employee who is less than 65 years old by an amount equivalent to one-half (1/2) his earnings over P300. He shall again be subject to Sec. 18 and his employer to Sec. 19 of this Act. (As amended by Sec. 7, R.A. No. 1972; Sec. 7, R.A. No. 2658; Sec. 8, P.D. No. 735; Sec. 4, P.D. No. 1202 and Sec. 7, P.D. No. 1636, S-1979). (Sec. 12-B[c], as amended by Sec. 4, P.D. No. 1202, S-1977)
That he has paid at least 36 monthly contributions prior to the semester of death; Provided, further, That if the foregoing condition is not satisfied, his primary beneficiaries shall be entitled to a lump sum benefit equivalent to 35 times the monthly pension; Provided, further, That if he has no primary beneficiaries, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to 20 times the monthly pension. Provided, however, That the minimum death benefit shall not be less than the total contribution paid by him and his employet on his behalf nor less than Pl,OOO. Provided, finally, That the beneficiaries of the covered employee who dies without having paid at least three monthly contributions shall be entitled to the mi:t;1imum benefit. (As amended by Sec. 5, P.D. No. 1202, S-1977 and Sec. 8, P.D. No. 1636, S-1979) (Sec. 13, , SSS Law, as amended by Sec. 5, P.D. No. 1202, S-1977 and Sec. 8, P.D. No. 1636, S-1979) 4. Permanent Disability Benefits -(a) Upon the covered employee's permanent total disability, if such disability occurs after he had paid at least 36 monthly contributions prior to the semester disability, he shall be entitled to the monthly pension and his dependents to the dependents' pension; Provided, That if the disability occurs before he has paid 36 monthly contributions prior to the semester disability, he shall be entitled to a lump sum benefit equivalent to 35 times the monthly pension; Provided, further, That the minimum disability benefit shall not be less than the total contributions paid by him and his employer on his behalf nor less than Pl,OOO. Provided, further, That a covered employee who becomes permanently totally disabled without having paid at least three monthly contributions shall be entitled to the minimum benefit; Provided, finally, That a member who (l) received a lump sum benefit and (2) is re-employed not earlier than one year from the day of his disability shall again be subject to compulsory coverage and considered a new meniber. (As amended by Sec. 6, P. D. No. 1202, S-1977) (Sec. 13-A, as amended by Sec. 6, P.D. No. 1202, S-1977)
j·
j
(d) Upon the death of the retired employee pensioner, his primary beneficiaries as of the date of his retirement shall be entitled to 100 percent of the monthly pension and his dependents to the dependents' pension. Provided, That if he has no primary beneficiaries and he dies within 60 months from the start of his monthly pension, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to the bigger of (l) 20 times the monthly pension, or (2) the difference of 60 times the monthly pension and the total monthly pension paid by the SSS excluding the dependents' pension. (As amended by Sec. 7, P.D. No. 1636, S1979 andE. O. No. 102, signed December 24, 1986; SSS Res. Nos. 525, 527 and 604 dated Aug. 3, 1990, Aug. 7, 1990 and Sept. 11, 1990, respectively). (Sec. 12-B[d], as amended by Sec. 4, P.D. No. 1202, S-1977)
5. Permanent Partial Disability- If the .disability is permanent partial and such disability occurs after 36 monthly contributions have been paid prior to the semester of disability, the benefits shall be the monthly pension for permahent total disability payable not longer than the period designated in the following schedule:
3. Death Benefits- Upon the covered employee's death, his primary beneficiaries shall be entitled to the monthly pension and his dependents' pension to the dependent's pension; Provided,
il.'., '
·'
:>:
INTRODUCTION TO LAW
306
LABOR LAW AND SOCIAL LEGISLATION
COMPLETE AND PERMANENT LOSS OF USE OF
NUMBER OF.MONTHS
One thumb One index finger One middle finger One ring finger One little finger One big toe One hand Onearm One foot One leg One ear Both ears
10 8 6 5 3 6 39 50 31 46
Hearing of one ear
lO
Hearing of both ears
50
Sight of one eye
25
(2)
:ll'i (
\
f>
d
Il; B,
1ì, H,
:;!.,. i
lO
:ì
20
+l t
l; l:
307
(b) Ali non-permanent employees ofthe national government agencies and local governments (appointed for a period of at least two months), shall eventually be compulsorily covered, either simultaneously, in phases or by groups, upon approvai of the President ofthe Philippines and subject to the availability offunds; an d (c) Ali non-permanent employees of government-owned or controlled corporation shall be compulsorily covered upon approvai by the System of the request for membership of their respective governing Boards. (Sec. 3, Revised Government Service Insurance Act.) Employees not covered under P.D. No. 1146- Government employees who have separate retirement schemes under speciai laws, like Republic Act No. 910 as amended, which provides for retirement for justices, judges and other members of the judiciary and Republic Act No. 340 for members of the Armed Forces of the Philippines, are covered by their respective retirement laws and not by P.D. No. 1146. Their life insurance coverage, however, is governed by C.A. No. 186, as amended. BENEFITS
GSIS (GOVERNMENT SERVICE INSURANCE SYSTEM)
Qualified members and pensioners of the System are entitled to the following benefits:
BACKGROUND
l.
The government Service Insurance System (GSIS) was created and established to promote the efficiency and welfare of the employees ofthe government and to pension system under Act Nos. 1638, 3055 and 1313.
Retirement Benefits (l)
Retirement Benefits for old ages (Sections 11 and 12);
(2)
Permanent Disability Benefits (Sections 14 and 15);
(3)
Survivorship Benefits for Death of Member or Pensioner (Sections 16, 17 and 18);
COVERAGE
(4)
Funeral Benefits (Section 19);
The following are compulsorily covered by the GSIS:
(5)
Sickness Benefits (Section 20); and
(6)
Life Insurance Benefit in the form of Compulsory Insurance Optional lnsurance if desired (SectionB 21 and 22).
The first comprehensive law on retirement and pension benefits was Commonwealth Act No. 186 of 1936.
(a) All permanent employees below sixty (60) years of age, shall· upon employment in the government service, be compulsory members of the System including non-permanent employees who are already covered by R.A. No. 4968 at the time of effectivity of P.D. 1146;
i
.l
308
INTRODUCTION TO LAW
f
LABOR LAW AND SOCIAL LEGISLATION
1109
i)
f!
\i
.:j
BASIC MONTHLY PENSION Old age pension shall be paid to a member who: (l)
has at least fifteen years of service;
(2)
is at least sixty (60) years of age; and
(3)
is separated from the service. (Sec. 11, Revised Govern-
ment Service Insurance Act)
DISABILITY (l)
Permanent total disability (PTD)
(2)
Permanent partial disability (PPD)
(3)
Permanent total disability (TTD)
OTHER BENEFITS The other benefits are the foliowing: (l)
Funeral Benefits
(2)
Sickness Benefits
(3)
Life Insurance Benefits
(4)
Loan Privileges
(3}
COMPREHENSIVE AGRARIAN REFORM LAW
SEC. 4. Scope. - The Comprehensive Agrarian Reform Law of 1988 shall cover, regardless of tenurial arrangement and commodity produced, ali public and private agricultural lands, as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain for agriculture. More specifically, the following lands are covered by the Comprehensive Agrarian Reform Program: (a) Ali alienable and disposable lands of the public domain devoted to or suitable for agriculture. No reclassification of forest or minerai lands to agricultural lands shali be undertaken after the approvai of this Act until Congress, taking into account ecological, developmental and equity considerations, shall have determined by law, the specific limits of the public domain; (b) Ali lands of the public domain in excess of the specific limits as determined by Congress in the preceding paragraphs; .
(c) Ali other lands owned by the government devoted to or suitable for agriculture; and (d) Ali private lands devoted to or suitable for agriculturo regardless of the agricultural products raised or that can be raised thereon.
SEC. 5. Schedule of lmplementation. - The distribution of alilands covered by this Act shall be implemented immediately and completed within ten (10) years from the effectivity thereof. SEC. 6. Retention Limits. - Except as otherwise provided in this Act, no person may own or retain, directly or indirectly, any public or private agricultural land, the size of which shall vary according to factors governing a viable family-size farro, such as commodity produced, terrain, infrastructure, and soil fertility as determined by the Presidential Agrarian Reform Council (PARC) created hereunder, but in case shall retention by the landownor exceed five (5) hectares. Three (3) hectares may be awarded to each child of the landowner, subject to the following qualifications: (l) that he is a t least fifteen (15) years of age; and (2) that he is actunlly tilling the land or directly mimaging the farro; Provided, Thnt landowners whose lands have been covered by Presidential Decron No. 27 shall be allowed to keep the area originally retained by thc1m thereunder; Provided, further, That originai homestead granteoA or their direct compulsory heirs who stili own the originai homestead at the time of the approvai of this Act shall retain th
INTRODUCTION TO LAW
310
t
LABOR LAW AND SOCIAL LEGISLATION
311
~~
'[
'fi
Upon the effectivity of this Act, any sale, disposition, lease, management contract or transfer of possession of private lands executed by the originallandowner in violation of the Act shall be null and void; Provided, however, That those executed prior to this Act shall be valid only when registered with the Register of Deeds within a period of three (3) months after the effectivity of this Act. Thereafter, ali Registers of Deeds shall inform the Department of Agrarian Reform (DAR) within thirty (30) days of transaction involving agriculturallands in excess of five (5) hectares. SEC. 7. Priorities.- The Department of Agrarian Reform (DAR) in coordination with the Presidential Agrarian Reform Council (PARC), shall pian and program the acquisition and distribution of ali agriculturallands through a period of ten (10) years from the effectivity of this Act. Lands shall be acquired and distributed as follows: Phase One: Rice and corn lands under Presidential Decree No. 27; ali idle or abandoned lands; ali private lands voluntarily offered by the owners for agrarian reform; ali lands foreclosed by government financial institutions; ali lands acquired by the Presidential Commission on Good Government (PCGG ); and ali other lands owned by the government devoted to or suitable for agriculture, which shali be acquired and distributed immediately upon the effectivity of this Act, with the implementation to be completed within a period of not more than four (4) years. Phase Two: Ali alienable and disposable public agricultural lands; all arable public agriculturallands under agro-forest, pasture and agricultural leases already cultivated and planted to crops in accordance with Section 6, Artide XIII of the Constitution; ali public agriculturallands which are to be opened for new development and resettlement; and ali private agricultural lands in excess of fifty (50) hectares; insofar as the excess hectares is concerned, to implement principally the rights of farmers and regular farmworkers, who are landless, to own directly or coliectively the lands they till, which shall be distributed immediately upon the effectivity of the Act, with the implementation to be completed within a period of not more than four (4) years. Phase Three: Ali other private agriculturallands commencing with large landholdings and proceeding to medium and small landholdings under the foliowing schedule: (a)
Landholdings above twenty-four (24) hectares up to fifty
(50) hectares, to begin on the fourth (4th) year from the effectivity of this Act and to be completed within three (3) years; and (b) Landholdings from the retention limit up to twenty-four (24) hectares, to begin on the sixth (6th) year from the effectivity of this Act and to be completed within four (4) years; to implement principally the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till. The schedule of acquisition and redistribution of ali agricultural lands covered by this program shall be made in accordance with the above order of priority, which shall be provided in the implementing rules to be prepared by the Presidential Agrarian Reform Council (PARC), taking into consideration the following: the need to distribute lands to the fillers at the earliest practicable time; the need to enhance agricultural productivity; and the availability of funds and resources to implement and support the program. In any case, the PARC, upon recommendation by the Provincia} Agrarian Reform Coordinating Committee (PARCCOM), may declare certain provinces or regions as priority land reform areas, in which case the acquisition and distribution of private agricultural lands therein may be implemented ahead of the above schedules. In effecting the transfer within these guidelines, priority must be given to lands that are tenanted. The PARC shali establish guidelines to implement the above priorities and distribution scheme, including the determination of who are qualified beneficiaries; Provided, That an owner-tiller may be a beneficiary of the land he does not own but is actually cultivating to the extent of the difference between the area of the land he owns and the award ceiling of three (3) hectares. ARE LANDS LEASED/HELD OR POSSESSED BY MULTINATIONAL CORPORATIONS OR ASSOCIATIONS COVERED?
Yes. They shall be programmed for acquisition and distribution immediately upon the effectivity of R.A. No. 6657, with the implementation to be completed within three (3) years. (Section 8, R.A. No. 6657)
