7th Rev Upmicvillamayor.weebly.com/uploads/2/2/6/9/… · PPT file · Web view · 2017-09-15US vs. Ah Chong- The ignorance or ... The act performed would have constituted an offense

WHAT TO EXPECT?

TYPES OF QUESTIONS1. Objective

Definition Multiple Choice (Modified) True/False Enumeration

2. Issue Posing

3. Issue Spotting

HOW TO ANSWER

A – Answer L – Legal Basis A – Application C – Conclusion

Examples: OBJECTIVE

Q: What is the effectivity date of the New Civil Code?

A: The New Civil Code took effect on August 30, 1950.

Examples: ISSUE POSING

Q: A was elected in a special election to fill up the vacancy created by death of B in Congress. He ran again, and won twice. Can he still run for the same position after the expiration of the third? Why?

Examples: ISSUE POSING

A: No. Under Art. VI, Section 7 of the 1987 Constitution, no member of the House of Representatives shall serve for more than three consecutive terms. The Supreme Court held in the case of Borja vs COMELEC that if one is elected representative to serve the unexpired term of another unexpired term, no matter how short, it will be considered one term for the purpose of computing the number of successive terms allowed.

In this case, A had already served for three consecutive terms; thus, he can no longer run for the same position.

Examples: ISSUE SPOTTING

Q: A and B, both Filipino citizens residing in Manila are married. As their relations went sour, A left for USA with the intention to live there permanently. A met C in USA, they fell in love with each other and lived together thereafter. When A acquired knowledge of said illicit relation, A filed a petition for declaration of nullity of marriage on the ground of psychological incapacity. Pending the resolution of the civil case, B and C got married in Canada. A filed a criminal case of Bigamy against B. When B visited the Philippines, he was immediately arrested. Is B liable for the crime of Bigamy?

Examples: ISSUE SPOTTING

A: NO. Pursuant to the Territoriality principle of criminal law, penal laws undertake to punish crimes committed within the Philippine territory subject to exceptions provided in Art. 2 of the RPC. Notwithstanding the presence of all the elements of the crime Bigamy, it was not committed within the Philippine Territory. Furthermore, the crime of bigamy does not fall among the exceptions mentioned in Art. 2. Thus, B is not liable for the crime of Bigamy.

QUESTION 1: Differentiate Mala in Se from Mala Prohibita.

SUGGESTED ANSWER: Mala in se refers to acts or omissions which are wrong by nature because they are inherently evil whereas mala prohibita refers to acts or omissions which are wrong because they are prohibited by law.

CRIMINAL LAW I

CRIMINAL LAW I

Nullum crimen, nulla poena sine lege This means that there is no crime, unless there is

a law punishing it. Unless the act is expressly punished by the law, no criminal liability is incurred by the person committing it no matter how socially and morally reprehensible the act may be.

Revised Penal Code Special Penal LawMala in se are essentially the acts or omissions punishable by the Revised Penal Code

Mala prohibita are essentially the acts or omissions punishable by the special penal laws

Criminal intent is an essential element

Criminal intent is not an essential element

Honest mistake of fact is a defense

Honest mistake of fact is not a defense

Good faith is a defense Good faith is not a defense

CRIMINAL LAW I

Revised Penal Code Special Penal LawPersons criminally liable are principals, accomplices, and accessories

Generally, there are no principals, accomplices, or accessories, unless specifically provided for by the special law

Divided into three stages: consummated, frustrated, attempted

Generally, its execution is not divided into stages

Penalties are classified into degrees and periods

Generally, penalties are specific in terms of years, months, or days, unless provided for by the special penal law

CRIMINAL LAW I

CRIMINAL LAW I

Requisites of Dolo(1) Freedom;

(2) Intelligence; and

(3) Intent

Requisites of Culpa(1) Freedom;

(2) Intelligence; and

(3) Negligence, Imprudence, lack of skill, or lack of foresight

CRIMINAL LAW I

Mistake of FactRequisites:(1) The act done would have been lawful had the

facts been as the accused believed them to be;

(2) The intention of the accuse was lawful; and

(3) There was no fault or negligence.

CRIMINAL LAW I

Mistake of Fact

US vs. Ah Chong- The ignorance or mistake of fact was not due to negligence or bad faith

People vs. Oanis- There is no honest mistake of fact when there is negligence or fault on the part of the accused

CRIMINAL LAW I

Criminal Intent MotiveCriminal intent is an essential element of a felony

Motive is not an element of a felony. However, it becomes material only when there is doubt as to the identity of the offender

Criminal intent must be proven by prosecution

Motive need not be proven by the prosecution

Requisites of an Impossible Crime(1)The act performed would have constituted an offense

against persons or property;

(2)That the act was done with evil intent;

(3)That its accomplishment is inherently impossible or that the means employed is either inadequate or ineffectual; and

(4)That the act performed should not constitute a violation of the Revised Penal Code.

CRIMINAL LAW I

A6: Stages of ExecutionAttempted Stage a felony is attempted when the offender

commences the commission of a felony directly by overt acts

and does not perform all the acts of execution which should produce the felony

by reason of some cause or accident other than his own spontaneous desistance

CRIMINAL LAW I

Frustrated Stage a felony is frustrated when the offender performs

all the acts of execution which produce the felony as a consequence

but which, nevertheless, do not produce it by reason of causes independent of the will of the

perpetrator

CRIMINAL LAW I

A6: Stages of Execution

Consummated Stage a felony is consummated when all the elements

necessary for its execution and accomplishment are present

CRIMINAL LAW I

A6: Stages of Execution

CRIMINAL LAW I

A8: Conspiracy Exists when two or more persons come to an

agreement concerning the commission of a felony and they decide to commit it

Elements:

(1) An agreement concerning the commission of a felony; and

(2) A decision to commit the felony.

CRIMINAL LAW I

A8: Conspiracy Exists when two or more persons come to an

agreement concerning the commission of a felony and they decide to commit it

Elements:

(1) An agreement concerning the commission of a felony; and

(2) A decision to commit the felony.

CRIMINAL LAW I

A8: ConspiracyInstances where mere conspiracy is already punishable under the Revised Penal Code:

1. Conspiracy to commit treason

2. Conspiracy to commit rebellion

3. Conspiracy to commit sedition

4. Conspiracy to commit coup d’etat

CRIMINAL LAW I

A8: ConspiracyInstances of conspiracy to commit a crime punishable under special penal laws:

1. Different forms of conspiracy punishable under Sec. 26 of RA No. 9165

2. Conspiracy to commit terrorism

3. Conspiracy to commit arson

CRIMINAL LAW I

A8: Proposal There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons

Instances of proposal to commit a crime which are already punishable:

1. Proposal to commit treason

2. Proposal to commit rebellion

3. Proposal to commit coup d’etat

CRIMINAL LAW I

QUESTION 2: Albert, while going home alone, was walking along a dark alley at 11:00pm when suddenly, he saw his friend Bryan, seeming angry and outraged. Bryan went rushing towards Albert with an outstretched arm and a gun in his hand. Bryan uttered violent threats against Albert. As Bryan was near, Albert who had a balisong in his pocket stabbed Bryan in the chest. Because of the inflicted mortal wound, Albert died. It turned out that the gun of Albert was only a toy pistol and that the real design of Bryan (deceased) was only to terrify Albert. Is there a valid self-defense on the part of Albert (accused) to justify the crime committed?

CRIMINAL LAW I

SUGGESTED ANSWER: Yes. The elements of self-defense under Art. 11 of the RPC are present in this case, to wit: unlawful aggression; reasonable necessity of the means employed to prevent or repel it and lack of sufficient provocation on the part of the person defending himself. Moreover, an honest mistake of fact destroys the presumption of criminal intent of the accused. While there is no actual unlawful aggression, accused was acting on the belief of the accused that the gun aimed at him was real and that there was an actual danger or peril to his life considering that he was walking alone late at night in a dark alley. Thus, Albert can claim valid self-defense.

CRIMINAL LAW I

Circumstances which Affect Criminal Liability:

Art. 11: Justifying Circumstances

Art. 12: Exempting Circumstances

Art. 13: Mitigating Circumstances

Art. 14: Aggravating Circumstances

Art. 15: Alternative Circumstances

CRIMINAL LAW I


Art. 11: Justifying Circumstances

Art. 12: Exempting Circumstances

As to the existence of a crime

There is NO CRIME. There is a crime.

As to the existence of criminal liability

There is NO CRIMINAL LIABILITY.

There is NO CRIMINAL LIABILITY.

As to the existence of civil liability

There is NO CIVIL LIABILITY.

Exception: Art. 11(4) (State of necessity)

There is civil liability.

Exceptions:Art. 12 (4) (Accident)Art. 12 (7) (Lawful omissions)

CRIMINAL LAW I


Art. 13 Mitigating Circumstances

Art. 14: Aggravating Circumstances

Art. 15: Alternative Circumstances

Lowers penalty Increases penalty May lower or increase the penalty

CRIMINAL LAW I

Art. 11 Justifying Circumstances(1) Self-Defense(2) Defense of a Relative(3) Defense of a Stranger(4) State of Necessity or Avoidance of Greater Evil

or Injury(5) Performance of a Duty or Lawful Exercise of a

Right or Office(6) Obedience to an Order Issued for a Lawful

Purpose

CRIMINAL LAW I

Art. 11(1) Self-Defense

Elements:

1. Unlawful aggression;

2. Reasonable necessity of the means employed to prevent or repel it; and

3. Lack of sufficient provocation on the part of the person defending himself.

CRIMINAL LAW I


Basis:

- lack of criminal intent

- the act of the person is in accordance with the law

An affirmative defense; thus the burden of proof is on the accused

CRIMINAL LAW I


Element no. 1: UNLAWFUL AGGRESSION EXCEPTION: mistake of fact Mistake of fact

- misapprehension of fact- Requisites: (1) that the act is lawful had the misapprehension been true;(2) that there is lawful intent; and(3) that it is without fault or carelessness.

CRIMINAL LAW I


Element no. 1: UNLAWFUL AGGRESSION There can be no self-defense, complete or

incomplete (under Art. 13 [1], RPC) unless unlawful aggression is present

What constitutes unlawful agression:1. ACTUAL physical assault or2. IMMINENT threatened assaultcoming from the person attacked by the person invoking the defense.

CRIMINAL LAW I


Element no. 2: REASONABLE NECESSITY of the means employed

The reasonableness of the means adopted is not one of mathematical commensurability between the means of attack and defense, but the imminent danger against the subject of the attack as perceived by the defender and his instinct more than his reason

CRIMINAL LAW I


Element no. 2: REASONABLE NECESSITY of the means employed

Considerations:

a. Nature and quality of weapon used

b. Physical condition, character, and size of the parties

c. Other circumstances

CRIMINAL LAW I


Element no. 3: LACK OF SUFFICIENT PROVOCATION on the part of the person making the defense

“Sufficient provocation” means that the provocation given to the aggressor is the proximate cause of his unlawful aggression

CRIMINAL LAW I

Art. 11(2) Defense of a Relative

Elements:



3. In case the provocation was given by the person attacked, the one making the defense had no part therein.

CRIMINAL LAW I


“Relative”

1. Spouses

2. Ascedants (legitimate, illegitimate)

3. Descendants (legitimate, illegitimate)

4. (a) legitimate, natural, or adopted brothers and sisters,

(b) relatives by affinity within the same degree

5. Relatives by consanguinity within the 4th civil degree

CRIMINAL LAW I


NOTE: Even if the person defending the relative was also induced by revenge or hatred, there will still be a legitimate defense as long as the three (3) requisites are present (REYES, Criminal Law, p. 209)

CRIMINAL LAW I

Art. 11(3) Defense of a Stranger

Elements:



3. The person defending is not induced by revenge, resentment or other evil motive.

NOTE: Motive is relevant only in this kind of defense.

CRIMINAL LAW I

Art. 11(4) State of Necessity or Avoidance of Greater Evil or Injury

Elements:

1. That the evil sought to be avoided actually exists;

2. That the injury feared be greater than that done to avoid it; and

3. That there be no other practical and less harmful means of preventing it.

CRIMINAL LAW I


Element no. 1: Evil sought to be avoided actually exists Indispensable requirement for a claim under Art.

13 (1), RPC The evil sought to be avoided must not merely be

expected or anticipated

CRIMINAL LAW I


Element no. 2: That the injury feared be greater than that done to avoid it.

A threat to one’s life is always a greater evil The greater evil should not be brought about by

negligence or imprudence or from a violation of law by the person invoking the defense

CRIMINAL LAW I

Art. 11(5) Performance of a Duty or Lawful Exercise of a Right or Office

Elements:

1. That the accused acted (a) in the performance of a duty, or(b) In the lawful exercise of a right or office; and

2. That the injury caused or offense committed be the necessary consequence of the due performance of duty or the lawful exercise of the right or office.

CRIMINAL LAW I

Art. 11(6) Obedience to an Order Issued for Some Lawful Purpose

Elements:

1. That an order has been issued by a superior;

2. That such order mist be for some lawful purpose; and

3. That the means used by the subordinate to carry out said order is lawful.

CRIMINAL LAW I

QUESTION 3. Dennis was accused of raping his niece, Den-Den. He claims the defense of minority. He was 18 years old at the time of the alleged rape but it was found out that he has a mental age of only 9 years old. He claims that since he has a mental age of 9, which is below 18, he must be exempted in accordance w the Juvenile Justice and Welfare Act of 2006. Decide.

CRIMINAL LAW I

SUGGESTED ANSWER: I will convict Dennis. According to the case of People v. Roxas, to determine whether a person claiming the exempting circumstance of minority, the law refers to the age as determined by the anniversary of one’s birthdate and not his mental age. In this case, since Dennis is already 18 at the time of the commission of the crime, albeit with mental development of a child between 9-10 years old, he cannot claim the defense of minority.

Hence, Dennis shall be convicted.

CRIMINAL LAW I

Art. 12 Exempting CircumstancesExempting circumstance is a circumstance which if present in the commission of the felony, frees the offender from criminal liability but does not relieve him of civil liability except in accident where he is both relieved of criminal and civil liabilities.

CRIMINAL LAW I

Art. 12 Exempting Circumstances(1) Insanity or Imbecility(2) Persons under nine (9) years of age *(3) Persons over nine (9) and under 15 years of age *(4) Accident(5) Irresistible Force(6) Uncontrollable Fear(7) Lawful Omissions

* Amended by RA 9344

CRIMINAL LAW I

Art. 12(1) Insanity Insanity is manifestation in language or conduct,

of disease or defect of the brain, or a more or less permanently diseased or disordered condition of the mentality, functional or organic, and characterized by perversion, inhibition or disordered function of the sensory or the intellectual faculties, or by impaired or disordered volition.

CRIMINAL LAW I

Art. 12(1) Imbecility Imbecility is analogous to childishness and

dotage. One who must be deprived completely of reason and discernment and freedom of will at the time of committing the crime. He is one who, while advanced in age, has a mental development comparable to that of children between 2-7.

CRIMINAL LAW I

Art. 12(2) and (3) Minority A child UNDER 15 YEARS OLD at the time of the

commission of the crime shall be exempt from criminal liability. - However, the child shall be subjected to an

intervention program pursuant to Section 20 of RA 9344.

- Intervention program is a series of activities designed to address issues that caused the child to commit the crime.

CRIMINAL LAW I

Art. 12(2) and (3) Minority A child 15 YEARS OLD and BELOW at the time

of the commission of the crime shall be exempt from criminal liability. - However, the child shall be subjected to an

intervention program pursuant to Section 20 of RA 9344.

- Intervention program is a series of activities designed to address issues that caused the child to commit the crime.

CRIMINAL LAW I

Art. 12(2) and (3) Minority A child OVER 15 AND BELOW 18 at the time of

the commission of the crime AND acting without discernment- Shall be subjected to an intervention program pursuant to Section 20 of RA 9344.

A child OVER 15 AND BELOW 18 at the time of the commission of the crime AND acting with discernment- Shall be subjected to appropriate diversion proceedings pursuant to Section 23 to 31 of RA 9344.

CRIMINAL LAW I

Art. 12(2) and (3) Minority The law presumes that child acted without

discernment in which case he shall be subjected to intervention program.

The legal effects are:

1. He is exempt from criminal liability and

2. He shall be subject to intervention program.

CRIMINAL LAW I

Art. 12(2) and (3) Minority If he acted with discernment, the legal effects are:

1. He is criminally liable and

2. He shall be subjected to a diversion program.

CRIMINAL LAW I

Art. 12(4) Accident Elements:(1) The person is performing a lawful act;(2) With due care;(3) He causes injury to another by mere accident;

and(4) Without fault or intention of causing it.

CRIMINAL LAW I

Art. 12(5) Compulsion of an Irresistible Force Degree of force required to be exempted is that

which he no longer acts with freedom of will. Cannot be availed of if he has opportunity to

escape or protect himself.

CRIMINAL LAW I

Art. 12(6) Impulse of an Uncontrollable Fear of an Equal or Greater Injury Elements:(1) Existence of an uncontrollable fear;

(2) Fear must be real and imminent; and

(3) Fear of injury is greater than or at least equal to that committed.

CRIMINAL LAW I

Art. 12(7) Lawful Omissions This circumstance implies knowledge of the

precept of the law to be complied with on the part of the person who is prevented by some lawful or insuperable cause, that is, by some motive which has lawfully, morally or physically prevented one to do what the law commands.

CONSTITUTIONAL LAW I

QUESTION 1: The two steps involved in the amendment or revision of the Constitution are Proposal and Ratification. How is proposal for amendment done under Art. XVII of the 1987 Constitution?


SUGGESTED ANSWER: Any amendment to the Constitution may be proposed by

1. the Congress, upon a vote of three-fourths of all its members; or

2. a constitutional convention; or

3. a direct proposal by the people through initiative upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by 3% of the registered voters therein.


Amendment v. Revision Revision is the revamp or rewriting of the entire

Constitution. Amendment is the isolated or piecemeal change

in the Constitution.


Amendment v. Revision TESTS:(1) Quantitative

(2) Qualitative


Amendment v. Revision

(1) QUANTITATIVE TEST Whether the proposed amendment is so

extensive in its provisions as to change directly the substance entirety of the constitution by the deletion or alteration of numerous provisions. The court examines only the number of provisions affected.


Amendment v. Revision

(2) QUALITATIVE TEST Whether the change will accomplish such far

reaching changes in the nature of our basic governmental plan as to amount a revision.


Proposal and Ratification

Doctrine of Fair and Proper Submission It means that the Constitution should be submitted

to the people as a whole and not piece-meal. The people must be informed of the issues and they must be given sufficient time to discuss the merits and demerits of the proposed amendments.

Plebiscite may be held on the same day at a regular election.


QUESTION 2: B donated a parcel of land to the government on the condition that the latter shall construct a building and other facilities. After a considerable length of time had lapsed without any construction occurring, B filed an action for the revocation. Government moved for the dismissal of the action on the ground that it cannot be sued because it did not give its consent. After trial, the court dismissed the case. It held that the facts show that government did not give its consent to be sued. Is the dismissal of the action proper?


SUGGESTED ANSWER: No, the dismissal is not proper. The doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen. In Ministerio v. Court of First Instance of Cebu the Supreme Court held that where the government ordinarily benefited by the taking of the land, the failure to institute the necessary condemnation proceedings should not be a bar to an ordinary action for the collection of the just compensation due.


Doctrine of State Immunity from Suit The State may not be sued without its

consent. (Article XVI, Section 3 of the 1987 Constitution).


Doctrine of State Immunity from Suit Based on the very essence of sovereignty

Principle of the sovereign equality of states Manifestation of republican government “There can be no legal right against the

authority which makes the law on which the right depends”—Justice Holmes


Doctrine of State Immunity from Suit Based on reasons of public policy

Practicality: Demands and inconveniences of litigation will divert the time and resources of the state from the more pressing matters demanding its attention to the prejudice of the public welfare


Doctrine of State Immunity from Suit TEST: WON the decision rendered against the public officer/office impleaded will require an affirmative act from the state.


Doctrine of State Immunity from Suit Ways of Suing the State:(1) Direct Suit

“______ v. Republic of the Philippines”

(2) Indirect Suit

“______ v. Public Officer”

“______ v. Government agency”


Doctrine of State Immunity from Suit GENERAL RULE: The state cannot be sued.

EXCEPTION: The state can be sued when it consents to being sued.

(1) Express Consent

(2) Implied Consent


Doctrine of State Immunity from Suit

(1) Express Consent- may be manifested either through a general law or a special law

General law: Act 3083; CA 327 Special statute: Municipality charter; Merritt

case- must be embodied in a duly enacted statute and may not be given by mere counsel of the government



(1) Express Consent General law: Act 3083; CA 327

Act No. 3083:Consents to be sued on liability arising from contractsCA No. 327:Claims against the government must first be filed with the Commission on Audit, which must act upon it within 60 days. Rejection of the claim will authorize the claimant to elevate the matter to the SC on certiorari and in effect sue the State with its consent



(2) Implied Consent

- given when the state itself commences litigation or when it enters into a contract

Commences litigation:

the State must be asking for affirmative relief

Enter into a contract:

contract must be entered into in its proprietary function (jure gestionis, not jure imperii)


Suits Even Without Consent GENERAL RULE: The state cannot be sued

without its consent. EXCEPTION: The state can be sued when it

consents to being sued.


Suits Even Without Consent EXCEPTION TO THE EXCEPTION:(1) Mandamus: Compelling a public officer to do an

obligation

(2) Prohibition: Prohibiting a public officer from enforcing an unconstitutional law

(3) Compelling the national treasurer to pay damages from an already appropriated fund

(4) Compelling a public officer to refund tax overpayments from a fund already available for the purpose


Suits Even Without Consent EXCEPTION TO THE EXCEPTION:(5) Compelling a public officer to comply with a judgment that he may satisfy himself without the government itself having to do a positive act to assist him;

(6) Government violated its own laws/injustice is perpetrated;

(7) Recovery of property held in official capacity; and

(8) Acts done in excess of jurisdiction.


Suits Against Govt. Agencies

(1) Incorporated vs. Unincorporated

(2) Suable vs. Not suable

(3) Apply the Affirmative Act Test



(1) Incorporated vs. UnincorporatedINCORPORATED AGENCY

- Created by a charter that gives them a separate juridical entity “to sue and be sued”

- Ex: GOCCs, SSS, UP, cities or municipalities

SuableCharter says so, regardless of whether or not acting in governmental or proprietary

function

Not suable charter says not suable



(1) Incorporated vs. UnincorporatedUNINCORPORATED AGENCY

- has no separate juridical personality but is merged in the general machinery of the government

- Ex: DOJ, Bureau of Mines, Government Printing Office,

Suable acting in proprietary function

Not suable acting in governmental function, even with incidental proprietary enterprises


Suits Against Govt. Officials Considered a suit against the state when they are

acting in the discharge of their official functions; within their jurisdiction

Apply the Affirmative Act Test


Suability ≠ Liability When the state allows itself to be sued, all it does

in effect is to give the other party an opportunity to prove that the State is liable

The consent of the state to be sued does not mean that it concedes its liability


Liability ≠ Execution When the State gives it consent to be sued, it

does not thereby also consent to the execution of the judgment against it

Such execution will require another waiver, lacking which the decision cannot be enforced


Liability ≠ Execution Rationale:

It is based on the Constitutional mandate no money shall be paid out of the Treasury except in pursuance of an appropriation made by law. Moreover, this is to prevent interference with the public functions of the government.


Summary It is a suit against the state when the claim

requires an affirmative action on the part of the State or its subdivisions

Consent is needed on two levels:

-To sue the government

-To execute judgment against government Consenting to be sued is not admitting liability


QUESTION 3: A law is passed saying: “If for any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn, the Governor General is authorized to issue and promulgate temporary rules and emergency measures fixing the price of such cereals.” Is the delegation valid?


SUGGESTED ANSWER: No. In order for a valid delegation of power, there must be concurrence of both the completeness and sufficient standard test. In the case of US vs Ang Tang Ho, the Supreme Court ruled that where the law contains no standard that will guide the Governor General in determining whether the rise is extraordinary and for determining what the price should be, there is undue delegation of powers.


Separation of Powers This principle ordains that each of the three great

branches of the government has exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated sphere (Santiago vs Guingona).

Purpose: To prevent concentration of authority in one person or group of person that might lead to irreparable error or abuse in its exercise to the detriment of republican institutions.


Principle of Blending of Powers Instances when powers are not confined

exclusively within one department but are assigned to or shared by several departments (Nachura, 2009)


Principle of Checks and Balances It allows one department to resist encroachments

upon its prerogatives or to rectify mistakes or excesses committed by the other departments.

The constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of various departments of the government.


Delegation of Powers General Rule:

Potestas delegata non delegari potest (What has been delegated cannot be delegated)

Exceptions:

Permissible Delegations


Delegation of Powers Exceptions:

Permissible Delegations (PETAL)(1) Delegation to the PEOPLE at large;

(2) EMERGENCY powers of the President;

(3) TARIFF powers of the President;

(4) Delegation to the ADMINISTRATIVE bodies;

(5) Delegation to the LOCAL government


Delegation of Powers TESTS OF A VALID DELEGATION(1) Completeness Test

It must be complete in itself; it must set forth therein the policy to be executed, carried out or implemented by the delegate.

(2) Sufficient Standard Test

It must fix a standard to which the delegate must conform the performance of his function.

PERSONS AND FAMILY RELATIONS

QUESTION 1: When do laws take effect?

SUGGESTED ANSWER: Under Art. 2 of the Civil Code, laws shall take effect after 15 days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.


Effectivity of Laws

What laws need to be published? Presidential decrees Laws which refer to all statutes, including local

and private laws Administrative rules and regulations where

purpose is to enforce/implement existing law pursuant to a valid delegation

(Tañada v. Tuvera)


Effectivity of Laws

What laws need to be published? Circulars issued by the Monetary Board where

purpose is not merely to interpret but to fill in the details of the Central Bank Act

Circulars and regulation which prescribe a penalty for its violation

Executive orders

(Tañada v. Tuvera)


Effectivity of Laws

What laws need NOT be published? Interpretative regulations and those internal in

nature, regulating only the personnel of the administrative agency

Letters of instructions issued by administrative superiors on rules/guidelines to be followed by subordinates in the performance of their duties


Effectivity of Laws

“Newspaper of general circulation” Characteristics:

(1) It is published for the dissemination of local news and general information;

(2) It has a bona fide subscription list of paying subscribers; and

(3) It is published at regular intervals.

(Fortune Motors v. Metropolitan Bank and Trust Company citing Basa v. Mercado)


Effectivity of Laws

“Newspaper of general circulation” The newspaper need not have the largest

circulation so long as it is of general circulation. (Banta v. Pacheco).


Ignorance of Law ≠ Ignorance of Fact

Ignorance of Law Ignorance or lack of knowledge with regard to the

acts that the state prohibits and the policies that it implements, such that a violation of which is inexcusable.

Example: lack of knowledge as to the existence of a non-smoking ordinance


Ignorance of Law ≠ Ignorance of Fact

Ignorance of Fact Mistake of fact A mistake about the instantiation of that

prohibitory norm in a particular case, where the mistake does not flow from the first type of mistake, such that a violation is excusable provided there is no negligence

Example: a person who contracts a marriage on the belief that he/she is of legal age because of what his/her relatives told him


Waiver of Rights Requisites:(1) Full capacity to make the waiver;

(2) Waiver must be unequivocal;

(3) Right must exist at the time of the waiver;

(4) It must not be contrary to law, public policy, morals or good customs or prejudicial to a third person with a right recognized by law; and

(5) When formalities are required, the same must be complied with.


Waiver of Rights Exceptions:(1) Waiver is contrary to law, public order, public

policy, morals or good customs;

(2) If the waiver is prejudicial to a third party with a right recognized by law;

(3) Alleged rights which are not yet in existence, as in the case of future inheritance; and

(4) If the right is a natural right, such as the right to be supported.


Rule on Periods Art. 13, CC:

□ Years – twelve (12) calendar monthsNOTE: Art. 13, CC has been superseded by E.O. 292 or the Revised Administrative Code of 1987 (CIR v. Primetown Property Group, Inc. G.R. No. 162155, August 28, 2007)

□ Months - 30 days, unless month is identified

□ Days - 24 hours

□ Nights - sunset to sunrise

□ Calendar week - Sunday to Saturday

□ Week - count 7 days as indicated, not necessarily Sunday to Saturday


QUESTION 2: Elated that her sister who had been married for 5 years was pregnant for the first time, Bianca donated P100,000.00 to the unborn child. On exactly the 7th month of pregnancy, her sister delivered the child. Unfortunately, the baby died one hour after delivery. May Bianca recover the P100,000.00 that she donated to said baby before it was born considering the baby died?


Judicial Capacity v. Capacity to Act

JURIDICAL CAPACITY CAPACITY TO ACTFitness to be the subject of legal

relations (Art. 37).Power to do acts with legal

effects (Art. 37).Passive ActiveInherent Merely acquiredLost only through death Lost through death and other

causesCan exist without capacity to act Cannot exist without juridical

capacityCannot be limited or restricted Can be restricted, modified or

limited


Natural Persons v. Juridical PersonsNATURAL PERSONS JURIDICAL PERSONS

Personality does not begin at birth; it begins at conception provided the conceived child be born with all the requirements under Art. 41, NCC. This personality at conception is called presumptive personality.

A private corporation begins to exist as a juridical person from the moment a certificate of incorporation is granted to it. The certificate is issued upon filing the articles of incorporation with the Securities and Exchange Commission. (See the Corporation Code).

NOTE: that a corporation cannot be regarded as possessed of a personality separate and distinct from its members when to allow it would be to sanction the use of the fiction of corporate identity as a shield to further an end subversive of justice.


Natural Persons v. Juridical PersonsNATURAL PERSONS JURIDICAL PERSONS

Exercised by the natural person himself.

It can only do so thru its board of directors, officers, andagents — when authorized by a

board resolution or its by-laws

Civil Personality is extinguished by death.

Generally, juridical personality is extinguished upon dissolution.


Two Kinds of Children

(1) Ordinary — with an intra-uterine life of at least seven months. (Mere birth is sufficient here.)

(2) Extraordinary — if the intra-uterine life be less than seven months. (Here the child must have lived for at least 24 hours after its complete delivery from the maternal womb).


Requisites of Marriage ESSENTIAL REQUISITES (2) FORMAL REQUISITES (3)


Requisites of Marriage ESSENTIAL REQUISITES (2)(1) Legal capacity of the contracting parties who

must be a male and a female; and

(2) Consent freely given in the presence of the solemnizing officer


Requisites of Marriage FORMAL REQUISITES (3)(1) Authority of solemnizing officer;

(2) A valid marriage license; and

(3) 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.


A4: Effect of Absence, Defect or Irregularity ABSENCE of any of the essential or formal

requisites:

GEN: Marriage is VOID AB INITIO

EXCEPTION: Marriages 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 legal authority to do so (A35[2], FC).


A4: Effect of Absence, Defect or Irregularity DEFECT in any of the essential requisites:Marriage is VOIDABLE (relate to A45 and 46, FC) IRREGULARITY in any of the formal requisites:Marriage is VALID but the persons responsible for the irregularity shall be held civilly, administratively and/or criminally liable.


A7 and LGC: Solemnizing Officers(1) Incumbent member of the judiciary within the

court’s jurisdiction;

(2) Any Priest, rabbi, imam or ministers of any church or religious sect duly authorized by his church or religious sec and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer’s church or religious sect.


A7 and LGC: Solemnizing Officers(3) Ship captains or airplane chiefs only in cases mention in Art. 31, FC;

(4) Commander of a military unit, in the absence of chaplain in the case provided in Art. 32, FC;

(5) Consul-general, consul or vice-consul in the case provided in Art. 10, FC; and

(6) Mayor under the LGC which took effect on January 1, 1992.


Persons Exempt from Obtaining a Marriage License (1) Marriages celebrated in articulo mortis (Art. 27,

FC);

(2) Residence of either party is so located that there is no means of transportation to enable such party to appear before the local civil registrar (Art. 28, FC);

(3) Marriages between passengers or crew members celebrated by ship captain or an airplane pilot while the ship is at sea or the plane is in flight and during stopovers at ports of call (Art. 31, FC);


Persons Exempt from Obtaining a Marriage License (4) Marriages between persons within the zone of military operation celebrated by a by a commissioned military commander of a unit (Art. 32, FC);

(5) Marriages among Muslims or among members of the ethnic cultural communities provided they are solemnized according to their customs, rites or practices (Art. 33, FC); and

(6) Marriages between a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other (Art. 34, FC).


VOID Marriages

(1) Due to absence of essential or formal requisites (A4, FC);

(2) Void ab initio marriages (A35);

(3) Due to psychological incapacity (A36, FC);

(4) Incestuous marriages (A37, FC); and

(5) Void ab initio marriages for reasons of public policy (A38, FC).


A36: Psychological Incapacity

The law does not define what psychological incapacity is. Thus, its presence or absence is left to the sound judgment of the courts taking into consideration the peculiar circumstances surrounding the every case.


A36: Psychological IncapacityMOLINA Doctrine In the case of Republic v. Molina, the Supreme

Court laid down the following guidelines in the interpretation and application of Art. 36 of the Family Code:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family.


A36: Psychological IncapacityMOLINA Doctrine(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological — not physical. although its manifestations and/or symptoms may be physical.


A36: Psychological IncapacityMOLINA Doctrine(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex.

Furthermore, such incapacity must be relevant to the assumption of marriage obligations.


A36: Psychological IncapacityMOLINA Doctrine(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.


A36: Psychological IncapacityMOLINA Doctrine(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law.


A36: Psychological IncapacityMOLINA Doctrine(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall he handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly staring therein his reasons for his agreement or opposition, as the case may be, to the petition.


A45: Voidable Marriages(1) Absence of consent to contract marriage from the

parents, guardian or person exercising substitute parental authority (in that order) over one or both of the parties, where one or both of the parties is over 18 but below 21;

(2) Either party is of unsound mind;

(3) Consent of either party was obtained through fraudulent means;

(4) Vitiated consent of either party through force, intimidation or undue influence;


A45: Voidable Marriages(5) Physical incapability of either party to c1o1nsummate the marriage with the other; and such incapacity continues and appears to be incurable (impotency); and

(6) Sexually transmissible disease of either party found to be serious and appears to be incurable.


Table of Voidable Marriages; Prescription and Ratification

Grounds Persons who may sue

Prescriptive Period Ratification

Force, intimidation or undue influence

Injured Party

Within 5 years from the time force, intimidation, or undue influence ceased

Free cohabitation after disappearance of force, intimidation or undue influence respectively.





Fraud Injured PartyWithin 5 years from the discovery of fraud

Free cohabitation even with full knowledge of facts constituting the fraud





Incapability to consummate marriage

Injured Party

Within 5 years after the celebration of the marriage

No ratification since defect is permanent



Grounds Persons who may sue Prescriptive Period Ratification

Insanity

Sane spouse who has no knowledge of the insanity

Anytime before the death off either party

Relative, guardian or persons having legal charge of the insane

Anytime before the death of either party Free

cohabitation after insane regains sanityInsane spouse

During lucid interval or after regaining sanity


Table of Voidable Marriages; Prescription and RatificationGrounds Persons who

may suePrescriptive

Period Ratification

Non-consent

Parent/legal guardian having charge of the “no-consent” party

Anytime before the “no-consent party reaches 21” Free cohabitation

after reaching age of 21

“No consent” party Within 5 years after reaching 21

STD Injured Party

Within 5 years after the celebration of the marriage

No ratification since defect is permanent


QUESTION 3: Jose and Maria, both Filipino Citizens, were married. One year later, Jose abandoned Maria and went to Canada. Jose was later naturalized as a Canadian citizen. Thereafter, he filed for the divorce of his marriage with Maria. After successfully obtaining a divorce decree, Jose married Isabel. Is the marriage of Jose and Isabel valid?


SUGGESTED ANSWER: Yes. Art. 26 paragraph 2 of the Family Code states in part that, a divorce decree obtained abroad by the alien spouse capacitates him to remarry. The same provision applies in marriages solemnized between both Filipino citizens, then one of them later becomes a foreign citizen and procures a divorce decree. The reckoning point is not the citizenship of the parties at the time of the celebration of marriage but at the time the valid divorce is obtained abroad by the alien spouse capacitating him to remarry. Furthermore, the Filipino spouse shall likewise have the capacity to remarry.

Documents

7th Rev Upmicvillamayor.weebly.com/uploads/2/2/6/9/… · PPT file · Web view · 2017-09-15US vs. Ah Chong- The ignorance or ... The act performed would have constituted an offense