98293126 Summarized Villanueva Book CORPO

I. HISTORICAL BACKGROUND 1. The Philippine Corporate Law When the Philippines came under American sovereignty, attention was drawn to the fact that there was no entity in Spanish law exactly corresponding to the notion ―corporation‖ in English and American law; the Philippine Commission enacted the Corporation Law (Act No. 1459), to introduce the American corporation into the Philippines as the standard commercial entity and to hasten the day when the sociedad anónima of the Spanish law would be obsolete. The statute is a sort of codification of American Corporate Law. Harden v. Benguet Consolidated Mining Co., 58 Phil. 141 (1933). 2. The Corporation Law The first corporate statute, the Corporation Law, or Act No. 1459, became effective on 1 April 1906. It had various piece-meal amendments during its 74 year history. It rapidly became antiquated and not adapted to the changing times. 3. The Corporation Code The present Corporation Code, or Batas Pambansa Blg. 68, became effective on 1 May 1980. It adopted various corporate doctrines enunciated by the Supreme Court under the old Corporation Law. It clarified the obligations of corporate directors and officers, expressed in statutory language established principles and doctrines, and provided for a chapter on close corporations. 4. Proper Treatment of Philippine Corporate Law Philippine Corporate Law comes from the common law system of the United States. Therefore, although we have a Corporation Code that provides for statutory principles, Corporate Law is essentially, and continues to be, the product of commercial developments. Much of this development can be expected to happen in the world of commerce, and some expressed jurisprudential rules that try to apply and adopt corporate principles into the changing concepts and mechanism of the commercial world. II. CONCEPTS See opening paragraphs of Villanueva, Corporate Contract Law,38 Ateneo L.J. 1 (No. 2, June 1994).

1. Definition: Corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence. [Sec. 2. BP 68] ( See also Section 2; Articles 44(3), 45, 46, and 1775, Civil Code. ) 2. Tri-Level Existence of Corporation (a) Aggregation of Assets and Resources (b) Business Enterprise or Economic Unit (c) Juridical Entity 3. Relationships Involved in Corporate Setting (a) Juridical Entity Level, which views the State-corporations relationship (b) Contractual Relationship Level, which considers that the corporate setting is at once a contractual relationship on four (4) levels: - Between the corporation and its agents or representatives to act in the real world, such as its directors and its officers, which is governed also by the Law on Agency; - Between the corporation and its shareholders or members; - Between and among the shareholders in a common venture; and - Between the corporation and third-parties or ―outsiders‖, which is essentially governed by Contract Law. 4. Theories on Formation of Corporation: (a) Theory of Concession (Tayag v. Benguet Consolidated Inc., 26 SCRA 242 [1968]) To organize a corporation that could claim a juridical personality of its own and transact business as such, is not a matter of absolute right but a privilege which may be enjoyed only under such terms as the State may deem necessary to

impose (x-cf. Ang Pue & Co. v. Sec. of Commerce and Industry, 5 SCRA 645 [1962]). Before a corporation may acquire juridical personality, the State must give its consent either in the form of a special law or a general enabling act, and the procedure and conditions provided under the law for the acquisition of such juridical personality must be complied with. The failure to comply with the statutory procedure and conditions does not warrant a finding that such association achieved the acquisition of a separate juridical personality, even when it adopts sets of constitution and by-laws. xInternational Express Travel & Tour Services, Inc. v. Court of Appeals, 343 SCRA 674 (2000). Since all corporations, big or small, must abide by the provisions of the Corporation Code, then even a simple family corporation cannot claim an exemption nor can it have rules and practices other than those established by law. xTorres v. Court of Appeals, 278 SCRA 793 (1997). (b) Theory of Enterprise Entity (Berle, Theory of Enterprise Entity, 47 Col. L. Rev. 343 [1947]) Corporations are composed of natural persons and the legal fiction of a separate corporate personality is not a shield for the commission of injustice and inequity, such as the use of separate personality to avoid the execution of the property of a sister company. xTan Boon Bee & Co., Inc. v. Jarencio, 163 SCRA 205 (1988). A corporation is but an association of individuals, allowed to transact under an assumed corporate name, and with a distinct legal personality. In organizing itself as a collective body, it waives no constitutional immunities and perquisites appropriate to such a body. xPhilippine Stock Exchange, Inc. v. Court of Appeals, 281 SCRA 232 (1997). 5. Four Attributes of Corporation from Statutory Definition: (a) A corporation is an artificial being (b) Created by operation of law (c) With right of succession (d) Only has powers, attributes and properties expressly authorized by law or incident to its existence

6. Advantages and Disadvantages of Corporate Form: (a) Four Basic Advantageous Characteristics of Corporate Organization: (i) Strong Legal Personality - Entity attributable powers - Continuity of existence - Purpose The corporation was evolved to make possible the aggregation and assembling of huge amounts of capital upon which big business depends; and has the advantage of non-dependence on the lives of those who compose it even as it enjoys certain rights and conducts activities of natural persons. Reynoso, IV v. Court of Appeals, G.R. No. 116124-25, 22 November 2000. (ii) Centralized Management. (iii) Limited Liability to Investors One advantage of a corporate business organization is the limitation of an investor’s liability to the amount of the investment, which flows from the legal theory that a corporate entity is separate and distinct from its stockholders. xSan Juan Structural and Steel Fabricators, Inc. v. Court of Appeals, 296 SCRA 631, 645 (1998). (iv) Free Transferability of Units of Ownership for Investors (b) Disadvantages: (i) Abuse of corporate management (ii) Abuse of limited liability feature (iii) Cost of maintenance (iv) Double taxation

Dividends received by individuals from domestic corporations are subject to final 10% tax (Sec. 24(B)(2), NIRC of 1997) for income earned on or after 1 January 1998. Inter-corporate dividends between domestic corporations, however, are not subject to any income tax (Sec. 27(D)(4), NIRC of 1997). In addition, there has been a re-imposition of the ―improperly accumulated earnings tax,‖ under Section 29 of the NIRC of 1997 for corporations at the rate of 10% annually. 7. Compared With Other Media of Business Endeavors - Distribution of Risk, Profit and Control (a) Sole Proprietorships (b) Business Trusts (Article 1442, Civil Code) (c) Partnerships and Other Associations (Arts. 1768 and 1775, Civil Code) - Can a defective attempt o form a corporation result at least in the formation of a partnership? Pioneer Insurance v. Court of Appeals, 175 SCRA 668 (1989). (d) Joint Ventures Joint venture is defined as an association of persons or companies jointly undertaking some commercial enterprise; generally all contribute assets and share risks. It requires a community of interest in the performance of the subject matter, a right to direct and govern the policy in connection therewith, and duty, which may be altered by agreement to share both in profit and losses. the acts of working together in a joint project. xKilosbayan, Inc. v. Guingona, Jr., 232 SCRA 110, 143 (1994), citing Black’s Law Dictionary, Sixth ed., 839. (e) Cooperatives (Art. 3, R.A. No. 6938) (f) Sociedades Anónimas A sociedad anónima was considered a commercial partnership, a sort of a corporation, ―where upon the execution of the public instrument in which its articles of agreement appear, and the contribution of funds and personal property, becomes a juridical person—an artificial being, invisible, intangible, and existing only in contemplation of law—with power to hold, buy, and sell property,

and to sue and be sued—a corporation—not a general copartnership nor a limited copartnership . . . The inscribing of its articles of agreement in the commercial register was not necessary to make it a juridical person—a corporation. Such inscription only operated to show that it partook of the form of a commercial corporation.‖ xMead v. McCullough, 21 Phil. 95,106 (1911). The sociedades anónimas were introduced in Philippine jurisdiction on 1 December 1888 with the extension to Philippine territorial application of Articles 151 to 159 of the Spanish Code of Commerce. Those articles contained the features of limited liability and centralized management granted to a juridical entity. But they were more similar to the English joint stock companies than the modern commercial corporations. xBenguet Consolidated Mining Co. v. Pineda, 98 Phil. 711 (1956) Our Corporation Law recognizes the difference between sociedades anónimas and corporations and will not apply legal provisions pertaining to the latter to the former xPhil. Product Co. v. Primateria Societe Anonyme, 15 SCRA 301 (1965). (g) Cuentas En Participacion A cuentas en participacion as a sort of an accidental partnership constituted in such a manner that its existence was only known to those who had an interest in the same, there being no mutual agreement between the partners, and without a corporate name indicating to the public in some way that there were other people besides the one who ostensibly managed and conducted the business, governed under article 239 of the Code of Commerce. Those who contract with the person under whose name the business of such partnership of cuentas en participacion is conducted, shall have only a right of action against such person and not against the other persons interested, and the latter, on the other hand, shall have no right of action against third person who contracted with the manager unless such manager formally transfers his right to them. xBourns v. Carman, 7 Phil. 117 (1906). III. NATURE AND ATTRIBUTES OF A CORPORATION 1. Nature of Power to Create a Corporation (Sec. 16, Article XII, 1987 Constitution) 2. Corporation as a Person:

(a) Entitled to due process The due process clause is universal in its application to all persons without regard to any differences of race, color, or nationality. Private corporations, likewise, are ―persons‖ within the scope of the guaranty insofar as their property is concerned.‖ xSmith Bell & Co. v. Natividad, 40 Phil. 136, 144 (1920). (b) Equal protection clause (xSmith Bell & Co. v. Natividad, 40 Phil. 136 [1920]). (c) Unreasonable Searches and Seizure Corporations are protected by the constitutional guarantee against unreasonable searches and seizures, but that the officers of a corporation from which documents, papers and things were seized have no cause of action to assail the legality of the seizures, regardless of the amount of shares of stock or of the interest of each of them in said corporation, and whatever the offices they hold therein may be, because the corporation has a personality distinct and separate from those of said officers. The legality of a seizure can be contested only by the party whose rights have been impaired thereby; and the objection to an unlawful search is purely personal and cannot be availed of by such officers of the corporation who interpose it for their personal interests. xStonehill v. Diokno, 20 SCRA 383 (1967). A corporation is but an association of individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body it waives no constitutional immunities appropriate for such body. Its property cannot be taken without compensation; can only be proceeded against by due process of law; and is protected against unlawful discrimination. xBache & Co. (Phil.), Inc. v. Ruiz, 37 SCRA 823, 837 (1971), quoting fromxHale v. Henkel, 201 U.S. 43, 50 L.Ed. 652. (d) But a corporation is not entitled to privilege against self incrimination ―It is elementary that the right against self-incrimination has no application to juridical persons.‖ Bataan Shipyard & Engineering Co v. PCGG, 150 SCRA 181, 234-235 (1987). While an individual may lawfully refuse to answer incriminating questions unless protected by an immunity statute, it does not follow that a corporation, vested with special privileges and franchises may refuse to show its hand when charged with an abuse of such privilege. xHale v. Henkel, 201 U.S. 43 (1906); xWilson v.

United States, 221 U.S. 361 (1911); xUnited States v. White, 322 U.S. 694 (1944). 3. Liability for Torts A corporation is civilly liable in the same manner as natural persons for torts, because generally speaking, the rules governing the liability of a principal or master for a tort committed by an agent or servant are the same whether the principal or master be a natural person or a corporation, and whether the servant or agent be a natural or artificial person. That a principal or master is liable for every tort which he expressly directs or authorizes, is just as true of a corporation as a natural person. PNB v. CA, 83 SCRA 237 (1978). Our jurisprudence is wanting as to the definite scope of ―corporate tort.‖ Essentially, ―tort‖ consists in the violation of a right given or the omission of a duty imposed by law. Simply stated, tort is a breach of a legal duty. When it was found that Clark Field Taxi failed to comply with the obligation imposed under Article 283 of the Labor Code which mandates that the employer to grant separation pay to employees in case of closure or cessation of operations of establishments or undertaking not due to serious business losses or financial reverses; consequently, its stockholder who was actively engaged in the management or operation of the business should be held personally liable. xSergio F. Naguiat v. NLRC, 269 SCRA 564 (1997). As a general rule, a banking corporation is liable for the wrongful or tortuous acts and declarations of its officers or agents within the course and scope of their employment. A bank will be held liable for the negligence of its officers or agents when acting within the course and scope of their employment, even as regards that species of tort of which malice is an essential element. In this case, we find a situation where the PCIBank appears also to be the victim of the scheme hatched by a syndicate in which its own management employees had participated. Philippine Commercial International Bank vs. Court of Appeals, G.R. No. 121413, 29 January 2001. 4. Criminal Liability of a Corporation (West Coast Life Ins. Co. v. Hurd, 27 Phil. 401 (1914);People v. Tan Boon Kong, 54 Phil. 607 [1930]; Sia v. CA, 121 SCRA 655 [1983]; Articles 102 and 103, Revised Penal Code). No criminal suit can lie against an accused who is a corporation. xTimes, Inc. v. Reyes, 39 SCRA 303 (1971).

When a criminal statute forbids the corporation itself from doing an act, the prohibition extends to the board of directors, and to each director separately and individually. xPeople v. Concepcion, 44 Phil. 129 (1922). 5. Recovery of Moral Damages and Other Damages A corporation, being an artificial person, cannot experience physical sufferings, mental anguish, fright, serious anxiety, wounded feelings, moral shock or social humiliation which are basis for moral damages under Art. 2217 of the Civil Code. However, a corporation may have a good reputation which, if besmirched, may be a ground for the award of moral damages.xMambulao Lumber Co. v. Philippine National Bank, 22 SCRA 359 (1968). Even when the corporation’s reputation and goodwill have been prejudiced, ―there can be no award for moral damages under Article 2217 and succeeding articles of Section 1 of Chapter 3 of Title XVIII of the Civil Code in favor of a corporation.‖ xPrime White Cement Corp. vo Intermediate Appellate Court, 220 SCRA 103, 113-114 (1993). Moral damages are granted in recompense for physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. A corporation, being an artificial person and having existence only in legal contemplation, has no feelings, no emotions, no senses; therefore, it cannot experience physical suffering and mental anguish. Mental suffering can be experienced only by one having a nervous system and it flows from real ills, sorrows, and griefs of life—all of which cannot be suffered by respondent bank as an artificial person. xLBC Express, Inc. v. Court of Appeals, 236 SCRA 602 (1994); xAcme Shoe, Rubber & Plastic Corp. v. Court of Appeals, 260 SCRA 714 (1996); xSolid Homes, Inc. v. Court of Appeals, 275 SCRA 267 (1997). In Asset Privatization Trust v. Court of Appeals, 300 SCRA 579 (1998), the Supreme Court seemed to have gone back to the original doctrine that ―[u]nder Article 2217 of the Civil Code, moral damages include besmirched reputation which a corporation may possibly suffer.‖ The award of moral damages cannot be granted in favor of a corporation because, being an artificial person and having existence only in legal contemplation, it has no feelings, no emotions, no senses. It cannot, therefore, experience physical suffering and mental anguish, which can be experienced only by one having a nervous system. The statement in People v. Manero [218 SCRA 85 (1993)] and Mambulao Lumber Co. v. PNB [130 Phil. 366 (1968)], that

a corporation may recover moral damages if it ―has a good reputation that is debased, resulting in social humiliation‖ is an obiter dictum. . .‖ The possible basis of recovery of a corporation would be under Articles 19, 20 and 21 of the Civil Code, but which requires a clear proof of malice or bad faith. xABS-CBN Broadcasting Corp. v. Court of Appeals, 301 SCRA 589 (1999). While it is true that a criminal case can only be filed against the officers of a corporation and not against the corporation itself, it does not follow from this, however, that the corporation cannot be a real-party-in-interest for the purpose of bringing a civil action for malicious prosecution for the damages incurred by the corporation for the criminal proceedings brought against its officer. xCometa v. Court of Appeals, 301 SCRA 459 (1999). 6. Nationality of Corporation: Country Under Whose Laws Incorporated (Sec. 123). Exceptions: The Test of Controlling Ownership Applies In: (a) Exploitation of Natural Resources (Sec. 140; Sec. 2, Article XII, 1987 Constitution;Roman Catholic Apostolic Administrator of Davao, Inc. v. The LRC and the Register of Deeds of Davao, 102 Phil. 596 [1957]). The donation of land to an unincorporated religious organization, whose trustees are foreigners, cannot be allowed registration for being violation of the constitutional prohibition and it would not be violation of the freedom of religion clause. The fact that the religious association ―has no capital stock does not suffice to escape the constitutional inhibition, since it is admitted that its members are of foreign nationality. The purpose of the sixty per centum requirement is obviously to ensure that corporations or associations allowed to acquire agricultural land or to exploit natural resources shall be controlled by Filipinos; and the spirit of the Constitution demands that in the absence of capital stock, the controlling membership should be composed of Filipino citizens.‖ xRegister of Deeds of Rizal v. Ung Sui Si Temple, 97 Phil. 58 (1955) (b) Public Utilities (Sec. 11, Article XII, 1987 Constitution; People v. Quasha, 93 Phil. 333 [1953]). The primary franchise of a corporation, that is, the right to exist as such, is vested in the individuals who compose the corporation and not in the corporation itself and cannot be conveyed in the absence of a legislative authority so to do. But the special or secondary franchises of a corporation are vested in the corporation and may ordinarily be conveyed or mortgaged under a general power granted to

a corporation to dispose of its property, except such special or secondary franchises as are charged with a public use. xJ.R.S. Business Corp. v. Imperial Insurance, 11 SCRA 634 (1964). The Constitution, in no uncertain terms, requires a franchise for the operation of a public utility; however, it does not requires a franchise before one can own the facilities needed to operate a public utility so long as it does not operate them to serve the public. In law there is a clear distinction between the ―operation‖ of a public utility and the ownership of the facilities and equipment used to serve the public. Tatad v. Garcia, Jr., 243 SCRA 436 (1995) ―A distinction should be made between shares of stock, which are owned by stockholders, the sale of which requires only NTC approval, and the franchise itself which is owned by the corporation as the grantee thereof, the sale or transfer of which requires Congressional sanction. Since stockholders own the shares of stock, they may dispose of the same as they see fit. They may not, however, transfer or assign the property of a corporation, like its franchise. In other words, even if the original stockholders had transferred their shares to another group of shareholders, the franchise granted to the corporation subsists as long as the corporation, as an entity, continues to exist. The franchise is not thereby invalidated by the transfer of the shares. A corporation has a personality separate and distinct from that of each stockholder. It has the right of continuity or perpetual succession Corporation Code, Sec. 2).‖ Philippine Long Distance Telephone Co. v. National Telecommunications Commission, 190 SCRA 717, 732 (1990). (c) Mass Media (Sec. 11(1), Art. XVI, 1987 Constitution) Sources: P.D. 36, as amended by PDs 191 and 197; DOJ Opinion No. 120, s. of 1982;Section 2, P.D. 576; SEC Opinion dated 24 March 1983; DOJ Opinion 163, s. 1973; SEC Opinion dated 15 July 1991, XXV SEC QUARTERLY BULLETIN, (No. 4—December, 1991), at p. 31. Cable Industry The National Telecommunications Commission (NTC), which regulates and supervises the cable television industry in the Philippines under Section 2 of Executive Order No. 436, s. 1997, has provided under NTC Memorandum Circular No. 8-9-95, under item 920(a) thereof provides that ―Cable TV operations shall be governed by E.L. No. 205, s. 1987. If CATV operators offer public telecommunications services, they shall be treated just like a public telecommunications entity.‖

Under DOJ Opinon No. 95, series of 1999, the Secretary of Justice, taking its cue from Allied Broadcasting, Inc. v. Federal Communications Commission, 435 F. 2d 70, considered CATV as ―a form of mass media which must, theefore, be owned and managed by Filipino citizens, or corporations, cooperatives or associations, wholly-owned and managed by Filipino citizens pursuant to the mandate of the Constitution.‖ (d) Advertising Business (Sec. 11(2), Art. XVI, 1987 Constitution) (e) War-Time Test (Filipinas Compania de Seguros v. Christern, Huenefeld & Co., Inc., 89 Phil. 54 [1951]; xDavis Winship v. Philippine Trust Co., 90 Phil. 744 [1952]; xHaw Pia v. China Banking Corp., 80 Phil. 604 [1948]). (f) Investment Test as to ―Philippine Nationals‖ (Sec. 3(a),(b), R.A. 7042, Foreign Investment Act of 1992) (g) The Grandfather Rule (Opinion of DOJ No. 18, s. 1989, dated 19 January 1989; SEC Opinion, dated 6 November 1989, XXIV SEC Quarterly Bulletin (No. 1- March 1990); SEC Opinion, dated 14 December 1989, XXIV SEC Quarterly Bulletin (No. 2 -June 1990) Up to what level do you apply the grandfather rule? (Palting v. San Jose Petroleum Inc., 18 SCRA 924 [1966]). (h) Special Classifications (Sec. 140) IV. SEPARATE JURIDICAL PERSONALITY AND DOCTRINE OF PIERCING VEIL OF CORPORATE FICTION

A. Main Doctrine: A Corporation Has A Personality Separate and Distinct from its Stockholders or Members. Rudimentary is the rule that a corporation is invested by law with a personality distinct and separate from its stockholders or members—by legal fiction and convenience it is shielded by a protective mantel and imbued by law with a character alien to the persons comprising it. xLim v. Court of Appeals, 323 SCRA 102 (2000). 1. Sources: Sec. 2; Article 44, Civil Code

2. Importance of Protecting Main Doctrine: The ―separate juridical personality‖ includes: right of succession; limited liability; centralized management; and generally free transferability of shares of stock. Therefore, an undermining of the separate juridical personality of the corporation, such as the application of the piercing doctrine, necessarily dilutes any or all of those attributes. One of the advantages of a corporate form of business organization is the limitation of an investor’s liability to the amount of the investment. This feature flows from the legal theory that a corporate entity is separate and distinct from its stockholders. However, the statutorily granted privilege of a corporate veil may be used only for legitimate purposes. On equitable considerations, the veil can be disregarded when it is utilized as a shield to commit fraud, illegality or inequity; defeat public convenience; confuse legitimate issues; or serve as a mere alter ego or business conduit of a person or an instrumentality, agency or adjunct of another corporation. xSan Juan Structural and Steel Fabricators, Inc. v. Court of Appeals, 296 SCRA 631, 645 (1998). 3. Applications: (a) Majority Ownership of or Dealings in Shareholdings: Ownership of a majority of capital stock and the fact that majority of directors of a corporation are the directors of another corporation creates no employer-employee relationship with the latter’s employees. DBP v. NLRC, 186 SCRA 841 (1990); Francisco, et al. v. Mejia, G. R. No. 141617, 14 August 2001. The mere fact that a stockholder sells his shares of stock in the corporation during the pendency of a collection case against the corporation, does not make such stockholder personally liable for the corporate debt, since the disposing stockholder has no personal obligation to the creditor, and it is the inherent right of the stockholder to dispose of his shares of stock anytime he so desires. xRemo, Jr. v. Intermediate Appellate Court, 172 SCRA 405, 413-414 (1989). Mere ownership by a single stockholder or by another corporation of all or nearly all of the capital stock of a corporation is not of itself sufficient ground for disregarding the separate corporate personality. xSunio v. NLRC , 127 SCRA 390 (1984); xAsionics Philippines, Inc. v. National Labor Relations Commission, 290 SCRA 164 (1998); xLim v. Court of Appeals, 323 SCRA 102 (2000); xManila Hotel Corp. v. NLRC, 343 SCRA 1 (2000); xFrancisco v. Mejia, G. R. No. 141617, 14 August 2001.

Mere substantial identity of the incorporators of the two corporations does not necessarily imply fraud, nor warrant the piercing of the veil of corporate fiction. In the absence of clear and convincing evidence to show that the corporate personalities were used to perpetuate fraud, or circumvent the law, the corporations are to be rightly treated as distinct and separate from each other. xLaguio v. NLRC, 262 SCRA 715 (1996). (b) Dealings Between the Corporation and Stockholders: The transfer of the corporate assets to the stockholder is not in the nature of a partition but is a conveyance from one party to another. Stockholders of F. Guanzon and Sons, Inc. v. Register of Deeds of Manila, 6 SCRA 373 (1962). As a general rule, a corporation may not be made to answer for acts or liabilities of its stockholders or those of the legal entities which it may be connected and vice-versa. xARB Constructions Co., Inc. v. Court of Appeals, 332 SCRA 427 (200) (c) On Issues of Privileges Enjoyed: The tax privileges enjoyed by a corporation do not extend to its stockholders. ―A corporation has a personality distinct from that of its stockholders, enabling the taxing power to reach the latter when they receive dividends from the corporation. It must be considered as settled in this jurisdiction that dividends of a domestic corporation which are paid and delivered in cash to foreign corporations as stockholders are subject to the payment of the income tax, the exemption clause to the charter [of the domestic corporation] notwithstanding.‖ xManila Gas Corp. v. Collector of Internal Revenue, 62 Phil. 895, 898 (1936). (d) Being a Corporate Officer: Being an officer or stockholder of a corporation does not by itself make one’s property also of the corporation, and vice-versa, for they are separate entities, and that shareholders are in no legal sense the owners of corporate property which is owned by the corporation as a distinct legal person. Good Earth Emporium, Inc. v. CA, 194 SCRA 544 (1991) The mere fact that one is president of the corporation does not render the property he owns or possesses the property of the corporation, since that president, as an individual, and the corporation are separate entities. xCruz v. Dalisay, 152 SCRA 487 (1987). (e) Properites, Obligations and Debts: Likewise, a corporation has no legal standing to file a suit for recovery of certain parcels of land owned by its members in their individual capacity, even when the corporation is organized for

the benefit of the members. Sulo ng Bayan v. Araneta, Inc., 72 SCRA 347 [1976]). The corporate debt or credit is not the debt or credit of the stockholder nor is the stockholder’s debt or credit that of the corporation. xTraders Royal Bank v. CA, 177 SCRA 789 (1989). Stockholders have no personality to intervene in a collection case covering the loans of the corporation on the ground that the interest of shareholders in corporate property is purely inchoate. xSaw v. CA, 195 SCRA 740 [1991]) The interests of payees in promissory notes cannot be off-set against the obligations between the corporations to which they are stockholders absent any allegation, much less, even a scintilla of substantiation, that the parties interest in the corporation are so considerable as to merit a declaration of unity of their civil personalities. xIndustrial and Development Corp. v. Court of Appeals, 272 SCRA 333 (1997). It is a basic postulate that a corporation has a personality separate and distinct from its stockholders. Therefore, even when the foreclosure on the assets of the corporation was wrongful and done in bad faith, the stockholders of the corporation have no standing to recover for themselves moral damages. Otherwise, it would amount to the appropriation by, and the distribution to, such stockholders of part of the corporation’s assets before the dissolution of the corporation and the liquidation of its debts and liabilities. xAsset Privatization Trust v. Court of Appeals, 300 SCRA 579, 617 (1998). Where real properties included in the inventory of the estate of a decedent are in the possession of and are registered in the name of the corporations, in the absence of any cogency to shred the veil of corporate fiction, the presumption of conclusiveness of said titles in favor of said corporations should stand undisturbed. xLim v. Court of Appeals, 323 SCRA 102 (2000). (f) Third-Parties: The fact that respondents are not stockholders of the disputed corporations does not make them non-parties to the case, since the jurisdiction of a court or tribunal over the subject matter is determined by the allegations in the Complaint. In this case, it is alleged that the aforementioned corporations are mere alter egos of the directors-petitioners, and that the former acquired the properties sought to be reconveyed to FGSRC in violation of directors-petitioners’ fiduciary duty to FGSRC. The notion of corporate entity will be pierced or disregarded and the individuals composing it will be treated as identical if, as alleged in the present case, the corporate entity is being used as a

cloak or cover for fraud or illegality; as a justification for a wrong; or as an alter ego, an adjunct, or a business conduit for the sole benefit of the stockholders. Gochan v. Young, G.R. No. 131889, 21 March 2001. B. Piercing the Veil of Corporate Fiction: 1. Source of Incantation: xUnited States v. Milwaukee Refrigerator Transit Co., 142 Fed. 247 [1905]). xSee also Francisco v. Mejia, G. R. No. 141617, 14 August 2001. 2. Nature of the Piercing Doctrine (Traders Royal Bank v. Court of Appeals, 269 SCRA 15 [1997]) Piercing the veil of corporate entity requires the court to see through the protective shroud which exempts its stockholders from liabilities that ordinarily, they could be subject to, or distinguishes one corporation from a seemingly separate one, were it not for the existing corporate fiction. xLim v. Court of Appeals, 323 SCRA 102 (2000). This Court has pierced the veil of corporate fiction in numerous cases where it was used, among others, to avoid a judgment credit, to avoid inclusion of corporate assets as part of the estate of a decedent, to avoid liability arising from debt; when made use of as a shield to perpetrate fraud and/or confuse legitimate issues, or to promote unfair objectives or otherwise to shield them. xReynoso, IV v. Court of Appeals, G.R. No. 116124-25, 22 November 2000; also xRamoso v. Court of Appeals, G.R. No. 117416, 8 December 2000. 3. When Piercing Doctrine Not Applicable: (a) Piercing the veil of corporate fiction is remedy of last resort and is not available when other remedies are still available. Umali v. CA, 189 SCRA 529 (1990). (b) Piercing is not allowed unless the remedy sought is to make the officer or another corporation pecuniarily liable for corporate debts. Umali v. CA, 189 SCRA 529 (1990);Indophil Textile Mill Workers Union-PTGWO v. Calica, 205 SCRA 697 (1992). (c) Piercing is not available when the personal obligations of an individual are sought to be enforced against the corporation. xRobledo v. NLRC, 238 SCRA 52 (1994)

―The rationale behind piercing a corporation’s identity in a given case is to remove the barrier between the corporation from the persons comprising it to thwart the fraudulent and illegal schemes of those who use the corporate personality as a shield for undertaking certain proscribed activities. However, in the case at bar, instead of holding certain individuals or person responsible for an alleged corporate act, the situation has been reversed. It is the petitioner as a corporation which is being ordered to answer for the personal liability of certain individual directors, officers and incorporators concerned. Hence, it appears to us that the doctrine has been turned upside down because of its erroneous invocation.‖ Francisco Motors Corp. v Court of Appeals, 309 SCRA 72, 83 (1999). (d) To disregard the separate juridical personality of a corporation, the wrongdoing must be clearly and convincingly established. It cannot be presumed. This is elementary. The organization of the corporation at the time when the relationship between the landowner and the developer were still cordial cannot be used as a basis to hold the corporation liable later on for the obligations of the landowner to the developer under the mere allegation that the corporation is being used to evade the performance of obligation by one of its major stockholders. xLuxuria Homes, Inc. v. Court of Appeals,302 SCRA 315 (1999); xDevelopment Bank of the Philippines vs. Court of Appeals,G.R. No. 126200, 16 August 2001. (e) Not Applicable to Theorizing: Piercing of the veil of corporate fiction is not allowed when it is resorted to justify under a theory of co-ownership the continued use and possession by stockholders of corporate properties. BoyerRoxas v. Court of Appeals, 211 SCRA 470 [1992]). The piercing doctrine cannot be availed of in order to dislodge from the jurisdiction of the SEC a the petition for suspension of payments filed under Section 5(e) of Pres. Decree No. 902-A, on the ground that the petitioning individuals should be treated as the real petitioners to the exclusion of the petitioning corporate debtor. ―The doctrine of piercing the veil of corporate fiction heavily relied upon by the petitioner is entirely misplaced, as said doctrine only applies when such corporate fiction is used to defeat public convenience, justify wrong, protect fraud or defend crime.‖ xUnion Bank of the Philippines v. Court of Appeals, 290 SCRA 198 (1998). Changing of the petitioners’s subsidiary liabilities by converting them to guarantors of bad debts cannot be done by piercing the veil of corporate identity. xRamoso v. Court of Appeals, G.R. No. 117416, 8 December 2000.

(f) Piercing doctrine is meant to prevent fraud, and cannot be employed to perpetrate fraud or a wrong. Gregorio Araneta, Inc. v. Tuason de Paterno and Vidal, 91 Phil. 786 (1952). The theory of corporate entity was not meant to promote unfair objectives or otherwise, nor to shield them. xVillanueva v. Adre, 172 SCRA 876 (1989). (g) Piercing is a power belonging to the court and cannot be assumed improvidently by a sheriff. Cruz v. Dalisay, 152 SCRA 482 (1987). 3. Consequences and Types of Piercing Cases: Umali v. CA, 189 SCRA 529 [1990]) (a) The application of the doctrine to a particular case does not deny the corporation of legal personality for any and all purposes, but only for the particular transaction or instance for which the doctrine was applied. Koppel (Phil.) Inc. v. Yatco, 77 Phil. 496 (1946); xTantoco v. Kaisahan ng Mga Manggagawa sa La Campana, 106 Phil. 198 (1959). (b) Classification of the Piercing Cases: (i) When the corporate entity is used to commit fraud or to do a wrong (―fraud cases‖); (ii) When the corporate entity is merely a farce since the corporation is merely the alter ego, business conduit or instrumentality of a person or another entity (―alter ego cases‖); and (iii) When the piercing the corporate fiction is necessary to achieve justice or equity (―equity cases‖). The three cases may appear together in one application. R.F. Sugay & Co., v. Reyes, 12 SCRA 700 (1964). 4. Fraud Cases: (a) Acts by the Controlling Shareholder: Where a stockholder, who has absolute control over the business and affairs of the corporation, entered into a contract with another corporation through fraud and false representations, such stockholder shall be liable jointly and severally with his co-defendant corporation

even when the contract sued upon was entered into on behalf of the corporation. Namarco v. Associated Finance Co., 19 SCRA 962 (1967). The tests in determining whether the corporate veil may be pierced are: (1) the defendant must have control or complete domination of the other corporation’s finances, policy and business practices with regard to the transaction attached; (2) control must be used by the defendant to commit fraud or wrong; and (3) the aforesaid control or breach of duty must be the proximate cause of the injury or loss complained of. Manila Hotel Corporation v. NLRC, 343 SCRA 1 (2000); xAlso Lim v. Court of Appeals, 323 SCRA 102 (2000). (b) One cannot evade civil liability by incorporating properties or the business. Palacio v. Fely Transportation Co., 5 SCRA 1011 (1962). (c) The veil of corporation fiction may be pierced when used to avoid a contractual commitment against non-competition. Villa Rey Transit, Inc. v. Ferrer, 25 SCRA 845 (1968). (d) The Supreme Court found the following facts to be legal basis to pierce: One company was merely an adjunct of the other, by virtue of a contract for security services, the former provided with security guards to safeguard the latter’s premises; both companies have the same owners and business address; the purported sale of the shares of the former stockholders to a new set of stockholders who changed the name of the corporation appears to be part of a scheme to terminate the services of the security guards, and bust their newlyorganized union which was then beginning to become active in demanding the company’s compliance with Labor Standards laws. De Leon v. NLRC, G.R. No. 112661, 30 May 2001. (e) Parent-Subsidiary Relations; Affiliates (Reynoso, IV v. Court of Appeals, G.R. No. 116124-25, 22 November 2000; Commissioner of Internal Revenue v. Norton and Harrison, 11 SCRA 704, [1954]; Tomas Lao Construction v. NLRC, 278 SCRA 716 [1997]). - Why is there inordinate showing of alter-ego elements? Guiding Principles in Fraud Cases: (i) There must have been fraud or an evil motive in the affected transaction, and the mere proof of control of the corporation by itself would not authorize piercing; and

(ii) The main action should seek for the enforcement of pecuniary claims pertaining to the corporation against corporate officers or stockholders. 5. Alter-Ego Cases: (a) Where the stock of a corporation is owned by one person whereby the corporation functions only for the benefit of such individual owner, the corporation and the individual should be deemed the same. Arnold v. Willets and Patterson, Ltd., 44 Phil. 634 (1923). (b) When the corporation is merely an adjunct, business conduit or alter ego of another corporation, the fiction of separate and distinct corporation entities should be disregarded. xTan Boon Bee & Co. v. Jarencio, 163 SCRA 205 (1988). The corporation veil cannot be used to shield an otherwise blatant violation of the prohibition against forum-shopping. Shareholders, whether suing as the majority in direct actions or as the minority in a derivative suit, cannot be allowed to trifle with court processes, particularly where, as in this case, the corporation itself has not been remiss in vigorously prosecuting or defending corporate causes and in using and applying remedies available to it. xFirst Philippine International Bank v. Court of Appeals, 252 SCRA 259 (1996). (c) Employment of same workers; single place of business, etc. La Campana Coffee Factory v. Kaisahan ng Manggagawa, 93 Phil. 160 (1953). The doctrine that a corporation is a legal entity or a person in law distinct from the persons composing it is merely a legal fiction for purposes of convenience and to subserve the ends of justice. This fiction cannot be extended to a point beyond its reason and policy. Where, as in this case, the corporation fiction was used as a means to perpetrate a social injustice or as a vehicle to evade obligations or confuse the legitimate issues, it would be discarded and the two (2) corporations would be merged as one, the first being merely considered as the instrumentality, agency conduit or adjunct of the other. In this case, because of the actions of management of the two corporations, there was much confusion as to the proper employment of the claimant. xAzcor Manufacturing, Inc. v. NLRC, 303 SCRA 26 (1999). (d) Use of nominees. xMarvel Building v. David, 9 Phil. 376 (1951). (e) Avoidance of tax. Yutivo Sons Hardware v. Court of Tax Appeals 1 SCRA 160 (1961); xLiddell & Co. v. Collector of Internal Revenue, 2 SCRA 632 (1961).

(f) Mixing of bank deposit accounts. xRamirez Telephone Corp. v. Bank of America, 29 SCRA 191 (1969). (g) Where it appears that two business enterprises are owned, conducted, and controlled by the same parties, both law and equity will, when necessary to protect the rights of third persons, disregard the legal fiction that two corporations are distinct entities and treat them as identical. xSibagat Timber Corp. v. Garcia, 216 SCRA 70 (1992). (h) Thinly-capitalized corporations. McConnel v. Court of Appeals, 1 SCRA 722 (1961). (i) Parent-subsidiary relationship. Koppel (Phil.), Inc. v. Yatco, 77 Phil. 97 (1946);xPhilippine Veterans Investment Development Corporation v. CA, 181 SCRA 669 (1990). (j) Affiliated companies. xGuatson International Travel and Tours, Inc. v. NLRC, 230 SCRA 815 (1990). (k) Summary of Probative Factors: Philippine National Bank vs. Ritratto Group, Inc., et al., G.R. No. 142616, 31 July 2001; xConcept Builders, Inc. v. NLRC, 257 SCRA 149 (1996). Whether the existence of the corporation should be pierced depends on questions of facts, appropriately pleaded. Mere allegation that a corporation is the alter ego of the individual stockholders is insufficient. The presumption is that the stockholders or officers and the corporation are distinct entities. The burden of proving otherwise is on the party seeking to have the court pierce the veil of corporate entity. xRamoso v. Court of Appeals, G.R. No. 117416, 8 December 2000. (l) Guiding Principles in Alter-Ego Cases: (i) The doctrine applies in this case even in the absence of evil intent; it applies because of the direct violation of a central corporate law principle of separating ownership from management. (ii) The doctrine in such cased is based on estoppel: if stockholders do not respect the separate entity, others cannot also be expected to be bound by the separate juridical entity.

(iii) Piercing in alter ego cases may prevail even when no monetary claims are sought to be enforced against the stockholders or officers of the corporation. 6. Equity Cases: (a) When used to confuse legitimate issues. Telephone Engineering and Service Co., Inc. V. WCC, 104 SCRA 354 (1981). (b) When used to raise technicalities. xEmilio Cano Ent. v. CIR, 13 SCRA 291 (1965). 7. Piercing Doctrine and Due Process Clause (a) The need to bring a new case against the officer. McConnel v. Court of Appeals, 1 SCRA 723 (1961). (b) When corporate officers are sued in their official capacity when the corporation was not made a party, the corporation is not denied due process. Emilio Cano Enterprises v. Court of Industrial Relations, 13 SCRA 291 (1965). (c) Provided that evidential basis has been adduced during trial to apply the piercing doctrine. Jacinto v. Court of Appeals, 198 SCRA 211 (1991); xArcilla v. Court of Appeals, 215 SCRA 120 (1992). V. CLASSIFICATIONS OF CORPORATIONS 1. In Relation to the State: (a) Public corporations (Sec. 3, Act No. 1459) § Organized for the government of the portion of the state (e.g., barangay, municipality, city and province) § Majority shares by the Government does not make an entity a public corporation.xNational Coal Co., v. Collector of Internal Revenue, 46 Phil. 583 (1924). (b) Quasi-public corporations xMarilao Water Consumers Associates v. IAC, 201 SCRA 437 (1991)

Although Boy Scouts of the Philippines does not receive any monetary or financial subsidy from the Government, and that its funds and assets are not considered government in nature and not subject to audit by the COA, the fact that it received a special charter from the government, that its governing board are appointed by the Government, and that its purpose are of public character, for they pertain to the educational, civic and social development of the youth which constitute a very substantial and important part of the nation, it is not a public corporation in the same sense that municipal corporation or local governments are public corporation since its does not govern a portion of the state, but it also does not have proprietary functions in the same sense that the functions or activities of government-owned or controlled corporations such as the National Development Company or the National Steel Corporation, is may still be considered as such, or under the 1987 Administrative Code as an instrumentality of the Government. Therefore, the employees are subject to the Civil Service Law. xBoy Scouts of the Philippines v. NLRC, 196 SCRA 176 (1991). (c) Private Corporation (Sec. 3, Act 1459) A government-owned or -controlled corporation when organized under the Corporation Code is still a private corporation. But being a government-owned or -controlled corporation makes it liable for laws and provisions applicable to the Government or its entities and subject to the control of the Government. xCervantes v. Auditor General, 91 Phil. 359 (1952). A private corporation is created by operation of law under the Corporation while a government corporation is normally created by special law referred to often as a charter. xBliss Dev. Corp. Employees Union v. Calleja, 237 SCRA 271 (1994). The doctrine that employees of government-owned and -controlled corporations, whether created by special law or formed as subsidiaries under the general corporation law are governed by the Civil Service Law and not by the Labor Code, has been supplanted by the 1987 Constitution. The present doctrine in determining whether a government-owned or -controlled corporation is subject to the Civil Service Law is the manner of its creation, such that government corporations created by special charter are subject to the Civil Service Law, while those incorporated under the general corporation law are governed by the Labor Code. xPNOC-Energy Development Corp. v. NLRC, 201 SCRA 487 (1991); xDavao City Water District v. Civil Service Commission, 201 SCRA 593 (1991). The test to determine whether a corporation is government owned or controlled, or private in nature is simple. Is it created by its own charter for the exercise of a

public function, or by incorporation under the general corporation law? Those with special charters are government corporations subject to its provisions, and its employees are under the jurisdiction of the Civil Service Commission, and are compulsory members of the Government Service Insurance System. xCamparedondo v. NLRC, 312 SCRA 47 (1999). Section 31 of the Corporation Code (Liability of Directors and Officers) is applicable to corporations which have been organized by special charters since Sec. 4 of the Corporation Code renders the provisions of thereof applicable in a supplementary manner to all corporations, including those with special or individual charters, such as cooperatives organized under Pres. Decree No. 269, so long as those provisions are not inconsistent with such charters. xBenguet Electric Cooperative, Inc. v. NLRC, 209 SCRA 55 (1992). 2. As to Place of Incorporation: (a) Domestic Corporation (b) Foreign Corporation (Sec. 123) 3. As to Purpose of Incorporation: (a) Municipal or Public corporation (b) Religious corporation (Secs. 109 and 116) (c) Educational corporations (Secs. 106, 107 and 108; Sec. 25, B.P. Blg. 232) (d) Charitable, Scientific or Vocational corporations (e) Business corporation 4. As to Number of Members: (a) Aggregate Corporation (b) Corporation Sole (Secs. 110 to 115; xRoman Catholic Apostolic Administrator of Davao, Inc. v. LRC and the Register of Deeds of Davao City, 102 Phil. 596 (1957).

xDirector of Land v. IAC, 146 SCRA 509 (1986), which held that a corporation sole has no nationality, overturned the previous doctrine (xRepublic v. Villanueva, 114 SCRA 875 [1982] and Republic v. Iglesia Ni Cristo, 127 SCRA 687 [1984]) that a corporation sole is disqualified to acquire or hold alienable lands of the public domain, because of the constitutional prohibition qualifying only individuals to acquire land of the public domain and the provision under the Public Land Act which applied only to Filipino citizens or natural persons. xRepublic v. Iglesia ni Cristo, 127 SCRA 687 (1984); xRepublic v. IAC, 168 SCRA 165 (1988). 5. As to Legal Status: (a) De Jure Corporation (b) De Facto Corporation (Sec. 20) (c) Corporation by Estoppel (Sec. 21) 6. As to Existence of Shares (Secs. 3 and 5) (a) Stock Corporation (b) Non-Stock Corporation

VI. CORPORATE CONTRACT LAW 1. Pre-Incorporation Contracts (a) Who Are Promoters? Promoter is a person who, acting alone or with others, takes initiative in founding and organizing the business or enterprise of the issuer and receives consideration therefor.(Sec. 3.10, Securities Regulation Code [R.A. 8799]) (b) Nature of Pre-incorporation Agreements (Secs. 60 and 61; Bayla v. Silang Traffic Co., Inc., 73 Phil. 557 [1942])

(c) Theories on Liabilities for Promoter’s Contracts (Cagayan Fishing Development Co., Inc. v. Teodoro Sandiko, 65 Phil. 223 [1937]; Rizal Light & Ice Co., Inc. v. Public Service Commission, 25 SCRA 285 [1968]; Caram, Jr. v. CA, 151 SCRA 372 [1987]). 2. De Facto Corporation (Sec. 20) (a) Elements for Existence of De Facto Corporation: (1) Valid law under which incorporated; (2) Attempt in good faith to incorporate; ―colorable compliance;‖ (3) Assumption of corporate powers; and (4) Issuance of certificate of incorporation. Arnold Hall v. Piccio, 86 Phil. 634 (1950). 3. Corporation by Estoppel Doctrine (Sec. 21; Salvatierra v. Garlitos, 103 Phil. 757 [1958];Albert v. University Publishing Co., 13 SCRA 84 [1965]; International Express Travel & Tour Services, Inc. v. Court of Appeals, 343 SCRA 674 (2000); xAsia Banking Corporation v. Standard Products, 46 Phil. 145 [1924]; xMadrigal Shipping Co., Inc. v. Ogilvie, Supreme Court Advanced Decision, 55 O.G. No. 35, p. 7331). An individual should be held personally liable for the unpaid obligations of the unincorporated association in whose behalf he entered into such transactions, under the principle that ―any person acting or purporting to act on behalf of a corporation which has no valid existence assumes such privileges and becomes personally liable for contract entered into or for other acts performed as such agent.‖ International Express Travel & Tour Services, Inc. v. Court of Appeals, 343 SCRA 674 (2000). (a) Nature of Doctrine Corporation by estoppel doctrine is founded on principles of equity and is designed to prevent injustice and unfairness. It applies when persons assume to form a corporation and exercise corporate functions and enter into business relations with third persons. Where there is no third person involved and the conflict arises only among those assuming the form of a corporation, who

therefore know that it has not been registered, there is no corporation by estoppel. Lozano v. De Los Santos, 274 SCRA 452 (1997) A party cannot challenge the personality of the plaintiff as a duly organized corporation after having acknowledged same when entering into the contract with the plaintiff as such corporation for the transportation of its merchandise. (Ohta Dev. Co. v. Steamship Pompey, 49 Phil. 117 [1926]); the same principle applied in Compania Agricole de Ultramar v. Reyes, 4 Phil. 1 [1911] but that case pertained to a commercial partnership which required registration in the registry under the terms of the Code of Commerce. (b) Two Levels: (i) With ―fraud‖ and (ii) Without ―fraud‖ When incorporating individuals represent themselves to be officers of the corporation never duly registered with SEC, and engages in the name of purported corporation in illegal recruitment, they are estopped from claiming that they are not liable as corporate officers, since Section 25 of Corporation Code provides that all persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as general partners for all the debts, liabilities and damages incurred or arising as a result thereof. People v. Garcia, 271 SCRA 621 (1997). An individual cannot avoid his liabilities to the public as an incorporator of a corporation whose incorporation was not consummated, when he held himself out as officer of the corporation and received money from applicants who availed of their services. Such individual is estopped from claiming that they are not liable as corporate officers for illegal recruitment under the corporation by estoppel doctrine under Sec. 25 of the Corporation Code which provides that all persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as general partners for all the debts, liabilities and damages incurred or arising as a result thereof. People v. Pineda, G.R. No. 117010, 18 April 1997. 4. Trust Fund Doctrine (a) Commercial/Common Law Premise on Equity vis-a-vis Debts (b) Nature of Doctrine Under the trust fund doctrine, the capital stock, property and other assets of the corporation are regarded as equity in trust for the payment of the corporate

creditors. Commissioner of Internal Revenue v. Court of Appeals, 301 SCRA 152 (1999). The requirement of unrestricted retained earnings to cover the shares is based on the trust fund doctrine which means that the capital stock, property and other assets of a corporation are regarded as equtiy in trust for the payment of corporate creditors. The reason is that creditors of a corporation are preferred over the stockholders in the distribution of corporate assets. There can be no distribution of assets among the stockholders without first paying corporate creditors. Hence, any disposition of corporate funds to the prejudice of creditors is null and void. Boman Environmental Dev. Corp. v. CA, 167 SCRA 540 (1988). The ―Trust Fund‖ doctrine considers the subscribed capital as a trust fund for the payment of the debts of the corporation, to which the creditors may look for satisfaction. Until the liquidation of the corporation, no part of the subscribed capital stock may be turned over or released to the stockholder (except in the redemption of the redeemable shares) without violating this principle. Thus dividends must never impair the subscribed capital stock; subscription commitments cannot be condoned or remitted; nor can the corporation buy its own shares using the subscribed capital as the consideration therefore. NTC v. Court of Appeals, 311 SCRA 508, 514-515 (1999). (c) Corporation Purchasing Own Shares (Secs. 8, 41, 43 and 122, last paragraph; Phil. Trust Co. v. Rivera, 44 Phil. 469 [1923]; Steinberg v. Velasco, 52 Phil. 953 [1929]) VII. ARTICLES OF INCORPORATION 1. Nature of Charter – The charter is in the nature of a contract between the corporation and the Government. Government of P.I. v. Manila Railroad Co., 52 Phil. 699 (1929). 2. Procedure and Documentary Requirements (Sec. 14 and 15) (a) As to Number and Residency of Incorporators (Sec. 10) (b) Corporate Name (Secs. 18, 14(1) and 42; Red Line Trans. v. Rural Transit, 60 Phil. 549 [1934]).

A corporation may change its name by the amendment of its articles of incorporation, but the same is not effective until approved by the SEC. Philippine First Insurance Co. v. Hartigan, 34 SCRA 252 (1970) A change in the corporate name does not make a new corporation, and whether affected by special act or under a general law, has no effect on the identity of the corporation, or on its property, rights, or liabilities. Republic Planters Bank v. CA, 216 SCRA 738 (1992). Similarity in corporate names between two corporations would cause confusion to the public especially when the purposes stated in their charter are also the same type of business. Universal Mills Corp. v. Universal Textile Mills Inc., 78 SCRA 62 [1977]). A corporation has not right to intervene in a suit using a name other than its registered name; if a corporation legally and truly wants to intervene, it should have used its corporate name as the law requires and not another name which it had not registered. Laureano Investment and Development Corporation v. Court of Appeals, 272 SCRA 253 (1997). There would be no denial of due process when a corporation is sued and judgment is rendered against it under its unregistered trade name, holding that a corporation may be sued under the name by which it makes itself known to its workers. Pison-Arceo Agricultural Development Corp. v. NLRC, 279 SCRA 312 (1997) (c) Purpose Clause (Secs. 14(2) and 42; Uy Siuliong v. Director of Commerce and Industry, 40 Phil. 541 [1919]) (d) Corporate Term (Sec. 11). No extension can be effected once dissolution stage has been reached. Alhambra Cigar v. SEC, 24 SCRA 269 (1968). (e) Principal Place of Business Place of residence of the corporation is the place of its principal office. Clavecilla Radio System v. Antillon, 19 SCRA 379 (1967)

The residence of its president is not the residence of the corporation because a corporation has a personality separate and distinct from that of its officers and stockholders. Sy v. Tyson Enterprises, Inc., 119 SCRA 367 (1982). (f) Minimum Capitalization (Sec. 12) - Why is maximum capitalization required to be indicated? (g) Subscription and Paid-up Requirements (Sec. 13) (h) Steps and Documents Required in SEC 3. Grounds for Disapproval (Sec. 17) When the proposed articles presented show that the object of incorporation is to organize a barrio of a given municipality into a separate corporation for the purpose of taking possession and having control of all municipal property within the barrio so incorporated and administer it exclusively for the benefit of the residents, the object is unlawful and the articles can be denied registration. Asuncion v. De Yriarte, 28 Phil. 67 [1914]). 4. Amendments to Articles of Incorporation (Sec. 16) 5. Commencement of Corporate Existence (Sec. 19) VIII. BY-LAWS 1. Nature and Functions (Gokongwei v. SEC, 89 SCRA 337 [1979]; Peña v. CA, 193 SCRA 717 [1991]) As the ―rules and regulations or private laws enacted by the corporation to regulate, govern and control its own actions, affairs and concerns and its stockholders or members and directors and officers with relation thereto and among themselves in their relation to it,‖ by-laws are indispensable to corporations in this jurisdiction. These may not be essential to corporate birth but certainly, these are required by law for an orderly governance and management of corporations. Nonetheless, failure to file them within the period required by law by no means tolls the automatic dissolution of a corporation. Loyola Grand Villas Homeowners (South) Association, Inc. v. Court of Appeals, 276 SCRA 681 (1997).

(a) Common Law Limitations on By-Laws (i) By-Laws Cannot Be Contrary to Law and Articles of Incorporation A by-law provision granting to a stockholder a permanent representation in the Board of Directors is contrary to the Corporation Code requiring all members of the Board to be elected by the stockholders or members. Even when the members of the association may have formally adopted the provision, their action would be of no avail because no provision of the by-laws can be adopted if it is contrary to law. Grace Christian High School v. Court of Appeals, 281 SCRA 133 (1997). Although the right to amend by-laws lies solely in the discretion of the employer, this being in the exercise of management prerogative or business judgment, such right cannot impair the obligation of existing contracts or rights or undermine the right to security of tenure of a regular employee. Otherwise, it would enable an employer to remove any employee from employment by the simple expediency of amending its by-laws and providing the position shall cease to exist upon occurrence of a specified event. Salafranca v. Philamlife (Pamplona) Village Homeowners Association, Inc., 300 SCRA 469, 479 (1998). (ii) By-Laws Cannot Be Unreasonable or Be Contrary to Nature of By-laws. Government of the Philippine Islands v. El Hogar Filipino, 50 Phil. 399 (1927). Authority granted to a corporation to regulate the transfer of its stock does not empower corporation to restrict the right of a stockholder to transfer his shares, but merely authorizes the adoption of regulations as to the formalities and procedure to be followed in effecting transfer. Thomson v. Court of Appeals, 298 SCRA 280 (1998). By-laws are intended merely for the protection of the corporation, and prescribe regulation, not restrictions; they are always subject to the charter of the corporation. Rural Bank of Salinas, Inc. v. CA, 210 SCRA 510 (1992), quoting from Thompson on Corporation Sec. 4137, cited in xFleischer v. Nolasco, 47 Phil. 583. (iii) By-Laws Cannot Discriminate (b) Binding Effects of By-laws (China Banking Corp. v. Court of Appeals, 270 SCRA 503 [1997]).

―Neither can we concede that such contract would be invalid just because the signatory thereon was not the Chairman of the Board which allegedly violated the corporation’s by-laws. Since by-laws operate merely as internal rules among the stockholders, they cannot affect or prejudice third persons who deal with the corporation, unless they have knowledge of the same.‖ PMI Colleges v. NLRC, 277 SCRA 462 (1997). 2. Adoption Procedure (Sec. 46) Section 46 of the Corporation, which requires the filing of by-laws, does not expressly provide for the consequence of their non-filing within the period provided therein; however, Pres. Decree 902-A allows the SEC to suspend or revoke, after proper notice and hearing, the franchise or certificate of registration of corporations which fail to file their by-laws. Clearly, there can be no automatic corporate dissolution simply because the incorporators failed to abide by the required filing of by-laws, and there is no outright ―demise‖ of corporate existence. Proper notice and hearing are cardinal components of due process in any democratic institution, agency or society, which would require that the incorporators must be given the chance to explain their neglect or omission and remedy the same. Loyola Grand Villas Homeowners (South) Association, Inc. v. Court of Appeals, 276 SCRA 681 (1997). 3. Contents (Sec. 47) 4. Amendments (Sec. 48) § Power to amend may be delegated to the board of directors IX. CORPORATE POWERS, AUTHORITY AND ACTIVITIES 1. Corporate Power and Capacity (Art. 46, Civil Code; Secs. 36 and 45; Land Bank of the Philippines v. COA, 190 SCRA 154 [1990]) A corporation has no power except those expressly conferred on it by the Corporation Code and those that are implied or incidental to its existence. In turn, a corporation exercises said powers through its board of directors and/or its duly authorized officers and agents, since the physical acts of the corporation, like the signing of documents, can be performed only by natural persons duly authorized for the purpose of by corporate by-laws or by a specific act of the board of directors. Reynoso, IV v. Court of Appeals, G.R. No. 116124-25, 22 November 2000.

Precisely because the corporation is such a prevalent and dominating factor in the business life of the country, the law has to look carefully into the exercise of powers by these artificial persons it has created. (a) Classification of Corporate Powers: Express; Implied; and Incidental There is basis to rule that the act of issuing the checks on behalf of the corporation was well within the ambit of a valid corporate act, for it was for securing a loan to finance the activities of the corporation, hence, not an ultra vires act. Atrium Management Corporation vs. Court of Appeals, G.R. No. 109491, 28 February 2001. (b) Where Corporate Power is Lodged (Sec. 23) Unless otherwise provided by the Corporation Code, corporate powers, such as the power to enter into contracts, are exercised by the Board of Directors. However, the Board may delegate such powers to either an executive committee or officials or contracted managers, which delegation, except for the executive committee, must be for specific purposes. The delegated officers makes the latter agents of the corporation, and rules of agency as to the binding effects of their acts would apply. For such officers to be deemed fully clothed by the corporation to exercise a power of the Board, the latter must specially authorize them to do so. ABS-CBN Broadcasting Corporation v. Court of Appeals, 301 SCRA 572 (1999). 2. Ultra Vires Acts (a) Concept and Types (Sec. 45) An ultra vires act is one committed outside the object for which a corporation is created as define by the law of its organization and therefore beyond the power conferred upon it by law.‖ The term ―ultra vire‖ is ―distinguished from an illegal act from the former is merely voidable which may be enforced by performance, ratification, or estoppel, while the latter is void and cannot be validated. Atrium Management Corporation vs. Court of Appeals, G.R. No. 109491, 28 February 2001. (b) Ratification of Ultra Vires Acts: (Pirovano v. De la Rama Steamship Co., Inc., 96 Phil. 335 [1954]; Carlos v. Mindoro Sugar Co., 57 Phil. 343 [1932]; Republic v. Acoje Mining Co., 3 SCRA 361 [1963]; Crisologo Jose v. CA, 177 SCRA 594 [1989];

(i) Theory of Estoppel or Ratification In order to ratify the unauthorized act of an agent and make it binding on the corporation, it must be shown that the governing body or officer authorized to ratify had full and complete knowledge of all the material facts connected with the transaction to which it relates. Ratification can never be made on the part of the corporation by the same person who wrongfully assume the power to make the contract, but the ratification must be by the officer or governing body having authority to make such contract. The act or conduct for which the corporation may be liable under the doctrine of estoppel must be by those of the corporation, its governing body or authorized officers, and not those of the purported agent who is himself responsible for the misrepresentation. Vicente v. Geraldez, 52 SCRA 210 (1973). When the counsel representing the corporation in a collection suit admits on behalf of the corporation that the latter admitted culpability for personal loans obtained by its corporate officers, such admission cannot be given legal effect to the detriment of the corporation. The admission made in the answer by the counsel for the corporation was ―without any enabling act or attendant ratification of corporate act,‖ as would authorize or even ratify such admission. In the absence of such ratification or authority, such admission does not bind the corporation. Also, the letter issued by the corporate officers who obtained the loan ―as indicating the corporate liability of the corporation,‖ cannot also serve to make the corporation liable. The documents and admissions cannot have the effect of a ratification of an unauthorized act. Ratification can never be made on the part of the corporation by the same persons who wrongfully assume the power to make the contract, but the ratification must be by the officers as governing body having authority to make such contract. Aguenza v. Metropolitan Bank and Trust Co., 271 SCRA 1 (1997). (ii) Doctrine of Apparent Authority (Prime White Cement Corp. v. Intermediate Appellate Court, 220 SCRA 103, 113-114 [1993]; Francisco v. GSIS, 7 SCRA 577 [1963]) A contract signed by the President/Chairman without authority from the Board of Directors is void. Although the by-laws grant authority to the President ―to execute and sign for and in behalf of the corporation all contracts and agreements which the corporation may enter into,‖ the same presupposes a prior act of the corporation exercised through its Board of Directors. Yao Ka Sin Trading v. CA, 209 SCRA 763 (1992).

Although an officer or agent acts without, or in excess of, his actual authority if he acts within the scope of an apparent authority with which the corporation has clothed him by holding him out or permitting him to appear as having such authority, the corporation is bound thereby in favor of a person who deals with him in good faith in reliance on such apparent authority, as where an officer is allowed to exercise a particular authority with respect to the business, or a particular branch of it, continuously and publicly, for a considerable time. Yao Ka Sin Trading v. CA, 209 SCRA 763 (1992). Persons who deal with corporate agents within circumstances showing that the agents are acting in excess of corporate authority, may not hold the corporation liable. Traders Royal Bank v. Court of Appeals, 269 SCRA 601 (1997); also Art. 1883, Civil Code. The authority of a corporate officer in dealing with third persons may be actual or apparent. . . the principal is liable for the obligations contracted by the agent. The agent’s apparent representation yields to the principal’s true representation and the contract is considered as entered into between the principal and the third person. First Philipine International Bank v. Court of Appeals, 252 SCRA 259 (1996). If a corporation knowingly permits one of its officers, or any other agent, to act within the scope of an apparent authority, it holds him out to the public as possessing the power to do those acts; and thus, the corporation will, as against anyone who has in good faith dealt with it through such agent, be estopped from denying the agent’s authority. Soler v. Court of Appeals, G.R. No. 123892, 21 May 2001. Under Article 1898 of the Civil Code, the acts of an agent beyond the scope of his authority do no bind the principal unless the latter ratifies the same expressly or implied. It also bears emphasizing that when the third person knows that the agent was acting beyond his power or authority, the principal can not be held liable for the acts of the agent. If the said third person is aware of such limits of authority, he is to blame, and is not entitled to recover damages from the agent, unless the latter undertook to secure the principal’s ratification. In the case of the corporation as the principal, there was no such ratification. Therefore, when the officer entered into the speculative contracts without securing the Board’s approval, nor did he submit the contracts to the Board after their consummation nor were they recorded in the books of the corporation, there was, in fact, no occasion at all for ratification. Safic Alcan & Cie. V. Imperial Vegetable Co., G.R. No. 126751, 28 March 2001.

(iii) Theory of No State Damage (Harden v. Benguet Consolidated Mining Co., 58 Phil. 140 [1933]). 3. Specific (Express) Powers (a) Enumerated Powers (Secs. 36) Example of Poor Draftsmanship: When the article of incorporation expressly provides that the purpose of the corporation was to ―engage in the transportation of person by water,‖ such corporation cannot engage in the business of land transportation, which is an entirely different line of business, and, for which reason, may not acquire any certificate of public convenience to operate a taxicab service. Luneta Motor Co. v. A.D. Santos, Inc., 5 SCRA 809 [1962]). Power to Sue Under section 36 of the Corporation Code, in relation to Section 23, it is clear that where a corporation is an injured party, its power to sue is lodged with its board of directors or trustees. A minority stockholder and member of the Board, who fails to show any proof that he was authorized by the Board of Directors, has no such power or authority to sue on the corporation’s behalf. Nor can we uphold this as a derivative suit. For a derivative suit to prosper, it is required that the minority stockholder suing for and on behalf of the corporation must allege in his complaint that he is suing on a derivative cause of action on behalf of the corporation and all other stockholders similarly situated who may wish to join him in the suit. There is now showing that petitioner has complied with the foregoing requisites. Tam Wing Tak v. Makasiar, G.R. 122452, 29 January 2001. (b) Power to Extend or Shorten Corporate Term (Secs. 37 and 81 [1]) (c) Power to Increase or Decrease Capital Stock (Sec. 38) Prior to SEC approval of the increase in the authorized capital stock, and despite the Board resolution approving the increase in capital stock, and the receipt of payment on the future issues of the shares from the increased capital stock, such funds do not constitute part of the capital stock of the corporation until approval of the increase by SEC. Central Textile Mills, Inc. v. National Wages and Productivity Commission, 260 SCRA368 (1996).

A reduction of capital to justify the mass layoff of employees, especially of union members, amounts to nothing but a premature and plain distribution of corporate assets to obviate a just hearing to labor of the vast profits obtained by its joint efforts with capital through the years, and would constitute unfair labor practice. Madrigal & Co. v. Zamora, 151 SCRA 355 [1987]); (d) Incur, Create or Increase Bonded Indebtedness (Sec. 38) (e) Sell or Dispose of Assets (Sec. 40). Sale by the Board of the only property of the corporation without compliance with the provisions of Sec. 40 of the Corporation Code requiring the ratification of members representing at least two-thirds of the membership, would make the sale null and void. Islamic Directorate of the Philippines v. Court of Appeals, 272 SCRA 454 (1997); Peña v. CA, 193 SCRA 717 (1991). (f) Invest Corporate Funds in Another Corporation or Business or For Any Other Purpose (Sec. 42; De la Rama v. Ma-ao Sugar Central Co., 27 SCRA 247 [1969]). (g) Declare Dividends (Sec. 43; Nielson & Co. v. Lepanto Consolidated Mining Co., 26 SCRA 540 [1968]). Stock dividend is the amount that the corporation transfers from its surplus profit account to its capital account. It is the same amount that can loosely be terms as the ―trust fund‖ of the corporation. National Telecommunications Commission v. Court of Appeals, 311 SCRA 508, 514-515 (1999). Although the certificates of stock granted the stockholder the right to receive quarterly dividends of 1%, cumulative and participating, the stockholders do not become entitled to the payment thereof as a matter of right without necessity of a prior declaration of dividends. . . Both Sec. 16 of the Corporation Law and Sec. 43 of the present Corporation Code prohibit the issuance of any stock dividend without the approval of stockholders, representing not less than two-thirds (2/3) of the outstanding capital stock at a regular or special meeting duly called for the purpose. These provisions underscore the fact that payment of dividends to a stockholder is not a matter of right but a matter of consensus. Furthermore, ―interest bearing stocks‖, on which the corporation agrees absolutely to pay interest before dividends are paid to the common stockholders, is legal only when construed as requiring payment of interest as dividends from net earnings or surplus only. Republic Planters Bank v. Agana, 269 SCRA 1 (1997).

(i) Enter into Management Contracts (Sec. 44; Nielson & Co., Inc. v. Lepanto Consolidated Mining, 26 SCRA 540 [1968]; Ricafort v. Moya, 195 SCRA 247, at pp. 266-267 [1991]). Why the difference in rule between entity and individual? (j) Other Powers - To Sell Land and Other Properties A corporation whose primary purpose is to market, distribute, export and import merchandise, the sale of land is not within the actual or apparent authority of the corporation acting through its officers, much less when acting through the treasurer. Likewise Article 1874 and 1878 of the Civil Code requires that when land is sold through an agent, the agent’s authority must be in writing, otherwise the sale is void. San Juan Structural and Steel Fabricators, Inc. v. Court of Appeals, 296 SCRA 631, 645 (1998). - To Borrow Funds The power to borrow money is one of those cases where even a special power of attorney is required under Art. 1878 of the New Civil Code. There is invariably a need of an enabling act of the corporation to be approved by its Board of Directors. The argument that the obtaining of loan was in accordance with the ordinary course of business usages and practices of the corporation is devoid of merit because the prevailing practice in the corporation was to explicitly authorize an officer to contract loans in behalf of the corporation. China Banking Corp. v. Court of Appeals, 270 SCRA 503 (1997). - To Provide Gratuity Pay for Employees Providing gratuity pay for its employees is one of the express powers of a corporation under the Corporation Code, and cannot be considered to be ultra vires to avoid any liability arising from the resolution granting such gratuity pay. Lopez Realty v. Fontecha, 247 SCRA 183, 192 (1995). - To Donate - To Enter Into Partnership, Joint Venture. Tuason & Co. v. Bolanos, 95 Phil. 106 (1954). X. DIRECTORS, TRUSTEES AND OFFICERS

1. Powers of Board of Directors or Trustees (Sec. 23; Gamboa v. Victoriano, 90 SCRA 40 [1979]). (a) Two Theories on Source of Power of Board of Directors (Angeles v. Santos, 64 Phil. 697 [1937]). (b) Board Must Act As Body (Sec. 25; The Board of Liquidators v. Heirs of Maximo M. Kalaw, 20 SCRA 987 [1967]; Ramirez v. Orientalist Co. and Fernandez, 38 Phil. 634 [1918]; Acuña v. Batac Producers Cooperative Marketing Association, 20 SCRA 526 [1967]). The general rule is that a corporation, through its broad of directors, should act in the manner and within the formalities, if any, prescribed by its charter or by the general law. Thus, directors must act as a body in a meeting called pursuant to the law or the corporation’s by-laws, otherwise, any action taken therein may be questioned by any objecting director or shareholder. Be that as it may, jurisprudence tells us that an action of the board of directors during a meeting, which was illegal for lack of notice, may be ratified either expressly, by the action of the directors in subsequent legal meeting, or impliedly, by the corporation’s subseqeunt course of conduct. Lopez Realty v. Fontecha, 247 SCRA 183, 192 (1995). (c) Effects of a “Bogus” Board The acts or contracts effected by a bogus board would be void pursuant to Art. 1318 of the Civil Code because of the lack of ―consent‖. Islamic Directorate of the Philippines v. Court of Appeals, 272 SCRA 454 (1997). (d) Executive Committee (Sec. 35) 2. Business Judgment Rule (Montelibano v. Bacolod-Murcia Miling Co., Inc., 5 SCRA 36 [1962]; Philippine Stock Exchange, Inc. v. Court of Appeals, 281 SCRA 232 [1997]) Board members and officers who purport to act for and in behalf of the corporation, keep within the lawful scope of their authority in so acting and act in good faith, do not become liable, whether civilly or otherwise, for the consequences of their acts. Those acts, when they are such a nature and are done under such circumstances, are properly attributed to the corporation alone and no personal liability is incurred by such officers and Board members. Benguet Electric Cooperative, Inc. v. NLRC, 209 SCRA 55 (1992)

3. Qualifications of Directors and Trustees (Secs. 23 and 27; Gokongwei, Jr. v. SEC, 89 SCRA 336 [1979]). (a) A director must own at least one share of stock (Peña v. CA, 193 SCRA 717 [1991]; xDetective & Protective Bureau, Inc. v. Cloribel, 26 SCRA 255 [1969]) (b) Mere beneficial ownership in a voting trust arrangement no longer qualifies (Lee v. CA, 205 SCRA 752 [1992]). 4. Election of Directors and Trustees (a) Directors (Secs. 24 and 26; Premium Marble Resources v. Court of Appeals, 264 SCRA 11 [1996]). (b) Trustee (Secs. 92 and 138) (c) Cumulative Voting (Sec. 24; Cumulative Voting in Corporate Elections: Introducing Strategy in the Equation, 35 South Carolina L. Rev. 295) 5. Vacancy in Board (Sec. 29) By-law provision or the practice giving a stockholder a permanent seat in the Board of Directors would be against the provision of Sections 28 and 29 of the Corporation Code which requires member of the board of corporations to be elected. In addition, Section 23 of the Corporation Code which provides for the powers of the Board of Directors or Trustees expressly requires them ―to be elected from among the holders of stock, or where there is no stock, from among the members of the corporation. Grace Christian High School v. Court of Appeals, 281 SCRA 133 (1997). 6. Term of Office, Hold-over Principle Directors may lawfully fill vacancies occurring in the board, and such officials, as well as the original directors, hold until qualification of their successors. Government v. El Hogar Filipino, 50 Phil. 399 (1927). The remedy is quo warranto to question the legality and proper qualification of persons elected to the board. Ponce v. Encarnacion, 94 Phil. 81 (1953). 7. Removal of Directors or Trustees (Sec. 28; Roxas v. De la Rosa, 49 Phil. 609 [1926]).

8. Directors’ or Trustees’ Meetings (Secs. 49, 53, 54 and 92) In a board meeting, an abstention is presumed to be counted as an affirmative voteinsofar as it may be construed as an acquiescence in the action of those who voted affirmatively; but such presumption, being merely prima facie would not hold in the face of clear evidence to the contrary. xLopez v. Ericta, 45 SCRA 539 [1972]). 9. Compensation of Directors (Sec. 30) Directors and trustees are not entitled to salary or other compensation when they perform nothing more than the usual and ordinary duties of their office, founded on the presumption that directors and trustees render service gratuitously, and that the return upon their shares adequately furnishes the motives for service, without compensation. Western Institute of Technology, Inc. v. Salas, 278 SCRA 216, 223 (1997). Under Section 30 of the Corporation Code, there are two (2) ways by which members of the board can be granted compensation apart from reasonable per diems: (a) when there is a provision in the by-laws fixing their compensation; and (b) when the stockholders representing a majority of the outstanding capital stock at a regular or special meeting agree to give them compensation. From the language of Section 30, it may also be deduced that members of the board may also receive compensation, when they render services to the corporation in a capacity other than as directors or trustees of the corporation. The position of being Chairman and Vice-Chairman, like that of Treasurer and Secretary, were considered by the officers as not mere directorship position, but officership position that would entitle the occupants to compensation. Likewise, the limitation placed under Section 30 of the Corporation that directors cannot receive compensation exceeding 10% of the net income of the corporation, would not apply to the compensation given to such positions since it is being given in their capacity as officers of the corporation and not as board members. 10. Role of Directors (a) Directors as Fiduciaries. - Pre-Corporation Code. Palting v. San Jose Petroleum, Inc., 18 SCRA 924 (1966).

- Nature of Duties of Directors and Officers. Prime White Cement Corp. v. IAC, 220 SCRA 103 (1993). (b) Duty of Obedience A corporation, through its board of directors, should act in the manner and within the formalities, if any, prescribed by its charter or by the general law. xLopez Realty, Inc. v. Fontecha, 247 SCRA 183 (1995) (c) Duty of Diligence (Sec. 31; Steinberg v. Velasco, 52 Phil. 953 [1929]; Bates v. Dresser, 251 U.S. 524, 64 L. Ed. 388, 40 S. Ct. 247 [1919]; Smith v. Van Gorkam, 488 A.2d 858, Supreme Court of Delaware, 1985).. (d) Duty of Loyalty (Secs. 31 to 34; Mead v. McCullough, 21 Phil. 95 [1911]). - Doctrine of Corporate Opportunity (Gokongwei v. SEC, 89 SCRA 336 [1979]; SeeAnnotations: Doctrine of Corporate Opportunity, 89 SCRA 412). - Self-dealings (Secs. 32 and 33) - Using Inside Information (Gokongwei v. SEC, 89 SCRA 336 [1979]). When a director, who also owns ¾ of the equity of the corporation, who has also been designated as the administrator of corporate affairs, and who was directly negotiating the sale of the corporations large landholdings to the Government at great prices, purchases the shares of stock of a shareholder without informing the latter of the on-going negotiations, such director is deemed to have fraudulently acquired the shareholdings by way of deceit practiced by means of concealing his knowledge of the state of the negotiations and their probable successful result. xStrong v. Repide, 41 Phil. 947 [1909]; - Applies to confidential employees (cf. xSing Juco v. Llorente, 43 Phil. 589 [1922]) (e) Duty to Creditors and Outsiders [xVillanueva, The Fiduciary Duties of Directors and Officers Representing the Creditor Pursuant to a Loan Workout Arrangement: Parameters Under Philippine Corporate Setting, 35 Ateneo L.J. (No. 1, Feb. 1991)]

(f) Corporate Dealings with Directors and Officers (Sec. 32; Gokongwei v. SEC, 89 SCRA 336 [1979]; Prime White Cement Corp. v. IAC, 220 SCRA 103 [1993]). (g) Contracts Between Corporations with Interlocking Directors (Sec. 33) 11. Who Is an “Officer” of the Corporation (Sec. 25; Gurrea v. Lezama, 103 Phil. 553 [1958];Mita Pardo de Tavera v. Tuberculosis Society, 112 SCRA 243 [1982]; PSBA v. Leaño, 127 SCRA 778 [1984]; Dy v. NLRC, 145 SCRA 211 [1986]; xVisayan v. NLRC, 196 SCRA 410 [1991]). Corporations act only through their officers and duly authorized agents. All acts within the powers of a corporation may be performed by agents of its selection; except so far as limitations or restrictions imposed by special charter, buy-laws, or statutory provisions. xBA Savings Bani v. Sia, 336 SCRA 484 (2000). An ―office‖ is created by the charter of the corporation and the officer is elected by the directors or stockholders. . . Note that a corporate officer’s removal from his office is a corporate act. If such removal occasions an intra-corporate controversy, its nature is not altered by the reason or wisdom, or lack thereof, with which the Board of Directors might have in taking such action. When petitioner, as Executive Vice-President allegedly diverted company funds for his personal use resulting in heavy financial losses in the company, this matter would amount to fraud. Such fraud would be detrimental to the interest not only of the corporation but also of its members. This type of fraud encompasses controversies in a relationship within the corporation covered by the SEC jurisdiction [now with the regular courts]. Perforce, the matter would come within the area of corporate affairs and management, and such a corporate controversy would call for the adjudicative expertise of the SEC, not the Labor Arbiter or the NLRC.‖ De Rossi v. NLRC, 314 SCRA 245 (1999). When the by-laws of the condominium corporation specifically includes the position of ―Superintendent/Administrator‖ in is roster of corporate officers, then such position is clearly a corporate officer position and issues of reinstatement would be within the jurisdiction of the SEC and not the NLRC. Ongkingco v. NLRC, 270 SCRA 613 (1997). When the by-laws provide that one of the powers of the Board of Trustees is ―[t]o appoint a Medical Director, Comptroller/Administrator, Chiefs of Services and such other officers as it may deem necessary and prescribe their powers and duties,‖ then such specifically designated positions should be considered ―corporate officers‖ position. The determination of the rights and the concomitant

liability arising from any ouster from such positions, would be intra-corporate controversy subject to the jurisdiction of the SEC (now RTC). An ―office‖ is created by the charter of the corporation and the officer is elected by the directors or stockholders (2 Fletcher Cyc. Corp. Ch. II, Sec. 266). On the other hand, an ―employee‖ usually occupies no office and generally is employed not by action of the directors or stockholders but by the managing officer of the corporation who also determines the compensation to be paid to such employee. (Ibid) . . . A corporate officer’s dismissal is always a corporate act, or an intracorporate controversy, and the nature is not altered by the reason or wisdom with which the Board of Directors may have in taking such action. The president, vice-president, secretary and treasurer are commonly regarded as the principal or executive officers of a corporation, and modern corporation statutes usually designate them as the officers of the corporation. However, other offices are sometimes created by the charter or by-laws of a corporation, or the board of directors may be empowered under the by-laws of a corporation to create additional offices as may be necessary. Tabang v. NLRC, 266 SCRA 462 (1997). 12. Powers of Corporate Officers: (a) The Rule on Corporate Officer’s Power to Bind Corporation An officer’s power as an agent of the corporation must be sought from the statute, charter, the by-laws or in a delegation of authority to such officer, from the acts of the board of directors formally expressed or implied from a habit or custom of doing business.Vicente v. Geraldez, 52 SCRA 210 [1973]; reiterated in xBoyer-Roxas v. CA, 211 SCRA 470 (1992). (b) When Corporation Bound by Act of Its President. People’s Aircargo v. Court of Appeals, 297 SCRA 170 (1998) (c) Corporate Secretary In the absence of provisions to the contrary, the corporate secretary is the custodian of corporate records—he keeps the stock and transfer book and makes proper and necessary entries therein. It is the duty and obligation of the corporate secretary to register valid transfers of stock in the books of the corporation; and in the event he refuses to comply with such duty, the transferorstockholder may rightfully bring suit to compel performance. xTorres, Jr. v. Court of Appeals, 278 SCRA 793 (1997).

When a Secretary’s Certificate is regular on its face, it can be relied upon by a third party who does not have to investigate the truths of the facts contained in such certification; otherwise business transactions of corporations would become tortuously slow and unnecessarily hampered. Esguerra v. Court of Appeals, 267 SCRA 380 (1997). (d) Corporate Treasurer A corporate treasurer’s function have generally been described as ―to receive and keeps funds of the corporation, and to disburse them in accordance with the authority given him by the board or the properly authorized officers.‖ Unless duly authorized, a treasurer, whose power are limited, cannot bind the corporation in a sale of its assets. Selling is obviously foreign to a corporate treasurer’s function. When the corporation categorically denies ever having authorized its treasurer to sell the subject parcel of land, the buyer had the burden of proving that the treasurer was in fact authorized to represent and bind the allegedly selling corporation in the transaction. And failing to discharge such burden, and failing to show any provision of the articles of incorporation, by-laws or board resolution to prove that the treasurer possessed such power, the sale is void and not binding on the alleged selling corporation. San Juan Structural and Steel Fabricators, Inc. v. Court of Appeals, 296 SCRA 631, 645 (1998). (e) Other “Officers” for Service of Summons on Corporation For purposes of determining proper service of summons to a corporation in a quasi-judicial proceeding before the NLRC, a bookkeeper can be considered as an agent of the corporation within the purview of the Rules of Court. The rationale of all rules with respect to service of process on a corporation is that such service must be made to an agent or a representative so integrated with the corporation sued as to make it a priori supposable that he will realize his responsibilities and know what he should do with any legal papers served on him. The bookkeeper’s task is one under consideration that his regular recording of the corporation’s “business accounts” and “essential facts about the transactions of a business or enterprise” safeguards the corporation from possible fraud being committed adverse to its own corporate interest. Pabon v. NLRC, 296 SCRA 7 (1998). In spite of provisions of the Rules of Court on service of process to bind corporate entities, service made to a representative so integrated with the corporation sued as to make it a priori supposable that he will realize his responsibilities and know what he should do with any legal papers served on him, has been considered proper service to bind the corporation. (Villa Rey

Transit, Inc. v. Far East Motor Corp., 81 SCRA 298 [1078], overturning xDelta Motor Sales Corp. v. Mangosing, 70 Phil. 598 [1976]; reiterated in xR. Transport Corp. v. CA, 24a SCRA 77 [1995]). Section 11, Rule 14 of the 1997 Rules of Civil Procedure uses the term ―general manager‖ and unlike the old provision in the Rules of Court, it does not include the term ―agent‖. Consequently, the enumeration of persons to whom summons may be served is ―restricted, limited and exclusive‖ following the rule on statutory construction expressio unios est exclusion alterius. Therefore, the earlier cases that uphold service of summons upon a construction project manager; a corporation’s assistant manager; ordinary clerk of a corporation; private secretary of corporate executives; retained counsel; officials who had charge or control of the operations of the corporation, like the assistant general manager; or the corporation’s Chief Finance and Administrative Officer;no longer apply since they were decided under the old rule that allows service of summons upon an agent of the corporation. E.B. Villarosa & Partners Co., Ltd. v. Benito, 312 SCRA 65 (1999). (f) Coverage of Corporate “Agents” Black’s Law Dictionary defines an ―agent‖ as ―a business representative, whose function is to bring about, modify, affect, accept performance of, or terminate contractual obligations between principal and third persons.‖ To this extent, an ―agent‖ may also be shown to represent his principal in some one or more of his relations to others, even though he may not have the power to enter into contracts. The rules on service of process make service on ―agent‖ sufficient. It does not in any way distinguish whether the ―agent‖ be general or special, but is complied with even by a service upon an agent having limited authority to represent his principal. As such, it does not necessarily connote an officer of the corporation. However, though this may include employees other than officers of a corporation, this does not include employees whose duties are not so integrated to the business that their absence or presence will not toll the entire operation of the business. Pabon v. NLRC, 296 SCRA 7 (1998). 13. Liabilities of Corporate Officers: (Sec. 31; Vazquez v. Borja, 74 Phil. 560 (1944); Palay, Inc. v. Clave, 124 SCRA 638 [1093]; Tramat Mercantile, Inc. v. CA, 238 SCRA 14 [1994]; Pabalan v. NLRC, 184 SCRA 495 [1990]; xSulo ng Bayan, Inc. v. Araneta, Inc. Inc., 72 SCRA 347 [1976]; xMindanao Motors Lines, Inc. v. Court of Industrial Relations, 6 SCRA 710 (1962);

The general rule is that corporate officers are not personally liable for their official acts unless it is shown that they have exceeded their authority. xARB Constructions Co., Inc. v. Court of Appeals, 332 SCRA 427 (200) Jurisprudential Enumeration of Officer Liabilities – MAM Realty v. NLRC, 244 SCRA 797, (1995); reiterated in xNational Food Authority v. Court of Appeals, 311 SCRA 700 (1999); xUichico v. NLRC, 273 SCRA 35 (1997). The hornbook law is that corporate personality is a shield against personal liability of its officers. Thus, when the trust receipt sued upon was clearly entered into in behalf of the corporation by its Executive Vice-President, then such officer and his spouse cannot be made personally liable; the personality of the corporation is separate and distinct from the persons composing it. xThe Consolidated Bank and Trust Corp. v. Court of Appeals, G.R. No. 114286, 19 April 2001. Personal liability of a corporate director, trustee or officer along (although not necessarily) with the corporation may so validly attach, as a rule, only when: (a) He assents to a patently unlawful act of the corporation; (b) Guilty of bad faith or gross negligence in directing its affairs; (c) for conflict on interest resulting in damages to the corporation, its stockholders or other persons; (d) He consents to the issuance of watered down stocks or who, having knowledge thereof, does not forthwith file with the corporate secretary his written objection thereto; (e) He agrees to hold himself personally and solidarily liable with the corporation; or (f) He is made, by a specific provisions of law, to personally answer for his corporate action. Atrium Management Corporation vs. Court of Appeals, G.R. No. 109491, 28 February 2001 The finding of solidary liability among the corporation and its officers and directors would patently be baseless when the decision contains no allegation, finding or conclusion regarding particular acts committed by said officers and members of the Board of Directors that show them to have been individually

guilty of unmistakable malice, bad faith, or ill-motive in their personal dealings with third parties. When corporate officers and directors are sued merely as nominal parties in their official capacities as such, they cannot be held liable personal for the judgment rendered against the corporation. National Power Corp. v. Court of Appeals, 273 SCRA 419 (1997). When corporate officers are sued in their official capacity, the suit is equivalent to a suit against the corporation, and judgment may be enforced against corporate assets. xEmilio Cano Enterprises, Inc. v. CIR, 13 SCRA 291 (1965). An attempt by the corporation to avoid liability by distancing itself from the acts of the its President was struck down with the Court holding that a corporation may not distance itself from the acts of a senior officer: ―the dual roles of Romulo F. Sugay should not be allowed to confuse the facts.‖ R.F. Sugay v. Reyes, 12 SCRA 700 (1961). Generally, officers or directors under the old corporate name bear no personal liability for acts done or contracts entered into by officers of the corporation, if duly authorized.Republic Planters Bank v. CA, 216 SCRA 738 (1992). An officer-stockholder who is a party signing in behalf of the corporation to a fraudulent contract cannot claim the benefit of separate juridical entity: ―Thus, being a party to a simulated contract of management, petitioner Uy cannot be permitted to escape liability under the said contract by using the corporate entity theory. This is one instance when the veil of corporate entity has to be pierced to avoid injustice and inequity.‖ Paradise Sauna Massage Corporation v. Ng, 181 SCRA 719 (1990). (a) Special Provisions in Labor Laws. – In the Labor Code since a corporate employer is an artificial person, it must have an officer who can be presumed to be the employer, being the ―person acting in the interest of (the) employer‖ as provided in the Labor Code. A.C. Ransom Labor Union-CCLU v. NLRC, 142 SCRA 269 (1986). Under the Labor Code, in the case of corporations, it is the president who responds personally for violation of the labor pay laws. Villanueva v. Adre, 172 SCRA 876 (1989). For the separate juridical personality of a corporation to be disregarded, the wrongdoing must be clearly and convincingly established. Del Rosario v. NLRC, 187 SCRA 777 (1990).

A corporate officer cannot be held personally liable for a corporate debt simply because he had executed the contract for and in behalf of the corporation. It held that when a corporate officer acts in behalf of a corporation pursuant to his authority, is ―a corporate act for which only the corporation should be made liable for any obligations arising from them.‖ Western Agro Industrial Corporation v. Court of Appeals, 188 SCRA 709 (1990). Only the responsible officer of a corporation who had a hand in illegally dismissing an employee should be held personally liable for the corporate obligations arising from such act. Maglutac v. NLRC,189 SCRA 767 (1990); reiterated in xGudez v. NLRC, 183 SCRA 644 (1990) and xChua v. NLRC, 182 SCRA 353 (1990). The case of Ransom v. NLRC is not in point because there the debtor corporation actually ceased operations after the decision of the Court of Industrial Relations was promulgated against it, making it necessary to enforce it against its former president. When the corporation is still existing and able to satisfy the judgment in favor of the private respondent, the corporate officers cannot be held personally liable. Lim v. NLRC, 171 SCRA 328 (1989). The aforecited cases will not apply to the instant case, however, because the persons who were there made personally liable for the employees’ claims were stockholders-officers of the respondent corporation. In the case at bar, the petitioner while admittedly the highest ranking local representative of the corporation, is nevertheless not a stockholder and much less a member of the board of directors or an officer thereof. De Guzman v. NLRC, 211 SCRA 723 (1992) A mere general manager cannot be held solidarily liable with the corporation for unpaid labor claims, especially when he is neither a stockholder or a member of the board of the corporation. A president cannot be held solidarily liable personally with the corporation absent evidence of showing that he acted maliciously or in bad faith. EPG Constructions Co. v. CA, 210 SCRA 230 (1992). A judgment rendered against a person ―in his capacity as President‖ of the corporation was enforceable against the assets of such officer when the decision itself found that he merely used the corporation as his alter-ego or as his business conduit. Arcilla v. Court of Appeals, 215 SCRA 120 (1992).

The President and General Manager of a corporation who entered into and signed a contract in his official capacity cannot be made liable thereunder in his individual capacity in the absence of stipulation to that effect due to the personality of the corporation being separate and distinct from the persons composing it. Rustan Pulp & Paper Mills, Inc. v. IAC, 214 SCRA 665 (1992), citing xBanque Generale Belge v. Walter Bull and Co., 84 Phil. 164 (1949). Reahs Corporation v. NLRC, 271 SCRA 247 (1997), reviewed the A.C. Ransom doctrine of imposing solidarily liability on the highest officers of the corporation for judgment on labor claims rendered against the corporation pursuant to Art. 283 of the Labor Code, and reviewed its application in subsequent cases of Maglutac, Chua, Gudezand Pabalan. It reiterated the main doctrine of separate personality of a corporation which should remain as the guiding rule in determining corporate liability to its employees, and that at the very least, to justify solidary liability, ―there must be an allegation or showing that the officers of the corporation deliberately or maliciously designed to evade the financial obligation of the corporation to its employees,‖ or a showing that the officers indiscriminately stopped its business to perpetuate an illegal act, as a vehicle for the evasion of existing obligations, in circumvention of statutes, and to confuse legitimate issues. Corporate officers are not personally liable for money claims of discharged employees unless they acted with evident malice and bad faith in terminating their employment. AHS/Philippines v. Court of Appeals, 257 SCRA 319 (1996). The finding of solidary liability among the corporation and its officers and directors would patently be baseless when the decision contains no allegation, finding or conclusion regarding particular acts committed by said officers and members of the Board of Directors that show them to have been individually guilty of unmistakable malice, bad faith, or ill-motive in their personal dealings with third parties. When corporate officers and directors are sued merely as nominal parties in their official capacities as such, they cannot be held liable personal for the judgment rendered against the corporation. National Power Corp. v. Court of Appeals, 273 SCRA 419 (1997). In labor cases, particularly, corporate directors and officers are solidarily liable with the corporation for the termination of employment of corporate employees done with malice or in bad faith. In this case, it is undisputed that the corporate officers have a direct hand in the illegal dismissal of the employees. They were the one, who as high-ranking officers and directors of the corporation, signed the Board Resolution retrenching the employees on the feigned ground of serious business losses that had no basis apart from an unsigned and unaudited Profit

and Loss Statement which, to repeat, had no evidentiary value whatsoever. This is indicating of bad faith on the part of the corporate officers for which they can be held jointly and severally liable with the Corporation for all the money claims of the illegally terminated employees. Uichico v. NLRC, 273 SCRA 35 (1997). A corporation, being a juridical entity, may act only through its directors, officers and employees and obligations incurred by them, acting as corporate agents, are not theirs but the direct accountabilities of the corporation they represent. Brent Hospital, Inc. v. NLRC, 292 SCRA 304 (1998). The manager of a corporation are not personally liable for their official acts unless it is shown that they have exceeded their authority. There is nothing on record to show that the manager deliberately and maliciously evaded the corporation’s financial obligation to the employee; hence, there appearing to be no evidence on record that the manager acted maliciously or deliberately in the non-payment of benefits to the employee, the manager cannot be held jointly and severally liable with the corporate employers. [CLV – Nothing was shown to determine whether the corporate employer had no assets with which to pay the claims of the employee]. Nicario v. NLRC, 295 SCRA 619 (1998). In Restuarante Las Conchas v. Llego, 314 SCRA 24 (1999), the Supreme Court had apparently returned to the A.C. Ransom principle that ―[a]lthough as a rule, the officers and members of a corporation are not personally liable for acts done in the performance of their duties, this rule admits of exceptions, one of which is when the employer corporation is no longer existing and is unable to satisfy the judgment in favor of the employee, the officers should be held liable for acting on behalf of the corporation.‖ In that case, the restaurant business had to be closed down because possession of the premises had been lost through an adverse decision in an ejectment case. The Court held: ―In the present case, the th employees can no longer claim their separation benefits and 13 month pay from the corporation because it had already ceased operation. To require them to do so would render illusory the separation and 13tj month pay awarded to them by the NLRC. Their only recourse is to satisfy their claim from the officers of the corporation who were, in effect, acting in behalf of the corporation.‖ The A.C. Ransom doctrine has been reiterated in Carmelcraft Corp. v. NLRC, 186 SCRA 393 (1990), xValderrama v. NLRC, 256 SCRA 466 (1996).