Salvador Rem+Review+Lecture+and+Recit+Notes
Short Description
Download Salvador Rem+Review+Lecture+and+Recit+Notes...
Description
c c c Glenn Tuazon, 4-A Atty. Tranquil Salvador SY 2010-11
p a cac p ac cac p a p a ca
c a cac
Jurisdiction Stuff to take note of in jurisdiction: p p p p
Ñ ^ (Subject matter jurisdiction) ^ ! [now the rules on filing fees.
N.B. vis-à-vis for criminal cases: p
p p p
p
± the same, as conferred by law, except you have to add that venue is jurisdictional. Territory is intertwined with jurisdiction, unlike in civil cases, where parties can agree on venue or it can be subject to waiver. ^ This is essentially the same as jurisdiction over subject matter. ^ ! This is jurisdiction over the person of the accused. åiling fees are not necessary.
Ñ p The power of the court to hear, try, or decide the case
p p
p
p As conferred by law " p årom the allegations of the complaint. Ñ # " p aonferred by law as well. p Study BP 129, amended by RA 7691. p ëo not assume that RA 7691 tells all. There are other laws too. Ñ ca 1. Right/title/interest over real property, where value is: Value is > 20[ (OMM), > 50[ (MM) p a ! $$% Ñ p MTa. Ejectment is always under MTa, regardless of the claim over unpaid rentals. p c #! & ' " ! ! # ( ! ! # )$&$$$ ! # Ñ p RTa, based on assessed value (not åMV) which is over 50[. ³Recovery of possession´ does not necessarily mean ejectment (ex. Accion publiciana). p Value is determined by assessed value if it involves right, title, or interest p ½ p There was discussion whether åMV or assessed value dictates. Assessed value wins. 2. Amount incapable of pecuniary estimation p Examples: rescission, reformation of contract, specific performance p *! ! ! ! # p Expropriation is always filed with the RTa. Though the subject matter is capable of pecuniary estimation, the action is exclusively instituted in the RTa. p Ñ # p RTa always has jurisdiction, and the Sa does not except when there is an issue of constitutionality. p There is no such thing as determination of value; just a determination of validity. p Ñ !!
Even if its amount can be determined, the law confers it to the åamily aourts. p ' ++ p Two views: one says that it¶s always with the RTa, because it only covers the security of the property. The original action is always for recovery of money. p The other view is that it must be governed by the m of the security. 0. åamily cases/marriage p xncludes support, annulment, nullity, etc. 4. Juvenile/agrarian case 5. Other claims, where claim exceeds 000[ (OMM) or 400[ (MM) p + * + Ñ p Original costs took effect March 25, 1994 p 1999 ± adjusted OMM from 100[ to 200[ p 2004 ± adjusted both MM and OMM to 400[ and 000[ respectively p Always take note of the word ³exceeding´ so the exact amount is for the lower court. 6. Probate of will, determination of inheritance ± same amounts p a + a !
& & $$% a ! #! p No. The rules on summary procedure explicitly exclude probate proceedings. p Note that the MTa has a number of procedures. There are ordinary proceedings and summary proceedings, and now, small claims. p So the ³not exceeding 100[ (OMM) and not exceeding 200[ (MM)´ only applies for summary proceedings. But it explicitly excluded probate proceedings. p Ñ a p Not exceeding 100[. 7. Admiralty cases ± same amounts + $$%, $$%& # + & & #- & + &
p NO. Only limit the amount to the demand or the claim.
p
But remember that there can be a principal action for damages, in which the amount of damages claimed determines the amount. This is not covered by RA 7691, this is covered by 95-9-94. p Ñ p Not exceeding 100[. p p No. p Ñ $$% p The claim itself. p Exclusive of damages p Ñ ! ! + p ëoes not apply. Actions for damages are not covered by small claims actions, because these have to be ascertained. These are not akin to sum-of-money cases. p . / p Yes. (aovers: fault/negligence, quasi-contract, or contract) p Ñ p Yes ± for the civil aspect of such (fault/negligence). p Just remember that when you file a criminal case, the civil aspect is likewise filed (unless reserved, waived, or filed ahead). So it cannot be the subject of small claims. p # # ! # ! !
+ ! p No need for a lawyer. There is also a standard form provided. p # ! # * + $$%& ! # ! ! Ñ !
p This is still open for discussion, and is not yet clear. p Sir suggests that the option is upon the complainant, since there is concurrent jurisdiction of both small claims court or court of summary procedure. N.B. Sec. 21 of BP 129, as amended, provides that the RTa has concurrent original jurisdiction for: p 1. aertiorari, prohibition, mandamus, quo warranto, habeas corpus, injunction, enforceable within respective regions p 2. Actions affecting ambassadors, other public ministers, and consuls p
p
p
p
p
p
p
p
p
Ñ p p Ñ p p
a Just the opposite of everything in RTa Then just add ejectment/unlawful detainer a xt has both original and appellate jurisdiction. Original: habeas corpus, habeas data, certiorari, prohibition, mandamus, quo warranto, writ of amparo, annulment of judgment p N.B. xts original jurisdiction is mas regards annulment of judgment of RTa p Appellate: ordinary appeal (notice of appeal), petition for review, over quasijudicial bodies Ñ a p Also both original and appellate jurisdiction. p Original: habeas corpus, habeas data, certiorari, prohibition, mandamus, quo warranto, writ of amparo, disciplinary actions over PLUS ± p Actions against members of the Bar [concurrent with xBP]; p actions against ambassadors, public ministers, consuls, etc.; p constitutionality of treaties, laws, proclamations, etc.; p declaratory relief only when there is a question of constitutionality p Appellate: p decision of aA, decision of aTA , decision of SB, decision of RTa on pure questions of law; p REMEMBER this motherhood statement: the only way to go up to the Sa is for petition for review on certiorari (RULE 45). This applies to civil and criminal cases, except if the penalty in a criminal case is death, RP, of life imprisonment. ^ ! p 1. Voluntary appearance p By submitting to the jurisdiction of the court; ex. Appearing in court or filing an answer or filing motion for extension of time without disputing the court¶s jurisdiction p 2. Proper service of summons p Rule 14 '+ Rule #1: payment of filing fees is jurisdictional in civil cases Rule #2: + p You include interest, damages, attorney¶s fees etc. ± pay everything that you allege for court fees p But for jurisdictional purposes, just the principal claim
Rule #0: p p
O åiling fees must be paid within prescriptive period or reglementary period (for appeals or counterclaims), or else it is deemed prescribed
Rule #4: i Permissive counterclaims require docket fees p The claim does not arise from the principal action, but involves the same parties. This could easily have been filed separately. p aompulsory counterclaims do not require docket fees p BUT read [ case of 2009 ± this is è è èè p årom nowhere, this case required that even compulsory counterclaims have docket fees paid. [orean Technologies cited Rule 141. p But in practice, based on an Sa Resolution, the collection of filing fees on compulsory counterclaims is . This has not been lifted yet. p i Payment of filing fees for compulsory counterclaims is not required. But you have to take note of [ now + p xf there are damages granted to the complainant, but there has been lack of payment of filing fees. The payment of docket fees is a lien on the damages. p Ñ # ! ! +
! & #& # + a + p ¦¦ p There was a claim that has ripened but was not included, and there were interests that would ripen once the action is pending. p Sa said that a claim ripened during the pendency of the case, it can be a lien on the judgment. p But if you did not allege it, the court cannot grant an award because you did not pay docket fees. p p
p
Ñ !# + p c c p You have to pay full filing fees. The deficiency must not be based on the fault of complainant. But if the fault lay on the wrong assessment of the clerk of court, there is a chance to pay the deficiency. p Jurisdiction is not automatically lost. alerk of court makes a deficiency assessment. p There must be no intention to defraud. p usband filed for è in RTa Makati to recover child from wife p Ñ " ! p 0: there are two kinds of habeas corpus ± custody of minors and regular habeas corpus in the Rules of aourt p RTa Makati dismissed the case because the child was allegedly in Basilan. p Ñ # ! p 0 Effectivity of writ issued by regular court only enforceable in the territorial jurisdiction. But aA and Sa ± everywhere. p åiled with the aA, but was denied because the RTa (åamily aourts) have original jurisdiction over custody of minor abeas aorpus cases. p ELë: aan file with aA. xt has jurisdiction. Sa has jurisdiction, too. The aA and Sa have concurrent jurisdiction over habeas corpus cases. p But remember that when you talk about concurrent jurisdiction, you still have to follow hierarchy of courts. p Ejectment case (1 year period). åiled within the proper period, but the complaint was amended to add additional defendants beyond the 1 year period. ëoes the court still have jurisdiction? p ! # ! & !
p No. 0 One year period is not prescriptive period. You just file with the appropriate court (RTa or MTa, depending on the assessed value), not the MTa by default (for ejectment). p ELë: MTa still had jurisdiction for ejectment (based on original complaint.)
p
p
p
½
Repetition of 2 m è ± estoppel by laches. After active participation in a case, you cannot question the court¶s jurisdiction anymore. p Ñent up to the Sa through Rule 40 (appeal to aA from a QJA) # 1^ + ! a c Ñ * ! 1. LURB decisions, as provided in charter, appealable to the Office of the President 2. aTA decisions, under amended rules, appealable to the aTA , then Sa 0. NLRa decisions, although by a QJA, are reviewable by the aA although not under Rule 40, but Rule 65 (GAëALEJ). 4. OMB decisions ± go to the aA, under Rule 40, for administrative cases. But if there is GAëALAEJ, go to the Sa, under Rule 65. p Ñ + + p RTa, because enforcement of foreign judgments are incapable of pecuniary estimation. p ALÑAYS, regardless of amount of judgment, since it is not based on the amount of the claim. p xn this type of action, you don¶t need to prove the facts again, etc. p -+ ! " , & ! 0
p This rule applies to money claims against an estate, but without judgment yet. ere, there already was a judgment in ëa of awaii. p # ! + + p Lack of notice p Lack of jurisdiction p aollusion p åraud p Ñ p These must be enforced or recognized p An arbitral award is not a foreign judgment (Under AëR Rules) J p N.B. Rule 65 is not an appeal. xt is a special civil action. p Being one, RTa, aA, and Sa have concurrent jurisdiction. Ñhen you discuss concurrent jurisdiction, you cannot avoid discussing hierarchy. p But when you talk about appeals, no need to consider hierarchy. The law already makes a decision for you. p
p
p
p
p
a p
p p
p
p p
p
p
Ñ " p aivil p Protection or enforcement of a right, or prevention or redress of a wrong p #! p Ordinary p Special p ariminal p Once the information is in court, è does it become a criminal action, that has already been prosecuted by the State through the prosecutor. p Special proceedings p Establishes a right, status, or condition # p No. + # ! p There is aause of Action in ordinary civil action. p Ex. Special aivil Action ± like declaratory relief does not need cause of action c . 1. Right of one party 2. Obligation of the other to respect 0. Breach ± MOST xMPT! ! + + p No it is Res Judicata and Litis Pendentia a p Yes. p BUT it is not mandatory. p Numerous. p åor every cause of action, there is one breach. p åor as many breaches as there are, there are as many causes of action. #& + 2 & * ! #& 34 ! p No. Just one, because claims for damages are incidents of the one breach (failure to pay).
p
p
p
p p p p
p
p
! # & ($%& $$%& $$%& !## # p Three PNs, three causes of action. a p Yes. Example is shipping of goods. åirst cause of action is based on breach of shipping contract. xn case it is void, the alternative is to sue based on quasi-delict. # &
# p Scenario 1: X versus Y (just two parties). aan join as many causes of action, even if totally unrelated. p Scenario 2: X versus ABaë (multiple defendants). aan only join the causes of action if it complies with the rule on PERMxSSxVE JOxNëER (series of actions arising from the same facts or law ± Rule 0 Section 6) a# # ! p No. a# ! p No. Because they have their own special rules. a# # # p No. Ejectment is summary proceeding, so it has its own rules. Ñ # p Ñhen all of the claims are claims for sums of money, even if one claim falls under the jurisdiction of the MTa but the rest may fall under the RTa, what controls is the sum of all claims. p But you cannot do this when not all are for sums of money. # #! ! #a a# a p Note: sum of money is determined by amount (personal). Recovery of property is determined by location of the property (real). p 0 as well that venue is not jurisdictional in civil cases, unlike criminal cases. Note as well that venue is waivable. p Theoretically, you can join. But the other party is expected to file a motion to dismiss on the ground of improper venue. åOLLOÑ TE GENERAL RULE: The higher court è (RTa > MTa). Ñ p xn the RTa, there is no limit to the counterclaim. xn the MTa, the counterclaim is limited to the jurisdiction of the inferior court. p Ñ !!
p
p
p xt¶s lost. So it¶s better to file a separate action in this scenario. + p No, it will NOT cause dismissal of the principal action. p xt is severed and these proceed with separately. p Although there can only be separate proceeding when there is separate filing. p The court is not duty-bound to proceed with it, especially when it appears that it has no jurisdiction. Ñ ! p aovered by special rules.
p
c p
p
p
p
p
p p
Ñ ! p Natural persons p Juridical persons p Those authorized by law Ñ + p All those with capacity can be a party. p åor natural persons, that is the age of majority. a*# # ! # p Yes, but with assistance of parent, guardian, or guardian-ad-litem. p A minor can sue, a minor can be sued if assisted. Ñ
! p Sue and sued jointly. p Ñ * ! p Judicial separation of property p Abandonment p Exclusive property of spouses p xnvolving practice of profession Ñ ! ! p aan sue and be sued, but must be assisted. p Ñ ! ! 2 ! + ! #3& p No. Sec. 18 provides that the court will provide assistance. Ñ # ! ! # p ëuly incorporated and registered with the SEa. § ! & #
Priority is personal service. xt must be served to the persons, wherever he may be found. (Ex. The ³James Yap´ rule ± they tried serving it to him in Araneta) p xf he cannot be found, mto a a) person of sufficient age and discretion and b) residing therein. Either residence or office. p Ñ 5 +
6 Recent ruling says age of majority. p Should not be a transient. Must reside therein. a + ! p xf it¶s an isolated transaction, a foreign corporation can sue and be sued. p xf it¶s doing business but not licensed, it aANNOT sue, but can be sued. p xf it¶s doing business and is licensed, it can sue and be sued. ! p Rule 14, Sec 11 # + ! p Resident agent ± one named to receive summons p Representatives and officers found in the Philippines (if it has a branch, for instance) Ñ / # Ñ 2* 0#3 p No separate juridical existence. p They can be parties, as defendants, and named as such (under the name under which they are generally and commonly known). p They aANNOT institute an action as a non-juridical entity. They have to institute it individually. # / # p To anyone or person in charge of the office. Ñ 7 # *! p Political parties p Labor unions p Archdiocese p Estate # p ëepending on the entity ± they have different rules. a# ! ! p Yes. Serve it to the warden. ' ! ! p Province ± executive head (governor) p aity ± city mayor p Municipality ± municipality mayor p
p p
p
p p
p p p
p p
p
p
p
p
p
p
Ñ ! # p A party who stands to be benefitted or prejudiced by the judgment. ! * ! # ! , Ñ p The law does not limit it to plaintiffs only ± it uses ³party´ as a generic term, so it can encompass any party impleaded, if he will benefit or be injured. ! ! # !!# p No. The concept of real party in interest will only apply to private suits. p !!# *!# p No. Locus standi applies here. p !!#
p [Not answered, but x think not] p Ñ + +, p This is from public suit filed by a private party. There is a broader policy concern here, even if there can be benefit or injury as well. p a+ & . ! + ! + c p No. Locus standi applies as well. & c p Locus standi pertains to acts of government. By reason of this act, you suffered injury. p You do NOT use legal standing in private suits. Only in public suits. Ñ #! # p A) They are not indispensable, B) ought to be joined if one needs complete determination of the case. Ñ ! ! # p xf not impleaded, there can be no final determination. p N.B. The codal does not use the word ³complete.´ So they are compulsorily joined. Ñ + p The other parties not sued are necessary parties. p a# # p Yes. The court can issue a valid judgment, although not complete. p a# ! + & + ! p Yes. Ñ #+ & *89 # : $$&$$$:
[Neither necessary nor indispensable (?)] a# 8# p Yes. p a + p Yes, because the obligation is joint and several (solidary). p a# 9 & + 8 p No, because you recovered already. p a# p Yes. The case can proceed against either, or both. # ! 8 ; 9 ! ! ! # # a# 8 p Yes, because X is the proper party. a# 9 # & +8 p No. Y is a mere possessor. The court cannot render judgment without impleading X. X is an indispensable party in this case. Ñ p xf it is a necessary party, the general rule is that failure to implead is nonprejudicial. There is no waiver of right to implead. There is no waiver UNLESS there is an order to implead from the court. p xf it is an indispensable party, the court should order that the indispensable party be impleaded . xf despite this order to implead, the plaintiff did not comply, the case should be dismissed. p Ñ / & ! ! ! #& p The judgment is null and void. Ñ ! 1. ëeath p Ñ p Any party. The law does not distinguish. p This is the most common. 2. ahange of holder of public position (death, resignation, removal, cease to hold position) p This is a very limited application, since it just applies to public officers. 0. Transfer of interest Ñ . # 1. A party dies 2. The pending action is not extinguished by reason of death (xMPT) p p
p
p
p
p
p
Ñ # # p Because there are actions that are extinguished by death. Examples are actions that are purely personal to the party p *! p Ex. aontract for Michael Jackson to sing in a party. p Ex. Receipt of a widow of support. Ñhen she dies, the support from widower¶s estate is gone. Ñ # 1. Give notice of death of the party within 00 days. p Ñ $#! p årom the åAaT of death, and not from the knowledge thereof. 2. Give names and addresses of the legal representatives p Ñ + ! p Legal heirs, administrator, or executor p 0 The law provides for legal heirs, because there is procedure to be done before appointment of administrator or executor (ex. probate of the will for the latter). 0. aourt orders substitution and for the substitute to appear 0+ a&&Ñ p The counsel of E names a substitute. The court will then act accordingly. &
2 ! 3Ñ !! p There can be a valid judgment, but only against a and ë. p There can be no valid judgment against E. 0 a #& a + a p There is still a need for substitution, even if a and ë are already parties. That a and ë are incidentally E¶s heirs as well change the result. p This is the case. There is valid judgment only against a and ë. xt is wrong to say that a and ë automatically substitute for E. There are other heirs who are affected by this improper ³automatic´ substitution. p §/ . 4 # ! < p Relate the provisions above. xf necessary, you can subsequently file a suit against E¶s heirs to complete the judgment. xf indispensable, the judgment is null and void, even against a and ë. p
p
p p
p
p
p
p
p
p
Ñ . ! 1. Removal/death of public officer and appointment of successor within 00 days unless otherwise provided 2. Successor adopts, continues, or threatens to continue the action sued against 0. There is substantial need to continue the action Ñ ! 1. Give notice to the new public officer 2. Opportunity to be heard for the new officer p Mere fact that he is inclined to continue the action of the predecessor is not enough *! p A sues B for judgment for sum of money based on contract. B assigns the contract to a and a accepts. p a + 0 ! p Yes. p a a ! p Yes. But there is no substitution here. a is just joined. p p The court has to order a , not mere impleading. BOTTOM LxNE: there has to be a court order. # & 2c9 c3 p Section 20. xt will NOT go to the heirs, but it will continue against the estate. (Remember Succession!) p This is the special rule against sum of money cases. p c p Because you ultimately deal with the executor or administrator anyway. p But it¶s wrong to say there is substitution, because the law does not mandate it. p This position is further supported by Rules 86 and 87. p Ñ . !!# p 1. The ëEåENëANT must die p 2. xt must be a sum of money case based on contract p Ñ ! p The general rule will apply, even if it¶s a sum of money case. + 4 i Resolves the apparent conflict between Rule 0, Sec. 21 and Rule 141, Sec. 19.
xf the indigent fits within the parameters set by Rule 141, Sec. 19, then the court must declare him to be an indigent. p Ñ c . p Gross income + family income does not exceed twice of monthly minimum wage p And owns real property whose åMV is less or equal to PP 000[ p xf he doesn¶t, he falls under Rule 0, Sec. 21 and must apply for indigent status. (³xndigency test´) ere, the court exercises discretion as to whether you are an indigent or not. p ! + ! ! # ' $$&$$ + p Yes, but under the indigency test. # + & # !# + 0 !! + p There is a lien, as regards filing fees. Ñ + ! p xt is free. There is no lien on the judgment. Ñ !! # + p The court can require you to pay. p Ñ # !# p The court can order execution. p Ñ # !# + * p The court can dismiss the case, for failure to comply with an order of the court. ¦ p Planters did not pay appellate docket fees. But this was in 1992, prior to the 1997 Rules on aivil Procedure, which began the requirement of appellate docket fees. The 1997 Rules must not apply retroactively. i p aollection for sum of money over construction project over property. The plaintiff attempted to make an annotation of lis pendens on the title of the property. ELë: You cannot do this. This is an action in personam, not in rem, as regards the property. p A notice of lis pendens will only lie if it is a è over real property. Outside of this, you cannot avail of a notice of lis pendens. ! p Rule 40, up to the aA. Attached duplicate of decision, but not pleadings. This is enough for aA to give due course to the petition. p
p
p p
p
p
p
p
p
¦" p
The main case is for declaratory relief (SaA). The question is whether there can be execution of such (yes). There can also be a counterclaim, even if declaratory relief is an SaA and the counterclaim is an ordinary action. p There is no res judicata between recovery of possession and nullity of deed of sale. p c . p A) åormer judgment final p B) aourt had jurisdiction p a) judgment on merits p ë) xdentity of parties, subject matter, causes of action
p
p
p
ëo not make the mistake of confusing venue and jurisdiction in civil procedure. Jurisdiction is the power given by law to hear, try, and decide cases. [nowing what court is one thing, but knowing where to file it is different. + ! ! #& c7 ! " # 2 + 1 7 a #3 ! ! ! ! # # ! 2 +3 + ! &! + & & + # + !Ñ # p There are two steps in venue problems. åirst, determine: ! p xt¶s a personal action. xt involves rights and obligations of parties, although the subject matter involves land. p Ñ # p At the option of the plaintiffs. Either in their principal residence (Quezon aity) or the defendant¶s (Pasig) p Ñ p RTa, because it is an action incapable of pecuniary estimation (rescission) i p xn cases where there are several plaintiffs and defendants, the codal provides the word ³principal´ before plaintiff and defendant, so that the plaintiffs will not file the case before far-flung or inconvenient areas.
xn this case, Aileen Marcos is filing a case to enforce a trust, and some nominees live in Batac, xlocos. Marcos lives in Makati. She filed in Batac. p ELë: Should have filed in Makati, because she is the principal plaintiff. Ñ # * / p Extrajudicial foreclosure of mortgage is NOT a judicial action. xt¶s not covered by the Rules of aourt, but Act 2105. åor purposes of EJ foreclosure, it should be filed where the property is located. p But the mere filing and payment of fees (for multiple properties in various areas) can be paid in one office, as long as it can be established that it covers all areas. But the actual sale will only be done in the place where the properties are located. Ñ p Rule 68 does not provide for venue for this SaA. But it is filed where the property is located. p But if it is for collection of a sum of money, file it as a personal action. Ñ # #
+ p RTa where the plaintiff resides, where the defendant resides, or where their conjugal home is located (special rule in åamily aourts issuance) Ñ # Ñ + p Rule 4 (rules of venue) applies in general, UNLESS a specific law provides otherwise. ! &! #4 p *! p Actions for Quo warranto ± if the Solicitor general commences it, in can be in the Sa, aA, or RTa of Manila p Ñ # ! ! # p This is covered by Rule 24 (deposition before action or pending appeal). p Special rule: Place of residence of any expected adverse party or defendant p Ñ ! p Ñhere the prospective adoptive parents reside p Ñ ! p Ñhere the deceased last resided at his time of death p Ñ ! p General rule: RTa where the minor is supposed to be found p But if unknown or cannot be found, in the aA or Sa a ! ! p Yes, they can. p
p
p
p
p
p
p
& ! ! # a " & 1aÑ # p xn the MTa of aebu. Residence in general does not matter. p Ñ " p Yes. p 0 # *! p Motion to dismiss on the ground of wrong venue, coming from the defendant. p 0 & & + ! ! p There is waiver on the rules of venue. c Rule 9, Section 1. This is the general rule on waivers and objections on grounds not raised in an answer or MTë. åailure to raise these grounds in MTë or answer is a waiver. * ! : p 1. Lack of jurisdiction over the subject matter p 2. Litis pendentia p 0. Res judicata p 4. Statute of limitations Ñ # " ! p xf there are no words of exclusivity, then it is only an additional venue. p xf there are words of exclusivity (ex. ³can only be filed in aebu, waiving all other venues´), then you can only file it there. p ¦" is an example of a case with restrictive words) p xn this case, the stipulation on venue in the principal agreement (PN) applies to the accessory contract, which is the surety agreement ± which cannot exist without the prior agreement. Ñ !! #& ! ! & a + + + p No, he cannot dismiss the case on the ground of improper venue. ( ) ëistinguish between wrong venue and lack of jurisdiction (ex. wrongly filing an ejectment case in the MTa.) ere, while the rules on summary procedure include MTë as a prohibited pleading, an exception is lack of jurisdiction ( wrong venue). Ñ p Prohibited forum shopping c #i 3 p
p
p
p
p
p
c9cac
1. åiling of the complaint p # ! & + ! & A) ëismiss the case outright B) xssue summons p Ñ ! ! + p Answer. p a# p xn general, no. xt is a prohibited pleading. p Ñ # p 10 days, not the usual 15. p a ! !# p No. xt¶s also a prohibited pleading. p Ñ p The plaintiff can file a motion for the court to render judgment. p A motion to declare the defendant in default is a prohibited pleading. Just ask the court to render judgment. p After the filing of the last pleading, move on to next stage. 2. Preliminary conference. p Take note, in SP, it is NOT pre-trial but preliminary conference. p Ñ p Period of 00 days. p Ñ !! p The parties can compromise, identify issues, etc. p a + ! ! # p Yes, the court can, if it is convinced at this point in time. p Assuming there is no judgment in steps 1 and 2, move to the next step« 0. Submission of judicial affidavits or position papers p + #! + p No hearing, no trial. p Ñ ### p Ñithin 10 days p a + p General rule: 00 days from the filing of the last pleading p NOT submission for resolution, but submission of the last pleading p Exception: 15 days, if the court asks for further clarificatory documents
p
p
p
p
p
Ñ ! ! + 1. MTë p Except lack of jurisdiction over subject matter p Or failure to refer to lupon 2. Reply 0. Bill of particulars 4. MR or MNT 5. Petition for relief from judgment 6. Motion to declare in default 7. Third party complaint 8. Memoranda 9. ëilatory motions for postponement p + p xf is not dilatory. But be careful with this, because the judge has to determine first if it is dilatory. p 10. Motion for extension of time p 11. Petition for certiorari, mandamus, prohibition against interlocutory orders of the court p 12. xnterventions ^ p This is a case where the respondents filed a joint counter affidavit in an ejectment case, rather than a response. The MTa decided in favor of plaintiff. RTa affirmed. aA moved to have the case remanded to MTa for re-hearing. p ELë: Valid action by aA. The court interpreted the rules on summary proceeding liberally here, because there was presence of a responsive pleading anyway and there was challenge of the material allegations of fact in the complaint. So the MTa should have considered it. p The judge was sanctioned here, because there was no answer, and instead of promulgating judgment, he still called for a preliminary conference. ¦ ^ p The defendant filed a Motion to Strike Out instead of an answer, which was, in reality, a motion to dismiss. The judge should not have granted this. "i p # a! !. ! p YES, only provisionally and for the purpose of resolving forcible entry/unlawful detainer cases. This is a power granted by BP 129.
p
p xn the preliminary conference, representatives appeared on behalf of the original parties (as attorneys-in-fact). This special authorization is a valid cause for someone else to appear in the plaintiff¶s or defendant¶s behalf. p Ñ !! ! ! # p aase is dismissed p Ñ !! !! p As if he didn¶t file an answer. The court can render judgment. p Ñ !+! p ave an explanation OR send a representative p Ñ p Provision on authorization does not appear in the rules on summary procedure. But the Sa applied to Rule 70 suppletorily, the rules of Rule 18 on pretrial and appearance by representative. p
a p
p
p
p
Ñ ! 1. Statement of claim 2. Together with certificate of non forum shopping 0. Authentic copies of document from which the action stems from (actionable documents) Ñ + p The claimant. No need for the lawyer. p [Atty. Salvador: maybe this special rule is for bar flunkers to practice, because the claimant still needs to file certain documents he may not know how to execute] Ñ !! p aourt files notice for defendant to submit response p ëefendant has 10 days to file a response p Ñ . p There is already a form provided for the plaintiff and defendant to fill in. p They just need to attach documents. p a p Yes. As long as within jurisdiction of the court, and arising from the same transaction, and does not require joinder of third parties. [review/cross-check these rules]
The parties can decide for amicable settlement or judicial dispute resolution (JëR) p a !!#+ + p Yes. (i ) p Ñ ! p Yes, but it is not a strict and formal trial. You can only present the evidence attached to the claims. p ! # p None mentioned. p ! !! p Yes, or at least their representatives. åailure for the plaintiff to appear leads to dismissal without prejudice of the claim. åailure for the defendant to appear has the same effect as not filing a response. Ñ !! ^c p xn a multi-sala court, the executive judge refers to the pairing judge for hearing and decision within 5 working days from referral p xn a single sala court: Pairing judge hears and decides the case in the court of origin within 5 working days from referral by JëR judge ! ! + p Same as summary procedure p Except in MTë, only lack of jurisdiction over the SM is the exception. åailure to refer to the lupon is not an exception. a !! p No. By express provision, it is final and executory. p Ñ & # p Rule 65 (petition for certiorari) ± because there is no plain, adequate, speedy remedy p
p
p
p
p
Ñ ! p alaims a cause of action p Must contain allegations ± brief and concise statement of ultimate facts, devoid of evidentiary matters p You can also allege as to fraud, mistake, malice, illegality, condition of the mind, etc. & + p Ñith particularity
p p p
p
p
p
p
p
" & + p Ñith particularity - 2 & &" + & 3 p Generally 9 # # + 1. You can attach or append the document p To show the court that this is where your cause of action arises 2. You can reproduce the contents of the document in the pleading p (But in practice, just always append anyway) # # + p Specifically denied, under oath p Ñ * ! . 1) Ñhen the adverse party is not a party to the instrument 2) Ñhen there is an order for inspection and it is refused Ñ ! # # p xt is an admission ONLY as to the genuineness and due execution of the actionable document 0 + + ! + p xt is up to the court to determine it. Ñ ! p 15 days after service of summons p a $# ! p åor foreign corporation service is done to government official designated by law Ñ 1) Affirmative defense p # # #! # & +# & !! p xn this case, there is no more issue. This will lead to a judgment on the pleadings (Rule 04) p This occurs when the answer does not tender an issue or admits the material allegations 2) Negative defense p Specific denial of facts alleged essential to the cause of action. p Ñ "! 1) general denial
p p p p
p p
p p p
2) specific denial 0) disavowal of knowledge (lack of knowledge and belief to form a specific denial)
/ ! ! + p No. Ñ ! # p Arises out of the transaction constituting subject matter of the action Ñ ! p Arising from an event unrelated. Ñ ! p 10 days p (xn practice, you only answer a permissive counterclaim. xn practice, a compulsory counterclaim is not answered.) Ñ
p Made against a person/party on the same side. a
p Yes. The counterclaim defendant is the original plaintiff. e can file a cross claim against a co-party. !
p 10 days #
p No, whether it be a permissive/compulsory counterclaim or a cross claim, no. ' ! # ! &# p Yes. You cannot just file a third party complaint. p Ñ # ! #! p The defendant in the main case, who feels that he should file a complaint against someone that court has yet to acquire jurisdiction from. p This is the reason why there is need for leave of court. You need to have the third party impleaded. p Ñ # # ! # ! p To contribute or indemnify p alassic case: car crash l a hit b hit c. a sued B. B sued A for indemnification. p Subrogation p Any other similar ground p Ñ ! ! # ! p 15 days, because it is treated as an entirely new complaint
p p p p
p p p
p
p p
p p
!# #! + p No. Ñ ! !# p 10 days. Ñ # !# p To controvert the new matters raised in the answer Ñ !# p All new matters stated in the answer are deemed controverted p Ñ p [ëidn¶t answer] Ñ !! & p Pre-trial ! + p Signature, verification, and aNåS Ñ # *+ + ! + p xndicates that he has read the pleading, and to the best of his knowledge, the information is correct p And that the filing of the same is not for the purposes of delay ! + + Ñ !! p xt has no legal effect at all. p # p xf counsel can show it is due to mere inadvertence and not for delay p Ñ + ! + . ++ p [ëidn¶t answer] # + & # p xnform the court. åailure to do so may lead to disciplinary action. Ñ p That the affiant has read the pleading and the allegations are true. (Based on ³personal knowledge,´ not ³information and belief´ or ³knowledge, information and belief´) p Yes. # p No. Only when the law requires you to verify. p *! p Rule 45 (Petition for review on certiorari)
p
p p
p p
p
p
p p
p p
p Rule 65 (Petition for certiorari) p Rules 57-61 (Provisional remedies) p No. åailure to attach is not fatal. p 0 # a a p Although it can be cured, the court may dismiss a pleading for è Ñ + p The party filing the pleading. a # + p General rule, no. Unless there is some compelling reason. p åor example, the party¶s father is to be buried on the day of filing of the petition ± the court allowed it. p Also, the distance of the petition from the counsel (ex. the petitioner is in the USA and the counsel is in Manila, and there are only 15 days to file.) a + p Must be assisted. a
! +# p One spouse is enough, but only if there is common interest. (0 but see note below) ' / p Signature of one is enough if there is common interest. (0but see note below) % The key when it comes to multiple parties, all of them have to sign. owever, if there is a common interest among the parties, a signature of a number of them may be enough. p BUT in practice, do not take chances. a' Ñ a' . p åor a complaint for other initiatory pleading p So a compulsory counterclaim does not require a aNåS Ñ # Ñ + p [Anyone, as long as authorized by a board resolution] Ñ p Plaintiff/principal party shall certify under oath that he has not filed a similar complaint involving the same issues in another court, tribunal, QJ agency p xf there is any other pending claim, provide status
p
p p
p p
p
p
p
p
p xf he learns about similar action, report fact within 5 days to the court Ñ # . ! # + p Because it is only the party, and not even the lawyer, that knows whether there is another action. ' ! * & + p All the parties, since there is no juridical personality. Ñ a' (Note: non-compliance is different from absence) p xt will be dismissed. xt can be re-filed because it is without prejudice. a p No, the defect cannot be cured by an amendment. Just re-file. Ñ / ! (Note: this occurs when there is a aNåS, but you did not respect your commitment under the aNåS) p xndirect contempt (åailure to comply with order or process of court) p Administrative and criminal cases (since you lied under oath) p ëismissal of the case Ñ !!+ p (Meaning, it¶s not only false, but you also deliberately disregard it) p ëismiss the case with prejudice p Ñ " p Summary dismissal ± cannot contest p Placed in direct contempt without opportunity ¦ "i p There was a aNåS filed in the first place. Ñhat was not attached was the board resolution showing the authority of the Vice President to sign the aNåS on behalf of the company. This authorization was submitted on the MR. p NOTE: There was a valid aNåS. There was liberal interpretation of this provision for these reasons. p ere, the lawyer signed the verification, not the party. This was validly excused by the court since the party was in the US, and could not sign the pleading in time given the 15 day period. There was physical impossibility. p BUT as a general rule, the lawyer cannot sign. j O p There was no forum shopping, because the first case was dismissed due to lack of cause of action. Ñhen a case is dismissed because of that, it is without prejudice, and that party can file the same case again. p åailure to disclose this fact is not a violation of the aNåS.
p
p p
p
p
½OO p Requires a duplicate original or aTa for the decision being appealed (here, NLRa decision) and not the prior one (Labor Arbiter in this case) [# p No need for a aNåS for a compulsory counterclaim $O p There was no forum shopping here, because the first case questioned whether there can be a writ of execution when the parties agreed to compromise in the first place, when the court dismissed the initial case. The second case was whether the court approved the compromise agreement in the first place. These are different. O p ! # p Yes. The rule is priority is by personal service. xf you cannot do it by personal service, you can do it by registered mail, but you have to make an explanation. p xn this case, it was made by registered mail and there was no explanation. åor this reason, the decision of the court to allow it was based on its reasonable discretion. BUT this is not the rule. p Ñ p Period only commences to run from date of receipt of the decision p ëate of filing of the MR p ëate of receipt of denial of the MR
p p
p
p
There is amendment for civil cases and there is amendment for criminal cases. åor civil cases, amendment may either be: 1) As a matter of right 2) Ñith leave of court Ñ + p Before an answer or within 10 days of service of reply p Ñ # p NOTxaE to amend Ñ # p After an answer has been made p Ñ # p Motion to amend
p p p
p
p
p
p
åor criminal cases, the reference point is not an answer. xnstead, it is plea. 0 ! & # p Yes, whether as to matter of form or substance ! & # p Yes, but only as to matters of form, for as long as it will not prejudice the rights of the accused p ëon¶t forget that last bit! p Ñ ! +
& - p xf the original defense of the accused will not change. Ñ 5 6 p This is section 5 of Rule 10 p Allegations are found in the body of the complaint/answer. Ñhat is alleged must be proven. p xf the evidence you presented went beyond the allegations, you may file a motion to amend the pleading to conform to evidence " Ñ p åirst kind ± no objection on the part of the other party. åor this reason, it will be allowed even after judgment. p Second kind ± if the other party objects, the amendment is left to the sound discretion of the court. a# ! +# p xf in the first place there is no cause of action, no amendment will cure such an absence. p a !! 1. Yes, if it is a mere formal (typo) amendment 2. åor bill of particulars, the court can either order compliance OR an amendment 0. Motion to dismiss ± the court can either grant, deny, or order an amendment + ! & + ! + # & p No, if you already lawfully obtained jurisdiction over the defendant through summons or voluntary appearance. p xt is a question of jurisdiction over the person, not a question of amendment. p OÑEVER, if there are additional defendants, new summons must be served to them.
p
p
p
Ñ !! ! + p A pleading filed in addition to a prior one that has been filed, pursuant to new transactions, occurrences, or events that have arisen. p a !! ! p Yes p a !! p Yes p a !! !# p Yes p a !! ! p Yes + p You can file a supplemental pleading as long as there are new transactions, occurrences, or events that occur after the filing of the first pleading. p Ñ * ! p Usually you cannot do this to the Supreme aourt, because you cannot file something to it unless it asked for it. You would be asked to explain why you are submitting such. Ñ !! p Amendments pertain to events, transactions, or occurrences that exist during the filing of the original pleading, but were not placed in the pleading. There was just an omission. p May be filed without leave of court (before responsive pleading) p åor supplements, the events, transactions, or occurrence only arose after the filing of the original pleading. p Always with leave of court
' p
0Ñ p General rule: all objections on grounds not raised in an answer or motion to dismiss are deemed waived. p Ñ * ! p 1. Lack of jurisdiction over SM p 2. Res judicata p 0. Litis pendentia p 4. Prescription p Ñ * ! ! # ! p 5. Lack or absence of cause of action
This is different from Rule 16 (that the pleading states no cause of action) 0Ñ + p Any compulsory counterclaim or cross claim not set-up: barred forever p ! ! +4 + ! !
Ñ * ! p xf there was a suit started by the estate against you, the claim can be raised as a counterclaim. 0#" 1. xn actions in rem, there is a general order of default. p There are no defendants, so notice is made to the public that all oppositors have to come forward and object. Otherwise, forever barred. 2. åailure to attend during pre-trial p aalled ³as in default´ in the 1964 Rules of aourt p xf the defendant fails to attend, the plaintiff can present evidence ex parte Ñ # " ! # 1. ëid not file responsive pleading 2. There is proof of such failure p You have to show the return # 1) åile a motion on any of these grounds: 1. åraud 2. Accident 0. Mistake 4. Excusable negligence 2) xt has to be under oath 0) State that you have a meritorious defense, without necessarily giving an answer p Ñ " p Extrinsic fraud. p & ! + & + p YES. åor all of these, you need extrinsic fraud. # 5 6 § ! ! *! ! <
p
p
p
p
p
O Remedy is to file an MR or relief from order of default also on the ground of åAME p # # p No need. You¶re already in pre-trial. a ! p Yes. p # + &0&a&& & Ñ !
p Yes. p Ñ ! p No. e is in default. p a - + p Yes. xn fact, E can still win the case along with the others. a + & ! *! p Yes. This is a new provision introduced only in the 1997 Rules of aivil Procedure. p This has not been asked in the Bar examination yet. So be careful. Ñ 1. Nullification/annulment/legal separation p a # p No. Ñhen there is failure to file answer, there can be judgment rendered by court. 2. aertiorari, Prohibition, etc. l Some SaAs require a comment, so there can be no declaration of default p a p Yes, like interpleader where the special rules are deficient so there is suppletory application of the ROa " ! ! p Order of default ± failure to submit an answer, so the defendant is declared in default p Judgment by default ± after the defendant is given notice of the court processes, the court renders a decision without hearing defendant¶s defense, which he lost p c # p Motion to set aside or lift an order of default based on åAME (under oath, and you have to show you have a good defense) p
p
p
p
p
p
OOO " ! This must be accompanied by a verification (under oath), affidavit of merit (that you have a good defense), and notice of hearing. xf this is missing, the motion is lost. p c # + # p MR or MNT (åAME) l within period for filing an appeal p After the reglementary period (i.e. when there is entry of judgment) l Petition for relief from judgment p 6 months from entry of judgment ANë within 60 days from knowledge p xf there is GAëALEJ, Rule 65 certiorari c O p Ñhen there are multiple defendants, even if one has already answered, you may amend the complaint as a matter of right as to the other ± since there is no defense yet that would be affected or altered by the amendment. ¦ % p Ñhen it is a dismissal without prejudice, appeal is not a remedy. Your remedy is to re-file a case or file for a petition for certiorari. p Amendment to conform to evidence ± Ñ & ! & + p Yes. xt is valid, even if it is not consistent with what was alleged. p
p
p
p
p
p
p
c a å p
0 'c ac p p
p
p p
a 0
p Yes. Rule 116, Sec. 9. # + 0 1. Ñhat is the definition of BOP? 2. Ñhat is the period to file a BOP? 0. Ñhat is the action taken by the court in BOP? 4. Ñhat is the consequence of failure to comply with order to file a BOP? Ñ # 0& # p A more definite statement of facts that appear in the complaint that are not averred with sufficient particularity p You are to identify the defects and the details desired. a# 0 p No more, because issues have already been joined. Ñ + 0 !
The period is interrupted upon filing, but you always have at least five days to file the answer after. (#9 ! 9 (### p Ñ& 9 - # +
! [VERY xMPT] p This is the same way you count a motion to dismiss. § p Redemption is one year. p ( p Redemption is one year. p 0" ++ ,
!
p
p
p
p p
p
p 90 days or registration of certificate of sale, whichever comes first. # p xnvolves filing of a civil case involving annulment and cancellation of an EJå sale. p The general rule in redemption ± not enough to manifest intent to redeem. xt must be accompanied by actual and simultaneous tender of payment. (This also applies even to redemption in execution.) Ñ !# ! ! ! 1. The price which the purchaser paid for the property 2. xnterest of 1% per month on the purchase price 0. Amount of any assessment or taxes which the purchaser may have paid on the property 4. xnterest of 1% per month on such assessment + + ! ! p Legal redemption is one that is within the period provided for by law. p aonventional redemption ± beyond the redemption period, and you still want to redeem, and you would like to agree on a different price p Governed by contractual law. So the redeemer cannot insist on the calculation above # p Ñhen the complaint to enforce a repurchase, if filed within the redemption period is treated as an offer to redeem and will have the effect of preserving the right of redemption. # of the 2007 Sa aircular re: TRO and injunction of foreclosures [discussed in Rule 58] #! ! ! # 1. Ordinary execution sale p Governed by Rule 09 2. Judicial foreclosure sale p Rule 68 0. Extrajudicial foreclosure sale p Act 0105 Ñ ^' p ³Any right title or interest over real property´ depends on assessed value. So decide whether it¶s RTa or MTa.
c=>4c
p p
p
p p
p
p
p
p
xn the last five years, there were questions in the Bar exam, but they involved EJ partition, not J partition. a! ^ ^ p JP ± covered by Rule 69 p You must implead all the co-owners because everyone is an indispensable party p EJP ± covered by Rule 74 Ñ + ^ p 1. ëetermination of existence of a co-ownership p The co-ownership is created by agreement of the parties or by operation of law p 2. Partition of the property Ñ ^ p Any co-owner Ñ p There is a need to refer the matter to a commissioner. But remember that under this rule, it is NOT mandatory. xf the parties agreed, the matter will not be referred. !/#/ ! *! ^ p There is a co-ownership created by death (inheritance) p An action was instituted under Rule 69. p The provision of law does not provide for an answer. But in the absence of rules, there is an answer. So file one. p The pre-trial. p Then parties can agree. xf they do, there will be a judgment based on the stipulation of the parties. p xf there is lack of agreement, refer to commissioners. *! ^ 1. Affidavit of self-adjudication 2. EJP upon a notarized public instrument 0. Even if there is petition for JP, but the parties agreed, it will be treated as an EJP p Needs publication # p åor JP, no. p åor EJP, yes, for personal property. c . ^ 1. There is no will 2. There is no debt
p p p
0. xf there are minors, there is appointment of guardians ! # ^ p Ñithin a period of 2 years. a# ^ p Paramount rights cannot be prejudiced, even if there is judgment already a^ ! ! ! p Yes.
c@$4'ca 0c9Ñ' c p
p p
p
p
+ p åorcible entry ± possession by reason of force, intimidation, strategy, threat, or stealth p Unlawful detainer ± previous lawful possession but by violation of [ or expiration of the period, it became unlawful Ñ ! + ' p Prior physical possession Ñ ! . p A demand letter is a specific requirement 1. There is a demand to pay unpaid rentals or comply 2. ANë vacate p There must always be a demand to vacate p Ñ p The complaint can be dismissed. A defective demand letter is jurisdictional. a# . !' p But only to preliminarily determine who is entitled to possession. p But the determination is not binding /prejudicial to future questions of ownership. ! ! p xn ejectment cases, unlike ordinary cases, the court can dismiss the case outright. p Absence of an answer will not lead to default, but a judgment of the court. No need to declare the defendant in default. p There is a Preliminary conference, just like summary procedure. But after preliminary conference even without position papers, the court can render judgment if it is already satisfied. p Third chance to make a decision: 00 days from filing of last judicial affidavit or position paper
p
p
p
p
p
# # * a 1. åile notice of appeal and pay filing fees 2. Post a supersedeas bond p aovers arrearages 0. Pay the monthly rentals before the trial court a# c p No, it is a prohibited pleading. p ëon¶t file an MR, file a notice of appeal. # ! # p Yes. You can apply for a TRO or preliminary mandatory injunction so you can recover possession in the pendency of the case. p But you have to file it within 5 days from filing of the complaint. p xn the rule on property, it says 10 days. p Ñhat prevails: 5 days. a# !! p Yes. The appeal will be elevated to the RTa. p The decision of the RTa, once final, is executory and cannot be stayed. p Even an appeal will not stay the execution. p "i xf you can get a preliminary injunction or TRO from the next level court, it can be stayed. Ñ !! ca * !! p Petition for review p a# c # ! p Yes, because RTa is an appellate court and not subject to rules of summary procedure.
p
p
p
p
p
p
c@4a p
p p
Ñ ! p An act of disrespect in the presence of, or so near the court of a judge p xt MUST be within the four corners of his office p Ex. Refusal to take the witness stand or refuses to take an oath. Or wearing shorts in court. Or your phone keeps ringing. Ñ ! p ëirect contempt is summary. You will not be asked to explain. + ! p aontempt which is in violation of order or process of court. p Ex. failure to comply with subpoena of court.
p
p
p There is notice hearing. # + p åor direct contempt, there is no need to charge. You just need to disobey or disrespect. p åor indirect contempt, there are two ways: 1. åormal charge of the judge motu propio 2. Upon a verified complaint filed and docketed separately ! +ca " ! # ! # !# a # ! p No, a motion for indirect contempt is NOT a remedy now. p You file a verified petition (separate case). p After it gets raffled to another branch, you can either: p Let them proceed separately p åile a motion to consolidate. Ñ # # ! p xt¶s executory, so you can stay its execution by posting a bond. p åile a petition for certiorari or prohibition. Ñ # # ! p xt¶s executory, so you can stay its execution by posting a bond. p Remedy is an appeal. Ñ ! ! p xf in the RTa or higher court, imprisonment up to 10 days. åine not exceeding 2,000. p xn MTa, imprisonment not exceeding 1 day. åine not exceeding 200. # ! p RTa or up. xmprisonment not exceeding 6 months, åine not exceeding 00,000. p MTa not exceeding 1 month. åine of 5,000 pesos. Ñ
! p ariminal contempt l disrespect of the court/judiciary p aivil contempt l violation of right of other party p a ! $%"&' 1^& p Venue is where the contemptuous act was performed p Rules of aourt apply
¦ ¦ p
p
p
p
Ñ p VENUE xS JURxSëxaTxONAL. The place of commission determines jurisdiction. p aontrast with civil law where these are separate concepts. p
+ " ; p ONLY in the courts of Makati. p Ñ * ! p Transitory and continuing offenses, wherein one or more of the elements happened in more than one venue. p Ex. Estafa, where the elements may be committed in different places (ex. misappropriation in one place and damage in another). p Ex. BP22 l either place of issue, or where the check bounced a !! # p Yes. 1. Exceptions under article 2 of the RPa 2. Under the uman Security Law (Sec. 49) p aovers acts of terrorism p Even if the act was committed outside the Philippines (ex. before a consular or embassy of the Philippines and it was an act against an officer, or in a Phil. Ship or airship) p Act against Philippine citizens or against a specific ethnic group. 0 + * ! p No, it¶s not an exception, even if there are instances like the Ampatuan case being heard in Manila instead of Maguindanao, or Mayor Sanchez case being heard in Pasig instead of Laguna. p Ñhat happened here was a mere transfer of venue. Ñhat was transferred was the VENUE Oå EARxNG, but the place of institution was still the place where the crime was committed. p Ñ + + p åound in the aonstitution, and subject to approval of the Sa. Ñ c@=> p RTa Penalty exceeds six years imprisonment, w/n committed in MM or outside MM does not matter at all. p Regardless of fine or accessory penalty. p MTa: Penalty does not exceed six years imprisonment.
Ñ ! # p Sa aircular 09-94 p xf the fine exceeds 4,000 pesos, RTa has jurisdiction. p xf it does not exceed 4,000 pesos, the MTa has jurisdiction. Ñ ! + a p This is important because there can be a penalty for its violation. p ëAR court has exclusive jurisdiction over all matters pertaining to the ëAR Law p Exception to ëAR¶s exclusive and original jurisdiction are matters pertaining to just compensation which goes to the courts p Also and more importantly the RTa as special Agrarian Reform aourts also has exclusive and original jurisdiction for prosecution of all criminal cases under the ëAR Law Ñ +# 1. The accused is at least a Salary Grade 27 employee. 2. And the office must be a constitutive element of the offense. p a# + + ca p Yes. a # @ 0 p Yes, if there is an express provision. p O UP Student Reagent is a public officer under the SB¶s jurisdiction. She claimed that she did not get any compensation and she was not a public officer. Ñhile the first part of 4a only covers officials SG27 and above, the second part covers officers whose positions may not be SG27 and higher, but who are by express provision of law are placed under the SB. p Sec 4a(1g) gives the SB jurisdiction over officers in State-owned universities [Student Reagent is part of the board] Ñ ! @ Ñ p Regular courts, subject to appeal before the SB. p Because the SB has both original and appellate jurisdiction. Ñ ! + 0 p They can both be charged as co-accused under the SB if at least one is SG27. p ½ There was a session in Sanggunian involving both a Municipal Mayor and a Barangay aaptain. The MM was charged in the SB (since he was SG27) and the Brgy. aaptain was charged as co-accused, p
p
p
p
p
p
p
Ñ
p
Ñ
p
p
p
Ñ
Ñ
Ñ
even if he was not SG27. ELë: Valid, because at least one of the coaccused was SG27. /
! ! # p Yes, the SB can have jurisdiction over him. ! p An MTa court aANNOT. Only an RTa can issue a hold departure order. p aircular 09-97 ± old ëeparture Orders by RTa only apply to offenses cognizable by second level courts. p 0 ^
# ! & + p Yes, but this is not under the law but under the powers of the Executive. p There must be probable cause for the ëOJ to issue one. p Ñ p ëO prevents you from leaving. p Ñatch list ± you¶re only being watched, but you can leave. p xt is determined by the allegations in the information p And any one of the ingredients of the offense or the offense itself must be committed within the territorial jurisdiction of the court. ! ! c p As a rule, a second MR is a prohibited pleading. p ¦ Such motion is prohibited and will not be allowed except 1) for ordinarily persuasive reasons and 2) only after express leave has been obtained. p A wrong mode of appeal under Rule 56 will cause the dismissal of the case. p
+ p No. xt does not prevent the continuation of an administrative action. p The degree of evidence is different (proof beyond reasonable doubt and substantial evidence) 0 p aovers any act of malfeasance/misfeasance or omission by a public officer. p xt does not have to be in related to an office. The mere fact that you are a public officer means that the OMB has jurisdiction. p 0 p No, it¶s an investigative body.
p
p
p
p
p p p p p
Ñ ! + 0 p Unlike the Office of the Prosecutor, which can only act upon an affidavit complaint, while the OMB can investigate upon: p Own initiative, even without a formal complaint p xnquiry into acts of government p Method of filing a complaint before the OMB is direct, informal, speedy, and inexpensive. Just sufficient information is needed. Ñ ! # ! +7 # 04 0 p The OMB. The OMB has primary jurisdiction over cases cognizable by the SB. e can take over at whatever stage of investigation by another prosecutor. Ñ ! p The OSP is merely a component of the office of the OMB and may only act upon authority by the OMB. p Ñithout authority, the OSP cannot file an information p The OMB¶s power to prosecute carries with it the power to file an information # 0 p xf it is a criminal case and there is GAëALEJ, you go to the Sa. p Ordinarily, it can be reviewed by the aA under Rule 40 (for QJAs). p Ñ 0 !! p Those imposing penalty of public censure, reprimand, suspension of not more than 1 month, or fine of not more than 1 month salary a + # 0 p Yes, for want of palpable merit. a 0! + p The powers granted to the OMB are very broad, so it can. Ñ ! ! ! + p Office of the Prosecutor. Ñ ! ! ! +!! p Solicitor general Ñ + + + p Remember, below 15 years of age, he is exempt p 15 to below 18, exempt if without discernment p xf with discernment, go through juvenile law p Ñhat controls is NOT the age at the time of promulgation of judgment, but the age at the time of commission of the offense.
c$4 'ac a p
xf for purposes of jurisdiction of courts, there is no need to distinguish between MM and Outside MM (OMM), for purposes of institution of the criminal complaint, you will have to distinguish between MM/ahartered aity (aa) and OMM.
c . + . + '+ c # ! 2 * 03 p
p p p p
p
,aa Office of the Prosecutor Office of the Prosecutor Office of the Prosecutor
xt means that the public prosecutor must be there during the case. xf the prosecutor is absent, the hearing will be cancelled. p
" ! & ! - +
/ * ! Ñ & ! + ! #
/ * ## Ñ
p The PP. The proceedings were null and void because he was not present. p So even if the PP¶s presence is a mere passive presence, and not an active presence, that is fine, because everything is still under his control and direction. # * ! p The private prosecutor can obtain a certification from the ahief of the Prosecution Office to prosecute even in the absence of a PP. This certification lasts until the end of the case. ! ! p The private prosecutor intervenes for the private offended party. e does not represent the people. ! p Adultery and concubinage cannot just be instituted by anyone. xt must be the offended spouse. You would have to likewise implead as accused the paramour or the partner (so both), unless either is dead. xf he has condoned, pardoned, etc. the offense. p Applies to seduction, abduction, and acts of lasciviousness. ! p The minor, the victim, parents, grandparents, guardian, State in default p The minor now can file alone, without assistance of parents (esp. when the parents are the offender) # # + p aan only be instituted by the offended party. # p Sections 7-12 are elaborations of Section 6. 1. Name of the accused p åull name (first and surname) p " p aan use a nickname or appellation (³Boy Singkit´) p
,aa Office of the Prosecutor Provincial Prosecutor/MTa Provincial Prosecutor/MTa
! # + p JUST the prosecutor. p The old rule which includes an MTa judge was already amended. p And the Ombudsman. a + ! a2a3 p No. Just a MTa (Municipal Trial aourt). Ñ ! & . + p The entire Rule 112, Sec. 0 Ñ ! & . + p Only Rule 112, Sec 0(A) 0 & !
! !
! ! + + p Note that prescription is 4 years for BP 22. Ñhen Act 0026 was passed on 4 ëec 1926, preliminary investigation was conducted by Justices of the Peace (equivalent of MTa before), and so when it was filed with the JOP for Px, then the prescriptive period is interrupted. p So by filing the case with the Office of the Prosecutor, it interrupts the running of the period. p (xt cited a case where the SEa is investigating a violation of the Securities aode, and it was deemed to have interrupted the period.) Ñ !
p The public prosecutor. p / 1. aonduct preliminary investigation 2. Prosecute a case 0. aonducting inquest proceedings, consistent with Rule 112, Sec. 6
p
Ñ
p
Ñ
p
Ñ
p
Ñ
p
Ñ
p
Ñ
Ñ " !! p Use John ëoe or Jane ëoe. åor civil cases, you use ³unknown owner´ or ³unknown heir´ or whatever. 2. ëesignation of the offense by statute p Ex. murder, homicide, estafa p xf there is no designated name of the offense, just say ³Violation of Sec. 5 and 11 of the ëangerous ërugs Law´ p c ( !Even in the absence of a particular section, but the allegation in the information shows that you know the nature of the offense, then there is substantial compliance. 0. Qualifying and aggravating circumstances p Both should be alleged p ++ + & + + ! & " +
p No. p Even more reason for qualifying circumstances. p + + p No, because it is part of the defense of the accused. 4. åacts or circumstances constituting the offense. p ³aause of accusation´ is the equivalent of a cause of action in a civil case p The language of the information should be in a language known to the accused. p Ñ p Rule 116 says that the accused must be properly informed of the nature and cause of accusation against him to make a proper arraignment and plea. 5. ëate of commission p # ! ! p No need. Just an approximation is needed. Exception: if the date is a material element of the offense. p Election offense p xnfanticide p ! p No. 6. Place p
Need to show that it is committed within the territorial jurisdiction of the court p But for offenses like trespass to dwelling, violation of domicile, election cases, arson, etc. where the place of commission is material, you have to allege it with particularity 7. Name of the offended party p Place it there, if it is known p xf it is a crime against property, you describe the property so that you will know who the offended party is p Ñ p xt can be inserted in the information Only one offense per information. * ! p Yes. xf there are multiple offenses in one information and the accused fails to object, each offense proved can be used against him. a# p Yes. a# p Yes. p Ñe always remember amendment, but forget about substitution. Ñ # p Ñhether a matter of form or substance, there can be amendment if it is before plea. p a# + ! p No. p a# + ! p Yes, as long as it will not prejudice the right of the accused. Memorize this whole phrase. p Ñ ", ! +
p xf the original defense of the accused will have to be changed due to the change in the formal amendment. p Ex. The original case is for rape, except that in the formal amendment, it was alleged that the age should have been 17 and not 18 due to a typo. This will prejudice the rights of the accused. Ñ + + * p ëowngrading is lessening the offense (ex. robbery to theft, murder to homicide, seduction to acts of lasciviousness) p
p p
p p
p
p
Exclusion is removing from the information Ñ + + * " ! p Before plea. p Ñ . * + + 1. Upon motion of prosecution 2. Ñith leave of court 0. Ñith consent of the offended party Ñ * ! +
p xf exclusion no need to submit an affidavit. xn discharge, you have to. p xn exclusion before plea, double jeopardy has not yet attached so you can be charged again later on. p xn discharge as State witness, it is tantamount to an acquittal so double jeopardy sets in. Ñ p The information will be substituted with a new one to be filed, if the prosecution cannot prove the offense charged in the prior information p The accused will not be released until a new information has been filed as a substitute
p
p
c4a 0 9 ac a p p
p
Once a criminal action is instituted, the civil is likewise instituted * ! 1. Reserved p Ñ p BP 22 cases p Ñ " ! p Any time before the prosecution commences with presentation of evidence considering the circumstances of the case. Take note of the underlined part because the timeline is not a strict rule. 2. Ñaived 0. xnstituted ahead of the criminal case Ñ + p Moral, nominal, exemplary, temperate damages require filing fees. p Actual damages do not require filing fees. p ' 0&
åor EVERYTxNG claimed, even liquidated and actual damages (this is the face value of the check). a# Ñ ! p No. a# Ñ ! p No. a# Ñ !
p Yes. p åollow the general rule: if the civil case was instituted ahead of the criminal case, the civil case is interrupted in whatever stage and the criminal case proceeds until judgment. p And there is an option to consolidate. Ñ " . 1. Based on reasonable doubt 2. ëid not commit the crime 0. Purely civil 4. The acts from which the civil liability arises from were not committed Ñ ! . p A criminal case will be suspended when there is a pending civil case which must be suspended until the prejudicial question is resolved. Ñ . 1. The civil action was filed first 2. The resolution of the civil action is determinative of the criminal action *! ! . p a !+ # + ! ! # p No. {aheck this} So you need not file a civil case to determine who owns the property first. p Theft l determine first who owns the property p Ñ ! . p The court. p Ñ ! p The criminal case. Ñ # ! + ! . 1. The court 2. The prosecutor, conducting Px Ñ # p Anytime before the prosecution rests is case a !
+ ! . p
p p
p p p
p
p
p
p
p
p p
p
p
p
p
p
p p
p No. a
!
+ ! . p No.
& ! p No.
& # !
p No. you do not reserve an independent civil action. a ! #
p Yes. p a! 2 ! 3 p xt cannot proceed side by side. Ñ ! p One that can proceed independent of a criminal case p Arts. 01-04 p Art. 2176 ! p No need to be reserved, and it will not be suspended
& + + #& ! #
+
p No.
c4c c9 p
p
p
p
Ñ p Ñhere the prosecutor determines whether there is probable cause to file a case against a respondent + . p xnquest is conducted by an inquest prosecutor, when one is caught under the three exceptional circumstances provided in law Ñ ! # + p aity prosecutors, and their assistants, Provincial prosecutors and their assistants p OMB, and if they authorize the Special Prosecutor he can too Ñ !
p
p
1. After receiving affidavit-complaint, the prosecutor will determine within 10 ten days whether there is probable cause p Raffle p Assigned to assistant prosecutor 2. Assistant prosecutor issues a subpoena to the respondent 0. The respondent will issue a counter affidavit within 10 days p xn practice there can be a reply or rejoinder, but this is not provided by the rules 4. Optional clarificatory hearing 5. Resolution p Ñ ! ! p The Assistant prosecutor p #! ! p Assistant prosecutor prepares it, and then the city prosecutor approves it p aity prosecutor has discretion to dismiss the complaint, file the information himself, or ask another assistant/State prosecutor to file it p Regardless of recommendation p a # ! !! a #! p No. p Ñ a #! +
! p e has discretion to reverse it. p xf the assistant prosecutor believes that there is probable cause, he prepares a resolution ANë an information. xnformation is filed in court and resolution served to the parties. xf he does not find that there is probable cause, he only prepares a resolution. 0 regardless, no resolution can be issued without the approval of the aity or Provincial prosecutor. a# ! 0 p Yes, and he will then investigate. e can also motu propio investigate. p a 0 ! # + p No (?) ! ! # ! p No. p There is still no case filed against him, just an investigation.
Even if he does not get to file a counter affidavit, there can still be a resolution issued against him. 8
&
! + + +&
Ñ ! 1. X is taken to the police station 2. X can choose to apply for preliminary investigation, or have them proceed with inquest p 8!! ! # + & !! p You sign a waiver of Art. 125 of RPa p Ñ8 p xf he applies for bail. p Ñ 8!!# p Before the inquest prosecutor. p Ñ # !!# p Ñith the Executive Judge. (This is a ³trade secret´) Ñ !
+ #&
p Note that vagrancy does not need preliminary investigation, so the information can be directly filed with the MTa. p a# !!# p Yes, because you were already arrested. 9 + ! # & + & ! Ñ !! p There is no need for preliminary investigation. p So the prosecutor will determine probable cause, then will file the information in court. p ! & ! # + p No. Ñ . ! +!! p xt must be due to a warrantless arrest: p A. xn flagrante delicto p B. A crime has been committed and the police officer has personal knowledge that the person committed the crime p a. Escaped from confinement or escape p Also, it must be for an offense that requires Px (at least 4y, 2m, 1d) l p xf no need for Px, just file affidavit-complaint to the office of the prosecutor. (Because only 0A is required) p + 23 203
p
p
p
p
åirst kind ± the arresting officer was there when the crime was committed p Second kind ± the arresting officer has personal knowledge !
! . p No. Ñ
! # + & !
p xnquest must be conducted. # !! p Ñithin 15 days, file a Petition for Review to the ëOJ. p ! p Yes. p a ! * p No. p ^ & # + p Rule 40, to the aA p (Or Rule 65, to the aA if there was GAëALEJ) p Only to the Sa if it¶s the OMB p (Or Office of the President if punishable by reclusion perpetua or higher) p a# ^ . . p No. This is clear in the circular. The offense must require, for its charging, at least preliminary investigation OR has gone through reinvestigation. p Ñ + p There was a regular Px, and you were not satisfied with it, so one files for a reinvestigation with the Office of the Prosecutor or in court. p This is not provided in the rules. ca . p Yes, because all offenses charged in the RTa exceed 6 years (and Px is for 4y,2m,1d) & + 1. xssue a warrant of arrest, after personally determining the existence of probable cause 2. ëismiss the case for absence of probable cause 0. The case can call for a hearing to determine probable cause ! + ca p
p
p p
p
p
p
p
p
p
p
p Just these three. Ñ a 4 + A. Not exceeding 6y, but more than 4y,2m,1d: p See above [the three options]. So it¶s like the RTa. B. Below 4y,2m,1d, more than 6m p Same as three above, but the issuance of the warrant è è . xf the court believes the offense is not so grave, it may not issue a warrant and will just issue summons. a. Not more than 6m, falling under the rule on SP p The court cannot issue a warrant of arrest. xnstead, the court requires you to file a counter affidavit p
p Only when there is failure by the accused to appear in court despite repeated notice p Ñ *!
+ # ! p BP 22 Ñ # ! p After filing of information, but before the judge has acted on it p a#
p No. Ñ +! !
p No. The mere filing of a petition for review will not suspend the issuance of a warrant of arrest. p Ñhat it suspends is the arraignment. p ' + p 60 days suspension of arraignment.
c4cc p
p
+
1. xnform cause of arrest 2. And that a warrant had been issued for his arrest p * ! 1. ålees/forcible resistance 2. xnforming the accused imperils the arrest Ñ #
+
1. State authority to arrest 2. aause of the arrest
* ! 1. Engaged in commission of the offense 2. Pursued immediately after offense 0. ålees/forcible resistance 4. xnforming accused imperils arrest Ñ
#! ! 1. State cause of arrest 2. And intent to arrest him Ñ
1. Judicial bondsman may arrest him to surrender accused to court 2. Attempt to depart the country 0. Person who has been lawfully arrested and has escaped
# 1. Bring him to the police station 2. e will be incarcerated until he files for bail p Ñ !!# p e will stay in the city jail in the pendency of the case. p xf it¶s a non-bailable offense, it¶s a different procedure. p Just wait for arraignment. p Ñ !! p e is released from the city jail and he has responsibility to attend arraignment/appear 0. Afterwards, there will be an arraignment Ñ !
1. Brought to the nearest police station 2. xnquest proceeding will be done p Brought to the Prosecutor¶s Office 0. The inquest prosecutor can either release you or keep you in detention p Ñ . ! # & # p No. You are released for preliminary investigation. p This just means the affidavit-complaint of the police officer used as basis for inquest will be filed with the prosecutor as an ordinary case. p Ñ ! #5 6 p You can either apply for preliminary investigation or not. p Ñ # !!# ! # + p
p
p
p
p
You sign a waiver of Art. 125. a# !!# p Yes. You file it with the executive judge. (& * ! p Go to preliminary investigation. Ñ # " ! # + p An information can be filed p Afterwards, there is arraignment p p
p p
p
p
c 40 p p
p p
Ñ !!# p Ñhenever there is deprivation of liberty Ñ + p Before conviction, whether MTa or RTa p Except for cases punishable by RP, Lx, ëP p After conviction, if MTa Ñ
p After conviction, if RTa Ñ #! 1. aash bond p & ! p The full amount p Ñ p Municipal, city, or provincial treasurer or the axR p alerk of court where the case is pending 2. aorporate surety p Just pay the premium 0. Property bond p Ñ ! . ! ! # p The owner must be resident of the Philippines p Registration of the lien must be done within 10 days from approval of the bond p
! ! # p No. 4. Recognition p a# # +7
p Yes. Ñ ! 1. Bond is effective upon approval and unless cancelled 2. Accused must appear in court if required 0. åailure to appear in trial is deemed a waiver p Trial can proceed in absentia 4. Bondman must surrender accused to the court for final judgment ' ! p årom approval, until promulgation of judgment by the RTa p Ñhether originally filed there or on appeal p 0 thus if the case started in the MTa, you filed for and were given bail, it can continue up to appeal in the RTa
A% "&% B c People v. Laguio ± requisites inflagrante delicto; a 2007 case 1.p Person to be arrested must execute an overt act that he has committed, actually committing, or attempting to commit .p Overt act is done within the presence or within the view of the arresting person or officer Presentation of the informer/informant is not indispensable in the prosecution of a criminal case. ot pursuit only applies: 1.p Offense has just been committed (xf there is just an attempt, or the person is just committing, hot pursuit will not apply) 2.p No requirement that it be done in the presence of the officer. xt is only required that the arresting officer with an independent and personal assessment has probably cause to believe that a crime has been committed. c xssues with grant of bail: 1.p The General Garcia issue ± e was charged of plunder with the Sandiganbayan, which is a non-bailable offense. e is not entitled to bail. e has no right to bail, as a rule. But they can file a petition for bail. Then he entered into a plea bargain. (Ñhen can you enter into plea bargain? ANS: At any time before trial. You can enter into plea of guilt to lesser offense during arraignment, or even after
arraignment but before trial, or during pre-trial.) ere the plea bargain to a lesser offense of corruption was entered into after trial. xs he now entitled to bail? a.p Ñhen there is conviction, are you still entitled to bail? ± As a rule, no. But when you appeal the conviction, you can still apply for bail, as long as the decision is not final and executory, assuming that it is a bailable offense. xn this case, the bail is a matter of discretion to the court. b.p Ñhen the judgment has become final and executory, can you still apply for bail? ± As a rule, no. c.p Ñhat are the requirements for a plea of guilty to a lesser offense? i.p Notice to prosecutor ii.p aonsent of offended party d.p xf the trial court convicted you of an offense which is bailable (original charge was non bailable offense), the bail should be applied with the appellate court. Bail as a Matter of Right v. Bail as a Matter of ëiscretion v. Petition for Bail for Non-Bailable Offenses 1.p Petition for Bail: a.p aase: Governor Leviste shot his aid. On advice of counsel, he surrendered and was charged only with homicide. xt is a bailable offense. e can avail of bail, as a matter of right. xt was in the RTa, before conviction, the offense is punishable not by reclusion perpetua, death, or life imprisonment. omicide is punishable with reclusion perpetua. But then the information was withdrawn, and he is now charged with murder ± a non bailable offense. e will be arrested. xs he now entitled to bail? ANS. NO. But he can file a petition for bail. ere, the court granted his petition for bail. The court was convinced the evidence of guilt against him was not strong. Trial proceeded and there was promulgation of judgment, that he was guilty not of murder, but of homicide. aan Leviste apply for bail now? ANS: e is entitled to bail as a matter of discretion. b.p Lets say you were charged with offense where bail is a matter of right (e.g. estafa), but then convicted. You can apply for bail, but it is a matter of discretion. c.p Ñhat is the nature of a hearing for the petition for bail? ANS: Summary. d.p aan we dispense with a hearing for bail? (Ñhen the judge thinks malakas un kaso ng prosecution)? ANS: NO. You cannot dispense with and ignore hearing for bail. e.p aan there be joint summary hearing of petitions for bail? YES. f.p xs an arraignment a prerequisite to a petition for bail? NO. Although the judge in the Ampatuan case required the accused to be arraigned before allowing the petition for bail. There is nothing irregular here though, the counsel for the accused allowed it. The very moment there is a deprivation of liberty, you can apply for bail. 2.p Bail as a Matter of Right
a.p b.p
0.p
Basta nasa MTa, bailable as a matter of right. xn RTa, bailable as matter of right if: i.p Before conviction ii.p And not punishable by reclusion perpetua, death, or life imprisonment. c.p The judge cannot deny bail that is matter of right; he can only increase amount of bail. ± Maceda case Bail as a Matter of ëiscretion a.p xn RTa i.p aonviction ii.p And not punishable by reclusion perpetua, death, or life imprisonment iii.p And not accompanied by the ff instances, if the penalty exceeds 6 years: 1.p Recidivist, habitual delinquent, etc 2.p Previously escaped from legal confinement 0.p aommitted offense while under probabtion, parole 4.p ålight-risk 5.p Undue risk that he may commit crime during pendency of appeal b.p Ñhere will you apply? i.p xf appealed, before transmission of records: to RTa ii.p xf appealed, and the RTa conviction changed nature of offense from non bailable to bailable: to appellate court c.p Bail as a matter of discretion has an enumeration of certain disqualifiers. i.p xf convicted, beyond 6 years, and with disqualifiers ± bail denied ii.p xf convicted, beyond 6 years, and no disqualifiers ± bail is matter of discretion iii.p xf convicted, less than 6 years ± bail matter of right iv.p xf convicted, less than 6 years, and with disqualifiers ± bail matter of discretion, but court will impose higher bail because of disqualifiers
Mabutas v. Perello ± requirements for hearing for applications for bail 1.p Bail as a matter of discretion is different from the exercise of discretion in petitions for bail 2.p Bail is a matter of judicial discretion that remains with the judge. A hearing on application for bail is mandatory, whether bail is matter of right or matter of discretion. 0.p xn case application for bail is filed, judge is entrusted with ff duties:
a.p b.p c.p d.p
xn all cases whether bail is matter of right or discretion, notify prosecutor of application for bail or allow him to give his recommendation Ñhen bail is matter of discretion, conduct hearing on application, regardless or not whether prosecutor wants to present evidence that guilt is strong ëecide whether evidence of guilt is strong based on summary evidence of the prosecution xf guilt is not strong, discharge accused on approval of bail
Ñhat if charged with murder, petition for bail granted, then convicted of homicide? ± Entitled to bail as matter of discretion. The issue of whether evidence of guilt is strong is not relevant, because that only applies if the offense is non bailable. Ñhat if charged with murder, petition for bail granted, then conviction of murder? ± aan¶t apply for bail; the nature of offense is non bailable. Obviously having been convicted, the evidence of guilt is strong. Ñhat if convicted of offense not punishable of imprisonment beyond 6 years, is it still a bail as a matter of discretion? (That which is alleged is different from what is proven. ± Rule 120) ± xt is now bail as matter of right. åor purpose of judge determining if bail if excessive ± must consider parameters laid down in Section 9 But for purposes of recommending bail by prosecutor ± they have their own administrative list Ñhere to åile Bail: 1.p You were arrested in [amagong (Makati), the case was filed in Makati. Action pending in same province/city where he was arrested. a.p Apply in court where case is pending b.p xn absence or unavailability of judge, in any court in the area 2.p Person arrested in Marikina, case pending in Qa. aan person file for bail in Qa? NO. Because when you arrested in Marikina, you will be taken to nearest police station in Marikina. So you¶ll apply there in Marikina. 0.p xf you¶re in aavite, but the case is pending in Makati, but you haven¶t been arrested, you can¶t apply for bail in aavite. 4.p Arrested in xlocos, case pending in Manila. e applied for bail in xlocos and was granted. Later the records were sent to Manila. a.p Should the records be sent to Manila? ANS: Yes. b.p xs the judge in Manila obligated to accept the bail? ANS: e¶s not required. e can require a new bail. Expat is out on bail, he always leave every few weeks, can he do that? Leave without approval of court? ANS: NO. Accused out on bail cannot depart from Philippines without
securing approval of the court. xf he departs without securing such approval, he can be arrested without a warrant. xf accused is charged with vagrancy and has been in detention for almost 2 years, what should the judge do with the accused? xn a voluntary surrender, you do not need a certificate of arrest, for an application for bail. The ëNA Rule 1.p aan a person who has already been convicted and serving sentence, apply for ëNA examination? ANS: Yes 2.p xf the court finds after ëNA evidence that the person serving sentence is not guilty, what will the court do? ANS: Person serving sentence must apply for habeas corpus. c(4c 'aa p
p p
p p
p
!!#! ! ¦ p Ñhen circumstances lead to two or more inferences, one or more leading to innocence and one or more leading to guilt, the former should prevail.
+ p Get an authorized interpreter if the accused does not speak åilipino/English Ñ !! 1.p ëuring arraignment 2.p ëuring trial 0.p Before records are elevated on appeal (accused informed of right to counsel by clerk of court at this point) 4.p xn the aA ± p Ñhen the accused signed his appeal by himself p Or accused is in prison 5. xn the Sa ± have their own guidelines Right against self-incrimination ± Ñ ! # p Usually it¶s a concept that is connected with drugs, as re: possession of seized item from the scene of the crime p åor purposes of evidence, it is considered for tampering or authenticity of the sample. xf the sample has been tampered with, you cannot get an accurate result. Ñ ## #
p See Rules on ëNA Evidence 7c
p
p
p
p
Ñ p ëNA results that exclude from paternity are conclusive p xf the value of probability of paternity is less than 99.9% - merely corroborative p xf the value is 99.9% or higher ± it is a disputable presumption p Ñ # ! ! ! p Because you can still argue that it would have been physically impossible for one to do it, or there is no access, and that there is someone who could have similar ëNA makeup (twins, for instance). p
p aorroborative l proving same point, but different kind and character of evidence p aumulative l Same kind and character, proving same point Right to be present in the course of the proceedings p Ñ . + p There can be a trial in absentia if there already is arraignment and the accused is unjustifiably absent p Ñ ! # p The general rule is the he must be present at all stages of the proceeding. p a p Yes. p Ñ p There should be a stipulation in the conditions of bail. So as a rule, it cannot be waived. p Ñ ! ! p xt¶s fine. The right to public trial p General rule is that the trial is public p Ñ ! * p åound in Rule 119, Sec 21. (offensive to decency/public morals) p ! ! + p No. xt opens room for lawyers to grandstand. p +7 Speedy trial p #"! # 1.p Speedy disposition of the case (constitutional law) 2.p Right to speedy trial (criminal law)
p
p
p
p
p p
p
Ñ
p xn the arim Pro concept, you can invoke it anytime before during trial. p xn aonstitution, any time as long as the action is pending. Ñ # ! # a p abeas aorpus p Because your continuous detention has no more legal basis Ñ -
! p aertiorari p Prohibition p Mandamus c > ! + *
+ p 80 days p xf you don¶t follow number days, you could expect a MTë on ground of violation of right to speedy trial ! p 180 days 0 # & + p Because of the exclusions. Ñ * 1. Other proceedings: p Mental/physical examination of accused p Other criminal chargers p Extraordinary remedies against interlocutory orders p Pre-trial proceedings, as long as not exceeding 00 days p Orders of inhibition or change/transfer of venue p Prejudicial question p Any period not exceeding 00 days when the accused is actually under advisement 2. Absence or unavailability of an essential witness p Absent l whereabouts unknown p Unavailability l whereabouts known 0. Mental incompetence or physical inability of the accused to stand trial
p p p
4. Prosecution dismissed information upon motion and then filed another charge for the same case ± the time limit between the dismissal and the subsequent charge 5. There is a co-accused over whom the court has not acquired jurisdiction or for whom time for trial has not run and no motion for separate trial is granted 6. aontinuance granted by the court motu propio or on motion p ! c ''(O ) p " p xn one case, Pre-trial happened after 7 years. ëelay was brought about by extraordinary remedies, like a Rule 65 certiorari. The right to speedy trial was invoked, but the Sa said there was a valid exclusion p as a rule, extraordinary remedies must not be entertained and will not stop an ongoing criminal trial. Of course, there are special cases. p xn another case, there were 20 postponements. The witness requested by the prosecution was in the custody of the NBx, but did not bring the witness in. This was reasonable delay, and the prosecution was acting in Gå. p Ñ 5a6 p Vexatious, capricious, oppressive p VaO delays violate the right to speedy trial Right to confront witnesses presented against him p Basically, can cross examine aompulsory processes p aan apply for subpoena ad testificandum and duces tecum Right to modes of discovery p aan apply modes of discovery in criminal cases. p c >, Secs. 12, 10, 15 l aonditional examination of witnesses for the prosecution/accused. This is the equivalent of Rule 20 depositions in criminal trial. p Purposes for prosecution: 1. Sick or infirm, or unavailable 2. or the witness is about to depart. p Purposes for accused: 1. Sick or infirm or unavailable 2. or more than 100km p Ñ !
Prosecution: ONLY in the court where the action is pending Accused: Before any judge, member of the Bar in good standing, and if ordered by a superior court directing an inferior court Right to testify on his own behalf p a
# ! p Yes, but he can refuse p a! #
" . #
# p [Answer unclear, but since it¶s purely civil, x think the witness can be compelled] Right to appeal p Ñ $c )' p p
p
p
c=4cc p
p
p
Ñ &!
+ p Arraignment, where the information is read against him p a
+ ! 2*#
3 p Never. You cannot waive the arraignment. p a
+ + + +
" p No. xt must be in a language known to the accused. Ñ
+ 2 3 p This happened when they realized that there was no arraignment. There was a belated arraignment that was validated because the lawyer had an opportunity to cross examine and the lawyer actively participated in the proceedings. Ñ "! 1. Plea of guilty p A. Plea of guilty to lesser offense p # p At very latest, pre-trial p At trial, cannot plea guilty to lesser offense p B. Plea of guilty to capital offense p Punishable by death. p Ñ . p aonduct searching inquiry to see if it is voluntary and if he understands the plea
Ñ 1. Background check (age, education, socioeconomic conditions) 2. aonduct of custodial investigation 0. Explain the nature of the offense and extenuating circumstances to the accused p earing after the plea p a. Plea of guilt to a non-capital offense p + p xt¶s not mandatory p ë. xmprovident plea p Ñ ! ! p Plea of guilty without fully understanding consequences of the plea p 8! + # - " ! + #& - # + # a ! ! p Yes. p Ñ p Any time before judgment of conviction becomes final (after appeal) p Ñ ! ! p xf the sole basis of conviction is the improvident plea, it is remanded for further proceedings in the trial court. (Ex. the Sa sends it back to the RTa) p xf the conviction is supported by other evidence, the Sa will render judgment 2. Plea of non-guilty p A. aonditional plea p Ñ . p xt¶s akin to a plea of not guilty p B. Refusal to enter a plea p The court assumes it¶s not guilty p a ! ! + # p No. The accused must be the one to enter the plea. p
§
! + ! + + < p Yes. p * ! p Yes, for light offenses. The accused can be represented. p a. ëirect plea of not guilty p ë. Say guilty but present exculpatory evidence Ñ !
+ 1. Accused suffers from unsound mental condition 2. Prejudicial question 0. Petition for review pending with ëOJ p Not exceed 60 days 4. Pending incidents: A. Motion to quash B. Motion for inhibition a. Motion for bill of particulars p a !
p Yes. Apply before enter of plea. p Ñ . p xdentify defects and details desired p
p
c@4 1 p
p
p
p
Ñ ## . p To quash the information because it is defective or the court has no jurisdiction. ! p xn P.ë., there is no questioning of the information. xn fact, it is valid and charges a proper offense and the court has jurisdiction over the SM and the person. Ñ + 1 p ëismissal of the case. p # p aourt can order amendment. [No period provided.] p Amendment is a remedy, but it has a narrow application. xt does not apply to all grounds. a #1 /
As a general rule, yes. xt depends on the ground. Ñhen can it not be re-filed? p 1. Prescription p 2. ëouble jeopardy a! 1 p No. The applicable remedy is substitution of information. Ñ ! #& p The case is temporarily dismissed. p Ex. ³This case is dismissed for 00 days´ p xt can be revived (don¶t use ³re-file´ because the dismissal was just provisional) p Ñ " ! 1. The prosecution p Ñith consent of accused p
& ! p No. A dismissal without the consent of the accused would lead to double jeopardy (obtains finality). 2. Or the accused p ! - . p No. Even without consent, it¶s still a provisional dismissal. As long as it doesn¶t pass the time leading to permanence. p Ñ # " ! p Any time. ' " 1&# ! p There is still a period to seek a remedy after. Ex. You can file an MR. p After this period, it can be re-filed. (Except for the two exceptional grounds.) ' ! ! & ! . p Beyond 6 years l 2 years p 6 years or less l 1 year p Ñ ! + p Upon receipt of notice, by the accused (given by the code) p But this has been supplemented by : Period can only start upon receipt of notice by the public prosecutor p Rationale: because it is the public prosecutor¶s duty to revive the case p p p
p p
p
p
p
Ñ + 1 1. åacts stated do not constitute an offense p The elements of the offense are not there p 0 ! + &#
a ! ! + 1 p xt¶s possible. This is not a ground for a MTQ. p Ex. aharged with qualified theft, but relationship was not alleged. You file a MTQ. The court can order an amendment to show relationship. The court cannot quash because there is an offense alleged in the information. 2. Officer who filed the information had no authority to do so. p +# + + ! / a p No. e has no authority; it is not within his powers. p Ex. a Prosecutor with authority only extending to Bulacan cannot file an information in Makati. p ! !! + #! & # !! , ! ! # ! p Yes as long as he is properly appointed by the ëOJ. 0. Lack of jurisdiction over the person of the accused p Accused has not voluntarily surrendered p Or Accused not arrested 4. More than one offense was charged in the information p # " p Ex. murder ± can you kill a person twice? No. p Ex. rape ± you can rape someone multiple times. ' 8 ! 9 # # p åive. p Ñ " p Ten informations, because each is an offense in its own. 5. ariminal liability has been extinguished by prescription p Recall that there is prescription of crimes and prescription of penalties.
+ !!# p Prescription of crimes. xn prescription of penalties, there is already a judgment. 6. aontains averments that if were true, would constitute a legal excuse or justification p Ex. Self-defense 7. ëouble jeopardy p Ñ . 1.p aourt of competent jurisdiction 2.p Valid information 0.p Plea 4.p aonviction, acquittal, or dismissal without express consent of the accused p Ñ *! *!
p Ex. failure to prosecute p Ñ ! ! #
+ + ! # p xt is tantamount to an acquittal and thus leads to ëJ. This is an exception to the general rule p Ñ
+ #
p xt is also tantamount to an acquittal and thus leads to ëJ. Another exception. p Ñ ! #
+ # p No, this is not an exception. There is no plea yet. There is no dismissal without express consent of the accused. a! . p c p Motion to dismiss: p The court can grant, deny, or order an amendment p Motion to quash: p The court could only order amendment if it¶s a defect that can be corrected by such amendment. p UNLx[E in motion to dismiss, regardless of the ground, the court has a free hand: can grant, deny, or order amendment. p
p
Ñhereas here, the court has to order an amendment before denying/granting, on some grounds. p c + p Motion to dismiss: p xn general, it can be re-filed. p * ! 1. Prescription 2. Unenforceable under Statute of årauds 0. Res judicata 4. Extinguish of claim or demand (PÑEA) p Motion to quash: p xn general, it can be re-filed. p * ! 1. Prescription 2. ëouble jeopardy p c p Motion to dismiss: p xn general, grounds not raised are waived. p * ! 1. Lack of jurisdiction over the SM 2. Prescription 0. Litis pendentia 4. Res judicata p Motion to quash: p xn general, grounds not raised are waived. p * ! 1. ëoes not constitute an offense 2. Prescription 0. ëouble jeopardy 4. Lack of jurisdiction over the offense Ñ ! # 1. Ñhen there is a supervening event. 2. åacts constituting graver charge only were discovered after a plea was entered 0. Plea of guilty to lesser offense was made without consent of prosecutor p * ! p åor purpose of plea bargaining, the private offended party was notified but did not appear during arraignment p
p
p
And the offense is necessarily included in the offense charged
c)4c/c p
p p
a ! p Basic rule: you cannot compromise criminal action p But you can compromise the civil aspect of the case p But when you compromise the civil liability, it does not lead to the dismissal of the criminal case p Ñ # p Affidavit of desistance by the offended party. This is as to the civil aspect. p The prosecution has to move for the è p ! & ! # p aheck the requisites. xf there is plea, double jeopardy sets in. xf there is none, double jeopardy will not. a
+ ! + p Yes, if it is in writing and signed by the accused his counsel. !! p The rule of absences in pre-trial (in civil case) does not apply in criminal cases. p The pre-trial will be reset. p xf the witness is absent, the court can rely on compulsory processes p xf the accused in absent 1. There is forfeiture of bail 2. There will be a warrant of his arrest p § + 4c p
p
p
Ñ p Prosecution p ëefense p [fill in] p a p Yes, when there is self defense and other exculpatory defenses +
4 . 1. There is no direct evidence p So for this, you have no one who can point to the perpetrator. p Ñ !!
p aircumstantial evidence 2. There is absolute necessity for the evidence 0. aould be corroborated in its material points 4. Not the most guilty 5. Not convicted of a crime involving moral turpitude Ñ !! + p Before the prosecution rests its case p Ñ !! p Submitting sworn affidavit p Ñ !! p Becomes part of the evidence of prosecution p Ñ !!
p Becomes acquitted p !! & !! p xt¶s inadmissible
p
p
p
p p
a! . + Ñ + p The requisites are the same. p But the mode of application is different ± you file it with the ëOJ, not with the court. (j c" ) p ! # & Ñ p No, because there is no plea. p So he can be prosecuted afterwards (!) Ñ #
p aivil ± after plaintiff has completed presentation of evidence p ariminal ± after the prosecution rests # p
you don¶t need to, but there are serious consequences if you do not secure leave. p xf you file with leave of court and it¶s denied, the accused can still present evidence p xf you file without leave of court and it¶s denied, the accused will not be able to present evidence ± there will be a judgment p no need for leave of court
&
& # ! p No. You cannot file a petition for certiorari. You have to wait for judgment. Ñ - +
p xt¶s a final disposition of the case. p
p xt¶s a dismissal. xt amounts to an acquittal.
c$4^ p
p
Ñ + p Offense you have committed p Penalty to be imposed p Participation, whether principal, accomplice, accessory p Aggravating or mitigating circumstances p xf acquitted, whether: p aomplete non-liability p Reasonable doubt p Or if the facts from which the civil liability might rise from were not committed ! #+ . p Note than an acquittal is immediately executory.
p
p
p
p But if there is GAëALEJ (¦m* #' ± you can file for certiorari p Before you challenge an acquittal this way, you have to secure consent of the Solicitor General p And this is only for exceptional circumstances # ! + + p The accused should be present during promulgation p Except if it is a light offense p Or else he forfeits his remedies p There is a period ± within 15 days from promulgation of judgment ± within this period he has to explain why he was absent p & p The warden p p The bondsman p + p Notice sent to last known address ! + !! p Yes. p Ñhen duly certified by the division, and then forwarded to the clerk of court, who will give notice of promulgation on paper a + p Yes, before it is final and executory
c/(4,c, p p
!!
p No. #!! 2 !! 3 p Yes.
Ordinary appeal p
" 8 + 2 a 3 a + Ñ p RTa, through notice of appeal filed with the MTa. (RULE 122) p " *$" p MTa l RTa, through notice of appeal. (RULE 40) p Or MTa l RTa, through record of appeal (not available in criminal cases)
p
p
Ñ ! ca
& + !!
p Parties submit their memoranda (Rule 122, Sec 9) p " *$" p Same. Parties submit memoranda. " a + ca& !! p Go to the aourt of Appeals, through Notice of appeal filed with the RTa. p " *$c" p Go to the aA, through Notice of appeal filed with RTa. OR file a record of appeal. p So still the same. p Ñ ! # a
p åile appellant¶s brief (Rule 124), within 00 days p åile appellee¶s brief, within 00 days p Reply brief, within 20 days p " * p 45/45/20 days
p aÑ a p xf it finds for death again, it can render judgment but not enter it. p Ñ !! p The aA will certify the case to the Sa. p
p
p
Petition for review p
p
p
p
a! p xf the original case was filed in the MTa. p MTa l RTa l aA Ñ p åound in Rule 42. p Still MTa l RTa l aA " c # ! a & ! # ! # & & ! ! p årom the aA or the SB only p Use Rule 45, whether civil or criminal. Again, the general rule is that you cannot go up to the Sa except through petition for review on certiorari. p & # p RTa, aA, SB, aTA en banc, etc. ca& ! # & 2 + ! 3 # !! p There is automatic review to the aourt of Appeals, even in the absence of a notice of appeal.
p p
! # ,c # p No. You need notice of appeal. l aA p a !! ,ca p Yes. p # !! p This is the singular instance where you file a NOTxaE Oå APPEAL with the aourt of Appeals. a + + + p Yes. ¦ Rule 122, Sec. 11 provides: even if an accused did not appeal when there are multiple accused, and there is a favorable judgment, it could benefit the nonappealing accused. p owever, in this case, the accused invoking this provision actually filed an appeal, but it was dismissed due to a technicality. Ñ !! p Ñhen the accused jumps bail, escapes, or fails to file an appellant¶s brief. a / / p The general rule is the accused is given the choice to retain a counsel de parte (of his choice) p xf he cannot afford one, the court appoints a counsel de officio p One can be appointed during arraignment, or for the rest of the trial. p a a !! p Yes, when the accused signed his own appeal. Also, when he was not assisted by counsel. p a a!!
p Yes, the Sa can, but this is not provided for in the rules.
c=4 ca :c p
5 6 + Ñ + !
p
p p
p p
p
p
p
p Yes, even if the amount was not specified. Ñhat is required is that the object of the search be described with particularity. Quantity is not required. !
0 ! + &! & + a p Yes. Plain view exception applies, even if there is a search warrant. Ñ # !!#
p You apply to the court, following the rule on territoriality. a ! !!# !
p Yes, for compelling reasons. p Ñ ! + p xt¶s a question of fact, but an example is when he is a public officer of that locality and there is doubt that a search warrant can be properly applied for. !!
p No. xt is a special judicial process. a p No. You need an information because the application for a search warrant will not evolve into an information. Ñ # .
p xn the court wherein it was applied for if there is no case yet p xf there is a case, in the court where the case is pending Ñ !
p The judge. Not the prosecutor. p Ñ ! . &! !!
p Preliminary investigation p Rule 110, warrantless arrest (personal knowledge that crime has been committed) p Ñarrant of arrest p Search and seizure p Ñ . + p Personal examination and determination by the judge of the complainant/applicant and witnesses. p xt does not involve mere submission of affidavits. *!
& !
! # p Ex. if it¶s an apartment, you give the number of the apartment.
Ñ - ! & ! 0& ! a Ñ p No. p 0
p Yes. The search warrant can be valid, but the implemented was invalid. p + 7 ! a # ! + +
p Motion to suppress. p . !! p Motion to quash is before implementation of the search warrant. p Motion to suppress is after implement and before presentation in court. Ñ #
! # ! & ! ! p xt¶s possible to say ³kilometer 00.´ But this can¶t apply for cities or municipalities.
p The lawful occupant. p
! p To a relative. p
! p To two witnesses of sufficient age and discretion residing in that locality. Ñ 7 & ! + p To the lawful occupant or relative p xf there are two witnesses, the receipt will be left in the premises where they were seized Ñ # p e should present an inventory of the items. åailure to submit inventory makes him liable for contempt. + + ! p The inventory must be made at the scene of the crime. (åor normal crimes, it can be done in court or police station or wherever.) p The person must make a physical science report to track the chain of custody. Ñ
p The general rule is that the arrest must come before the search and seizure. p Or, the search and seizure must be contemporaneous to arrest. p
p
p
p
p
p
p
p
p
p
# !!#
1a& !!
p xf it¶s a violation of the ëëL, xP code, illegal possession of firearms, illegal gambling, heinous crimes, AML, violation of tariff and customs code. p You have to apply before an executive judge before the aity of Manila or Quezon aity. This will be effective anywhere in the Philippines. c 7 " +2 *" 34Ñ ! ! # p The private party can submit documents and pleadings to support the application of the NBx. ! " + a & ! ^ Ñ # !!# p Either place.
c@4c c p p
p
Ñ + p Provisional remedies in civil procedure are applicable to criminal procedure. Ñ ! p ëoes not apply because it can only be filed before an answer, but in a criminal case, there is no answer. Ñhat are the grounds? 1. The accused is about to abscond or depart with intent to defraud 2. alaim for money or property that has been embezzled with abuse of trust (estafa) 0. Accused resides outside 4. Accused has concealed/removed/disposed his property
¦ p p
p
p
p p
p
Ñ c " p July 1, 1989 Ñ p Evidence is the means, sanctioned by the Rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. ! . ! Ñ p Ex. Judicial notice p Ex. Judicial admissions Ñ # - . ! & " 1.p Object 2.p ëocumentary 0.p Testimonial Ñ - & # & . p They have to pass the test of admissibility (Rule 128, Sec. 0) Ñ p Ñhen it is relevant and competent p Ñ p as direct relation to the fact in issue p Ñ ! p Not excluded by the rules on evidence p Ñ ! 4+ *! p Those excluded by the Best Evidence Rule p Those seized without valid warrant and without a valid exception p Those violating the Parol Evidence Rule (contents in the written document are presumed to be the repository of all the matters agreed upon by the parties) p ëirect: prove a matter without need for inference or presumption p aircumstantial: facts, from which the existence of another fact may be inferred as a necessary or probable consequence p Ñ
p Ñhen the witness was able to perceive the matter being testified upon p a p Yes. As long as there is more than one circumstance and each is proven.
a p Yes. Ñ ! p Evidence that proves something happened. (³x saw him stab person X´) or (³x did not see him stab person X´) Ñ + p Evidence where the witness was there, but he did not perceive anything. (³x was there in the scene, but x did not notice anything happen.´) Ñ ! # p Best available evidence to establish the fact in issue p Ñ *! ! #
p Best Evidence Rule p The secondary evidence here is photocopy, recital of the contents, or testimony as to its contents. Ñ + &! #
p Physical evidence. : exceptions to the hearsay rule are not absolute. They can be contested or impugned. p # # * ! p ëestroy the requisites. p ³Ex. µwas it audible?¶ µwas he aware that he was going to die?¶´ ! #
p Yes. xf you want to present a car, present the actual itself. p Ñ #
p A car of the same model, same type, etc. which will aid the court in understanding the object involved. ! #
p Yes. A person who had personal knowledge. p Ñ #
p earsay. 0 but note that the codal does not expressly tag hearsay as secondary evidence although it is. Ñhen asked in the bar what secondary evidence is, give the answer for documentary evidence to be sure. Ñ !
p That which suffices to prove a fact, until contradicted by other evidence p 0 p [not answered] p Ñ ! ! ! ! p
p
p
p
p p
p
p
p
Prima facie evidence arises from a fact that would sufficiently create a reasonable belief that an act alleged has arisen p ëisputable presumption arises from Rule 101 p N.B. they are the same in such that these can be controverted Ñ ! ! p xt cannot be controverted p 0 # " ! ! p Yes. p *! ! ! p Tenant cannot deny the title of his landlord + ! ! ! 0c p Preponderance ± aourt determines superior weight of evidence; for civil cases p Proof BRë ± Moral certainty, conviction will arise from an unprejudiced mind; for criminal cases #!! p Yes. p ! p No. p ca * +1^ p No. You don¶t need best evidence available here (can use photocopies, that¶s fine) p Ñ 5 * ! ! #6 p xf otherwise provided, then the uniform application will not extend to that. p Ex. Agrarian cases p c $& =,@ compromise rules are not the same in civil and criminal cases p a there is also difference in civil and criminal cases p Two witness rule in treason Ñ # p as relation to fact in issue as to induce belief in its existence or nonexistence Ñ p General rule, not relevant p EXaEPT, when the collateral matters establish probability or improbability of the fact in issue p
p
p
p
p
p
p
*! p xn rape, the accused can point to the character of the supposed victim to prove that there is probability that the intercourse was consensual. p 0 You can only use character evidence if there is a character trait involved in the offense charged.
^ a a p
p
p p
p
Ñ # 1. States ± existence, territorial extent, political history, forms of government, symbols of nationality 2. Law of nations, admiralty, maritime courts of the world, and their seals 0. Political constitution and history of the Philippines, official acts of legislative, executive, judicial departments of Philippines 4. Laws of nature, measure of time, geographical divisions Ñ # # p Because they have already been established. They cannot be disputed anymore. p No need to introduce evidence anymore. a " p No. The court cannot take judicial notice of factual matters. " ! p The court is obliged to take judicial notice of law, but not ordinances. p Ñ # ! p No. The court is not expected to take notice of these less important matters. Ñ #
# 1. Matters of public knowledge p *! p Ex. death of aorazon Aquino 2. aapable of unquestionable demonstration p Ñ p xf repeated in a regular manner, it will establish that fact. p *! p Mathematical computation p Statistics p Effects of poison, etc.
# p No, because methods change, samples change, etc. 0. Ought to be known to judges due to their judicial function p a + " ! + ! + p No. p e¶s not bound to know all the cases filed. p Ñ ! + p No. p Unless he takes the consent of the parties. Ñ "+
p ëuring trial ± and with hearing p After trial and before judgment ± same, but only on matters decisive of a material issue in a case p After appeal ± same, but only on matters decisive of a material issue in a case a #
p Yes, during the hearing. p You are not limited to the enumerations provided in law. Ñ + p Propriety of taking judicial notice # & ! $$> + !! # # " a ! # . " 2 ! ! " 3 p Yes. ^ p Statement made as to a fact in issue made in a pleading p # ! p No. p Ñ p Ñhen there is a pending proceeding p Ñ 1. Statements in pleadings (ex. complaint or answer) 2. Statements made during testimonial presentation 0. ëepositions or other documents 4. Pre-trial 5. ëocuments submitted in court p a # p
p
p
p p
p
p
Yes, when ± p There was no intent to make such an admission p Or there was palpable mistake
c $ p p p p p p
p p
p p
0 The rules on admissibility are applicable to object, documentary, and testimonial evidence alike. Ñ p Those addressed to the senses of the court An object is presented so that the court can perceive it. Ñ 7 * ! ! # ! ! ! p Ocular inspection ! + !
p [not answered] # ! + ! # ! p Yes. p Or a person who can attest to its exactness and accuracy. p Ñ ! p That it is an accurate representation of what happened. p As to production and circumstances under which they were produced. p Prove who operated the camera, the ability of the camera to capture the scene, etc. p Proveall these first before going into the contents of the photograph. Ñ p Similarly, lay down the basis, before presenting the contents Ñ ! p p p No. xt¶s not 100% reliable. $$C p No. You can cheat it. Ñ p Evidence that adds to or explains. p Maps, charts, graphs, etc. p p No. ëemonstration is when you ask for a re-enactment or display of how an act was done or re: facts.
ac9 a p p p
p
0 7 #+5 ^ 6 # p Yes. 0 7 &#+5 "?6 # p Yes. Ñ # # p xt can be in any material, as long as it is a writing or inscription. p Ñ * + p Yes. p xt is ephemeral evidence Ñ 0 c p Ñhen the subject of inquiry is the contents of a document, no evidence is admissible other than the original document itself p Ñ # * &# ! + p No. Because it¶s not the contents of the document that are in issue. You can present a copy. p N.B. owever in practice, try to always present the original. p Ñ + 1. The one the contents of which are the subject of inquiry p !# +
. # p No. You still have to go to the original. p # + !! + p Yes, even if it appears to be an original. 2. ëocument is in two or more copies executed at or about the same time with identical contents p Usual example is carbon copies p aomputers that shoot straight through to the Xerox machine, and then sign all p Or printing 5 copies of the same document, and then sign all p Ñ ! + & " #
#! ! p The four copies are not originals p * #) ! 2 * 3&+ ' )
p
!! %& + # +& * p Yes, they can be regarded as originals. p 0 You have to stipulate in the contract (³execution by counterparts´) that even if not executed on or about the same time, they are all originals. 0. Entry is repeated in the regular course of business, one copied from another at or near the time of the transaction p N.B. this refers to ³entry´ not ³execution,´ but you do not sign the books p 5 * 6 " 7 *++ p xt depends on what form is required from the contract. Ñ * ! 0 c 1. The original has been lost, destroyed, or cannot be produced in court p Not through the fault or bad faith of the offeror p * +
p Yes, the offeror must attempt to procure the original p & # ! # p Yes. You need to lay the basis first. p Ñ # 1. Prove that the document exists it was duly executed 2. Prove cause of unavailability p The actual presentation of secondary evidence will only come after laying the basis. p Ñ #! # # ! 1. aopy of the document 2. Recital of its contents in an authentic document p Ex. Secretary¶s certificate, in case of loss of the minutes p Ex. There is a mother contract, and there is a Memorandum of Agreement containing the basic terms p Ex. A demand letter
p !# ! ! + p Verbatim copy 0. Testimony of a witness p p Yes. åollow this order. 2. Original is in the adverse party¶s custody or control p Ñ . 1. ëocument exists 2. There is reasonable notice to produce it given to the other party 0. There is failure to produce p ! #
p Yes 0. Original constitutes voluminous documents p c . 1. Prove voluminous nature of the documents, which cannot be examined in court without great loss of time 2. Provide access to the other party to the original documents p Ñ ! # p The fact sought to be established must be the general result of the whole p Ñ ! $ # & + ! ! ,+ ! p You can present a summary because you are proving the general result of a whole. p Ñ # ! p You just need to present a summary of the documents p Ñ # ! + p Ñhen the contents thereof are the subject of the inquiry ± è m they are. 4. Original which is in the custody of a public officer or recorded in a public office p a# ! + p No, because it¶s in the custody of that officer or office. p Ñ # ! p A certified true copy given by the public officer in custody thereof.
*! p NSO Birth aertificate. Ñ c p Ñhen the contents of a document are reduced to writing, it is considered as containing all the terms agreed upon ± as between the parties and their successors in interest. p No other evidence of such terms can be presented. Ñ * ! 1. xntrinsic ambiguity, mistake, or imperfection in the written agreement p + p No. The ambiguity must be intrinsic. p *! p xn a will, the testator said ³x give half my property to my son Buboy.´ Ñhen the will was being probated, it turns out there were two sons with the nickname Buboy. p Ñ " ! p Mistake of fact, and the mistake was mutual p Ñ # p Reform. p Ñ # p Ñhen there was no meeting of the minds. Example, X thought it was the property in Batangas, Y thought it was the property in aavite. p *! p aontract of sale of property. X thought it was Batangas, Y thought it was Batangas. But it was actually in aavite. p *! ! + p The provision says that the offended party must pay damages, when it fact, the offender must pay. p Another: X and Y entered into a contract of sale of property, over a Batangas property. But the technical specifications provided were those of the aavite property. 2. The failure of the written agreement to express the true intent and agreement of the parties p
p
p
*! p X approached Y, asking for money for tuition fee of his son. X said he intended to mortgage his property. Y asked him to sign a document, but that contract provided for an absolute sale. 0. Validity of the written agreement is at issue p a #! *
p No. This provision does not contemplate contracts that are by nature void, to make them legal. 4. Existence of other terms agreed to by the parties/their successors-in-interest after execution of the written agreement p *! p There is an original contract and it was amended from a 20-year agreement to a 10-year agreement p
a p
p
p
Ñ p Those who can perceive, and in perceiving, can make their perceptions known to others p ! 1. Perceiving 2. Making known this perception to others # " # ! ! " p You must be able to communicate it p a / # ! p Yes, as long as they can communicate. Ñ . 1. Those whose mental condition, at the time of presentation, is such that they cannot intelligently make known their perception to others p 8 ! 8 8 +! a8 # p Yes. The requirement is during his/her presentation. p Ñ ! ! p That a witness is of sound mind. p Ñ * !
e was publicly known as insane or committed in a mental institution. 2. ahildren whose mental maturity makes them incapable of perceiving the facts and relating them truthfully p a Ñ c 2aÑc3&
! # # p The judge, who conducts a competency examination p ! # # + p No. Mental maturity dictates, even prior to the ahild Ñitness Rule. p Ñ aÑc p Accused p Victim p Ñitness p #! !!# p ³ariminal and non-criminal proceedings´ p Ñ ,! p One that puts the child at ease, like a doll or a pillow p a# " +. p YES. p Ñ ! . p Give notice to the other party p And the judge must approve it first p a# /" p Yes, so the child will not be able to see the accused. p Ex. The child is in another room from the judge/accused, etc. p Ñ p Appointed by the court to ask the questions to the child as to not pressure/harass the child p a ! " p Yes. p ! + p aonsidered confidential, not open to the public 0. ëQ by marriage (sec. 22) p Ñ ! Ñ p Any testimony, for or against the spouse, during marriage p
Ñ p All matters p p Yes. p After dissolution of the marriage, it can fall under sec. 24 (privileged communication) p Ñ * ! 1. aivil case between the parties p * p No. 2. ariminal case of one spouse against the other p * p Yes. p
+ p No. The ëQ only lasts during marriage. p 1 p Yes. 4. ³ëead man¶s statute´ p Ñ p Party/assignors of parties/beneficiaries cannot testify as to matters of fact occurring before the death or insanity of the other party p Ñ p alaim against the estate of the deceased person or a person of unsound mind p Ñ # ! p Not covered by ëMS. This prohibition only extends to oral testimony. 5. Privileged communication: p O $ A. Marital privilege p ! # ! & # ! + p No, the third party is not covered. p + #! + 2*Ñ "+ ! # + 3 p
p No, it doesn¶t extend to third parties. #/ * ! p Yes, it can extend to the secretary, stenographer, or clerk. B. Attorney-client p Ñ p Any advice or communication in the course of or in view to professional employment p p xn the course of ± already retained p xn view to ± preparatory p 8" #9&"+ .
! # ! + p No. p 8 ! ! & + + ! & ! & & &
. p Yes, even if you are not eventually retained. p +7 + # p Yes. The privilege extends to secretary, clerk, or stenographer. p a p Yes. p Note: if the relationship of the lawyer with the person is a business relationship, you cannot invoke the privilege. a. ëoctor-patient p a# " ! +
p No, even if it would blacken your reputation. The privilege only covers civil cases. p Ñ p Person must be a doctor of medicine, surgeon, or obstetrician p Ñ ! p No, because he/she is not a doctor of medicine p Ñ ! + p aovered p Ñ + p aovered p Ñ !# + p No, he must pursue further studies to be a doctor p Ñ !# p aovered p
Ñ " # p You must be a doctor of medicine. p Ñ p åor pregnancy p ! + p No. p Ñ . 1. aivil case 2. Person is authorized to practice medicine, surgery, or obstetrics 0. Acquired information in his professional capacity for him to be able to give treatment or advice 4. ëisclosure of the information would tend to blacken the patient¶s reputation p The privilege is only significant if you talk about a pending case ë. Priest-Penitent p ! + . + ! ! !! ! " & ! " ! + p No. xt should be enjoined by the religious institution to which he/she belongs. p Just like a aatholic confessing to a nun ± not covered by the privilege. p Ñ + ! . !
p Not covered by the privilege. p 5 6 !# " + &
p No. p ! + ! + p No. The priest will not ask anyway. E. State Secrets p Ñ ! + p The public office, as regards State secrets p p Yes. xt should be done by the court, after application. å. Executive privilege p See case. p
p Yes, by the president. G. Secrecy of bank deposits . Non-disclosre of trade secrets x. Non-disclosure of who you voted for J. Newsman¶s privilege p As to sources [. xnformer¶s privilege p As to identity p You don¶t need to bring to the stand an informer L. åilial privilege p Ñ p Nobody may be compelled to testify against a direct ascendant or descendant p p Yes. p xn a criminal case, no de no descendant may be compelled to testify against parents and grandparents, except: p Ñhen the testimony is indispensable in a crime against the descendant or by one parent against the other p
Admissions and confessions p
p
p
p
Ñ = p The act, declaration, or confession of a relevant fact may be given in evidence against him Ñ ! # p As a general rule, the statement of a third party cannot be used against you, except when it falls under the exceptions Ñ * ! 1. ao-agent or partner 2. ao-conspirator 0. Privies Ñ . /! + p 0 these are more or less the same requisites in a conspiracy 1. The admission should have been made during the existence of the relationship 2. ëone within the scope of the authority p Ex. if agent, it must be covered by the agency
p
p
p
p
0. aommon interest 4. The relationship is established by other evidence other than the admission p Ex. Special power of attorney, articles of partnership, etc. / ! 4 . 1. Act/declaration relates to the conspiracy p This is common design 2. ëuring the conspiracy itself 0. The conspiracy is established by independent evidence ! 4 . 1. Privity between the parties, where one derives title from the other 2. ëeclaration made the when the privy held the property 0. xt must have been made as to title over the property p *! p X sold land to Y. Ñhile X holds the title to the property, he made statements as regards his title to the land. Ñhen Y holds the land, the statements made by X can be used against her. ! * * 9 + 8 8 ! # p No, these rules do not extend to cases already in court, because there is an opportunity to cross examine. !
p xn civil cases, an offer of compromise is not an implied admission of liability ± it cannot be admitted as evidence p xn criminal cases, it is treated as an implied admission of liability p Ñ * !
p Ñhen the law allows for compromise p Ex. criminal negligence p Quasi-offenses p Ñ * ! p Yes, these can be compromised. p * + ! p No. p ^c
! 2
! 3 p Libel p Theft p Estafa p BP 22
p ariminal negligence Ñ # ! p Only the civil liability p But in practice, once you compromise the civil liability, usually the prosecution is no longer interested Ñ # p 8"+ + 9&! 9 & # p No. See requisite #1 below. p Ñ . 1. Statement made in your presence or within your observation 2. åact would have naturally called for a reaction if not true 0. To deny is proper under the circumstances p Ex. there were armed 5 men who were speaking ill about X ± his silence may simply mean that he is being prudent p
p
c aa a p
p
p
p
8 + ! 0 " 8 + ! !
+0 + & + !
+ #0 &
+ " 0 # !! p No, not to establish a different robbery. But you can use it to establish any of the exceptions outlined below. p Ex. The manner in which the robbery was conducted is the same, showing a system. 9
0 0
a a !+ ! p Yes, but only to establish intent. Ñ + ! p Generally not admissible. p Ñ * ! p To establish intent, knowledge, identity, plan, system, scheme, habit, custom, or usage, and the like. Ñ
!
p
An offer in writing to pay a sum of money or deliver a written instrument/personal property, if rejected without valid cause, is equivalent to actual production and tender
c 9c8a p p
p
Ñ # p A witness may only testify as to matters within his personal knowledge Ñ ! p Ñhen the statement is the fact of issue, or when the statement is circumstantial evidence of the facts in issue. p + !! &
#! ! " "+& # # p No, it¶s not hearsay. The conversation actually happened and he can testify as to the conversation and what happened. p But as to the truthfulness of these statements, they have to be established separately. Ñ * ! 1. ëying declaration 2. ëeclaration against interest 0. Act or declaration about pedigree 4. åamily reputation or tradition regarding pedigree 5. aommon reputation 6. Part of res gestae 7. Entries in the course of business 8. Entries in official records 9. aommercial lists, and the like 10. Learned treatises 11. Prior testimony
ëying declaration ëeclaration against interest ëeclaration about pedigree Res gestae p
#+
c ! As to pedigree aommon reputation
aourse of business Official record aommercial lists Learned treatises
c . p 1. The dying person is under the consciousness of his impending death p 2. ëeclaration relates to the facts/circumstances pertaining to the death p 0. e should eventually die p 4. The recipient of the information should be competent to testify p * p Yes. p As long as it pertains to the circumstances regarding his death. p #+! 8 8 "
& + ! ! & ! ! #+ p No. xt does not cover circumstances re: his death. p Ñ - p xt becomes part of res gestae p Ñ #+ / & +& !
p Yes, because this exception covers memoranda. + p c . 1. The person is dead/unavailable 2. Made statement against his interest 0. Ñould not have made that statement had it not been true p Extends to declaration against pecuniary interest, proprietary interest, criminal acts, etc. p Ñ # p Because by human nature, nobody will make a prejudicial statement against himself ! + p c . 1.p The person is dead/unavailable 2.p Made by a person related by birth or marriage 0.p ëeclaration was made prior to the controversy p So there is no motive to falsify 4. The relationship between the declarant and the person whose pedigree is in question is shown by independent evidence p p No. e need not be. p
p
p
But the relationship should be between the declarant and the person whose pedigree is in question '# ! + +! + p c . 1. There is controversy re: pedigree of any member of the family 2. Reputation or tradition existed prior to the controversy 0. Ñitness testifying must be a member of the family of that person, by consanguinity or affinity p Or proved by family bibles, rings, etc. p Ñ ! p ow other people perceive one to be. p a ! + p Yes. p This is different from character ± who one really is p Ñ # p A member of the family by marriage or consanguinity. This is unlike declaration about pedigree. p Ñ p åamily bibles, charts, rings, engravings, etc. a ! p Ñ 1. Public knowledge of more than 00 years p This has a partner provision in documentary evidence (³ancient documents´) p *! ! " + $# p There is a marker in the barangay disclosing information on the founding of the barangay. p Sometimes it can border on history, which will then become subject to judicial notice 2. Reputation about marriage p # ! !
+ p Ñhen people perceive them to be married. Ex. living in one house, with children, etc. Even if this is not true. 0. Reputation as to moral character + p c .
1.p 2.p
p
p
p
p
p
p
The person is dead/unavailable Made the entry in a position to know the facts, in professional capacity 0.p Entries made at or near the time of transaction 4.p ëone in the regular course of business p Ñ # ! #+ p The one who actually made the entries. This exception only applies if he/she is dead or unable to testify. p Ñ # ,
p Person who is also in a position to know the facts p c . 1. Made by public officer or person enjoined by law to make entry 2. Made in performance of duty 0. ad sufficient knowledge of the facts, personally or through official information p , p No. p # ! p Secure a certified true copy, then you identify it and present it in court p Ñ # ! +# p xf there is issue as to its genuineness p c ! p As to not waste the time of the public official a p c . 1.p aontained in published compilation 2.p Generally relied upon by these persons 0.p Statements are matters of interest to these persons engaged in the occupation p Ñ # # + p xt is used by the members of the profession and it is relied upon p # p Just present the commercial list, no need to present the writer p *! p SaRA (which is not an official publication, but used and relied upon) p Buy and Sell paper l NO. Because it is used, but not reliable.
p
p
p
p Stock Market listings p aovers history, science, law, and the arts 9 p So it won¶t cover billiards, or whatever p # ! 1. aourt takes judicial notice that the writer is an expert recognized in his profession 2. Bring in an expert witness to testify that the writer is an expert in his profession #, ! p c . 1. Ñitness is dead/unable to testify 2. xdentity of parties 0. xdentity of issues 4. Opportunity to cross-examine prior case c + p Ñ " + A. Spontaneous statements B. Verbal acts p c . ! 1. Startling occurrence 2. Spontaneous statements 0. Relating to the circumstances of the occurrence p Ñ p is spontaneous statement p Ñ # p No time to fabricate p & +
p ëepends on how startled the person still is. xf he was able to go out malling already, etc., then there was time to fabricate. p Ñ p Statements made contemporaneous to an equivocal act and characterizing it p *! . p X handed a wad of cash to Y. This can mean anything. p *! ! 7+ .
p
p ³x am lending this to you.´ : xf Y testified, it¶s not hearsay because it was told to him personally. xf a third person who overheard it testified, this is when the exception applies.
c p
p p
p
p
p
Ñ ! p xt means that only an expert can give an opinion. An ordinary witness cannot normally give an opinion. Ñ *! # p Skill, knowledge, expertise, or training + . p No. Just the special skill, knowledge, expertise, or training. Unless, of course, the knowledge or skill requires an academic degree. " *! 1. Expert with personal knowledge of the facts p Ex. medico-legal officer who examined a dead body 2. Expert with no personal knowledge, only hypothetical facts a # + ! p General rule: no. p * ! 1. andwriting of which he has sufficient familiarity 2. xdentity of which he has adequate knowledge p Not required to know the name, relationships, etc. Just as long as you can sufficiently identify the person. 0. Mental sanity of person with whom you are acquainted with 4. xmpressions on emotion, behavior, condition, appearance a p Make sure you distinguish civil and criminal cases p Ñ !! p Only when there is a character trait in the offense charged p Ex. for murder/homicide ± violence p Ex. for estafa ± honesty p Ex. for rape ± sexual perversity of accused p åor victim, chastity p Ñ p Those covered by special laws; p Ex. BP 22
p
p
p
p Ex. illegal possession of firearms !!#
p a ! !
p No. p Ñ * ! p On rebuttal p This comes in after defendant completes his presentation of evidence, and is left to the discretion of the court p Ñ
p xf there is rebuttal, the court will give surrebutal p a
! + p Yes, if there is a character trait involved in the offense charged p Ñ p You can present the good or bad moral character to establish in any reasonable degree the probability/improbability of the offense charged p Usually applied in rape cases Ñ p There is no distinction. As long as there is an issue of character in a case, you can present character evidence. a -+ ! p General rule: NO. p * ! when the witness¶ character has been impeached/impugned
0c'c'c p
p p
+ !
p Burden of proof sticks with the party from the beginning until the end. p Ex. Breach of contract for damages ± burden starts with the plaintiff and ends with the plaintiff p Burden of evidence shifts Ñ ! ! ! p aonclusive presumptions cannot be rebutted Ñ ! ! 1. Ô
p This is regular estoppel p c .
p
1.p 1. Representation 2.p 2. Lack of knowledge in the other party 0.p 0. Reliance p Similar estoppel: 1.p Estoppel by silence p Estoppel as to question of jurisdiction 2. Ô
p Ñ 5 6 1.p xt means a written document p This has a very limited application:only covers a landlord-tenant relationship p Upon signing the deed, it is a recognition of the landlord¶s title. You can only challenge it after. Ñ *! ! ! ! 1. Presumption of innocence p Ñ 1.p Only when charged of an offense 2.p And one is an accused in that case 2. Presumption of regularity p Ñ 1. You are a public officer 2. Performing is official function 0. Ñhen a court renders a decision: p xt acted within its jurisdiction p xt passed upon all questions 4. On filiation p Ñhen a child is born within 000 hundred days of termination of the first marriage ANë before 180 days after the solemnization of the second marriage it is considered to be conceived from the first marriage p Ñhen a child is born within 000 hundred days of termination of the first marriage ANë after 180 days after solemnization of the second marriage it is considered to be conceived from the second marriage p Ñ $$ #
+ 1.p There is no presumption 2.p Ñhoever alleges legitimacy or illegitimacy must prove it
5. Absence p
Ñ @# 1.p ëeath, for all purposes EXaEPT succession p Ñ
! p After 10 years p Ñ ! @(/# 1.p After 5 years is enough to establish death p Ñ 5 * ! 6 ! 1.p Vessel or aircraft goes missing and he was not heard of for 4 years 2.p Person took part in armed hostilities and missing for 4 years 0.p Person under danger of death in other circumstances and is missing for 4 years p Ñ
+ 1.p aan contract subsequent marriage after absence for 4 years 2.p Ñ ! !! * !
p 2 years of absence is enough 0.p ! ! ! .
+ ! ! + p No. p This is a summary procedure under the åamily aode 6. Survivorship for those who died due to calamity, wreck, battle, or conflagration p ' 1.p Strength and age of the sexes p ' ! ! 1.p ANY purpose except succession p 1.p xnsurance 2.p Survivorship agreements
aa'ca ac p
Ñ . #
p
Ñ
p
Ñ
p
Ñ
p
Ñ
p
Ñ
p
Ñ
p
Ñ
p
p Place the witness under oath or affirmation p Oath ± imploring divine guidance p Affirmation ± for those who don¶t believe in God # p The judge p aan delegate to the clerk of court in certain instances p 1. By stenographer 2. By stenotype 0. By any other means of recording found suitable by the court . # " p xmmaterial, irrelevant, impertinent questions p Questions that expose him to criminal liability ± violates right against selfincrimination p Ñ -# *!+ # p You can ask the question p But not if it exposes him to criminal penalty p ëegrading or humiliating questions * p Examination-in-chief of the prosecution p Ñ * // p One that establishes what the prosecution seeks to prove p Evidence-in-chief is what your witness will testify on in direct examination. So if you have eight witnesses, you have eight evidences-in-chief
* 1. Test the accuracy and truthfulness of witness¶ testimony 2. To elicit all information from the witness # ! 1. Prior inconsistent statement 2. Reputation of the witness for honesty/truth/integrity of the witness is bad p Ñ &+ p xn general, only those raised in direct / * p Allow a witness to explain matters raised in cross-examination /
* p To examine matters raised in re-direct +. p As a rule, not allowed in direct examination.
Ñ # " +. 1. aross examination 2. On preliminary matters p Ex. ³Mr. X, you said a while ago you were an employee of the petitioner corporation. Are you an employee?´ 0. Ñitness is ignorant, child of tender years, feeble-minded, or deafmute p And there is some difficulty to get direct and intelligible answers 4. Unwilling or hostile witness p 0 There must be a court declaration to make a person a hostile witness p Ñ p Adverse interest p Unjustified reluctance to testify p Misled the party into calling him 5. Adverse witness ± adverse party or officer/director/managing agent of juridical person who is an adverse party Ñ " 1. Present recollection revived 2. Past recollection recorded p Ñ !!# p xn both cases he knew, he was in charge, or he prepared it. That¶s why he can testify. So even if there is no independent recollection, he can testify. p Ñ ! ! p To refresh his memory p Ñ
p xf the witness has independent recollection, then the testimony is the evidence. p xf he has no independent recollection, the memorandum itself is the evidence. But it must be taken with caution. p
p
a 'a p p
0 Ñhether public or private, the document must be authenticated. Ñ "! 1. Acts of sovereign authority
p p
p
p
p
p
p
p
2. ëocuments duly acknowledged before a notary public except wills p Not just notarized, but must be acknowledged 0. Private documents recorded in a public office p Ex. affidavit of adverse claim in a R.O.ë. Ñ ! p All other documents not falling under the prior three # + # p aertified true copy or official publication p + # p aertification from foreign service officer # # " + # p aertificate of acknowledgement of the document itself p # &# !# & # + p You could get a certified true copy from the RTa who commissioned him to notarize documents (he submits the books to the RTa) # ! ! p aan be proved by original record or a certified true copy p a p Yes. # ! p Genuineness of the handwriting 1. By anyone who saw the document executed or written 2. Evidence of genuineness of the signature/handwriting of the maker Ñ 4 . 1. ëocument existing for at least 00 years 2. Unblemished 0. xn the custody of one who must be with possession over it Ñ p Ñhen there is one, you have to account for it 1. There is consent 2. There is knowledge 0. ëid not change the meaning a# ! + p Yes. p 1. Ñant of jurisdiction 2. aollusion 0. åraud
''c' a p p p p
p
Ñ p Evidence must be offered, or else the court will not consider it as evidence Ñ p After the documents as marked, and all the witnesses are presented p xt¶s not, because it¶s made before you present the witness Ñ + p Objection of the same character after the grant or denial of the same objection p A one-time statement covering objections of the same character p !# p No. Ñ ! p This is tender of excluded evidence p So for instance an excluded witness can still be presented through an affidavit showing her qualifications and the substance of her testimony ± so it can be considered on appeal
Ñ '' a a9' a p
p
p
Ñ 1^ p Substantive evidence p Ñ !!# p xnvestigations in the workplace p QJAs that proceed like the NLRa a
p a p Yes p There should be more than one circumstance p And when taken together, they form proof beyond reasonable doubt p a p Yes a + ! ! p Yes, if the judge feels there is no more need for additional evidence;
¦ ¦ ¦
p
^c ca p
p
p
p
p
p
Ñ ! p xt has limited jurisdiction p ëetermination of whether the property must be included in the inventory is included here. a # ! ! ## 4 . p All interested parties need to be notified p To cause approval of conveyance Ñ ! ! ! p A probate court may hear and pass upon questions of ownership when its purpose is to determine w/n the property must be included in the inventory p The determination is merely provisional Ñ ! & + ! ! ! # ! 7 p 1. Those owing to separate creditors p 2. Those owing to partnership creditors p 0. Those owing to partners by way of contribution Ñ + ! !
! >> >>)& ! #>)> ! p No, because the rentals accrued after his death. p The general rule is that heirs are bound by the contracts entered into by the predecessor-in-interest. p Except if non-transmissible by: p 1. Nature p 2. Stipulation p 0. Provision of law ! ! #4 p Any disposition of estate property by an administration or prospective heir pending final adjudication needs court approval p Unauthorized disposition can be annulled by the probate court without need for separate action p a ,! * + p xt can. No need for separate court.
'
p
p
p
p p p p
p
p
Ñ p Philippine resident ± place of last residence at the time of his death p 8 !+0 + & # 1a Ñ ! ! + p Qa p Resident of foreign country, but has property in the Philippines ± in the place where the property is located p 0 we generally do not say ³foreigner´ because they cannot acquire real property except by intestate succession ! ! 4 p e is entitled to the balance of his estate after payment of debts p Balance may be recovered by mere motion in the same case where he was declared presumptively dead c . * / p 1. No will p 2. No debts p 0. xf there are minors they are represented by guardians ad litem # * / # 1. Through a public instrument 2. Affidavit of self-adjudication p One heir adjudicating the entire estate to his name p 0. Stipulation in an action for judicial partition (Rule 69) Ñ . p Publication # * / p Yes, but only for personal properties a# &# p Yes, two years thereafter 4 p Only as to due execution p No will shall pass real or personal property unless proved and allowed Ñ # 1.p Ñithin 20 days from knowledge of testator¶s death, deliver the will to the court having jurisdiction 2.p Or present it to the executor named in the will + ! ! / / p Post-mortem ±
A. Executor, heir, administrator, or any interested person can apply p B. Notice given to compulsory heirs p Notice given to all heirs too by publication p Ante-mortem ± p A. The testator himself applies p B. Notice given to compulsory heirs p No notice to other heirs by publication Ñ ! & p xn a notarial will, need just one subscribing witnesses p xf there is a contest, all subscribing witnesses p xn a holographic will, one witness who knows handwriting and signature of the testator p xn the absence of such, expert witness Ñ #! p Executor, devisee, heir, any person interested # & ! 1. Establish its existence 2. xt was fraudulently or accidentally lost/destroyed 0. Two credible witnesses a! !! p Yes. (Rule 77) Ñ p Value of the estate p xf in Metro Manila ± 400[ is threshold p xf outside ± 000[ is the threshold p a #! + p No. Never. Ñ p aertificate of allowance Ñ * 1. Minor 2. Not a resident of the Philippines 0. Unfit to execute the provisions of the trust p ërunkenness, improvidence, conviction of offense involving moral turpitude, etc. + 1. Surviving spouse or next of kin or those selected by them 2. Principal creditors p
p
p p
p p
p p
p
p
p
p
p
p
p
0. Persons they may select a! !! p Yes. p + 1. xncompetency of the person prayed for 2. aontestant¶s own right to be administrator p p To contestant or another person prayed for Ñ ! p Appointed when there is delay in appointment including appeals on allowance/disallowance of a will p Temporarily appointed until such a " p Yes. p Ñ 1. xf a will is discovered 2. xf the administrator absconds 0. The administrator fails to render accounting 4. Unsuitable to discharge the trust p a + p Yes a * ,
! !" p Yes. xt only extends to a partnership but not a corporation, because there is succession in corporation. p ' !# 4 . p Partner can be held in contempt Ñ . # + p aourt issues order to all persons with money claims against the estate to file it with the clerk of court p Ñ ! p Not less than 6 months to not more than 12 months from date of first publication p All claims must be filed within the time limit, or else it is forever barred. p * ! p Except as counterclaim to any action an administrator or executor may bring Ñ + * # 1.p Recovery of real/personal property
p
p
p
p
p
2.p alaim for damages caused by the deceased 0.p All other actions/claims that survive Ñ * , ! ! #
p The creditors can do it, if they: 1. Pay expenses of the suit 2. Give security & # ! p åirst, from the personal estate. p Second, from real property not disposed of by will. p Third, retention to meet contingent claims p Ñ !# p Not exceeding one year in the first instance p a * p Yes, for not more than six months a 7 , ++ , ! ! # p Yes. p Ñ p 1. Personal estate is not sufficient to pay the debts. p 2. Sale of personal property may injure business or estate p «and the testator did not make provision for payment of the debt (for both) Ñ p No distribution shall be allowed until payment of debt, funeral expenses, giving of allowance to widow, admin expenses, estate tax, etc. Ñ p The Sol-gen on behalf of the Republic. p Ñ p åile petition in court where the deceased last resided p # # ! ! # p åive years from the date of such judgment p a 2 3 ! ! # p Yes, he is an interested party, because he claims a right to the escheated party. e may appear or oppose petition for escheat. p Ñ + p aonclusive against all persons with actual or constructive notice p But not against those who are not privies or parties
c
p p p
p
p
p
Ñ # ! + ! p Ñhere the minor or incompetent is found ! p åamily courts Ñ ! p Relative, friend, other person p a p Yes, as long as he is at least 14 years old ! !!# + ! p xf the property of the child exceeds P50[ you need to petition for petition for guardianship Ñ + ! ! # 1.p The property of the estate is insufficient to maintain the ward and his family 2.p åor education of the ward 0.p åor the benefit of the ward Ñ !
+ p The natural parent of the ward
c p
Ñ p aan be made to carry in effect the provisions of a will or a written instrument p Appointed/confirmed in the probate court
p
! + + & ! ! 0 # - 2 3& !!#+ +! + ! !! & 2 3Ñ ! "
1. Petition for correction/cancellation of entries, because the birth certificate is false p Ñ # p The place where the entry was made or recorded p Ñ ! ; ! p Only the civil registrar (under the ROa)
Under jurisprudence, include the child as well and the declared parent of the child, and those who hereditary rights are affected (ex. Grandparents) 2. Get certification that the child was neglected or abandoned p # + p NO. You just need a certificate from ëSÑë from an administrative proceeding. (Take note of this; new law and never asked in the Bar.) 0. Legal adoption p Ñ ! + p e must have been residing in the Philippines for at least 0 years p Ñ . p 16 year age difference è è (m+ p p Ñ "! p xnter-aountry Adoption p Ñ # ! p åamily aourt where the adoptee resides p xf the adoptee has no residence (abandoned), where the adopter resides p
p p
p
p
a ' p
0 ac p
p
p
p
Ñ # a ! p There must be 1. ARREST and 2. ëETENTxON p Ñ !! p .a. does not apply p åile a criminal case Ñ
, p xt must be unlawful or illegal. xt cannot be pursuant to a valid arrest/detention. + ! #! & ! # & # p åile petition for Ñrit of .a. Ñ ! / ! a p Under rules on ëNA evidence, even after conviction, if the testing shows that there is no basis for the conviction/detention, you can file petition for a
Ñ p RTa, aA, or Sa Ñ Ña # p Not a regular Ña. Unlike in ordinary Ña where there is no pre-trial, there is pre-trial here. p p 8
9& ! 8 . 9 :9 & 8 :Ñ
# p abeas corpus on custody of minors. Ñ Ñ ! p Also instituted in the RTa, aA, Sa p aan be filed at any time of day or night p ëoes not just extend to actual or committed acts, but also to threatened acts p Ñ p Not just the victim or family members p Extends to religious institutions or NGOs Ñ Ñ p Also instituted in RTa, aA, Sa
p
Ñ # " + 1.p Name is ridiculous, dishonorable, extremely hard to pronounce 5.p ahange will avoid confusion 6.p One has been continuously known as that name 7.p Surname causes embarrassment and the desire to change it is not for a fraudulent purpose a! -'! !! ! ! + +! # p No.
' 9 p
# # p No more. xt¶s automatically constituted, under the åamily aode.
p
p p
aan appeal be taken from orders or judgments take in Special Proceedings? 1.p Allowance/disallowance of wills 2.p ëetermines who are the lawful heirs of a deceased person or distributive shares 0.p Allows/disallows a claim, or claims presented on behalf of the estate to offset a claim against it 4.p Settlement of account of executor/admin/guardian 5.p åinal determination in lower court of rights of the party appealing 6.p åinal order or judgment rendered in the case, affecting substantial rights of appealing person, unless it is an order granting/denying MBT/MR a !! ! !! p No. Ñ !! p Record on appeal
View more...
Comments
