Special Penal Laws Pre-Week Companion
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Special Penal Laws...
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SPECIAL PENAL LAWS PRE-WEEK COMPANION
19. THE ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009- Republic Act No. 9995
A foresight to the bar exam By: Dean Gemy Lito L. Festin PUP COLLEGE OF LAW Professor of Law, SSC-R
20. THE ANTI-DEATH PENALTY LAW- Republic Act No. 9346 21. JUVENILE JUSTICE AND WELFARE ACT OF 2006 - Republic Act No. 9344
SPECIAL PENAL LAWS IN GENERAL
22. HEINOUS CRIME LAW
1.
PROBATION LAW- Presidential Decree No. 968
23. THE ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY LAW OF 1974- Presidential Decree No. 532
2.
INDETERMINATE SENTENCE LAW- Act No. 4103 as amended
3.
4.
5.
6.
THE ANTI-GRAFT AND CORRUPT PRACTICES ACT- Republic Act No. 3019 THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002- Republic Act No. 9165 ANTI-VIOLENCE AGAINST WOMEN ANDTHEIR CHILDREN ACT OF 2004- Republic Act No. 9262 BOUNCING CHECKS LAW- Batas Pambansa Blg. 22
24. THE ANTI-CARNAPPING ACT OF 1972Republic Act No. 6539 25. THE ANTI-HIJACKING LAW- Republic Act No. 6235 26. (Amending) THE LAW ON ARSON Presidential Decree No. 1613 27. THE ANTI-ALIAS LAW- Republic Act No. 6085 28. OBSTRUCTION OF JUSTICE- Presidential Decree No. 1829 ____________________________________________ ________________________________ ____________
7.
THE ANTI-FENCING LAW OF 1979Presidential Presidential Decree No. 1612
SPECIAL PENAL LAWS IN GENERAL
8.
ILLEGAL POSSESSION OF FIREARM- PD 1866 as amended by R.A. 8294
____________________________________________ __________________________________ __________
9.
ANTI-MONEY LAUNDERING ACT OF 2001R.A. NO. 9160 as amended by R.A. 9194, R.A. 10167, R.A. 10168 and R.A. 10365, also known as “An Act Further Strengthening The Anti-Money Laundering Law”
1. When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law.
10. THE ANTI- HAZING LAW 11. HUMAN SECURITY ACT OF 2007 (THE ANTITERRORISM LAW) - Republic Act No. 9372 12. THE ANTI-CHILD ABUSE LAW – Republic Act No. 7610 13. THE ANTI- TORTURE ACT-Republic Act No. 9745 14. THE ANTI-SEXUAL HARASSMENT ACT OF 1995- Republic Act No. 7877
In intent to commit the crime, crime , there must be criminal intent; in intent to perpetrate the act , it is enough that the prohibited act is done freely and consciously. (Elenita (Elenita C. Fajardo vs. People, G.R. No. 190889, January 10, 2011) 2. Although Republic Act No. 7610 is a special law, the rules in the Revised Penal Code for graduating penalties by degrees or determining the proper period should be applied. The penalty for Other Acts of Child Abuse is prision
mayor in
its
minimum period.
Although R.A. No. 7610 is a special law, the rules in the Revised Penal Code for graduating penalties by degrees or determining the proper period should be
15. THE ANTI-TRAFFICKING IN PERSONS ACT OF 2003- Republic Act No. 9208
applied. 3. MALA IN SE and and MALA PROHIBITA. PROHIBITA .
16. PLUNDER as amended a. 17. THE ANTI WIRE-TAPPING ACT- Republic Act No. 4200 18. THE ANTI-CHILD PORNOGRAPHY ACT OF 2009- Republic Act No. 9775
In
mala
in
se,
the
act
committed in inherently wrong or immoral; in mala prohibita, the act is merely prohibited by law;
b. In mala in se, good faith is a proper defense; in mala prohibita, good faith is not a defense; c. In mala in se, the stages of execution under Article 6 of the Revised Penal Code is considered in arriving at the proper penalty to be imposed; in mala prohibita, they are not; d. In mala in se, the degree of participation of the offenders under Title Two of the Revised Penal
Code
is
taken
into
consideration on the imposition of penalty; in mala prohibita, it is not; e. In mala in se, the modifying circumstances are appreciated in determining
the
penalty
imposable; in mala prohibita, they are not; f. In mala in se, generally, the
ex. RA 7610 although a special law, adopted the penalty defined in RPC. -When ISLAW is not applicable? 1. Offenses punishable by death or life imprisonment. 2. Those convicted of treason, conspiracy or proposal to commit treason. 3. Those convicted of misprision of treason, rebellion, sedition or espionage. 4. Those convicted of piracy. 5. Habitual delinquents. 6. Those who escaped from confinement or those who evaded sentence. 7. Those granted with conditional pardon and who violated the terms of the same. 8. Those whose maximum period of imprisonment does not exceed one year. 9. Those already serving final judgment upon the approval of this Act. -The imposition of indeterminate sentence is mandatory in criminal cases. -The law is not applicable if the penalty is destierro. Why? It does not involve imprisonment. Rules: SPL
crimes are punished under the Revised Penal Code; in mala prohibita, generally, the crimes
Maximum term
-shall not exceed the max. fixed by law
-“That, in view of the attending circumstances, could be properly imposed under the rules of the said Code
Minimum term
-shall not be less than minimum fixed by law”
“with the range of the penalty next lower to that prescribed by the Code.
are punished under special penal laws. 4. Special laws which are intended merely as amendments to certain provisions of the Revised Penal Code are mala in se se and still subject to its provision. 5. Plunder is a malum in se se which requires proof of
RPC
criminal intent as held in the case of Estrada v Sandiganbayan, G.R. G.R. No. 148560 November 19, 2001. 2001. Hence, the application of mitigating and extenuating circumstances in the Revised Penal Code to prosecute under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal criminal intent. x x x
INDETERMINATE SENTENCE LAW, ACT NO. 4103 as amended [BAR Q. 2010, 2009, 2007, 2005, 2003, 2 002, 1999, 1994, 1991, 1990, 1989, 1988]
*NOTE: -Rules of offsetting are not applicable in crimes punished under a special law. The presence of any generic aggravating and ordinary mitigating circumstances circumstances will not affect the proper imposition of the penalty. -If the maximum term arrived and it does not exceed 1 year, ISLAW will not apply. -If the sentence is imprisonment of 12 years and I day in violation of C omprehensive omprehensive Drugs Act, the same is not correct as ISLAW mandates the Court to set the minimum and maximum term of the indeterminate sentence. May the privileged mitigating circumstance of minority be appreciated in fixing the penalty
-If a special law adopted penalties from the
that should be imposed even if the penalty
RPC, ISLAW will apply just as it would in
imposed is originally an indivisible penal ty?
felonies. Yes. The ISLAW is applicable because the penalty which has been originally an indivisible
penalty (reclusion perpetua to death), where ISLAW is inapplicable, became a divisible penalty (reclusion temporal) by virtue of the presence of the privileged mitigating circumstance of minority. (People vs. Allen Udtojan Mantalaba, G.R. No. 186227: July 20, 2011)
-Under Sec.4, “the filing of the application for probation shall be deemed a waiver of the right to appeal.” -A waiver of the right to appeal from a judgment of conviction is NOT a waiver of the civil liability ex delicto.
_____________________________________________ PROBATION LAW [BAR Q. 2012, 2010, 2009, 2005, 2004, 2003, 2002, 2001, 1997, 1995, 1994, 1993, 1992, 1990, 1986] _____________________________________________ [BAR Q.1986,1989] The purposes of probation are as follows: (a) promote the correction and rehabilitation of an offender by providing him with individualized treatment; b) provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and (c) prevent the commission of offenses. CONSEQUENCE IF THE PROBATIONER VIOLATES ANY OF THE CONDITIONS OF PROBATION (SEC. 15) The court may order the arrest of the probationer, hold an informal summary hearing and may revoke his probation. In which case, he has to serve the sentence originally imposed. -Who are disqualified to avail of the benefits of Probation? 1. sentenced to serve a maximum term of imprisonment of more than 6 years. 2. convicted of any crime against National Security or the Public Order. 3. Who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than two hundred pesos. 4. Who have been once on probation under the provisions of this Decree. 5. Who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Sec. 33 hereof. 6. Who has perfected an appeal from the judgment of conviction. (Sec. 4) 7. Any person convicted of drug trafficking or pushing regardless of the penalty imposed by the Court. (Sec. 24 of R.A. No. 9165) -If the convict had already perfected an appeal, an application for probation cannot be granted.
-Probation may be granted whether the sentence imposed a term of imprisonment or a fine only (Sec. 4). -An order granting or denying probation shall not be appealable. -Prevailing jurisprudence treats appeal and probation as mutually exclusive because the law is unmistakable about it and, therefore, petitioner cannot avail herself of both. What is the legal effect of probation? -A conviction becomes final when the accused applies for probation. REMINDERS ON DISQUALIFICATIONS: 1. Sentenced to serve more than 6 years – Exceptions: a. Under violation of Section 11 of RA 9165, accused FIRST-TIME OFFENDER may avail of suspended sentence. If there is a violation of any conditions, the court shall pronounce judgment of conviction. The court, however, may in its discretion: place the accused on probation (even if the sentence provided for under this Act is higher than that provided under existing law on probation. b. Principle in PP vs. Arnel Colinares -Arnel did not appeal from a judgment that would have allowed him to apply f ro probation. He did not have a choice between appeal and probation. -The Court, however, convicted Arnel of the wrong crime, frustrated homicide that carried a penalty in excess of 6 years. How can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not commit? He only committed attempted homicide with its maximum penalty of 2 years and 4 months. -At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two (2) years and four (4) months maximum, he would have had the right to apply for probation. 2. National Security and Public Order-
“No application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction”
-By perfecting an appeal, petitioners ipso facto relinquished the alternative remedy of probation.
Probation is not applicable when the accused is convicted of INDIRECT ASSAULT (It is a crime against PUBLIC ORDER).
3. Previous Conviction of not less than one month and one day and/or a fine of not less than two hundred pesos. Ex. A person convicted for another crime with a penalty of 30 days imprisonment or not exceeding 1 month does not disqualify him from applying for probation -What is the period of probation? a. sentenced to a term of 1 year – shall not exceed 2 years b. sentenced to a term of more than 1 year imprisonment – shall not exceed 6 years _____________________________________________ THE ANTI-GRAFT AND CORRUPT PRACTICES ACT Republic Act No. 3019 [BAR Q. 2012, 2011, 2010, 2009, 2003, 2 000, 1999, 1997, 1991, 1990, 1988, 1985] Who may be liable under Sec.3 of R.A. No. 3019? a. The law punishes not only public officers who commit prohibited acts enumerated under Sec. 3, but also those who induce or cause the public official to commit those offenses. b. Private persons found acting in conspiracy with public officers may be held liable for the applicable offenses found in Sec. 3 of the law Sec. 3(b). Directly or Indirectly Requesting or Receiving any Gift, Present, Share, percentage, or Benefit, for Himself or for any other Person, in Connection with any Contract or Transaction Between the Government and any other Part, wherein the Public Officer in his Official Capacity has to Intervene under the Law Elements under Sec. 3(b) of R.A. No. 3019 To be convicted of violation of Sec. 3(b) of R.A. No. 3019, the prosecution has the burden of proving the following elements: 1. the offender is a public officer; 2. who requested or received a gift, a present, a share, a percentage, or benefit; 3. on behalf of the offender or any other person; 4 in connection with a contract or transaction with the government; 5. in which the public officer, in an offic ial capacity under the law, has the right to intervene. (CadiaoPalacios v. People, 582 SCRA 713, March 31, 2009) -An accused may be charged for both offenses of direct bribery and violation of Sec.3(b) of R.A. No. 3019 because they have different elements. Sec.3(e). Causing Any Undue Injury To Any Party, Including The Government, Or Giving Any Private Party Any Unwarranted Benefits, Advantage Or Preference In The Discharge Of His Official Administrative Or Judicial Functions Through manifest Partiality, Evident Bad Faith Or Gross Inexcusable Negligence. This Provision Shall Apply To Officers and Employees Of Offices Or Government Corporations
Charged With The Grant Of Licenses Or Permits Or Other concessions. In order to hold a person liable under Sec. 3 (e) of R.A. No. 3019, the following elements must concur: 1. the offender is a public officer; 2. the act was done in the discharge of the public officer’s official, administrative or judicial functions; 3. the act was done through manifest partiality, evident bad faith, or gross inexcusable negligence; and 4. the public officer caused any undue injury to any party, including the Government, or gave any unwarranted benefits, advantage or preference. (Sison v. People, 614 SCRA 670, March 9, 2010 ) -Proof of any of these three (manifest partiality, evident bad faith, or gross inexcusable negligence) in connection with the prohibited acts mentioned in Sec. 3(e) of R.A. No. 3019 is enough to convict a person with violation of Sec. 3 (e) of R.A. No. 3019. (Sison v. People, March 9, 2010 ) -“Partiality” is synonymous with “bias” which “excites a disposition to see and report matters as they are wished for rather than as they are.” (Sison v. People, March 9, 2010 ) -Manifest Partiality exists when the accused has a clear, notorious, or plain inclination or predilection to favor one side or one person rather than another. It is synonymous with bias, which excites a disposition to see and report matters as they are wished for rather than as they are. (Reyes v. People, August 4, 2010 ) -Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or to cause damage. It contemplates a breach of sworn duty through some perverse motive or ill will. (Reyes v. People, August 4, 2010 ) Gross inexcusable negligence does not signify mere omission of duties nor plainly the exercise of less than the standard degree of prudence it refers to negligence characterized by the want of even the slightest case, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally, with conscious indifference to consequences in so far as other persons may be affected. (Sistoza v. Desierto, 388 SCRA 307 ) There are two ways by which Sec.3(e) of R.A. No. 3019 may be violated – a. the first mode: by causing undue injury to any party, including the government, or b. the second mode: by giving any private party any unwarranted benefit, advantage or p reference In order to be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another, in the exercise of his official, administrative or judicial functions. Ex. The private suppliers, which were all personally chosen by respondent, were able to profit from the transactions without showing proof that their prices were the most beneficial to the government.
The presentation in evidence of the “buy -bust”
To hold a person liable under this section, the concurrence of the following elements must be established, viz: 1. that the accused is a public officer or a private person charged in conspiracy with the former; 2. that said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions; 3. that he or she causes undue injury to any party, whether the government or a private party; and 4. that the public officer has acted with manifest partiality, evident bad faith or gross inexcusable negligence. Sec. 3(g). Entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. Elements under Sec. 3(g) of R.A. 3019: To be indicted of the offense under Sec. 3(g) of R.A. No. 3019, the following elements must be present: a. that the accused is a public officer; b. that he entered into a contract or transaction on behalf of the government; and c. that such contract or transaction is grossly a nd manifestly disadvantageous to the government (Guy v. People, 582 SCRA 108, March 20. 2009) A private person shall be held liable together with the public officer if there is an allegation of conspiracy. The lack of public bidding alone does not automatically equate to a manifest and gross disadvantage to the government. Sec. 3 (h). Directly or directly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. The essential elements of the violation of said provision are as follows: 1. That the accused is a public officer; 2. That he has a direct or indirect financial or pecuniary interest in any business, contract or transaction. He either: a. intervenes or takes part in his official capacity in connection with such interest; or b. is prohibited from having such interest by the Constitution or by law. (Teves v. The Commission on Elections, 587 SCRA 1, April 28, 2009) _____________________________________________
money is not indispensable for the conviction of an accused provided that the sale of marijuana is adequately proven by the prosecution. (People vs. Pascual, 208 SCRA 393) The elements necessary for the prosecution of illegal sale of drugs are: (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment thereof. -What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. (People vs. Macatingag, G.R. No. 181037, January 19, 2009) DIFFERENTIATE PROSECUTION FOR ILLEGAL SALE FROM PROSECUTION FOR ILLEGAL POSSESSION OF DANGEROUS DRUGS. In a prosecution for illegal sale of dangerous drugs, the following elements must first be established: (1) proof that the transaction or sale took place and (2) the presentation in court of the corpus delicti or the illicit drug as evidence. In a prosecution for illegal possession of a dangerous drug, it must be shown that (1) the accused was in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused was freely and consciously aware of being in possession of the drug. People vs. Darisan, G.R. No. 176151, January 30, 2009 ILLEGAL (SEC.11)
POSSESSION
OF
DANGEROUS
DRUGS.
R.A. No. 6425 does not prescribe a single punishment for illegal possession of shabu and marijuana committed at the same time and in the same place. The prosecution would be correct in filing two separate Informations for the crimes of illegal possession of shabu and illegal possession of marijuana. a. The elements of the crime of illegal possession of dangerous drugs are as follow: (a) the accused was in possession of the regulated drugs;
THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 Republic Act No. 9165
(b) the accused was fully and consciously aware of being in possession of the regulated drug; and
[BAR Q. 2010, 2009, 2007, 2006, 2005, 2004, 2002, 2000, 1998, 1996, 1992]
(c) the accused had no legal authority to possess the regulated drug. Possession
ILLEGAL SALE OF DANGEROUS DRUGS (SEC. 5)
may actual or constructive. (People vs.
Eliza Buan, G.R. No. 168773, OCT. 27,
grams of the said dangerous drug in his possession.
2006)
However, the charge of use of marijuana is not proper. Section 15 of Rep. Act No. 9165 is explicit. It excludes
b. What is the concept of “POSSESSION ”? 1. Since the crime charged is mala prohibita, criminal intent is not an essential element.
However, the prosecution must prove
that the accused had the intent to possess (animus
penalties for use of dangerous drugs when “the person tested is also found to have in possession such quantity of any dangerous drug” provided in Section 11 of such Act”. What does “CHAIN OF CUSTODY” mean?
posidendi) the drugs. 2. Possession, under the law, includes not only actual possession, but also constructive possession. 3. Constructive possession exists when the drug is under the dominion and control of the
“Chain of Custody ” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction.
accused or when he has the right to exercise dominion and control over the place where it is found.
Exclusive possession or control is not
necessary. Mere possession of a regulated drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possessionthe onus probandi is shifted to the accused, to explain the absence of knowledge or animus possidendi”. (People vs. Gomez, G.R. No. 175319, January 15, 2010) In
order
to
establish
constructive
possession, the People must prove that petitioner has dominion or control on either the substance or
Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition. (People vs. Ruiz Garcia, G.R. No.173480 February 25, 2009) c. Is strict compliance with the prescribed procedure essential? Strict
compliance
with
the
prescribed
procedure is required. The Court recognized the following links that must be established in the chain of custody in a buy-bust situation:
the premises where found. The burden of evidence is shifted to petitioner to explain the absence of animus possidendi. (People vs .Buan, G.R. No. 168773, OCT. 27, 2006) Illustrative case: BAR Q. [2002] B is not criminally liable. The facts clearly show the absence of animus possidendi or intent to possess which is an element of the crime of illegal possession of drugs. The accused was not fully and consciously aware of being in possession of the dangerous drug. ILLEGAL USE OF DANGEROUS DRUGS. (Sec.15) -Section 15 of R.A. 9165 expressly excludes penalties for the use of dangerous drugs when the person is found to have in his possession quantity of any dangerous drug under Section 11. It states:
first , the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second , the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third , the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court. People vs. Kamad, G.R. No. 174198, January 19, 2010 Mere lapses in procedures need not invalidate a seizure if the integrity and evidentiary value of the seized items can be shown to have been preserved. However, the failure to follow the procedure
“That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.”
mandated under R.A. No. 9165 and its IRR must be adequately explained. The justifiable ground for non-compliance must be proven as a fact. The court cannot presume what these grounds are or that they even exist. (People vs. De Guzman, G.R.
BAR Q. [2005] The charge of possession of shabu under Section 11, Article II of RA 9165 is proper. The entrapment operation yielded the discovery of 100
No. 186498, March 26, 2010) The presumption of regular performance of duty is not conclusive in chain of custody cases and
cannot, by itself, overcome the constitutional presumption of innocence. Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. BAR Q. [2005] A person convicted of either drug trafficking or pushing cannot avail of the benefits of probation. If a positive finding for the use of dangerous drugs is found in the commission of a crime (Sec. 25), it shall constitute as a qualifying aggravating circumstance in the commission of the crime.
2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her. (Rustan Ang Y Pascua vs. Sagud, G.R. No. 182835, April 20, 2010) A TPO cannot be issued in favor of a man against his wife under R.A. No. 9292, known as the Anti-Violence Against Women and Their Children Act of 2004. In one case, the judge was found guilty of gross ignorance of the law for issuing a Temporary Protection Order (TPO) in favor of a male petitioner.
BAR Q. [2005] Candido is guilty of homicide only. The act of stabbing was not consciously adopted but only accidental and therefore, negates treachery. However, since the crime was committed when he was under the influence of dangerous drugs, such act becomes a qualifying circumstance pursuant to Section 25, R.A. 9165.
WHAT IS THE CONCEPT OF A BATTERED WOMAN SYNDROME? It refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.
__________________________________________ ANTI-VIOLENCE AGAINST WOMEN ANDTHEIR CHILDREN ACT OF 2004 Republic Act No. 9262 [BAR 2011, 2010] _____________________________________________
DEFINE VIOLENCE AGAINST WOMEN AND THEIR
IS BATTERED WOMEN SYNDROME A PROPER DEFENSE? Section 26 of R.A. 9262 is explicit: “Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code.
CHILDREN. “It refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. Section 3 of R.A. 9262
Section 3 states that violence against women and children includes, but is not limited to, the following acts: a) Physical Violence b) Sexual violence c) Psychological violence d) Economic abuse. WHAT ARE THE ELEMENTS OF THE CRIME OF VIOLENCE AGAINST WOMEN ? The elements of the crime of violence against women through harassment are: 1. The offender has or had a sexual or dating relationship with the offended woman;
PEOPLE VS. GENOSA G.R. No. 135981, January 15, 2004 RULING: More graphically, the battered woman syndrome is characterized by the so- called “cycle of violence,” which has three phases: (1) the tensionbuilding phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase. During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition.
The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this “good, gentle and caring man” is the real person whom she loves. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. Illustrative Cases:
this Act for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of this Act and granting other necessary relief. The protection orders that may be issued are the barangay protection order (BPO), temporary protection order (TPO) and permanent protection order (PPO). _____________________________________________ BOUNCING CHECKS LAW Batas Pambansa Blg. 22 [BAR 2010 ’03,’02. ’96, 1990, ‘88’,’86] ___________________________________________ BP.22 DOES NOT COVER MANAGER’S CHECK AND CASHIER’S CHECK. It is as good as the money it represents and is therefore deemed as cash.
BP.22 COVERS ACCOMODATION OR GUARANTEE CHECK.
BAR Q. [2010] A. Define “Battered Woman Syndrome.” It refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. B. What are the three phases of the “Battered Wo man Syndrome”?
BP.22 COVERS CROSSED CHECK since it is a negotiable instrument. It falls within the coverage of BP. 22. The Supreme Court ruled that BP. 22 considers the mere act of issuing an unfunded check as an offense not only against property but also against public order to stem the harm caused by these bouncing checks to the community. (Mitra vs. People, July 05, 2010)
The three phases are the following: a) tension-building phase b) acute battering incident c) tranquil and loving phase.
THE PRINCIPLE OF CONSPIRACY UNDER THE REVISED PENAL CODE IS APPLICABLE IN BP.22 WHICH IS A SPECIAL LAW.
C. Would the defense prosper despite the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code? Yes, R.A. 9262 expressly states that victimsurvivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code.
A.
WAYS BY WHICH VIOLATION OF BP. 22 ARE COMMITTED.
The gravamen of the offense punished by Batas Pambansa (B.P.) Blg. 22 is the act of making or issuing a worthless check or a check that is dishonored upon its presentation for payment – It is not the nonpayment of the obligation which the law punishes. The mere act of issuing a worthless check – whether
ABUSES may BE COMMITTED BY ANOTHER THRU CONSPIRACY. (SHARICA MARI L. GO-TAN vs. SPOUSES TAN, G.R. No. 168852: September 30, 2008). THE CRIME OF VIOLENCE AGAINST WOMEN AND CHILDREN is considered as a public offense which may be prosecuted upon the filing of a complaint by any citizen having personal knowledge of the circumstances involving the commission of the crime. Under express provision of Section 27 thereof, being under the influence of alcohol, any illicit drug, or any other mind-altering substance shall not be a defense under this Act. II. PROTECTION ORDERS A protection order is an order issued under
as a deposit, as a guarantee or even as evidence of pre-existing debt – is malum prohibitum. THE ELEMENTS OF THE FIRST PARAGRAPH OF SECTION 1 OF BP.22 ARE AS FOLLOWS: 1. 2.
The accused makes, draws or issues any check to apply to account or for value; The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment .
There is a prima facie evidence of knowledge of insufficiency of funds when the check was presented within 90 days from the date appearing on the check and was dishonored unless:
a. such maker or drawer pays the holder thereof the amount due thereon within 5 banking days after receiving notice that such check has not been paid by the drawee , or b. makes arrangements for payment in full by the drawee of such check within (5) banking days after receiving notice of non-payment. Is the 90 day-period to deposit the check an element of BP 22?
For violation of the “Bouncing Check Law”, deceit and damage are not essential or required. The essential element of the offense is knowledge on the part of the maker or drawer of the check of the insufficiency of his funds. The gravamen of the offense is the issuance of a bad check, not the non-payment of an obligation.
Second , Article 315, Par.2 (d) is a crime against property because the issuance of the check is used as a means to obtain a valuable consideration from the payee.
No. That the check must be deposited within ninety (90) days is simply one of the conditions for the prima facie presumption of knowledge of lack of funds to arise, but it is not an element of the offense, and neither does it discharge the accused from his duty to maintain sufficient funds in the account within a reasonable time thereof. (Nagrarnpa vs. People, 386 SCRA 412). The notice of dishonor of a check may be sent to the drawer or maker, by the drawee bank, the holder of the check, or the offended party. ( Ambito vs. People, 579 SCRA 68, February 13, 2009) ELEMENTS OF THE SECOND PARAGRAPH OF SECTION 1 OF BP.22. This way of violating B.P.22 suggests that at the time the check was issued, the issuer had sufficient funds in or credit with the drawee bank. However, the check was dishonored when presented for payment within 90 days from its date for failure to maintain sufficient funds or credit to cover the amount. The elements are as follows: a) any person, makes or draws and issues a check; b) such person has sufficient funds in or credit with the drawee bank; c) failure to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon;
On the other hand, in BP. 22, the mere act of issuing an unfunded check is an offense against public order to stem the harm caused by these bouncing checks to the community. (Mitra vs. People, July 05, 2010). Third , in estafa, the failure of the drawer to deposit the amount necessary to secure payment of the check within 3 days from receipt of notice from the bank and or the payee or holder that said check has been dishonored for lack or insufficiency of funds is prima facie evidence of deceit constituting false pretense or fraudulent act. In B.P. 22, the failure of the drawer to pay in full the payee or holder within 5 banking days after receiving notice that the check has been rejected by the drawee bank gives rise to presumption of knowledge of insufficiency of funds or credit. Fourth, in estafa, the check is issued in payment of a simultaneous obligation to defraud the creditor. In B.P. 22, the check is issued in payment of a pre-existing obligation. Fifth, in estafa, an endorser who is with knowledge that the check is worthless and had acted with deceit is liable. In B.P. 22, the persons liable are the maker, drawer and the issuer but not an endorser. Lastly , since estafa is mala in se, good faith is a proper defense.
d) for which reason it is dishonored by the drawee bank.
B.P. 22 is mala prohibitum, it is punished by a special law and therefore, good faith is not a defense.
COMPARISON OF VIOLATION OF BP 22 FROM ESTAFA UNDER PAR. 2 [D], ARTICLE 315 , OF THE REVISED PENAL CODE.
“SIMULTANEOUS OBLIGATION” EXISTING” OBLIGATION.
First , the elements of estafa under paragraph 2(d), Article 315 of the RPC are (1) the postdating or issuance of a check in payment of an obligation contracted at the time the check was issued; (2) lack of sufficiency of funds to cover the check; and (3) damage to the payee. (Cajigas vs. People, 580 SCRA 54, February 23, 2009)
FROM
“PRE-
“Simultaneous obligation” as an element of estafa connotes that the issuance of a check is used as a means to obtain valuable consideration from the payee. Deceit is the efficient cause for defraudation. To defraud is to deprive some right, interest, or property by deceitful devise. (People vs.Quesada, 60 Phil. 515)
In the issuance of a check in payment of a “pre-existing obligation”, the drawer derives no material benefit in return as its consideration had long
been delivered to him before the check was issued. Since an obligation has already been contracted, the accused in this case obtain nothing when he issued the check, his debt for the payment thereof had been contracted prior to its issuance. There is deceit when one is misled -- by guile, trickery or by other means - to believe as true what is really false. (Dy vs. People, 571 SCRA 59, November 14, 2008) Damage as an element of estafa may consist in (1) the offended party being deprived of his money or property as a result of the defraudation; (2) disturbance in property right; or (3) temporary prejudice. (Nagrampa vs. People, 386 SCRA 412).
To constitute estafa, the act of postdating or issuing a check in payment of obligation must be the efficient cause of defraudation and, as such, it should be either prior to, or simultaneous with, the act of fraud. (Nagrampa vs. People, 386 SCRA 412) A PERSON MAY BE BOTH LIABLE FOR VIOLATION OF B.P. 22 AND ANOTHER PROVISION OF THE REVISED PENAL CODE The filing of a criminal case under B.P. 22 shall not prejudice any liability arising from a felony committed under the Revised Penal Code. B.
DEFENSES IN BP. 22
3. WHAT ARE THE POSSIBLE DEFENSES IN B.P. 22? a. The presentation of the registry card, with an unauthorized signature, does not meet the required proof beyond reasonable doubt that the petitioner received such noticed, especially considering that he denied receiving it. (Suarez v. People 555, SCRA 238, June 19, 2008) b.
Presumption of knowledge of insufficiency of funds is not conclusive as it may be rebutted by full payment. (Tan vs. Philippine Commercial International Bank 552 SCRA 532, April 23, 2008)
c. Under B.P. Blg. 22, the prosecution must prove not only that the accused issued a check that was subsequently dishonored. It must also establish that the accused was actually notified that the check was dishonored, and that he or she failed, within five (5) banking days from receipt of the notice, to pay the holder of the check the amount due thereon or to make arrangement for its payment. d. Prescription is a proper defense. The prescriptive period is 4 years reckoned from the lapse of the five (5) banking days from notice of dishonor within which to make good the check. e. Forgery of the signature appearing on the check (Ilusorio vs. Court of Appeals, 353 SCRA 89)
An agreement surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of Batas Pambansa Blg. 22. ( Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30, 2009) LACK OF VALUABLE CONSIDERATION is not A PROPER DEFENSE IN VIOLATION OF B.P. 22. (Dreamwork Construction, Inc. v. Janiola 591 SCRA 466, June 30, 2009) NOVATION is not A PROPER DEFENSE IN B.P. 22. IS “STOP PAYMENT” A PROPER DEFENSE IN BP. 22? It depends. Although the drawer ordered a “STOP PAYMENT” or countermand, yet if it was clear from the statement of account that the check bounced due to insufficiency of funds, the drawer of the check is still liable.Chang vs. IAC, 146 SCRA 46 BAR Q.[2002]
C.
CORPORATION IN RELATION TO BP. 22
Section 1 of the law provides: “Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable The officer who is accused of signing the check must receive the notice of dishonor. Constructive notice to the corporation, who has a separate personality from its officer, is not enough. ADMINISTRATIVE CIRCULAR NO. 12-2000 refers to the imposition of penalties for violation of B.P. 22. It provides: Court
has
not
decriminalized
B.P.
22
violations, nor have removed imprisonment as an alternative penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the judge. Should the judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not to be deemed a hindrance. (Lunaria vs. People, 5701 SCRA 572, November 11, 2008). ADMINISTRATIVE CIRCULAR NO. 13-2001 is a circular addressed to all judges which clarifies Administrative Circular No. 12-2000 on the penalty for violation of Batas Pambansa Blg. 22. It provides: The
clear
tenor
and
intention
of
Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violations
of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law.
(b) accused, who is not a principal or accomplice in the crime, buys, receives, possess, keeps, acquires, conceals, or disposes or buys and
Thus, Administrative Circular No. 12-2000
sells or in any manner deals in any article, item object
establishes a rule of preference in the application of
or anything of value, which has been derived from
the penal provisions of B.P. Blg. 22 such that where
the proceeds of said crime;
the circumstances of both the offense and the o ffender clearly indicate good faith or a clear mistake of fact
(c) the accused knows or should have
without taint of negligence, the imposition of a fine
known that said article, item, object or anything of
alone should be considered as the more appropriate
value has been derived from the proceeds of the
penalty.
crime of robbery or theft; and
It is, therefore, understood that: 1.
Administrative Circular 12-2000 does not
remove imprisonment as an alternative penalty for violations of B.P. Blg. 22; 2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the
(d) there is, on the part of the accused, intent to gain for himself or fo r another. Illustrative Case: BAR Q. [2010]. Yes, she is liable provided the prosecution can prove that Arlene knew or should have known that said item had been derived from the proceeds of the crime of robbery or theft.
peculiar circumstances of each case, determine whether the imposition of a fine alone would best
DIFFERENTIATE A FENCE FROM AN ACCESSORY TO
serve the interests of justice or whether forbearing
THEFT OR ROBBERY.
to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; 3. Should only a fine be imposed and the accused
a. A fence is punished as a principal under P.D. No 1612 and the penalty is higher, whereas an accessory to robbery or theft under the Revised Penal Code is punished two degrees lower than the principal as a general rule.
be unable to pay the fine, there is no legal obstacle
b. Fencing is a malum prohibitum and
to the application of the Revised Penal Code
therefore, there is no need to prove criminal intent of
provisions on subsidiary imprisonment.
the accused. Good faith is not a defense. In accessory to robbery or theft under the Revised Penal Code, intent is an element of the crime and therefore, good faith is a proper defense.
THE ANTI-FENCING LAW OF 1979 Presidential Decree No. 1612
c. All the acts of one who is an accessory to the crimes of robbery or theft are included in the acts defined as fencing. Corollarily, the accessory in the
[BAR 2010, 2009, ’95, 1993, 1990, 1987, 1985]
crimes of robbery or theft could be prosecuted as such under the Revised Penal Code or as a fence under PD
WHAT IS THE CRIME OF "FENCING". (Sec. 2)
No. 1612.
Section 2 of this Act defines fencing as:
If the fence is a partnership, firm, corporation or association, the president or the manager or any officer thereof who knows or should have known the commission of the offense shall be liable.
“It is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.”
BAR Q. [1995] The elements of fencing are:
WHAT IS THE PRESUMPTION OF FENCING? (SEC. Mere possession of any good, article, item, object, anything of value which has been the subject robbery or thievery shall be prima facie evidence fencing
5) or of of
Section 6 underscores the importance of securing a clearance or permit in dealing with the buy and sell activities. It thus mandates:
(a) a crime of robbery or theft has been committed;
“All stores, establishments or entities dealing in the buy and sell of any good, article item, object of anything of value obtained from an unlicensed dealer
or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where such store, establishment or entity is located…” _____________________________________________
To establish the corpus delicti , the prosecution has the burden of proving that the firearm exists and that the accused who owned or possessed it does not have the corresponding license or permit to possess or carry the same. (Sayco vs. People, 547 SRA 368, March 3, 2008) THE NON-PRESENTATION OF THE SUBJECT FIREARM is
ILLEGAL POSSESSION OF FIREARM PD 1866 as amended by R.A. 8294
not FATAL TO THE PROSECUTION’S CAUSE because the
existence of the firearm can be established by [BAR Q. 2011, 2002, 2000, 1998] ______________________________________________
testimony even without the presentation of the said
In illegal possession of firearm and ammunition, the
“Loose firearm” refers to an unregistered firearm, an
prosecution has the burden of proving the twin
obliterated or altered firearm, firearm which has been
elements of:
lost or stolen, illegally manufactured firearms,
(1) the existence of the subject firearm and ammunition, and
the
same
does
not
have
the
corresponding license for it. (Valeroso vs. People, 546 SCRA 450, February 22, 2008) Ownership is not an essential element of illegal possession of firearm. What the law requires is merely possession
which
registered firearms in the possession of an individual other than the licensee and those with revoked licenses in accordance with the rules and regulations.
(2) the fact that the accused who possessed or owned
firearm. (People vs. Narvasa, 100 SCAD 745)
includes
not
only
physical
possession but also constructive possession or the
(R.A. No. 10591) USE OF LOOSE FIREARM IN THE COMMISSION OF A CRIME (Sec. 29 of R.A. No. 10591) The use of loose firearm, when inherent in the commission of a crime punishable under the Revised Penal Code or other special laws, shall be considered as an aggravating circumstance. Provided that:
subjection of the thing to one’s control and
-If the crime committed with the use of a loose
management. (People vs.De Gracia, 233 SCRA 716)
firearm is penalized by the law with a maximum
The kind of possession punishable under PD 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess. (People vs. Dela Rosa, 90 SCAD 143)
penalty which is lower than that prescribed in Sec. 28 of R.A. No. 10591, the penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged. -If the crime committed with the use of l oose firearm is penalized by the law with a maximum penalty which
ASIDE FROM A FIREARM WITHOUT A LICENSE, WHAT DOES UNLICENSED FIREARM INCLUDE?
is equal to that imposed under Sec. 28 of R.A. No. 10591, the penalty of prision mayor in its minimum period shall be imposed in addition to the penalty for
The term unlicensed firearm shall include: 1) firearms with expired license; or
the crime punishable under the Revised Penal Code or other special laws of which he/she is found guilty. _____________________________________________
2) unauthorized use of licensed firearm in the commission of the crime. Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful authority. The scope of the term has been expanded in Section 5 of Republic Act No. 8294 as: (1) firearm with expired license, or (2) unauthorized use of licensed firearm in the commission of the crime. (People vs. Molina, 292 SCRA 742) It is settled that the lack or absence of a license is an essential ingredient of the crime of illegal possession of firearm. (Sasot vs. Yuson, 592 SCRA 368, July 13, 2009)
ANTI- MONEY LAUNDERING ACT OF 2001 R.A. No. 9160 as amended by R.A. 9194, R.A. 10167, R.A. 10168 and R.A. 10365, also known as An Act Further Strengthening The Anti-Money Laundering Law [BAR 2010, 2009, 2005] BAR Q. [2010] DEFINE MONEY LAUNDERING. (Sec. 4) “It is a crime whereby the proceeds of an unlawful activity as herein defined are transacted, thereby making them appear to have originated from legitimate sources.” AS AMENDED BY R.A. NO. 10365, WHAT ARE THE WAYS OF COMMITTING MONEY LAUNDERING?
Section 4 of R.A. 10365 provides the ways by which money laundering is committed:
under par (b), it is stated that the prosecution of any offense or violation under this Act shall proceed independently of any proceeding relating to the
“ Money laundering is committed by any
unlawful activity.
person who, knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity: (a)
transacts
said
monetary
instrument or property; (b) converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property; (c) conceals or disguises the true nature,
source,
disposition,
location,
movement
or
AS AMENDED BY RA 10167, HOW IS THE FREEZE ORDER OF MONETARY INSTRUMENT OR PROPERTY RELATED TO UNLAWFUL ACTIVITY MADE? (SEC. 10) Previously, RA 9194 amended Section 10 of RA 9160 to read as follows: “ SEC.10. Freezing of Monetary Instrument or Property. – The Court of Appeals, upon application ex parte by the AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Sec. 3(i) hereof, may issue a freeze order which shall be effective immediately. The freeze order shall be for a period of twenty (20) days unless extended by the court .”
ownership of or rights with respect
to
said
monetary
instrument or property;
R.A. No. 10167 further amended Section 10 to read as follows:
(d) attempts or conspires to commit
money
offenses
laundering
referred
to
in
paragraphs (a), (b) or (c);
“Upon a verified ex parte petition by the
AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) hereof, the Court of Appeals may issue a
(e) aids, abets, assists in or
freeze order which shall be effective immediately, and
counsels the commission of the
which shall not exceed six (6) months depending upon
money
offenses
the circumstances of the case: Provided, That if there
referred to in paragraphs (a), (b)
is no case filed against a person whose account has
or (c) above; and
been frozen within the period determined by the court,
laundering
the
freeze
order
shall
be
deemed ipso
(f) performs or fails to perform
facto lifted: Provided, further, That this new rule shall
any act as a result of which he
not apply to pending cases in the courts. In any case,
facilitates the offense of money
the court should act on the petition to freeze within
laundering
in
twenty-four (24) hours from filing of the petition. If
paragraphs (a), (b) or (c) above.”
the application is filed a day before a nonworking day,
referred
to
the computation of the twenty-four (24)-hour period IS MONEY LAUNDERING COMMITTED WHEN THERE IS
shall exclude the nonworking days.”
FAILURE TO REPORT A COVERED OR SUSPICIOUS TRANSACTION? Yes, money laundering is also committed by any covered person who, knowing that a covered or suspicious transaction is required under this Act to be reported to the Anti-Money Laundering Council (AMLC), fails to do so. MAY A PERSON BE CHARGED OF BOTH THE OFFENSE OF MONEY LAUNDERING AND THE UNLAWFUL ACTIVITY? Yes. As amended by RA 10365, Section 6(a) provides that any person may be charged with and convicted of both the offense of money laundering and the unlawful activity as herein defined. In fact,
-Pursuant to RA 9160 as amended, it is solely the Court of Appeals which has the authority to issue a freeze order. BAR Q. [2010] . -No court shall issue a temporary restraining order or a writ of injunction against any freeze order, except the Supreme Court. IS AMLC AUTHORIZED TO INQUIRE INTO BANK DEPOSITS? (SEC. 11) Yes, under Sec.11, the AMLC may inquire into or examine any particular deposit or investment with any banking institution or non-bank financial institution.
UNDER WHAT CIRCUMSTANCE IS AMLC AUTHORIZED TO INQUIRE INTO BANK DEPOSITS?
petition filed for the purpose, ordered the seizure of any monetary instrument or property, in whole or in part, directly or indirectly, related to said report. It is
Only upon order of any competent court in cases of violation of this Act, when it has been established that there is probable cause that the deposits or investments are related to an unlawful activities as defined in Section 3(I) hereof or a money laundering offense under Section 4 hereof except:
the preliminary seizure of the property in question which brings it within the reach of the judicial process. (Republic v. Glasgow Credit and Collection Services, Inc. , 542 SCRA 95, January 18, 2008) WHAT ARE THE NEW PROVISIONS INTRODUCED
That no court order shall be required in cases involving unlawful activities defined in Sections 3(I) 1, (2) and (12).”
UNDER THE AMENDMENTS? 1.
The non-intervention of the AMLC in the Bureau
DOES SECTION 11 AUTHORIZE AN EX-PARTE ISSUANCE OF A BANK INQUIRY ORDER?
of
Internal
Revenue
(BIR)
operations. The authority to inquire into or examine
No. In instances where a court order is required for the issuance of the bank inquiry order, nothing in Section 11 specifically authorizes that such order may be issued ex parte. Republic vs. Eugenio, Jr., 545 SCRA 384(2008)
the main account and the related accounts
shall
comply
with
the
requirements of Article III, Sections 2 and 3 of the 1987 Constitution, which are hereby incorporated by reference.
DIFFERENTIATE SECTION 10 FROM SECTION 11.
Likewise, the constitutional injunction
Although oriented towards different purposes, the freeze order under Section 10 and the bank inquiry order under Section 11 are similar in that they are extraordinary provisional reliefs which the AMLC may avail of to effectively combat and prosecute money laundering offenses. Crucially, Section 10 uses specific language to authorize an ex parte application for the provisional relief therein, a circumstance absent in Section 11. If indeed the legislature had intended to authorize ex parte proceedings for the issuance of the bank inquiry order, then it could have easily expressed such intent in the law, as it did with the freeze order under Section 10. With respect to freeze orders under Section 10, the implementing rules do expressly provide that the applications for freeze orders be filed ex parte but no similar clearance is granted in the case of inquiry orders under Section 11. Republic vs. Eugenio, Jr., 545 SCRA 384(2008) A criminal conviction for an unlawful activity
against ex post facto laws and bills of attainder shall be respected in the implementation of this Act. 2.
Under
the
new
law,
pre-need
companies, money changers, real estate agents, and dealers of precious stones and metal are required to report financial transactions to the Anti-Money Laundering Council (AMLC). Before, only banks, insurance companies and securities dealers were obliged to submit
covered
and
suspicious
transaction reports to AMLC. _____________________________________________ ANTI-HAZING LAW [BAR Q. 2002] ____________________________________________
is not a prerequisite for the institution of a civil forfeiture proceeding. Stated otherwise, a finding of guilt for an unlawful activity is not an essential
DEFINE HAZING (Sec.1)/BAR Q. [2002] What is hazing as defined by law?
element of civil forfeiture. (Republic v. Glasgow Credit and Collection Services, Inc., 542 SCRA 95, January 18, 2008). WHAT ARE THE TWO CONDITIONS WHEN APPLYING FOR CIVIL FORFEITURE? R.A.
9160,
as
amended,
and
its
implementing rules and regulations lay down two conditions when applying for civil forfeiture: (1) when there is a suspicious transaction report or a covered transaction
report
deemed
suspicious
after
investigation by the AMLC and (2) the court has, in a
Section 1 defines “hazing” as follows: “It is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury.”
WHAT ARE THE REQUISITES BEFORE HAZING OR INITIATION RITES SHALL BE ALLOWED? (Sec.2)
A prior written notice to the school authorities or head of organization must be given seven (7) days before the conduct of such initiation. Section 2 of the law specifically provides for the requisites: “There must be a prior written notice to the school authorities or head of organization seven (7) days before the conduct of such initiation.
principal unless he prevented the commission of the acts punishable herein.” MAY A PERSON CHARGED UNDER THIS PROVISION BE ENTITLED TO THE MITIGATING CIRCUMSTANCE OF NO INTENTION TO COMMIT SO GRAVE A WRONG? (Sec.4) No. The express provision of the law under Section 4 is explicit in the inapplicability of the mitigating circumstance of no intention to commit so grave a wrong to a person charged under this provision.
The written notice shall indicate: _____________________________________________ 1.
2. 3.
the period of the initiation activities which shall not exceed three ( 3) days, shall include the names of those to be subjected to such activities, and shall further contain an undertaking that no physical violence be employed by anybody during such initiation rites.”
Under Section 3, when there is initiation rites:
HUMAN SECURITY ACT OF 2007 (THE ANTI-TERRORISM LAW) Republic Act No. 9372 _____________________________________________ 1. UNDER SECTION 3 THE ELEMENTS OF THE CRIME OF TERRORISM ARE AS FOLLOWS: 1. First, any person who commits an act punishable under any of the following provisions of the Revised Penal Code:
“The head of the school or organization or their representatives must assign at least two (2) representatives of the school or organization, as the case may be, to be present during the initiation.
a. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recr uit, neophyte or applicant.”
c. Article 134-a (Coup d' Etat), including acts committed by private persons;
b. Article 134 (Rebellion or Insurrection);
d. Article 248 (Murder); THE OWNER OF THE PLACE IS LIABLE AS AN ACCOMPLICE (Sec.4) b when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. Parents may be liable as principals if: a. The hazing is held in the home of one of the officers or members of the fraternity, group, or organization; b. The parents have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. School authorities and faculty members may be held liable as accomplices when: a. they consent to the hazing or who have actual knowledge thereof; b. they failed to take any action to prevent the same from occurring. -Section 4 clearly states when the prima facie evidence of participation as principal arise. It states: “The presence of any person during the hazing i s prima facie evidence of participation therein as
e. Article 267 (Kidnapping and Serious Illegal Detention); f. Article 324 (Crimes Involving Destruction), or under 1. Presidential Decree No. 1613 (The Law on Arson); 2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); 3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968); 4. Republic Act No. 6235 (AntiHijacking Law); 5. Presidential Decree No. 532 (AntiPiracy and Anti-Highway Robbery Law of 1974); and, 6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Explosives)
Ammunitions
or
2. Second, the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace. 3. Third, the purpose is in order to coerce the government to give in to an unlawful demand. Any person guilty of the crime of terrorism shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law , as amended. From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand. -Before a charge for terrorism may be filed under R.A. 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an
“unlawful
demand.”
(Southern
Hemisphere
WHAT IS THE CONSEQUENCE FOR FAILURE TO DELIVER SUSPECT TO THE PROPER JUDICIAL AUTHORITY WITHIN THREE DAYS? (Section 20) Any police or law enforcement personnel who has apprehended or arrested, detained and taken custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism and fails to deliver such charged or suspected person to the proper judicial authority within the period of three (3) days shall be criminally l iable. DOES PROSECUTION UNDER THIS ACT BAR ANOTHER PROSECUTION UNDER THE REVISED PENAL CODE OR ANY SPECIAL PENAL LAWS? Yes, the acquittal of the accused shall be a bar to another prosecution for any offense or felony which is necessarily included in the offense charged. (Sec.49) CAN AN INDIVIDUAL PERSON, ALTHOUGH PHYSICALLY OUTSIDE THE TERRITORIAL LIMITS OF THE PHILIPPINES BE HELD CRIMINALLY LIABLE FOR ACTS OF TERRORISM? Yes, the law has extra-territorial application. Section 58 constitute as an exception to the territoriality rule. It provides: “ Extra-Territorial Application of this Act. - Subject to the provision of an existing treaty of which the Philippines is a signatory and to any contrary provision of any law of preferential application, the provisions of this Act shall apply:
(1) to individual persons who commit any of the crimes defined and punished in this Act within the terrestrial domain, interior waters, maritime zone, and airspace of the Philippines;
Engagement Network, Inc. vs. Anti-Terrorism Council G.R. No. 178552, October 5, 2010). -Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. (Southern Hemisphere Engagement Network, Inc. vs. Anti-Terrorism Council G.R. No. 178552, October 5, 2010). There is conspiracy when two or more persons come to an agreement concerning the commission of the crime of terrorism as defined in Section 3 of R.A.9372 and decide to commit the same. Under Section 4 thereof, mere conspiracy to commit terrorism is punishable. Upon a written order of the Court of Appeals, SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND RECORDING OF COMMUNICATIONS ARE ALLOWED. (Section 7)
(2) to individual persons who, although physically outside the territorial limits of the Philippines, commit, conspire or plot to commit any of the crimes defined and punished in this Act inside the territorial limits of the Philippines; (3) to individual persons who, although physically outside the territorial limits of the Philippines, commit any of the said crimes on board Philippine ship or Philippine airship; (4) to individual persons who commit any of said crimes within any embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity; (5) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes against Philippine citizens or persons of Philippines descent, where their citizenship or ethnicity was a factor in the commission of the crime; and
(6) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes directly against the Philippine government.”
1. The accused engages in, promotes, facilitates or induces child prostitution; 2. The act is done through, but not limited to, the following means:
_____________________________________________ a. acting as a procurer of a child prostitute; b. THE ANTI-CHILD ABUSE LAW Republic Act No. 7610 _____________________________________________ DEFINE CHILD ABUSE Child abuse is defined under Section 3 (b) of R. A. 7610 as:
inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; c. taking advantage of influence or relationship to procure a child as a prostitute;
d.
threatening or using violence towards a child to engage him as a prostitute; or
e. giving monetary
consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution;
"Child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following:
3. The child is exploited or intended to be exploited in prostitution; and
(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
4. The child, whether male or female, is below 18
(2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;
WHAT ARE THE ELEMENTS OF SEXUAL ABUSE DEFINED
years of age. People vs. Dulay, 681 SCRA 638(2012)
UNDER SECTION 5(B) OF THIS LAW? The Court in Navarete v. People, 513 SCRA 509 (2007)
(3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or
held that sexual abuse under Section 5(b) has three
(4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.
(1) the accused commits an act of sexual
elements:
intercourse or lascivious conduct; (2) the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child is below 18 years old.
- It is inconsequential that the sexual abuse occurred only once.
-THE LAW USES THE TERM A CHILD “SUBJECT TO SEXUAL
-Child abuse includes physical abuse of the child,
ABUSE ”.
WHEN
IS
A
CHILD
DEEMED
SUBJECTED TO “OTHER SEXUAL ABUSE” ?
whether the same is habitual or not. (588 SCRA 747, 1.
June 5, 200)9
A child is deemed subjected to other sexual abuse when the child indulges in
DEFINE CHILD PROSTITUTION AND OTHER SEXUAL
lascivious conduct under the coercion or
ABUSE.
influence of any adult. R.A. 7610 covers not only child prostitution but also other
Article III Section 5 defines Child Prostitution and Other Sexual Abuse as:
forms of sexual abuse. Olivarez vs. Court of Appeals, 465 SCRA 465(2005)
“Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.
2.
In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party’s free
will. Jojit Garingarao vs. People, G.R. No. 192760, July 20, 2011 -Each incident of sexual intercourse and lascivious act
WHAT ARE THE ELEMENTS OF PARAGRAPH 5 (a) of
with a child under the circumstances mentioned in
R.Aa 7610?
Art. III, §5 of R.A. No. 7160 is a separate and distinct offense. Lavides vs. Court of Appeals, 324 SCRA 321
The elements of paragraph 5 (a) of R.A. 7610 are the following:
[2001]
-WHAT MUST BE PRESENT FOR CONSENSUAL SEXUAL
ARE THE RULES OF OFFSETTING THE MODIFYING
INTERCOURSE OR LASCIVIOUS CONDUCT WITH A
CIRCUMSTANCES APPLICABLE IN R.A. 7610, IT BEING A
MINOR, WHO IS NOT EXPLOITED IN PROSTITUTION,
SPECIAL LAW?
TO FALL WITHIN THE PURVIEW OF SECTION 5(B) OF Notwithstanding that R.A. 7610 is a special
R.A. NO. 7610?
law, appellant may enjoy the benefits of the In People v. Court of Appeals, 562 SCRA 619, August 20, 2008, the Supreme Court held:
Indeterminate Sentence Law. Since the penalty provided in R.A. 7610 is taken from the range of penalties in the Revised Penal Code, it is covered by
“For consensual sexual
the first clause of Section 1 of the Indeterminate
intercourse or lascivious conduct
Sentence Law.
with a minor, who is not exploited in prostitution, to thus fall within
JURISPRUDENTIAL DOCTRINE.
the purview of Section 5(b) of R.A. No. 7610, “persuasion, inducement, enticement or coercion” of the
child must be present.” CAN A PERSON BE CHARGED OF COMMITTING AN ACT PUNISHED UNDER SECTION 5(B) AND RAPE AT THE SAME TIME? Under Section 5(b), Article III of Republic Act (RA) 7610 in relation to RA 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory
Section 5, Article III of RA 7610 provides: The Court ruled that a child is deemed subject to other sexual abuse when the child is the victim of lascivious conduct under the coercion or influence of any adult. In lascivious conduct under the coercion or influence of any adult, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party’s free will . In this case, Garingarao coerced AAA into submitting to his lascivious acts by pretending that he was examining her. (GARINGARAO vs. PEOPLE , G.R. No. 192760: July 20, 2011)
sexual abuse under Section 5(b) of RA 7610 or rape
For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in prostitution, to thus fall within the purview of Section 5(b) of R.A. No. 7610, "persuasion, inducement, enticement or coercion" of the child must be present. (PEOPLE vs. COURT OF APPEALS and OLAYON, G.R. No. 171863, August 20, 2008)
under Article 266-A (except paragraph 1[d]) of the
_______________________________________
rape under Article 266-A(1)(d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either
Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. People vs. Abay, 580 SCRA 235(2009) CAN
RAPE
INSTEAD
BE
COMPLEXED
WITH
A
VIOLATION OF SECTION 5 (B) OF RA 7610?
THE ANTI- TORTURE ACT Republic Act 9745 _____________________________________________ WHO ARE THE PERSONS CRIMINALLY LIABLE UNDER SECTION 13? The law adopted the classification of persons criminally liable under the Revised Penal Code, to wit: principals, accomplices and accessories. BAR Q. [2011]
Rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special
CAN TORTURE AS A CRIME ABSORB OR BE ABSORBED BY ANY OTHER CRIME? No. Torture should be treated as a separate and independent crime under the law. (Sec.15)
law. (People v. Abay 580 SCRA 235, February 24, 2009). CAN AN ACCUSED BE CONVICTED OF ACTS OF LASCIVIOUSNESS UNDER THE REVISED PENAL CODE INSTEAD OF VIOLATION OF SECTION 5 (B) OF R.A. 7610? Yes. The special circumstance that the child is “subjected to other sexual abuse” is not an element in
the crime of acts of lasciviousness under Article 336 of the Revised Penal Code.
WHAT IS THE PENALTY IF ANY OF THE CRIMES AGAINST PERSONS OR AGAINST PERSONAL LIBERTY AND SECURITY IF ATTENDED BY TORTURE AND SIMILAR ACTS? The penalty to be imposed shall be in its maximum period. MAY A PERSON WHO IS FOUND TO HAVE COMMITTED THE CRIME OF TORTURE BE BENEFITED FROM ANY SUBSEQUENT SPECIAL AMNESTY LAW?
No. They are excluded from the coverage of special amnesty law. (Sec. 16)
(2)
Against one whose education, training, apprenticeship or tutorship is entrusted to the offender;
(3)
When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges, or consideration; or
(4)
When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice (Sec.3).
_______________________________________ THE ANTI-SEXUAL HARASSMENT ACT OF 1995 Republic Act No. 7877
WHO MAY COMMIT SEXUAL HARASSMENT? It is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act (Sec.3).
DIOSCORO F. BACSIN vs. EDUARDO O. WAHIMAN G.R. No. 146053, April 30, 2008 Doctrine: It is not necessary that the demand, request, or requirement of a sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal certitude, from the acts of the offender.
WHO ELSE MAY BE LIABLE? Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act (Sec.3). HOW IS SEXUAL HARASSMENT COMMITTED IN A WORK-RELATED OR EMPLOYMENT ENVIRONMENT? It is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive ordiminish employment opportunities or otherwise adversely affect said employee; (2) The above acts would impair the employee's rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee. HOW IS SEXUAL HARASSMENT COMMITTED IN AN EDUCATION OR TRAINING ENVIRONMENT?
2TERESITA G. NARVASA vs. BENJAMIN A. SANCHEZ, JR. G.R. No. 169449, March 26, 2010 Doctrine: Assuming arguendo that respondent never intended to violate RA 7877, his attempt to kiss petitioner was a flagrant disregard of a customary rule that had existed since time immemorial – that intimate physical contact between individuals must be consensual. Respondent’s defiance of custom and lack of respect for the opposite sex were more appalling because he was a married man. Respondent’s act showed a low regard for women and disrespect for petitioner’s honor and dignity. SHARON S. ALEGRIA vs. JUDGE MANUEL N. DUQUE A.M. No. RTJ-06-2019, 04 April 2007 Doctrine: Sexual harassment in the workplace is not about a man taking advantage of a woman by reason of sexual desire – it is about power being exercised by a superior over his women subordinates. That power emanates from the fact that he can remove them if they refuse his amorous advances. _____________________________________________ THE ANTI-TRAFFICKING IN PERSONS ACT OF 2003 Republic Act No. 9208 _____________________________________________ WHAT ACTS CONSTITUTE “QUALIFIED TRAFFICKING”? The following are considered as qualified trafficking: (a) When the trafficked person is a child;
It is committed: (1)
Against one who is under the care, custody or supervision of the offender;
(b) When the adoption is effected through Republic Act No. 8043, otherwise known as the "InterCountry Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage;
BAR Q. [2012] When the adoption of a child is
DEFINE THE CRIME OF PLUNDER. (Section 2)
effected under the Inter-Country Adoption Act for the purpose of prostitution, what is the proper charge against the offender who is a public officer in
Section 12 of R.A. 7659 amended Section 2 of R.A. 7080 to read as follows:
relation to the exploitative purpose? a. acts that promote trafficking in persons; b. trafficking in persons; c. qualified trafficking in persons; d. use of trafficked person. (c) When the crime is committed by a syndicate, or in large scale. c.1 When is Trafficking deemed committed by a syndicate? If it carried out by a group of three (3) or more persons conspiring or confederating with one another. c.2 When is Trafficking deemed committed in large scale? If it committed against three (3) or more persons, individually or as a group. (d) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (e) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; (f) When the offender is a member of the military or law enforcement agencies; and (g) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).(Sec.6). BAR Q.[2012] CONSPIRACY TO COMMIT FELONY IS PUNISHABLE ONLY IN CASES IN WHICH THE LAW SPECIFICALLY PROVIDES A PENALTY THEREFOR. UNDER WHICH OF THE FOLLOWING INSTANCES ARE THE CONSPIRATORS NOT LIABLE? a. b. c. d.
Conspiracy to commit arson. Conspiracy to commit terrorism. Conspiracy to commit child pornography. Conspiracy to commit trafficking in persons.
_____________________________________________ ANTI-PLUNDER LAW Republic Act No. 7080
_______________________________________
"Sec.2. Definition of the Crime of Plunder Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires illgotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court”. STATE THE RULE OF EVIDENCE FOR PURPOSES OF ESTABLISHING THE CRIME OF PLUNDER. Section 4 of R.A. 7080 provides: “For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy .” BAR Q. [2011] _____________________________________________ THE ANTI WIRE-TAPPING ACT Republic Act No. 4200 _____________________________________________ WHAT ARE THE ACTS PUNISHED UNDER THIS ACT? It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided , That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition (Sec. 1).
prohibited acts as, but not limited to, dens, private rooms, cubicles, cinemas, houses or in establishments purporting to be a legitimate business; (f) For film distributors, theaters and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of child pornography;
WHEN IS THE COMMISSION OF SUCH ACTS DEEMED LAWFUL? It is deemed lawful when committed by any peace officer, who is authorized by a written order of the Court , to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security (Sec.3).
(g) For a parent, legal guardian or person having custody or control of a child to knowingly permit the child to engage, participate or assist in any form of child pornography; (h) To engage in the luring or grooming of a child; (i) To engage in pandering of any form of child pornography; (j) To willfully access any form of child pornography;
The period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest (Sec.3).
(k) To conspire to commit any of the prohibited acts stated in this section. Conspiracy to commit any form of child pornography shall be committed when two (2) or more persons come to an agreement concerning the commission of any of the said prohibited acts and decide to commit it; and
THE ANTI-CHILD PORNOGRAPHY ACT OF 2009 Republic Act No. 9775
(l) To possess any form of child pornography (Sec.4).
___ ____________________________________ WHAT ARE THE UNLAWFUL OR PROHIBITED ACTS ENUMERATED UNDER THE LAW?
BAR Q. [2011] Mr. P owns a boarding house where he knowingly allowed children to be videotaped while simulating explicit sexual activities. What is Mr. P's criminal liability, if any?
The following are the unlawful or prohibited acts: (a) To hire, employ, use, persuade, induce or coerce a child to perform in the creation or production of any form of chil d pornography; (b) To produce, direct, manufacture or create any form of child pornography; (c) To publish offer, transmit, sell, distribute, broadcast, advertise, promote, export or import any form of child pornography; (d) To possess any form of child pornography with the intent to sell, distribute, publish, or broadcast: Provided. That possession of three (3) or more articles of child pornography of the same form shall be prima facie evidence of the intent to sell, distribute, publish or broadcast; (e) To knowingly, willfully and intentionally provide a venue for the commission of
A. Corruption of minors under the Penal Code B. Violation of the Child Pornography Act C. Violation of the Child Abuse Law D. None _____________________________________________ THE ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 Republic Act No. 9995
PROHIBITED ACTS ENUMERATED UNDER SECTION 4. It is prohibited and declared unlawful for any person: (a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, public area, buttocks or female
breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy;
(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or
(b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration;
(b) the penalty of life i mprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.(Secs. 1 and 2)
(c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or (d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any si milar activity through VCD/DVD, internet, cellular phones and other similar means or device. IS CONSENT TO RECORD OR TAKE PHOTO OR VIDEO COVERAGE CONSTITUTES AS AN EXCEPTION TO THE PROHIBITION UNDER PARAGRAPHS (B), (C) AND (D)? No. The prohibition shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. Any person who violates this provision shall be liable (Sec.4). BAR Q. [2010] SUGGESTED ANSWER: No, the acts committed by Canuto do not fall under the definition of voyeurism nor under the prohibited acts enumerated under Section 4 of the Anti- Photo and Video Voyeurism Act of 2009. There was no taking photo or video coverage of a person performing sexual act or any similar activity or of capturing an image of the private area of a person under circumstances in which such person has a reasonable expectation of privacy, nor there was an act of selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the photo or video coverage or recordings of sexual act or similar activity through internet, cellular phones and similar means or device. If at all, he committed acts of lasciviousness, as obviously, the element of lewdness is present in this case. _____________________________________________ THE ANTI-DEATH PENALTY LAW Republic Act No. 9346 _____________________________________________
Person convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180, otherwise known as the Indeterminate Sentence Law, as amended. (Sec.3) _____________________________________________ JUVENILE JUSTICE AND WELFARE ACT OF 2006, Republic Act No. 9344 ____________________________________________ WHAT IS A DIVERSION PROGRAM? BAR Q.[2009] It refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. WHAT IS INTERVENTION ? BAR Q.[2009] It refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. WHAT
IS
THE
MINIMUM
AGE
OF
CRIMINAL
RESPONSIBILITY UNDER R.A. 9334? (Sec.6)/ BAR Q. [2012] A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be
The imposition of the penalty of death is prohibited.
subjected
to
the
appropriate
proceedings
in
accordance with this Act. IN LIEU OF THE DEATH PENALTY, WHAT SHOULD BE IMPOSED?
The exemption from criminal liability herein established does not include exemption from civil
The following shall be imposed in lieu of the death penalty-
liability, which shall be enforced in accordance with existing laws.
-“Discernment” is that mental capacity of a minor to fully appreciate the consequences of his unlawful act. Such capacity may be known and should be
rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment.”
determined by taking into consideration all the facts and circumstances afforded by the records in each case.
The
surrounding
circumstances
must
demonstrate that the minor knew what he was doing and that it was wrong. Such circumstance includes the gruesome nature of the crime and the minor’s cunning
and shrewdness. -Discernment is again shown in the case of Robert Remiendo vs. People, G.R. No. 184874, 09 October 2009. In this case, his act of waiting for the victim’s parents to leave the house before defiling the latter and threatening to kick her if she should shout prove that petitioner can differentiate what is right and wrong.
MAY A PERSON, THEREFORE, WHO IS NOW BEYOND THE AGE OF TWENTY-ONE (21) YEARS, STILL AVAIL OF THE PROVISIONS OF SECTIONS 38 AND 40 OF RA 9344 AS TO HIS SUSPENSION OF SENTENCE? BAR Q. [2012] No. A person who is now beyond the age of twenty-one (21) years cannot avail of the provisions of Sections 38 and 40 of R .A. 9344 as to his suspension of sentence. Section 38 states: However, while Section 38 of RA 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already eighteen (18) years of age or more at the time
WHO
IS
ENTITLED
TO
THE
PRESUMPTION
OF
MINORITY? The child in conflict with the law shall enjoy the
of the pronouncement of his/her guilt, Section 40 of the same law limits the said suspension of sentence until the child reaches the maximum age of 21.
presumption of minority. He shall enjoy all the rights of a child in conflict with the law until he is proven to be eighteen (18) years old or older. BAR Q. [2011] In case of doubt as to the age of the child, it shall be resolved in his favor. WHEN IS AUTOMATIC SUSPENSION OF SENTENCE APPLICABLE? (Sec.38) The court shall place the child under suspended sentence instead of pronouncement of judgment of conviction under the following circumstances: “Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed.
Nevertheless, the Supreme Court held that the appellant shall be entitled to appropriate disposition under Section 51 of RA No. 9344, which provides for the confinement of convicted children as follows: of Convicted “SEC. 51. Confinement Children in Agricultural Camps and other Training Facilities.— A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.”
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application.”
BAR Q. [2009] Suppose Joe’s motion for intervention or diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence? Explain.
That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt.(Sec. 38)
SUGGESTED ANSWER: A person who is beyond the age of twenty-one (21) years cannot avail of the provisions of Sections 38 and 40 of R .A. 9344 on his suspension of sentence.
WHEN MAY THE CHILD IN CONFLICT WITH THE LAW BE RETURNED TO THE COURT? (Sec. 40)
MAY THE CHILD IN CONFLICT OF THE LAW BE INSTEAD PLACED ON PROBATION AS AN ALTERNATIVE TO IMPRISONMENT? (Sec.42)
The law expressly provides: “If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition or
Yes. “The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child. For this purpose, Section 4 of Presidential Decree No. 968,
otherwise known as the "Probation Law of 1976", is hereby amended accordingly.”
a.
A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability.
EXEMPTING PROVISIONS
However, the child shall be subjected to an CAN A MINOR BE REQUIRED TO SERVE HIS SENTENCE
intervention program pursuant to Section 20
IN AGRICULTURAL CAMPS AND OTHER TRAINING FACILITIES? (Sec. 51)
of the Act. b.
A child above fifteen (15) years but below eighteen (18) years of age shall likewise be
Yes, R.A. 9344 is explicit:
exempt from criminal liability and be “Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. - A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in cooperation with the DSWD.”
subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. c.
The age of a child may be determined from the
ARE THE BENEFITS UNDER THIS PROVISION APPLICABLE WHEN THE MINOR HAD ALREADY REACHED 21 YEARS OF AGE OR OVER AT THE TIME OF HIS CONVICTION?
child’s
birth
certificate,
baptismal
certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child
Yes. In PEOPLE vs. URBAN SALCEDO ABDURAHMAN ISMAEL DIOLAGRA, G.R. No. 186523, June 22, 2011,the Supreme Court reiterated , that if indeed, an accused was under eighteen (18) years of age at the time of the commission of the crime, such offenders, even if already over twenty-one (21) years old at the time of conviction, may still avail of the benefits accorded by Section 51 of R.A. No. 9344.
himself/herself,
testimonies
of
other
persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor d.
Reduction of the criminal liability by virtue of
WHAT IS THE CONCEPT OF STATUS OFFENSES?
RA 9344 does not extend to the civil liability.
(Sec. 57) Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child.
The civil liability is not affected by the same.
e.
If the court finds that the objective of the disposition measures imposed upon the child
WHAT CRIMINAL OFFENSES ARE NOT APPLICABLE TO MINORS? (Sec. 58)
in conflict with the law have not been fulfilled, or if the child in conflict with the law
Persons below eighteen (18) years of age shall be exempt from prosecution for the following crimes: a) b) c)
vagrancy and prostitution under Section 202 of the Revised Penal Code; mendicancy under Presidential Decree No. 1563; and sniffing of rugby under Presidential Decree No. 1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child:
has willfully failed to comply with the conditions
of
his/her
disposition
or
rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment.
f.
Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense
Provided , that said persons shall undergo appropriate counseling and treatment program.
charged, the court shall determine and ascertain any civil liability which may have
SUMMARY OF SALIENT FEATURES:
resulted However,
from
the
instead
offense of
committed.
pronouncing
the
judgment of conviction, the court shall place the child in conflict with the law under suspended
sentence,
application.
without
Provided,
need
however,
of That
suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt.
g.
a.
In Piracy-
1; If physical injuries or other crimes are committed as a result or on the occasion thereof. 2. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel.BAR Q. [2008]
A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities
that
may
be
established,
maintained, supervised and controlled by the Bureau
of
Corrections
(BUCOR),
in
coordination with the Department of Social Welfare and Development (DSWD). h.
The law provides a higher penalty if the following circumstances attended the commission of the crime,
If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall
b. In Highway Robbery/ Brigandage 1. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage. 2. If kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasion thereof. Ruling: This case falls squarely within the purview of piracy and not grave coercion. While it may be true that Eugene and Juan Jr. were compelled to go elsewhere other than their place of destination, such compulsion was obviously part of the act of seizing their boat. The testimony of Eugene, one of the victims, shows that the appellant actually seized the vessel through force and intimidation. (People vs. Emiliano Catantan Y TayongG.R No. 118075, September 5, 1997)
determine whether to discharge the child in accordance with this Act, to order, execution
BAR Q. [2012] A postal van containing mail matters, including checks and treasury warrants, was hijacked
of sentence, or to extend the suspended
along a national highway by ten (10) men, two (2) of
sentence for a certain specified period or
whom were armed. They used force, violence and
until the child reaches the maximum age of
intimidation against three (3) postal employees who
twenty-one (21) years.
were occupants of the van, resulting in the unlawful taking and asportation of the entire van and its contents.
-The child in conflict with the law shall enjoy the presumption of minority. (People vs. Salvador Atizado and Salvador Monreal, G.R. No. 173822, October 13, 2010) -The reckoning point in considering minority is the time of the commission of the crime. ( Valcesar Estioca vs. People, G.R. 173876, 27 June 2008) _____________________________________________ THE ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY LAW PD No. 532 _____________________________________________
WHAT CIRCUMSTANCES QUALIFY THE PENALTY?
a.
If you were the public prosecutor, would you charge the ten (10) men who hijacked the postal van with violation of Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti -Highway Robbery Law of 1974? Explain your answer. SUGGESTED ANSWER: Yes. There was indeed taking away of the property of another person by means of violence against or i ntimidation of persons committed on a Philippine Highway for as long as I can prove, further, the element of indiscriminate highway robbery. The fact that there were only two (2) persons who were armed is of no moment. There is no requirement under PD 532 that there should be at least four armed persons forming a band of robbers as the number of perpetrators is not an essential element of the crime. (People of the Philippines, Plaintiff-Appellee, Vs.Romeo Mendoza Y Reyes And Jaime Rejali Y
Lina, Defendants-Appellants. 104461, February 23, 1996). b.
G.R.
No.
attempted to explode any bomb or explosive to destroy the aircraft; 3. Whenever the crime is accompanied by murder, homicide, serious physical injuries or rape (Sec.2).
If you were the defense counsel, what are the elements of the crime of highway robbery that the prosecution should prove to sustain a conviction? SUGGESTED ANSWER To obtain a conviction for highway robbery, the prosecution
should
prove
the
following: 1.
There is taking away of the
property of another; 2. There is violence against or intimidation of persons or force upon things or other unlawful means; 3. The act is committed on any Philippine
_____________________________________________ THE ANTI-CARNAPPING ACT Republic Act No. 6539 _____________________________________________ DEFINE "CARNAPPING" It is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. -The elements of carnapping are as follows:
Highway. ; 4. All the accused, in the instant case, were organized for the purpose of committing
robbery
indiscriminately.
Evidence of any previous attempts at similar robberies by the accused must be presented to show the "indiscriminate" commission thereof and not acts of robbery
committed
against
only
a
predetermined or particular victim,. People Of
The
Philippines, Plaintiff-Appellee,
Vs.Romeo Mendoza Y Reyes And Jaime
1. That there is an actual taking of the vehicle; 2. That the offender intends to gain from the taking of the vehicle; 3. That the vehicle belongs to a person other than the offender himself; 4. That the taking is without the consent of the owner thereof; or that the taking was committed by means of violence against or intimidation of persons, or by using force upon things. People Vs. Artemio Garcia Y Cruz, Jr., et al. G.R. No. 138470, April 1, 2003. BAR Q. [2008]
Rejali Y Lina, Defendants-Appellants. G.R. No. 104461, February 23, 1996. _____________________________________________ THE ANTI-HIJACKING LAW Republic Act No. 6235 _____________________________________________ WHAT ARE THE ACTS PUNISHED UNDER THE LAW? It shall be unlawful for any person to compel a change in the course or destination of an aircraft of Philippine registry, or to seize or usurp the control thereof, while it is in flight. It shall likewise be unlawful for any person to compel an aircraft of foreign registry to land in Philippine territory or to seize or usurp the control thereof while it is within the said territory (Sec.1). An aircraft is in f light from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation. WHAT ARE THE QUALIFYING CIRCUMSTANCES OF HIJACKING? A higher penalty is imposed if hijacking is committed under any of the following circumstances: 1. Whenever he has fired upon the pilot, member of the crew or passenger of the aircraft; 2. Whenever he has exploded or
Unlawful taking is the taking of a vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. (People Vs. Artemio Garcia Y Cruz, Jr., et al. G.R. No. 138470, April 1, 2003.) DOES THE ELEMENT OF TAKING ABSORB THE LOSS OF CASH OR OTHER PERSONAL PROPERTY? No. Although carnapping and robbery have the same element of taking with intent to gain, the former specifically refers to the unlawful taking of a motor vehicle only. (People vs. Dela Cruz, GR No. 174658,February 24, 2009). DOES THE THIRD ELEMENT REQUIRE THE PERSON DIVESTED OF THE MOTOR VEHICLE BE THE OWBER THEREOF? No. What is simply required is that the property taken does not belong to the offender. Actual possession of the property by the person dispossessed suffices. (People Vs. Artemio Garcia Y Cruz, Jr., et al. G.R. No. 138470, April 1, 2003). BAR QUESTION [2012] What should be the proper charge against an offender who unlawfully took and carried away a motor vehicle belonging to another without the latter's consent, killing the driver in the process?
a.
The proper charge against the offender should be murder with the use of motor vehicle.
b.
The proper charge against the offender should be qualified carnapping or carnapping in an aggravated form. (*The driver was killed during the commission of carnapping..A higher penalty is thus to be imposed).
c.
The proper charge against the offender should be carnapping and homicide.
d. The proper charge against the offender should be robbery with homicide. _____________________________________________ THE LAW ON ARSON AS AMENDED Presidential Decree No. 1613
WHAT IS ARSON? It is a crime committed by any person who burns or sets fire to the property of another or when a person sets fire to his own property under circumstances which expose to danger the life or property of another. (Sec.1) The following are the special aggravating circumstances in Arson: (Sec.4) 1. If committed with intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; 4. If committed by a syndicate. -The offense is committed by a syndicate if it is planned or carried out by a group of three (3) or more persons. (Sec.4) - If by reason of or on the occasion of the arson death results, a higher penalty shall be imposed. - Mere conspiracy to commit arson is punishable. - PRINCIPLES TO CONSIDER: 1.
Suppose the offender set the house of the victim on fire by way of revenge against the latter. He was not aware that the victim was inside and consequently, the latter died because of the fire. What crime was committed? The crime is mere arson. There is no complex crime of arson with homicide. The crime of homicide is absorbed. The consequence, if by reason of or on the occasion of the arson death results, is the imposition of a higher penalty.
2.
Suppose the offender knew that the victim was inside the house before the house was set on fire, what crime was committed?
If the offender knew that the victim was in the house when it was set on fire, the crime committed, instead of arson, would be murder. The fire constitutes as a qualifying c ircumstance. 3. Suppose before setting the house on fire, the offender entered in and killed the victim, then he set it on fire to conceal the body of the latter, what crime was committed? BAR Q. [2012] If the offender killed the victim before the house was set on fire, two crimes are committed, murder and arson. The burning of the house to hide the killing is a separate crime. Arson was committed to conceal the crime of murder. BAR QUESTION [2011] Dagami concealed B ugna’s body and the fact that he killed him by setting Bugna’s house on fire. What crime or crimes did Dagami commit? A. Murder, the arson being absorbed already B. Separate crimes of murder and arson C. Arson, the homicide being absorbed already D. Arson with murder as a compound crime - Under R.A. No. 9 372, otherwise known as the Human Security Act of 2007, a person who commits an act punishable under Art. 324 (Crimes Involving Destruction) and thereby sowing and creating condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment without the benefit of parole. _____________________________________________ THE ANTI-ALIAS LAW Republic 4ct No. 6085 [BAR 2006] _____________________________________________ The law provides that no persons shall use any name different from the one with which he was registered at birth in the office of the local civil registry, or with which he was baptized for the first time, or, in case of an alien, with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court. (Sec.1) The use of ‘alias’ is allowed as a pseudonym solely for literary, cinema, television, radio or other entertainment purposes and in athletic events where the use of pseudonym is a normally accepted practice. (Sec.1) BAR Q.[2006]
Any person desiring to use an alias shall apply for authority in proceedings like those legally provided to obtain judicial authority for a change of name, and no person shall be allowed to secure such judicial authority for more than one alias. (sec.2)
_____________________________________________ OBSTRUCTION OF JUSTICE Presidential Decree No. 1829 [BAR 2010, 2005] _____________________________________________ WHO MAY BE LIABLE FOR OBSTRUCTION OF JUSTICE? ( SEC.1) Any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases. BAR Q. [2005] Suggested Answer: P atrick is liable for obstruction of justice under Section 1 (b) of PD 1829 because he destroyed the evidence intended to be used in in the criminal proceeding. Even if a person is found not criminally liable as an accessory under Article 20 of the Revised Penal Code, he may, however, be liable for acts punished under P.D. 1829. DIFFERENTIATE AN ACCESSORY FROM A PRINCIPAL IN P.D. 1829. An accessory under Article 20 of the Revised Penal Code is exempt from criminal liability when the principal is his a) s pouse b) ascendant c) descendant d) legitimate, natural or adopted brother sister or relative by affinity within the same degree. These benefits are not available in PD 1829. -oooOOOooo-
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