UP Specpro

A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

or member either by registered mail or personal delivery at least 30 days prior to said meeting.

RULE 104 VOLUNTARY DISSOLUTION OF CORPORATIONS

A copy of the resolution authorizing the dissolution shall be  certified by a majority of the BOD or trustees  and counter-signed by the secretary of the corporation.

( The Dissolution of Corporations should now be filed with the SEC, and is covered by Secs. 117 to 122 of the Corporation Code of the Philippines (BP 68) which took effect on May 1, 1980.

The SEC shall thereupon issue the certificate of dissolution.

Dissolution - when the corporation ceases to be a juridical person.

NOTES: Q: How do directors and stockholders vote? A: Both issue their respective resolutions duly adopted by affirmative votes of the required no. (BOD-majority; SH-2/3 OCS)

§117. Methods of Dissolution. A corporation formed or organized under the provisions of this Code may be dissolved voluntarily or involuntarily.

Q: Publication for 3 consecutive weeks? A: Actually, once a week for three consecutive weeks. This is the common req’t in procedure. (Maybe an oversight or already considered understood.)

NOTES: Q: How many ways are there to dissolve a corporation? A: Two ways--voluntary & involuntary.

Q: What is the President’s role here? A: The President signs the Resolution.

Q: How many ways of dissolving voluntarily? A: Three:  Voluntary dissolution where no creditors are affected (Sec. 118)  Voluntary dissolution where creditors are affected (Sec. 119)  Dissolution by shortening corporate term (Sec. 120)

§ 119. Voluntary dissolution where creditors are affected. Where the dissolution of a corporation may prejudice the rights of any creditor, a petition for dissolution shall be filed with the SEC. 

§118. Voluntary dissolution where no creditors are affected. In case dissolution of a corporation does NOT prejudice the rights of any creditor having a claim against such corporation, then such dissolution may be effected  by majority vote of the BOD or trustees, and  by a resolution duly adopted by the affirmative vote of the stockholders owning at least 2/3 of the outstanding capital stock or of at least 2/3 of the members at a meeting to be held upon call of the dirs. or trustees  after publication of the notice  of the time, place and object of the meeting  for 3 consecutive weeks  in a newspaper published in the place where the principal office of said corporation is located; and if no newspaper is published in such place, then in a newspaper of General circulation in the Philippines, (after sending such notice to each stockholder

 

The petition shall be signed by a majority of its BOD or trustees or other officers having the management of its affairs, verified by its president or secretary or one of its directors, or trustees, and shall set forth  all claims and demands against it, and  that its dissolution was resolved upon the affirmative vote of the stockholders representing  at least 2/3 of the outstanding capital stock or by  at least 2/3 of the members, at a meeting of its stockholders or members called for that purpose.

If the petition is sufficient in form and substance, the Commission shall, by an ORDER reciting the purpose of the petition,  fix a date on or before which objections thereto may be filed by any person,  which date shall not be less than 30 days nor more than 60 days after the entry of the order. Before such date, a copy of the order shall be published 91

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 at least once a week for 3 consecutive weeks  in a newspaper of General circulation ( published in the municipality or city where the principal office of the corporation is situated, or if there be no such newspaper, then in a newspaper of General circulation in the Phils.,

Actually, the ff. are the rules:  If expiration date is before approval by SEC  corpo dissolves upon approval  If expiration date is after approval by SEC  corpo dissolves on the date of expiration of term  If the SEC does not act on petition within 6 mos. from the date of filing (Sec. 16, Corpo Code)  corpo dissolves either  on the day after the 6-mo. pd. (if date of expiration was within the 6-mo. pd.)  or on the date of expiration of term (if date is after the 6-mo. pd.).

and a similar copy shall be posted  for 3 consecutive weeks  in 3 public places  in such municipality or city. Upon 5 days notice, Given AFTER the date on which the right to file objections as fixed in the order has expired, the Commission shall proceed to  hear the petition and  try any issue made by the objections filed; and IF  no such objection is sufficient, AND  the material allegations of the petition are true, it (Commission) shall  render judgment dissolving the corporation and  directing such disposition of its assets as justice requires, and  may appoint a receiver to collect such assets and pay the debts of the corporation.

e.g.: Date filed petition: Jan. 1, 1998 Expiration of Shortened Term: May 1, 1998 6 mos. ends on: July 1, 1998 1) If approved by SEC on April 1  Dissolution on May 1 (exp. Of shortened term) 2) If approved on May 15  Dissolution on May 15 (date of approval) 3) Not acted upon within 6 mos.  Dissolution on July 2 (day after the 6 mo. pd)

NOTES: Just note that the date fixed is a deadline, on or before which objections to the petition may be filed.

( Note that failure of the SEC to act on the petition within 6 months, as contemplated by above rules, must not be due to the fault of corporation.

§ 120. Dissolution by shortening of corporate term. A voluntary dissolution may be effected by amending the AOI to shorten the corporate term pursuant to the provisions of this Code. A copy of the amended AOI shall be submitted to the SEC in accordance with this Code.

§ 122. Corporate Liquidation. Every corporation whose charter expires by its own limitation or is annulled by forfeiture or otherwise, or whose corporate existence for other purposes is terminated in any other manner, shall nevertheless be continued as a body corporate for 3 years after the time when it would have been so dissolved, for the purpose of  prosecuting and defending suits by or against it  enabling it to settle and close its affairs,  to dispose of and convey its property and  to distribute its assets, BUT NOT for the purpose of continuing the business for which it was established. At any time during said 3 years, said corporation is authorized and empowered to convey all of its property to trustees for the benefit of

Upon approval of the amended AOI or  the expiration of the shortened term, as the case may be,  the corporation shall be deemed dissolved without any further proceedings, subject to the provisions of this Code on liquidation.

NOTES:

1. 2.

Q: When is the corporation deemed dissolved? A: Two instances: Upon approval of the Amended AOI, OR the expiration of the shortened term 92

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to make the admission incontestable, in view of its consequences.

 stockholders,  members,  creditors, and  other persons in interest. From and after any such conveyance by the corporation of its property in trust for the benefit of its stockholders, members, creditors, and others in interest,  all interest which the corporation had in the property terminates,  the legal interest vests in the trustees, and  the beneficial interest in the stockholders, members, creditors, and other persons in interest.

The FORM is prescribed by Art. 278 of the NCC: RECOGNITION shall be made in the  record of birth  a will  a statement before a court of record  or in any authentic writing. Judicial approval is needful if the recognition of the minor is effected, not through a record of birth or in a will but thorough a statement in a court of record or an authentic document. In any case, the individual recognized can impugn the recognition within 4 years following the attainment of majority.

Upon the WINDING UP of the corporate affairs, any asset distributable to any creditor or stockholder or member who is unknown or cannot be found shall be escheated to the city or municipality where such assets are located. Except by decrease of capital stock and as otherwise allowed by this Code, no corporation shall distribute any of its assets or property except  upon lawful dissolution and  after payment of all its debts and liabilities.

Art. 281 (2) of the NCC provides: When the recognition of a minor DOES NOT take place  in a RECORD of BIRTH or  in a WILL, Judicial Approval is Necessary.

NOTES: Q: For what purpose is the continuation as a body corporate? A: For purpose of winding up.

The action must be brought within the same period specified in Art. 173, FC, except when the action is based on the second paragraph of Art. 172, in which case the action may be brought during the lifetime of the alleged parent.

§121. Involuntary dissolution. A corporation may be dissolved by the SEC upon filing of a verified complaint and after proper notice and hearing on Grounds provided by existing laws, rules and regulations.

RULE 105 JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION OF MINOR NATURAL CHILDREN

Art. 173, FC. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child  die during minority or  in a state of insanity. In these cases, the heirs shall have a period of 5 years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties.

Sec. 1. Venue.-Where judicial approval of a voluntary recognition of a minor natural child is required, such child or his parents shall obtain the same by filing a petition to that effect with the RTC in which the child resides. 1.

MEANING OF RECOGNITION

VOLUNTARY

VOLUNTARY RECOGNITION is an admission of the fact of paternity or maternity by the presumed parent, expressed in the form prescribed by the NCC.

Art. 172. The filiation of legitimate (or illegitimate) children is established by any of the following: (1) The Record of Birth appearing in the Civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private

Its essence lies in the avowal of the parent that the child is his; the formality is added 93

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handwritten instrument and signed by the parent concerned.

commenced w/in 4 YRS. from the FINDING of the document.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The Open and Continuous possession of the status of a legitimate child, or (2) Any other means allowed by the Rules of Court and special laws.

Pls. take note of the following NCC provisions which, although already repealed by the FC, may still be applicable for lack of substitute provisions on the matter. [Classmates, these are the provisions na medyo magulo WON still applicable. Ma’am A said that Art. 285 cited above is still applicable. Commentaries and a 1989 case apply Arts. 278 and 281. Herrera cited Art. 283 (1), but mentioned Art. 449 of RPC, not NCC. So ano ba talaga kuya? Ma’am A said these are confusing. Anyway, she took note of said provisions, at palagay ko, kakalampagin n’ya ang Congress tungkol dito. By the way, she said the FC was “really minadali”, so I think that explains everything. Ask na lang your Persons teacher.)

2. HOW VOLUNTARY RECOGNITION IS EXPRESSED AUTHENTIC WRITING means any Genuine and indubitable writing sufficient for compulsory recognition. The status of a person as a voluntary acknowledged natural child “could be established by the ordinary means of evidence without any limitations as to time.” (Larena vs. Hubio) [See lecture notes below.]

NCC--Recognition Of Natural Children 276. A NATURAL CHILD may be recognized by the father and the mother JOINTLY, or by ONLY ONE of them.

NOTES: Q: When can the child file action? A: See Art. 173 above which provides when a child may bring an action; moreover, the following NCC provision which, although already repealed by the Family Code, may still be applicable for lack of substitute provisions on the matter.

277. In case the recognition is made by ONLY ONE of the parents, it shall be PRESUMED that the child is NATURAL, IF the parent recognizing it had LEGAL CAPACITY to contract marriage at the time of conception. 278. RECOGNITION shall be made in the  record of birth  a will  a statement before a court of record  or in any authentic writing.

Art 285, NCC. The ACTION for the recognition of natural children may be brought ONLY during the lifetime of the presumed parents, EXCEPT: (1) If the Father/Mother DIED DURING the MINORITY of the CHILD, in w/c case the latter may FILE ACTION BEFORE the expiration of 4 YRS. from the attainment of his majority age. (2) If AFTER the DEATH of the Father/Mother a DOCUMENT should appear of which NOTHING had been HEARD and in w/c either/ both parents recognize the child.

279. A minor who may not contract marriage w/o parental consent (18-21) CANNOT acknowledge a natural child UNLESS  parent/Guardian APPROVES the acknowledgment  recoGnition is made in a WILL 280. When the FATHER or the MOTHER makes the recognition SEPARATELY,

In this case, the ACTION must be 94

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 HE/SHE shall NOT REVEAL the name of the person with whom he/she has the child;  neither shall he/she STATE any CIRCUMSTANCE whereby the other parent may be identified.

284. The MOTHER is OBLIGED to recognize her natural child: (1) In any of the cases in the preceding article, as between the child & the mother. (2) When the BIRTH and the IDENTITY of the child are CLEARLY PROVEN.

281. A child who is OF AGE CANNOT BE RECOGNIZED without his CONSENT.

286. The recognition made in favor of a child who  does not possess all the conditions in Art. 269, or  in w/c the requirements of the law have not been fulfilled may be IMPUGNED by those who are PREJUDICED by such recognition.

When the recognition of a minor DOES NOT take place  in a RECORD of BIRTH or  in a WILL, JUDICIAL APPROVAL IS NECESSARY. A minor can in any case IMPUGN the recognition within 4 YRS. ff. the attainment of his majority.

Sec. 2. Contents of petition.-- The petition for judicial approval of a voluntary recognition of a minor natural child shall contain the following allegations: (a) The jurisdictional facts; (b) The names & residences of the parents who acknowledged the child, or either of them, and  their compulsory heirs, and the  person or persons with whom the child lives; (c) The fact that the recognition made by the parent or parents took place  in a statement before a court of record or  in an authentic writing,  copy of the statement or writing being attached to the petition.

282. A RECOGNIZED natural child has the right: (1) To BEAR THE SURNAME of the recognizing parent (2) To receive SUPPORT from such parent (291) (3) To receive in a proper case the hereditary portion w/c is determined by this code. INVOLUNTARY RECOGNITION: 283. In any of the ff. cases, the FATHER is OBLIGED to recognize the child as his natural child: (1) In cases of RAPE/ABDUCTION/SEDUCTION, when the period of the offense coincides more or less with that of conception;

Sec. 3. Order for Hearing.-- Upon the filing of the petition, the court, by an order reciting the purpose of the same, shall  fix the date and place for the hearing thereof, which date shall not be more than 6 months after the entry of the order, and shall, moreover,  cause a copy of the order to be  served personally or by mail upon the interested parties, and  published once a week for 3 consecutive weeks, in a newspaper or newspapers of general circulation in the province.

(2) When the child is in CONTINUOUS POSSESSION of the STATUS of a CHILD of the alleged father by the  DIRECT ACTS of the latter or  of his FAMILY (3) When the child was CONCEIVED during the time when the mother COHABITED with the SUPPOSED father.

Sec. 4. Opposition.-Any interested party must, within 15 days  from service, or  from the last date of publication of the order referred to in the next preceding section,

(4) When the child HAS in his favor ANY EVIDENCE or PROOF the defendant is his father. 95

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acknowledgment made to his prejudice. Therefore, the lack or insufficiency of such approval is NOT a defect available to the recognizing parent but one which the minor may raise or waive. If after reaching the age of majority the minor consents to the acknowledgment, the lack of judicial approval should make no difference.

file his opposition to the petition, stating the grounds or reasons therefor. Sec. 5. Judgment.-- If, from the evidence presented during the hearing, the court is satisfied that the recognition of the minor natural child was  willingly and voluntarily made by the parent or parents concerned, and  is for the best interest of the child,  it shall render judgment granting judicial approval of such recognition.

Sec. 6. Service of judgment upon civil registrar.-- A copy of the judgment rendered in accordance with the preceding section shall be served upon the civil registrar whose duty it shall be to enter the same in the register.

INVOLUNTARY RECOGNITION of a natural child may be made:

RULE 106 CONSTITUTION OF FAMILY HOME

(a) by an incontrovertible paper written by the parent expressly recognizing his paternity;

Rule 106 is deemed repealed by the provisions of the Family Code.

(b) by giving such child the status of a natural child of the father, justified by the direct act of the father or his family [Art. 283(2)];

FAMILY CODE ART 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated.

(c) by criminal action for rape, seduction or abduction (par. 2, Art. 449, RPC) Note: Maybe we can improve this enumeration of Herrera by just applying Art. 283, NCC quoted above. Ma’am A said above enumeration does not make sense.

ART. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of the beneficiaries actually resides therein, the family continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law.

NOTES: IMPT: Q: What if the presumed parents recognized the minor natural child either voluntarily or involuntarily without judicial approval and afterwards died, should the child, after reaching majority age, ask for judicial approval of such recognition?

There is no need to file verified petition for constitution of family home under FC. ART. 154. The beneficiaries of a family home are: The husband and the wife, or an unmarried person who is the head of a family; and Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support.

(The book makes distinctions between voluntary and involuntary recognition and their effects; but the same are irrelevant (aside from being confusing) because of the ruling of the SC in Gapusan Chua vs. CA.)

ART. 155. The family home shall be exempt from execution, forced sale or attachment except: 1) For nonpayment of taxes; 2) For debts incurred prior to the constitution of the family home; 3) For debts secured by mortgages on the premises before or after such constitution; and 4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building.

A: NO. Requirement of judicial approval is for the BENEFIT OF THE MINOR. Lack of said JA cannot impede the effectivity of the judgment made. The judicial approval protection of the minor

is for against

the any 96

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by the person/s constituting the family home, by the owner/s of the property, the same rule and procedure shall apply.

Modequillo vs. Salinas The debt or liability which was the basis of the judgment arose or was incurred at the time of the vehicular accident on 16 March 1976 and the money judgment arising therefrom was rendered by the appellate court on 29 January 1988. Both preceded the effectivity of the FC on August 4, 1988 (not August 3 –1988 being a leap year).

At the execution sale, no bid below the value allowed for a family shall be considered. The proceeds shall be applied first to the amanita mentioned in 157 and to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment creditor.

RULE 107 ABSENTEES

The contention that it should be considered a family home from the time it was occupied by petitioner and his family in 1969 is not well-taken. Under Art. 162 of the FC, “The provisions…shall govern existing family residences insofar as said provisions are applicable.” It does not mean that ARTS. 152 and 153 have retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the FC and are exempt from execution for the payment of obligations incurred before the effectivity of the FC. Art. 162 simply means that all existing family residences at the time of the effectivity of the FC are considered family homes and are prospectively entitled to the benefits accorded to a family home.

Sec. 1. Appointment of representative. – When a person disappears from his domicile, his whereabouts being unknown, and without having left an agent to administer his property, or the power conferred upon the agent has expired, any interested party, relative or friend, may petition the RTC of the place where absentee resided before his disappearance, for the appointment of a person to represent him provisionally in all that may be necessary. [In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.] This rule is based on: ART. 381 CC. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interest party, a relative, or a friend, may appoint a person to represent him in all that may be necessary. This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired.

ART. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Art., urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas.

ART. 382. The appointment referred to in 381 having been made, the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obligations and remuneration of his representative, regulating them, according to the circumstances, by the rules concerning guardians.

Sec. 2 Declaration of absence; who may petition. After the lapse of 2 years from his disappearance and without any news about the absentee or since the receipts of the last news, or 5 years in case the absentee has left a person in charge of the administration of his property, the declaration of his absence and the appointment of a trustee or administrator may be applied for by any of the ff:

ART. 160. When a creditor whose claim is not among those mentioned in Art. 155 obtains a judgment in his favor and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Art. 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount fixed by law as of the time of its constitution. If the increased actual value exceeds the max. amount and results from subsequent voluntary improvements introduced

(a) (b)

97

The spouse present; The heirs instituted in a will, who may present an authentic copy of the same;

A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

(c) (d)

The relatives who would succeed by the law of intestacy; and Those who have over the property of the absentee some right subordinated to the condition of his death.

date and place for the hearing thereof where all concerned may appear to contest the petition. Copies of the notice of the time and place fixed for the hearing shall be served upon the known heirs, legatees, devisees, creditors and other interested persons, at least 10 days before the day of the hearing, and shall be published once a week for 3 consecutive weeks prior to the time designated for the hearing, in a newspaper of general circulation in the province or city where the absentee resides, as the court shall deem best.

This rule is based on the ff: ART. 384 CC. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the admin of his property, his absence may be declared.

Sec. 5. Opposition. Anyone appearing to contest the petition shall state in writing his grounds therefor, and serve a copy thereof on the petitioner and other interested parties on or before the date designated for the hearing.

ART. 385. The ff may ask for the declaration of absence: 1. 2. 3. 4.

The spouse present; The heirs instituted in a will, who may present an authentic copy of the same; The relatives who may succeed by law of intestacy; Those who may have over the property of the absentee some right subordinated to the condition of his death.

Sec. 6. Proof at hearing; order. At the hearing, compliance with the provisions of section 4 of the rule must first be shown, upon satisfactory proof of the allegations in the petition, the court shall issue an order granting the same and appointing the prep, trustee or admin for the absentee. The judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers, obli and remuneration of his rep, trustee or admin, regulating them by the rules concerning guardians.

It is not necessary that a declaration of absence be made in a proceeding separate from and prior to a petition for admin. (Reyes vs. Alejandro) The petition to declare the husband an absentee and the petition to place the mgt of the conjugal properties in the hands of the wife could be combined and adjudicated in the same proceeding. (Daya Maaria TolNoguera v. Villamor)

In case of declaration of absence, the same shall not take effect until 6 months after its publication in a newspaper of general circulation designated by the court AND in the Official Gazette.

Sec. 3. Contents of petition. - The petition for the appointment of a representative, or for the declaration of absence and the appt of a trustee or an admin, must show the ff: (a) (b)

(c)

(d)

Sec. 7. Who may be appointed. –In the appointment of a rep, the spouse present shall be preferred when there is no legal separation, if the absentee left no spouse, or if the spouse present is a minor or otherwise incompetent, any competent person may be appointed by the court.

The jurisdictional facts; The names, ages and residences of the heirs instituted in the will, a copy of which shall be presented, and of the relatives who would succeed by the law of intestacy; The names and residences of creditors and others who may have any adverse interest over the property of the absentee; The probable value, location and character of the property belonging to the absentee.

In case of declaration of absence, the trustee or admin of the absentee’s property shall be appointed in accordance with the preceding par. This is based on Art. 383 of CC. Basically, it says the same thing. Dapat lang, kaya nga based doon. He! He!

Sec. 4. Time of hearing; notice and publication thereof. – When a petition for the appt of a representative, or for the declaration of absence and the appt of a trustee or admin is file, the court shall fix a

Sec. 8. Termination of administration. – The trusteeship or admin of the property of the absentee shall cease upon order of the court in any of the ff cases: 98

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(a) (b) (c)

To illustrate: If you are a beneficiary of an insurance policy and the insured has been absent for at least 7 years (plus no news of his whereabouts), you can file an action for the collection of the proceeds. In so doing, you have in your favor the disputable presumption of the insured’s death. You need not go (and besides you cannot do this) to court to file an independent action for the declaration of the insured’s death. (Sana naintindihan niyo iyong pagkakaintindi ko sa sinabi ni Ma’am – Fritz)

When the absentee appears personally or by means of an agent; When the death of the absentee is proved and his testate or intestate heirs appear; When a third person appears, showing by a proper document that he has acquired the absentee’s property by purchase or other title.

In these cases the trustee or admin shall cease the performance of his office, and the property shall be placed at the disposal of those who may have a right thereto. This is based on Art. 389 of the CC.

EXCEPTION: The need for declaration of presumptive death for purposes of remarriage. This is based on Art. 41 of the FC. Otherwise, the subsequent marriage shall be null and void.

Declaration of Absence is Unnecessary where there are no properties The need to have a person judicially declared an absentee is when  he has properties which have to be taken care of or administered by a rep appointed by the Court  his wife is asking the court that the admin of all classes of property in the marriage be transferred to her  the spouse of the absentee is asking for separation of property.

REQUISITES:  The prior spouse had been absent for four consecutive years and  the spouse present had a well-founded belief that the absent spouse was already dead.  In case of disappearance where there is danger of death under Art. 391 CC, an absence of only two ears shall be sufficient.

The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings.

This provision is intended to protect the present spouse for a criminal prosecution for bigamy because with such judicial declaration, good faith of the present spouse is established.

No independent action for Declaration of Presumption of Death The disputable presumption established by the rule of evidence that a person not heard from in seven years is dead may arise and be invoked either in an action or in a special proceeding, which is tried or heard by, and submitted for decision to, a competent court. Independently of such an axn or proc, the presumption of death cannot be invoked nor can it be made the subject of an action or spec proc. (In re Nicolai Szatrow)

ABSENT SPOUSE This means that the other spouse has been missing for at least four years, it being unknown whether or not he or she is still alive, and the present spouse having a well-founded belief that the missing spouse is already dead. The period of 4 years is reduced to 2 under the ff circumstances (Art. 391 CC) (a) The missing person was on board a vessel lost during a sea voyage, or an aeroplane which is missing; (b) The missing person was in the armed forces and had taken part in war; or (c) The missing person was in danger of death under other circumstances.

Prof. Avena: This is a rebuttable presumption established by the rules of evidence so you don’t have to go to court and file an action or spec proc simply for the purpose of securing it per se.

99

A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

In the above case, the 2-yr period is computed from the occurrence of the event from which death is presumed.

(3) No periods set; it is up to the judge to det the period within which the resp shld answer the petition and the hearing thereof, which shld be very short, considering na summary nga.

 Vessel – all kinds of watercraft  Aeroplane – all kinds of aircraft  Taking part in war – includes all military operations or undertaking involving armed fighting and does not only apply to soldiers but also to those employed in the armed forces like nurses and doctors, reporters and cameramen.  In danger of death – events as earthquakes, fires, explosions, etc.

(4) There is a preliminary conference wherein lawyers are excluded. (5) The appearance of the trial fiscal of the court is not required. (Baka absent or unprepared pa.) (6) The prelim confab should be conducted personally by the judge in the nature of an inquisitorial hearing. (Q & A)

Presumption of Death must yield to preponderance of evidence There are certain circumstances where a person was already considered dead without waiting for the period to expire. (Eastern Shipping Lines v. Lucero)

(7) The proceedings can be decided on the basis of affidavits or other documentary evidence. Oral testimonies will be required only when necessary and at the discretion of the court.

***Caveat: I’m typing this from memory dahil nagkataong this was included in my part sa evidence.

(8) Case shall be decided in the most expeditious manner, without regard to technical rules.

In this case, the ship where the person presumed dead was on board sunk due to storm. In fact, nakita pa nga nila sa may coast iyong wrecked parts ng ship. So sabi ng SC, no need to wait for the expiration of the 4-yr period (this was not for subsequent marriage) dahil by preponderance of evidence, the circumstances sufficiently show that the person may be considered dead.

(9) Judgment shall be immediately final and executory. APPLICABILITY OF PROCEDURAL RULES The rules of summary procedure shall apply to the ff: (1)

Art. 100 par (2) – separation in fact between H and W under the regime of ACP and where the consent of one spouse to any transaction of the other is required by law.

(2)

Art. 127 (2) – same as Art. 100 but under the regime of CPG.

(3)

Art. 41 – action for declaration of the presumptive death of an absent spouse believed to be dead.

(4)

Art. 51 – delivery of presumptive legitimes by means of a mutual agreement requiring jud’l approval;

(5)

Art. 69 – disagreement in the fixing of family domicile;

SUMMARY OF JUDICIAL PROCEEDINGS IN THE FAMILY LAW Art. 238. Until modified by the SC, the procedural rules in this title shall apply in all cases provided for in this Code requiring summary court proc. Such cases shall be decided in an expedition manner without regard to technical rules.

Characteristics of Summary Proceedings in the FC (1) The pet shall be verified, to assure its truthfulness. (2) Notice of the filing of the pet be sent to resp at his last known address, as part of due process.

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A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

(6)

Art. 73 – objection by one spouse to the exercise by the other spouse of any legit prof, occupation, bus or activity;

(7)

Art. 96 – disagreement in the joint admin and enjoyment of the community prop;

(8)

Art. 124 – disagreement in the joint admin and enjoyment of ACP;

(9)

Art. 217 – entrusting of parental authority over foundlings, abandoned, neglected or abused children and other children similarly situated to heads of children’s homes, orphanages and similar institutions duly accredited by the gov’t;

cause why the pet should not be granted. Otherwise, void for lack of DP. Prelim Conference; No Lawyers Shall be conducted by the judge personally and not thru Clerk of Court or a Commissioner. Counsel shall not assist the parties at this stage. Non-appearing party shall be compelled to appear; Failure to appear despite efforts-Exparte proc authorized The court shall require attendance if possible. If despite such efforts, the party still does not appear—ex-parte proceedings. The court shall render decision on the basis of affidavits, documentary evidence or oral testimonies.

(10) Art. 225 – fixing of the bond of the parents.

Judgment Immediately Final and Executory

SEPARATION IN FACT BETWEEN HUSBAND AND WIFE Pls. See 239-253 of the FC

Not appealable just like a decision based on a compromise agreement. The decision can be questioned in the ff cases: (1) By a special civil action for certiorari on grounds of grave abuse of discretion, excess of juris or lack of juris committed by the court; (2) By annulment of decision based on lack of juris or extrinsic fraud.

Unless Congress would decide to recreate the former Juvenile and Domestic Relations Courts or family courts which were abolished by BP 129, all proc to be filed under the FC would be cognizable by the branches of the RTC designated by the SC to handle exclusively juvenile and domestic relations cases, and in places where no designation is made, by the RTC of the proper venue of the case. Venue shall be the place of residence of either spouse. Claims for Damages Summary Procedure

not

covered

RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

by

Sec. 1 Who may file petition. Any person interested in any act, even, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of an entry relating thereto, with the RTC of the province where the corresponding civil registry is located.

Claims for damages cannot be litigated in the same proceedings bec. Such claims will necessarily entail delay. Independent or separate cases shall therefore be necessary for establishing and enforcing claims for damages. Due Process to Be Observed

Role of the Court

Def. spouse shall be duly notified and furnished a copy of the pet at his last known address and shall be given the opportunity to answer the same or to show

The crt’s role in hearing the petition to correct certain entries in the civil registry is to ascertain the truth about the facts recorded therein. Reason: Truth is best 10 1

A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

ascertained or approximated by trial conducted under the adversary system.

(d) (e) (f)

legal separation; judgments of annulments of marriage; judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

Proceedings for the correction of erroneous entry should not be considered as establishing one’s status in a legal manner conclusively beyond dispute. Art. 410 CC provides, “..the books making up the civil register and all documents relating thereto…shall be prima facie evidence of the facts therein contained.” The correction shld not imply a change of status but a mere rectification of error to make the matter corrected speak for the truth. There is therefore no increase or diminution of substantive right, as is the basis for holding that R108 would be unconsti if held to allow correction of more than mere harmless clerical errors.

R108 covers: 1) Correction of innocuous or clerical errors apparent on the facts of the record and capable of being corrected by mere reference to it, e.g., misspellings. 2) Correction of substantial errors provided proceedings is adversary, e.g. citizenship.

Distinction bet. R103 and R108 R103 change of name only the entry is correct but you want to change it Civil Registrar not a party

Appropriate Adversary Proceedings One having opposing parties; contested, as distinguished from an ex parte application, one which the party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to contest it.

R108 all cancellation or correction of entries there is a mistake which you want to correct Civil Registrar is an Indispensable party. Otherwise, null and Void. REASON: interested party in Protecting integrity Of public documents

Persons who must be made parties 1) Civil Registrar; 2) All persons who have or claim any interest which would be affected thereby. • These are also the persons entitled to oppose the petition.

**If both reliefs are to be sought in the same proceedings all the requirements of R103 and 108 must be complied with. Proceeding when substantive

error

is

clerical

or

 Clerical – the procedure is summary.  Substantive – the procedure adversary.

is

Upon the filing of the petition, it becomes the duty of the court to: 1) issue an order fixing the time and place for the hearing of the petition, and 2) cause the order for hearing to be published once a week for 3 consecutive weeks in a newspaper of gen circulation in the province. Sec. 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.

Sec. 2 Entries subject to cancellation or correction. – Upon good and valid grounds, the ff. entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths;

Sec. 4. Notice and Publication. Upon the filing of the petition, the court 10 2

A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for 3 consecutive weeks in a newspapers of gen circulation in the province.

(c)

(d)

Sec. 5. Opposition. The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within 15 dys from notice of the petition, or from the last date of publication of such notice, file his opposition thereto.

(e)

ADVERSARY PROCEEDINGS 1) When the petition is filed either by the civil registrar or any person having a claim…and the opposition is actively prosecuted. 2) When all relevant facts have been fully and properly developed, where opposing counsel have been given opportunity to demolish the opposite party’s case, and where the evidence has been thoroughly weighed and considered. 3) When the opposition is filed either by the civil registrar or any person having or claiming any interest…

(f)

distributive share of the estate to which such person is entitled; Allows or disallows, in whole or in part, any claim against the estate of a decease person, or any claim presented on behalf of the estate in offset to a claim against it; Settles the account of an executor, admin, trustee or guardian; Constitutes, in proceedings relating to the settlement of the estate of a decease person, or the admin of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special admin; and Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing, UNLESS it be an order granting or denying a motion for a new trial or for recon.

Prof. Avena: Sec. 1 (f). The unless clause here simply means that in these two instances, you go on appeal immediately.  Enumeration is not approval of bond, incompetency for guardianship.

Sec. 6. Expeditious proceedings. The court in which the proceeding is brought may make orders expediting the proceedings, and may also grant prelim injunction for the preservation of the rights of the parties pending such proc.

exclusive, e.g., declaration of purposes of

Mode of Appeal Spec Pro- The period of appeals is 30 days, a record on appeal being required. Exc: Habeas corpus cases – 48 hours.

Sec. 7 Order. After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

Appeals in Liquidation Proceedings against Insolvent Corp is by Record on Appeal Since liquidation proc against an insolvent corp is a spec pro, the appeal is by record on appeal. REASON: several claims are actually separate ones and a decision or final order with respect to any claim can be appealed. Necessarily the orig rec on appeal must remain in the TC where other claims may still be pending.

RULE 109 APPEALS IN SPECIAL PROCEEDINGS Section 1. Orders or judgments from which appeals may be taken. An interested person may appeal in special proceedings from an order or judgment rendered by a RTC or a Juvenile and Domestic Relations Court, where such order or judgment: (a) Allows or disallows a will; (b) Determines who are the lawful heirs of a deceased person, or the

Who May Appeal -- Interest Person A stranger having neither material nor direct interest in a testate or intestate has no rt to appeal from any order issued herein.

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A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

May appeal only when the order, decree, judgment constitutes a final determination of the rights of the appellants and the appeal shall affect every order, decree or judgment appealed from, and not merely the interest which the appellants may have therein.

If an interested party lost his remedy by appeal due to his own neglect, he cannot now seek redress by certiorari and mandamus, it not appearing that the lower court has acted without juris. GENERAL PRINCIPLE: In the absence of statutory provisions directing otherwise, any order, judgment or decree of the probate court capable of being enforced, or taking effect without further order, may be appealed from; and that no action of the probate court can be appealed from which requires a subsequent order or judgment to give it effect. e.g., An order directing one to appear and submit to an examination touching any property in his possession belonging to an intestate, otherwise, he shall be committed to prison, is APPEALABLE.

*Prof. Avena: May sometimes be interlocutory in nature if we were to consider it under civpro but it is final in the sense that it disposes of rights and obli of parties, e.g. declaration of incompetency – You can appeal na although if viewed under civpro, hindi pa ito final dahil wala pang naaapoint na guardian. In other words, hindi pa tapos iyong guardianship proc. (Siyempre, hindi ganito iyung pagkakasabiFritz) The fact that the admin did not prosecute the appeal does not bar the lawful heirs of the deceased from doing so. REASON: Lawful heirs are considered interest party.

In this case, said person is legally interested in the order, thus entitled to appeal. He need not be legally interested in the intestate proceedings proper.

The validity of a judgment or order of a court entered in a spec pro cannot be assailed collaterally unless the ground for the attack is lack of juris or fraud by the party sought to be charged with it in its procurement.

OTHER INSTANCES WHERE APPEAL IS AVAILABLE 1. Appeal by Surety When a surety of an exec/admin of the estate of a deceased person is admitted as a party to an acctg made by such exec/admin under R. 85 Sec. 11, he may be allowed to appeal from any order of the court approving or disapproving such acctg.

If the nullity of the judgment or order assailed is for failure to comply with the statutory req. which must be followed before such J/O may be entered, the remedy is to appeal from such, or if final, to apply for relief under R38.

2 Appeal by Heir from Money Claim 1) An heir, legatee or devisee who under R86 S11 has been served with notice as to a money claim against the estate may be allowed to appeal from an order of the ct. approving such claim. 2) A creditor who under R87 S10 is allowed by the ct to bring an action for recovery of property may be allowed to appeal. 3) A spec admin may be allowed to appeal from an order disallowing a will.

In a specpro, appeals may be taken at various stages of the proceedings so song as the order, decree or judgment constitutes a final determination of the rights of the parties so appealing. A probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last will and testament, irrespective of whether its provisions are valid. Appealable under Sec. 1 (a).

3. Order for License to Sell An order for license to sell real estate in admin proc is appealable.

Certiorari and Mandamus not A Substitute for Appeal

4. Order Against Bond

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A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

Appealable. REASON: Such order constitutes a definite pronouncement as relates to his bond and to his movable property of which he will be deprived. Thus, he can appeal.

This is purely interlocutory and cannot be the basis of an appeal. Why? Ewan ko. But I think it’s probably because of the application of the gen principle.

5. Order to contract Obligation Appealable. REASON: It affects substantial rights of the parties and may unnecessarily prolong the admin of the intestate estate to the detriment of the heirs.

1. Order made in admin proc relating to inclusion or exclusion of items of property in the inventory of exec/admin, interlocutory This is purely discretionary, provisional and interlocutory. Subject to modification or change at any time during the course of admin proc. Not conclusive of the rts of any one, and the order is not final.

6. Order Appointing Admin Appealable. This is a final determination of the rts of the parties thereunder.

2. Order Appointing Special Admin/Receiver Merely incidental to judicial proceedings. The ct making the appt retains control over it and that it may modify, rescind, or revoke the same on sufficient grounds at any time before final judgment.

7. Order Annulling Appointment of Guardian Appealable. An order refusing to permit a person to intervene in a probate proceeding where he claims to have acquired the interest of one of the heirs of the deceased is likewise appealable. 8. Order Removing a Guardian Appealable. Constitutes a final determination of his rights. An order declaring a guardian incompetent is likewise appealable.

Sec. 2. Advance Distribution in spec pro. Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the ct may, in its discretion and upon such terms as it may deem proper and just, permit that such part of the estate as may not be affected by the controversy or appeal be distributed among the heirs or legatees upon compliance with the conditions set forth in R. 90 of these rules.

9. Inventories and Claims against the Estate Re: inventories, claims against the estate and sale of the property of the decedent are appealable.

Fritz, sana naman ay hindi na nasayang ang pagod mo. GOOD LUCK, 3-A!!!  Aileen, Minnie & Ella

10. Person declared incompetent An order declaring one a spend thrift and mentally and physically incompetent is appealable.

Appendix to Minnie’s Habeas Corpus Opus By: The Regressing Whimsyland Kids Lourie, Karreen & Jig + Party Pooper Ella

11. Order refusing to permit a party to intervene

Habeas Corpus # 9

Appealable if the party seeking to intervene is one who claims to have acquired the interest of one of the heirs of the estate.

Moncupa v. Enrile Facts: Moncupa et al were arrested & detained. He was alleged to be a National Democratic Font staff member. A Presidential Commitment Order (PCO) was issued vs. them. After 2 separate investigations, it was ascertained that Moncupa was not a member of any subversive organization. Both investigators recommended his prosecution only for illegal possession of firearms & subversive documents. The petitioners’ motions for bail were deined. Respondents claim that the privilege of the writ of HC had been suspended as to Moncupa & filed a MTD stating “Since the pet. is free & no longer under the custody of the resps., the present

Orders that are not appealable 1. Order directing admin to take action to recover amount due to the estate; interlocutory. 10 5

A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

petition for HC may be deemed academic as in similar cases.”

moot

&

Salvana v. Saliendra

Held: Moncupa may have been released fr. his detention cell, but the restraints attached to his temporary release preclude freedom of action & under the Villavicencio v. Lukban rule warrant the Court’s relieving him of such restraints as may be illegal. It is not physical restraint alone w/c is inquired into by the writ of habeas corpus.

Facts: Salvana and Saliendra are the parents of 15 year old Felicisima Salvana. The minor is presently in the custody of a justice of peace. The parents filed a petition for WHC to regain parental authority over the minor. The pet. was denied on the ground that the parents are guilty of abusing their child by forcing her to marry another against the her wishes.

The principle is clear. A release that renders a pet. for a WHC moot & academic must be one w/c is free fr. involuntary restraints. Where a person continues to be unlawfully denied one or more of his constitutional freedoms, where there is present a denial of due process, where the restraints are not merely involuntary but appear to be unnecessary, & where a deprivation of freedom originally valid has, in the light of subsequent dev’ts., become arbitrary, the person concerned or those applying in his behalf may still avail themselves of the privilege of the writ.

Issue:

WON WHC should issue?

Held: It should issue. A WHC is the proper legal remedy to enable parents to regain the custody of a minor daughter even though the child is in custody of a 3rd person of her OWN FREE WILL. Neither the fact that the parents sought to compel her to marry against her wishes a legal ground for depriving parents their parental authority over the child as to deny them the right.

Toyoto, et al. V. Ramos

SUAREZ VS. CA

Facts: Petitioners temporarily released fr. detention. So, does writ lie?

Facts: Respondent Manese filed a petition for writ of HC vs. petitioner Renato Suarez, his mother & sister. She filed a motion to dismiss without prejudice to her right to file another action for custody of minor, contending that the issue as to who has rightful custody of the child could be fully adjudicated in another action and not in the present action for HC. TC granted motion but with prejudice.

Held: Ordinarily, a pet. for HC becomes mute & epidemic (he he) when the restraint on the liberty of the pets. Is lifted either temporarily or permanently. But the instant case presents a diff. situation. The Q to be resolved is whether the State can reserve the power to re-arrest a person for an offense after a court of competent jurisdiction has absolved him of the offense. Such a reservation is repugnant to the government of laws & not of men principle. Under this principle the moment a person is acquitted on a crim charge he can no longer be detained or re-arrested for the same offense.

Issue: WON order of dismissal with prejudice is res judicata to present action for custody of minor & support Held: The order of dismissal cannot be considered as a valid adjudication on the merits which would serve as a bar to the second action for custody of minor. TC dismissed the case without stating the reasons or the basis therefore, contrary to the constitutional mandate that decisions rendered by the court must clearly & distinctly state the law & facts on which it is based. It is worthy to note though that the ground upon which the motion to dismiss was filed was erroneous since the question as to who shall have custody of the child can be sufficiently resolved in the petition for writ of HC pursuant to Rule 102, ROC.

Alimpoos v. CA Facts: Reynaldo Mosquito has been accused of Robbery w/ less Serious Physical Injuries. He was detained by virtue of a warrant of arrest which was issued without the observance of the legal requirements for the issuance thereof. Mosquito filed a petition for Habeas Corpus before the Trial Court. Mosquito named as defendants in the case the Prov. Fiscal and the private offended parties. he also filed a claim for damages premised on Arts. 32 (4) and other applicable provisions of the Civil Code.

The controversy in the instant case involves a litigation initiated by the natural mother over the welfare & custody of her child, in which the State has a paramount interest. The fundamental policy in the Constitution promoting & protecting the welfare of children should not be disregarded by a mere technicality in resolving disputes which involve the family & youth.

Issues: 1. WON the writ of Habeas Corpus if the proper remedy for Mosquito? 2. WON damages may be awarded in a Habeas Corpus case? 3. WON private offended party may take part in the case?

GALVEZ VS. CA Facts: Three separate information (1 homicide, 2 frustrated homicide) were filed vs. Galvez (incumbent mayor of one of the towns in Bulacan ... Peter, don’t follow his footsteps, OK?) for the alleged shooting of the Vinculados. Said infos. were later withdrawn in a Motion by the prosecutor, but on the same day, filed four separate information (same three plus illegal possession of firearms). Judge ordered the arrest of the petitioners since no bail was recommended.

Held: 1. The WHC is not the proper remedy. When a warrant of arrest is being assailed for improper preliminary investigation, the remedy is a petition to quash the warrant of arrest or petition for reinvestigation of the case. It is the gen. rule that a HC shld. not be resorted to when there is another remedy available. 2. No. Damages cannot be awarded. The sole function of the writ is to relieve fr. unlawful imprisonment and ordinarily it cannot be properly used for another purpose.

Issue: WON petition for HC was properly filed together with the present petition for certiorari and mandamus

3. While the issuance of the writ connotes the commencement of a civil action, the proceedings for HC is technically not yet a suit bet. private parties. The proper party is the Chief of Police or the person having the accused in detention and not the private offended party. It is also only the fiscal who may appeal the order granting the writ as mandated by Sec. 19 RULE 41 of the ROC.

Held: Writ of HC and certiorari may be ancillary to each other where necessary to give effect to the supervisory powers of the higher courts. The writ reaches the body & jurisdictional matters while certiorari reaches the record. But HC does not lie where pet. has the remedy of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing 10 6

A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

mere errors or irregularities in the proceedings of a court having jurisdiction over the person & subject matter.

within the original competence of the lower courts.

Writ cannot be granted in the case at bar since petitioners failed to adduce any justification or exceptional circumstances which would warrant the grant of such writ. HC is not ordinarily available in advance of trial to determine jurisdictional questions that may arise. In the absence of exceptional circumstances, the orderly course of trial should be pursued & the usual remedies exhausted before the writ may be invoked. Petition for HC is not the appropriate vehicle for asserting a right to bail or vindicating its denial.

FACTS: A criminal complaint was filed against Governor Paredes for violation of the Anti-Graft and Corrupt Practices Act. A preliminary investigation was held but the summons for Paredes to appear therein did not reach him. An information was subsequently filed and a warrant of arrest issued against Paredes. He now petitions for habeas corpus on the ground that the preliminary investigation was invalid and that the offense has prescribed.

PEOPLE VS. FIGUEROA

ISSUE: WON the circumstances constitute valid grounds for the issuance of a writ of habeas corpus.

PAREDES VS. SANDIGANBAYAN

FACTS: The accused were found by the Philippine Navy off the province of Palawan with untaxed blue-seal cigarettes in their possession. They were brought to Manila and investigated. During this preliminary investigation, each of the accused executed affidavits and waived their rights under Art. 125 of the RPC (arbitrary detention). On recommendation of the Manila fiscal, the accused were brought back to Palawan and another preliminary investigation was held, allegedly for the purpose of “affirm(ing) the truth of the sworn statements.” This time, however, the accused declined counsel and readily affirmed their previous affidavits. Their counsel filed a MTQ, claiming that the information was filed without a preliminary investigation and, if there was, it was held in Manila and not Palawan where the alleged crime was committed. The lower court granted the MTQ, holding that the preliminary investigation was conducted “hurriedly”.

HELD: NO. The absence of a preliminary investigation does not affect the court’s jurisdiction over the case nor impair the validity of the information or otherwise render it defective. The remedy of the accused in such a case is to call the attention of the court to the lack of a preliminary investigation and demand, as a matter of right, that one be conducted. The court, instead of dismissing the information, should merely suspend the trial and order the fiscal to conduct a preliminary investigation. The defense of prescription of the offense should be pleaded in the criminal action, otherwise it would be deemed waived. It is a proper ground for a motion to quash which should be filed before the arraignment of the accused for whether the crime may still be prosecuted and penalized should be determined in the criminal case not in a special proceeding of habeas corpus. All questions which may arise in the orderly course of a criminal prosecution are to be determined by the court to whose jurisdiction the defendant has been subjected by the law, and the fact that a defendant has a good and sufficient defense to a criminal charge on which he is held will not entitle him to his discharge on habeas corpus.

ISSUE: WON the trial court correctly dismissed the information based on the lack of preliminary investigation. HELD: NO. Assuming that the trial court felt that the accused should have been given more “ample chance and opportunity to be heard in the preliminary investigation”, what it should have properly done was not to dismiss the information but to hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. The absence of such investigation did not impair the validity of the information or otherwise render it defective. Much less did it affect the jurisdiction of the lower court over the case.

ILAGAN V. ENRILE (When we went to Davao, Judge Quitain, the Daddy of Mamay, introduced as to Atty. Ilagan who was then pres. of Integrated Bar of the Phils. Davao Chapter. May picture pa kami w/ him.) Facts: Atty. Ilagan was arrested in Davao City & detained on the basis of a mission order allegedly issued by the Ministry of Nat’l. Defense. He was visited by 15 lawyers fr. IBP Davao Chapter. One of the visitors was also arrested & detinaed on the basis of an unsigned MO. After several days, another IBP member was arrested. Petitioners argue that the arrests were illegal & violative of the Consti, since arrests cannot be made on the basis of mission orders. Resps. Answered that the Writ was suspended as to them by virtue of Proc. #2045A.

ENRILE VS. SALAZAR FACTS: Juan Ponce Enrile, Gregorio Honasan, and the Panlilio spouses were arrested by PNP agents on a warrant of arrest issued by Judge Salazar. They were denied bail, none being recommended in the information which charged them with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the failed coup attempt of Dec. 1990. Enrile and the Panlilios filed this petition for habeas corpus, invoking denial of the constitutional right to bail.

Held: IF the detained attys. Question their detention bec. of improper arrest, or that no prelim inv has been conducted, the remedy is not a pet. for a writ of HC but a Motion for the TC to quash the Warrant of Arrest, &/or the info on grounds provided by the rules or to ask for an investigation/ reinvestigation of the case. This pet. is now mood & academic bec. of criminal charges for rebellion filed vs. the lawyers.

ISSUE:

WON a petition for habeas corpus is the appropriate vehicle for asserting a right to bail or vindicating its denial. HELD: NO. The criminal case before Judge Salazar was the normal venue for invoking the petitioner’s right to have provisional liberty pending trial and judgment. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of the Supreme Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there. The Court will no longer countenance pleas like the present that clearly short-circuit the judicial process and burden it with the resolution of issues properly

Luna v. Plaza Facts: Supporting the complaint for murder were sworn statements of prosecution witness in the form of Q & A taken by the PC investigator, & subscribed & sworn to before the resp. Judge at the time of filing comp. Judge read to the proecution witnesses the Q & A. This was how he examined them. The latter declared that their answers were true, freely & voluntarily made, & that they fully understood the Q & A & 10 7

A M I S T A D : We live to serve!!! (A ’99) Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?), Minnie, Peter, Riza With the special participation of the Obiter Master Ella And the former “slave-master” turned into slave! -FRITZIE

were willing to sign their respective affidavits. Judge issued warrant of arrest. Pet. filed writ for certiorari on the ground that he was deprived of liberty w/o due process since the imprisonment & detention was the result of a WOA issued by resp. judge in violation of law since the exam was not reduced to in writing in the form of searching Q & A. Judge claims substantial compliance. Held: There was substantial compliance. The existence of probable cause depends to a large degree upon the finding or opinion of the judge conducting the exam. RA 3828 does not prohibit the Mun Judge fr. adopting the questions asked by the previous investigator. The term “searching Q & A” means only taking into consideration the purpose of the prelim exam, w/c is to determine “whether there is a reasonable ground to believe that an offense has been committed & the accused is probably guilty thereof so that a warrant of arrest may be issued & the accused be held for trial, such Q’s having tendency to show the commission of the crime & the perpetrator.

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