Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Standard view
Full view
of .
Look up keyword
Like this
0 of .
Results for:
No results containing your search query
P. 1
mmb notes

mmb notes

Ratings: (0)|Views: 204|Likes:
Published by Sui

More info:

Categories:Types, Business/Law
Published by: Sui on Jul 23, 2011
Copyright:Attribution Non-commercial


Read on Scribd mobile: iPhone, iPad and Android.
download as DOC, PDF, TXT or read online from Scribd
See more
See less





Remedial Law Review
Civil Procedure
This is the Remedial Law Reviewer for the class of Prof. Antonio R. Bautista,as updated by the Class of 2001. This reviewer is now CivPro 1997 Rules-compliant,and takes into account the pertinent substantive laws that have been passed as of this date, as well as Sir’s latest comments in his lectures. Please be advised, however, that due to time constraints, this reviewer wasnot edited in its entirety. There may therefore be errors typographical or substantial – that have gone unchecked. While reading this reviewer, kindly cross-reference with the 1997 Rules of Civil Procedure, your own lecture notes, and other legal materials which you trust. The updated, clean version will be released before April 2001 in time for Bar review. Promise.
Remedial law is also known as adjective lawyer or procedural law. Prof. Bautista likes to callremedial law as the lawyer’s law – the rules of the lawyer’s game. Even if you are not in litigation, oneneeds to know remedial law. For example, in contract drafting, it really helps to know remedial law as thelawyer can anticipate how the contract would stand in court. In fact, the great disparity of lawyers lieslargely due to their knowledge or lack of knowledge of remedial law.The goals of remedial law are:1.uniformity2.stability3.predictabilityOur law provides for the so-called
Katarungang Pambarangay 
. In these proceedings, anyonecan appear except lawyers. Prof. Bautista thinks this can be challenged on the ground that it violates theEqual Protection Clause.Many of the provisional remedies found in the Philippine Rules of Court have been declaredunconstitutional in the U.S. In the Philippines, it is the Supreme Court which promulgated the Rules of Court. In the U.S., it is Congress which does so. Therefore, it seems highly unlikely that our SupremeCourt will declare their own Rules of Court as unconstitutional.In remedial law the following laws are important:1.Rules of Civil Procedure2.BP 1293.Judiciary Act of 1948 – many of these provisions have not been repealedIn San Miguel v. Sec. of Labor, the Supreme Court said that the Supreme Court cannot bedeprived of its certiorari jurisdiction.In the case of St. Martin Funeral Homes and Fabian v. Desierto, the Supreme Court saidthat the Supreme Court’s jurisdiction cannot be increased.The Constitution has given the Supreme Court rule-making power.
Compiled by mmb
Remedial Law Review
Civil Procedure
Brief Historical Outline of Remedial Law
General Order 58 – The U.S. uprooted the Spanish procedure and replaced it with their own rules since the Spanish system was so inefficient and abusive.Ist few acts of Philippines Commission was Act 190. This act overhauled procedurallaw. It codified the rules on civil and special procedure.1935 Constitution – vested rule making power in the Supreme Court; there was atransitory provision which provided that until the Rules of Court have beenpromulgated, the existing statutes (Gen Ord. 58, Act 190 and some other statutes) shall first constitute the temporary Rules of Court.1940 – Ist Rules of Court (Rule-making power cannot modify substantive rights)1964 – next revision1985 – Rules on Criminal Procedure1988 – Changes on the Rules on Evidence1997 – Rules on Civil Procedure2000 – New Criminal ProcedureThe Supreme Court from time to time, amends the rules on a case to case basis.Furthermore, the Supreme Court issues circulars.
It is hard to conceive how any system of law which institutionalizes a mode of settling disputescannot have a concept of jurisdiction. It is a fundamental concept. The concept of jurisdiction is not easyto grasp. It is elastic and admits of many meanings. It is elusive. It is sometimes confused withmootness, standing, ripeness, etc.Furthermore, lack of cause of action is often times confused with lack of jurisdiction over thesubject matter. Generally, a judgment which is final is not vulnerable to attack. If a court rendered judgment without subject matter jurisdiction, the judgment is
void ab initio
. Thus the voidness can beraised collaterally. In fact, one of the grounds for annulment of judgment under Rule 47 is lack of  jurisdiction over the subject matter. In one case, the Supreme Court said that jurisdiction over the subjectmatter is the power to hear and decide a case with binding and enforceable effect. Without this bindingand enforceable effect, the proceedings would be useless.There is a distinction between the competence of the court to entertain an action and the power to render a judgment on the merits.One outstanding feature of subject matter jurisdiction which is stressed is that it is conferred bythe legislature. Thus, courts cannot be vested or ousted by jurisdiction over the subject matter by theaction of the parties. Sec. 2, Art. VIII of the 1987 Constitution provides that the Congress shall have the
Compiled by mmb
Remedial Law Review
Civil Procedure
power to create courts. Thus, it is only Congress which has the power to sole power to do so. Therefore,Congress has plenary power to create courts and define jurisdiction. However, there are limitations.Congress cannot diminish the jurisdiction of the Supreme Court. Neither can Congress undermine thesecurity of tenure of the judges.Judicial power is vested in the courts. How much judicial power is vested in these courts is up tocongress. Which courts exercise which judicial power is also up to Congress.
Features of subject matter jurisdiction:
1.conferred by law2.can be raised at anytime3.to be determined by the allegations of the case4.determined by the allegations in the pleadings, not the evidence5.sometimes is territorial
A shipment of goods by sea from HongKong to Manila is covered by a bill of lading. Theconsignee is unhappy with the shipment. He brings an action against the shipper and the carrier inManila. The stipulation in the contract provides that cases should be filed in HongKong. The defendantsfiled a Motion to Dismiss on the ground that the Manila court has no jurisdiction. Rule on the Motion toDismiss.
Denied. Jurisdiction is vested by law, and the parties cannot stipulate otherwise.Prof. Bautista however adds that there is a case in Private International Law which says that in amulti-state transaction, contracting parties may stipulate the choice of forum.
A shipment of goods by sea from HongKong to Manila is covered by a bill of lading. Theconsignee is unhappy with the shipment. He brings an action against the shipper and the carrier inManila. The stipulation in the contract provides for an arbitration clause. The defendants filed a Motion toDismiss on the ground of failure to comply with condition procedure – arbitration. Rule on the Motion toDismiss.
Denied.If the plaintiff files a case which is premature or fails to exhaust administrative remedies, then thecase can be dismissed for failure to state a cause of action. Since there is no cause of action, the case isnot yet ripe for adjudication.When the plaintiff fails to resort to
Katarungang Pambarangay 
according to Supreme CourtAdministrative Circular 14-93, the case can be dismissed for failure to state a cause of action or failure tocomply with condition precedent. However, the Supreme Court also said that the proceedings in courtcan also be suspended. Thus, according to Prof. Bautista, Bengzon v. Chan is probably still good law. If there is no resort to arbitration before the case is brought to court, the court may suspend the caseapplying Supreme Court Administrative Circular 14-93.
What does lack of capacity to sue contemplate?
The general rule is that the court’s lack of jurisdiction over the subject matter can be questioned.There is an exception – estoppel by laches as held in the Tijam case. According to Prof. Bautistahowever, the Tijam case has very peculiar facts. The effect was that the parties conferred jurisdiction bythemselves.
Compiled by mmb

Activity (14)

You've already reviewed this. Edit your review.
1 thousand reads
1 hundred reads
Clambeaux liked this
daboy15 liked this
daboy15 liked this
Cattleya liked this
Ara Bombane liked this

You're Reading a Free Preview

/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->