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Burden of Proof vs.

Burden of Evidence


By burden of proof is meant the obligation imposed upon a party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action to establish it by proof. Under the Rules, it is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. It means the burden of establishing a case, whether by a preponderance of the evidence, or beyond a reasonable doubt, or by substantial evidence.

On the other hand, burden of evidence connotes the burden of going forward with the evidence or that logical necessity which rests on a party at any particular time during the trial to create a prima facie case in his favor, or to overthrow one when created against him.


The main distinction between burden of proof and burden of evidence is that burden of proof never shifts. This remains throughout the entire case exactly where the pleadings originally placed it. The party whether plaintiff or defendant, who substantially asserts the affirmative of the issue has this burden of proof. It is on him at the beginning of the case; it continues on him through the case; and when the evidence, by whomsoever introduced, is all in if he has not, by preponderance of evidence (or proof beyond reasonable doubt), established his proposition or claim, the decision of a tribunal must be adverse to such pleader.

Burden of evidence on the other hand shifts to one party when the other has produced sufficient evidence to be entitled as a matter of law to a ruling in his favor. It has no necessary connection with the pleadings, but is determined by the progress of the trial.


Ordinarily, the burden of proof lies in the first instance with the party who initiated the action or proceeding, that is, the plaintiff. In other words, a plaintiff, by asserting in his complaint, petition, or declaration facts which, if proved, establish a liability due him on the part of defendant, has the burden of proving these facts. But there is no strict and rigid rule that the primary burden of proof is on the party who brings suit; rather, this is generally speaking, taken for granted because of expediency and inherent justice, and not because of initiative action.

Where the defendant, either in positive and express terms or by the character and nature of his pleadings, admits the cause of action alleged by the plaintiff, he thereby absolved the plaintiff from the necessity of making any proof in support of his claim; in such case the burden of proof rests with the defendant, and rest with him until the issue is met.

Twin Notice Requirement in Dismissal of Employees

It is a cardinal rule in law that due process must always be observed. In labor cases, employers have often lost cases because they have not complied with procedural due process in the dismissal of their employees. In the case of San Antonio vs NLRC, et al.[G.R. No. 100829. November 28, 1995.], the Supreme Court held that:

The rudiments of due process cannot be lightly ignored. Proper compliance with the twin requirements of notice and hearing are conditions sine qua non before a dismissal may be validly effected. Elucidating, the Court, in Pepsi-Cola Bottling Co. v. NLRC, (210 SCRA 277, 286) explained: The law requires that the employer must furnish the worker sought to be dismissed with two (2) written notices before termination of employment can be legally effected: (1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice which informs the employee of the employers decision to dismiss him (Sec. 13, BP 130; Sec. 2-6 Rule XIV, Book V, Rules and Regulations Implementing the Labor Code as amended). Failure to comply with the requirements taints the dismissal with illegality. This procedure is mandatory; in the absence of which, any judgment reached by management is void and inexistent. The second notice must be given the employee after due hearing. The hearing requirement is not to be considered a mere technicality but one of substance to which every employee is entitled in order to at all times assure that the employers

prerogative to dismiss or lay-off is not abused or exercised in an arbitrary manner. Consultations and conferences may not be valid substitutes for actual observance of notice and hearing. Any procedural shortcut, that effectively allows an employer to assume the roles of both accuser and judge at the same time, should not be countenanced. Not excluded from the rule are confidential and managerial employees; they themselves cannot be arbitrarily dismissed without such just causes as must be reasonably established in appropriate investigations. Shortly after petitioner, in compliance with the companys directive, had explained why he should not be disciplinary dealt, he received forthwith the companys decision dismissing him from employment. No hearing, or a semblance thereof, was conducted apparently because the company believed that the case was res ipsa loquitur in character.

The Supreme Court further elucidated the twin notice requirement in the case of Nitto Enterprises vs NLRC [G.R. No. L-114337. September 29, 1995.], to wit:

There is an abundance of cases wherein the Court ruled that the twin requirements of due process, substantive and procedural, must be complied with, before valid dismissal exists. Without which, the dismissal becomes void.The twin requirements of notice and hearing constitute the essential elements of due process. This simply means that the employer shall afford the worker ample opportunity to be heard and to defend himself with the assistance of his representative, if he so desires. Ample opportunity connotes every kind of assistance that management must accord the employee to enable him to prepare adequately for his defense including legal representation.

As held in the case of Pepsi-Cola Bottling Co., Inc. v. NLRC:

The law requires that the employer must furnish the worker sought to be dismissed with two (2) written notices before termination of employee can be legally effected: (1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought, and (2) the subsequent notice which informs the employee of the employers decision to dismiss him (Sec. 13, BP130, Sec. 2-6 Rule XIV, Book V, Rules and Regulations Implementing the Labor Code as amended). Failure to comply with the requirements taints the dismissal with illegality. This procedure is mandatory; in the absence of which, any judgment reached by management is void and inexistent (Tingson, Jr. vs. NLRC, 185 SCRA 498 [1990]; National Service Corp. vs. NLRC, 168 SCRA 122, Ruffy vs. NLRC. 182 SCRA 365 L [1990]).

Points to Remember in Dismissal Cases

Q: What are the just causes for the dismissal of an employee? A: Under Article 282 of the Labor Code, an employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and (e) Other causes analogous to the foregoing. Q: What are the other authorized causes for the dismissal of an employee? A: Under Article 283 of the Labor Code, the employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Department of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. Q: When is a dismissed employee entitled to separation pay? A: The Labor Code requires a valid cause to terminate an employee. If there is no valid cause, there is no valid termination and the employer will be held liable for illegal dismissal. If the cause of dismissal falls under any of the five circumstances of Article 282, no separation pay shall be given to the dismissed employee. In dismissal cases falling under Article 283, separation pay shall only be required if the dismissal is due to the installation of labor-saving devices or redundancy. In these two cases, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. If the dismissal is due to retrenchment to prevent losses or closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for

every year of service, whichever is higher. In all cases, a fraction of at least six (6) months shall be considered one (1) whole year. On the other hand if the dismissal is due to retrenchment to prevent losses or closures or cessation of operations of establishment or undertaking due to serious business losses or financial reverses no separation pay shall be given to the dismissed employee. Q: What are the steps to follow to ensure that the dismissed employee is given due process? A: a. Notice of Dismissal The employer shall furnish the workers a written notice stating the particular acts or omissions constituting the grounds for his dismissal. In cases of abandonment of work, the notice shall be served at the workers last known address. b. Answer The worker may answer the allegations stated against him in the notice of dismissal within a reasonable period. c. Hearing The employer shall afford the worker ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires. d. Notice of decision The employer shall immediately notify a worker in writing of a decision to dismiss him stating clearly the reasons therefor. e. Report on dismissal The employer shall submit a monthly report to the regional Office having jurisdiction over the place of work, all dismissals effected by him during the month, specifying therein the names of the dismissed workers, the reasons for their dismissal, the dates of commencement and termination of employment, the positions last held by them and such other information as may ber required by the Department of labor for policy guidance and statistical purposes.

Making a Last Will and Testament

The making of a will can never be over-emphasized. It prevents conflict and controversy regarding the remaining estate of a deceased person and fully addresses certain issues with regard to disposition and handling of the same.

What is a will anyway? Under Article 783 of the Civil Code, a will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. Further, under Article 784, the making of a will is a strictly personal act; it cannot be left in whole

or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.

Under the Civil Code, there are two kinds of wills which a testator may execute. The first kind is the ordinary or attested will, the execution of which is governed by Articles 804 to 809 of the Civil Code, namely:

Art. 804. Every will must be in writing and executed in a language or dialect known to the testator.

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.

Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof.

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805.

In a case, the Supreme Court succintly discussed the foregoing provisions, it held that:

In addition to the requirements under Article 805, the ordinary will must be acknowledged before a notary public by the testator and the attesting witnesses (Art. 806, Civil Code), hence it is likewise known as a notarial will. Where the testator is deaf or a deaf-mute, Article 807 requires that he must personally read the will, if able to do so. Otherwise, he should designate two persons who will read the will and communicate its contents to him in a practicable manner. On the other hand, if the testator is blind, the will should be read to him twice; once, by anyone of the witnesses thereto, and then again, by the notary public before whom it is acknowledged (Art. 808, Civil Code).

The other kind of will is the holographic will, under Article 810 of the New Civil Code:

A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

This kind of will, unlike the ordinary type, requires no attestation by witnesses. A common requirement in both kinds of wills is that they should be in writing and must have been executed in a language or dialect known to the testator (Art. 804, Civil Code).

However, before a person may execute a will, he or she must possess the following:

a. That the testator must must be at least eighteen years of age, and; b. That he must be of sound mind.(Article 797 and 798, New Civil Code)

To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (Article 799, New Civil Code) More on Wills and Testaments

The Civil Code mandates that notarial wills are to be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. It is important, therefore, to determine who are qualified to become witnesses to the creation of the will.

Under Art. 820 of the Civil Code, any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a notarial will.

On the other hand, the disqualifications of a witness to a will is enunciated in Article 821 of the Civil Code:

Art. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony.

In the case of Gonzales vs CA, the Supreme Court discussed the requirements and qualifications of an attesting witness, it held that:

Under the law, there is no mandatory requirement that the witnesses testify initially at any time during the trial as to his good standing in the community, his reputation for trustworthiness and reliability, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the court, and that he has none of the disqualifications under Article 821 of the Civil Code.

To fully understand the role of an attesting witness, the act of attestation must be differentiated from the act of subscription. In the case of Taboada vs. Rosal, the Supreme Court expounded on this difference, holding that:

Attestation consists in witnessing the testators execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator.

In the case of Ramos vs. CA, the Court also discussed the nature of an attestation clause. It held that:

Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause, which is a separate memorandum or record of the facts surrounding the conduct of execution. Once signed by the attesting witnesses, it affirms that compliance with the indispensable legal formalities had been observed. The attestation clause basically contradicts the pretense of undue execution which latter on may be made by the attesting witnesses. In the attestation clause, the witnesses do not merely attest to the signature of the testatrix but also to the proper execution of the will, and their signatures following that of the testatrix show that they have in fact attested not only to the genuineness of the testatrixs signature but also to the due execution of the will as embodied in the attestation clause. By signing the will, the witnesses impliedly certified to the truth of the facts which

admit to probate, including the sufficiency of the execution, the capacity of the testatrix, the absence of undue influence, and the like.

Other pertinent codal provisions regarding attestation include:

Art. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will.

Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given.

Art. 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testators death does not prevent his creditors from being competent witnesses to his will. Rights of a Person under Custodial Investigation

If ever youre arrested, here are a couple of things to keep in mind:

Enshrined under Section 12, Article III of the 1987 Constitution are the following rights:

Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

In the case of Morales, Jr. vs. Enrile, et al., the Supreme Court laid down the procedure to be followed in custodial investigations, to wit:

At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means _ by telephone if possible _ or by letter or messenger. It shall be the duty of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence.

In addition, in the case of People vs Marra,, the Supreme Court defined the meaning of custodial investigation, It held that:

Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular

suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate.

Also, in People vs Camat,, the Court held further that:

As interpreted in the jurisdiction of their origin, these rights begin to be available where the investigation is no longer a general inquiry into an unsolved crime but has began to focus on a particular suspect, the suspect has been taken into police custody, and the police carry out a process of interrogation that lends itself to eliciting incriminating statements.

Supreme Court clarifies B.P. 22 circular

Recently, the Supreme Court came out with Administrative Circular 12-2000 which, ostensibly, removed the penalty of imprisonment against those who are found guilty of violating B.P. 22 (The Bouncing Checks Law). This circular caused a bit of confusion and put in jeopardy the acceptance of checks as a means of commercial payment. To ease the worries and concerns, the Supreme Court came out with a clarification in its official website. For the benefit of educating the general public, we now quote the said article verbatim:

When SC Administrative Circular 12-2000 concerning the penalty for violation of B.P. 22 or the Bouncing Checks Law was issued last November 21, 2000, members of the Judiciary, as well as the general public, asked for its clarification. Some called the Circular a form of judicial legislation which amended B.P. 22 by deleting the penalty of subsidiary imprisonment for persons who violate this law. Administrative Circular 13-2001, issued today by Chief Justice Davide, clarifies Circular 12-2000, particularly the authority of judges to impose the penalty of imprisonment for B.P. 22 violations and impose subsidiary imprisonment once a person found guilty of violating the provisions of the said law is unable to pay the fine sentenced. The Circular said that the clear tenor and intention of Administrative Circular 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. 22.

This means that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. The decision to impose only a fine, according to the Circular, rests solely on the Judge. The Court stressed that should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular 12-2000 ought not be deemed a hindrance.

Thus, Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. 22. The Court also stressed that should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment.

Warrantless Arrests

With the unfolding of events last week, many legal questions have cropped up and among these is the issue of warrantless arrests. Under Section 5, Rule 113 of the Revised Rules of Criminal Procedure, a peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

The rationale for warrantless arrests was enunciated in the case of Valmonte vs.De Villa (1990) where the Supreme Court held that:

To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances.

Under Section 5(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of the fact. The offense must also be committed in is presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). This is where the terms in flagrante delicto and caught in the act find application.

In arrests without a warrant under Section 5(b) of Rule 113, however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the case of People v. Burgos.

In People vs. Mengote (G.R. No. 87059, June 22, 1992), the Supreme Court held that the accused acts of merely looking from side to side and holding his abdomen, do not constitute enough basis to implement a warrantless arrest. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by the accused in the presence of the arresting officers.In this case, the Solicitor General argued that the actual existence of an offense was not necessary as long as Mengotes acts created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an

offense had been committed and that the accused-appellant had committed it. The Court shot down this argument stating that no offense could possibly have been suggested by a person looking from side to side and holding his abdomen and in a place not exactly forsaken.

In the same case, the Court added this caveat:

It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer-could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security.

The case of People vs. Alvarez (1991), illustrates a warrantless arrest in accordance with Section 5(b) of Rule 113:

In the instant case, it was the elder Alvarez who initiated the arrest a day after the crime was committed. Having been once a policeman, he may be said to have been equipped with knowledge of crime detection. And having had the opportunity to observe the conduct of the three Appellants, who were at his house the whole day following the commission, it is logical to infer that his act of going to the police, informing them that Appellants were the perpetrators of the crime and even fetching them to make the arrest sprang from a well-grounded belief that a crime had been committed and that Appellants had committed it. In this regard, the arrests without a warrant were validly effected.

As for cases of rebellion, the case of Umil vs. Ramos (187 SCRA 311), clearly states that since rebellion is a continuing offense, a rebel may be arrested at any time, with or without a warrant, as he is deemed to be in the act of committing the offense at any time of the day or night. Perjury

Joseph Estrada has been charged with this offense before the Sandiganbayan, Bill Clinton faced it during the height of his impeachment and senators are accusing witnesses of committing this crime in their hearings. With all the fuss it has generated, it is no wonder why perjury is on everybodys mind these days.

What is perjury anyway? This offense, as defined in Article 183 of the Revised Penal Code is the willful and corrupt assertion of a falsehood under oath or affirmation administered by authority of law on a material matter. The said article provides:

The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, knowingly making untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath or make an affidavit upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires.

Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section shall suffer the respective penalties provided therein.

The elements of the crime of perjury are:

(a) That the accused made a statement under oath or executed an affidavit upon a material matter.

(b) That the statement or affidavit was made before a competent officer, authorized to receive and administer oath.

(c) That in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood.

(d) That the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.

Material matter is the main fact which is the subject of the inquiry, or any circumstances which tends to prove the fact, or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of the inquiry, or which legitimately affects the credit of any witness who testified.


False testimony is given in the course of a judicial proceeding and contemplates an actual trial where judgement of conviction or acquittal is rendered and not merely a preliminary investigation. On the other hand, perjury is any willful and corrupt assertion of falsehood on a material matter under oath and not given in judicial proceedings. It may be committed even during a preliminary investigation as well as in the making of a false affidavit under oath on a material matter when required by law.

Checks and the Law

There are two legal provisions regarding the issuance of checks in our laws and both are criminal in nature. The first falls under the crime of estafa and is committed by post-dating a check, or issuing a check in payment of an obligation when the offender therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack of insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.

The second is a law in itself, Batas Pambansa Blg. 22, more popularly known as B.P. 22. This crime is committed by any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

So how do we differentiate the two?

Settled is the rule that, to constitute estafa, the act of postdating or issuing a check in payment of an obligation must be the efficient cause of defraudation and, as such, it should be either prior to or simultaneous with the act of fraud. The offender must be able to obtain money or property from the offended party because of the issuance of the check or that the person to whom the check was delivered would not have parted with his money or property had there been no check issued to him. Stated otherwise, the check should have been issued as an inducement for the surrender by the party deceived of his money or property and not in payment of a pre-existing obligation.

On the other hand, the elements of the offense under Section 1, BP Blg 22, are: (1) the making, drawing and issuance of any check to apply to account or for value; (2) the maker, drawer or issuer knows that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such in full upon presentment; and (3) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. 23

It will be noted that BP Blg. 22 requires that the drawer of the check must have knowledge at the time of issue that he does not have sufficient funds in or credit with the drawee bank. Under Section 2 thereof, the making, drawing and issuance of a check, payment of which is refused by the drawee because of insufficient funds in or credit with such bank, is prima facie evidence of knowledge of such insufficiency when the check is presented within 90 days from the date of the check. However, the prima facie evidence of knowledge of such insufficiency does not lie when the maker or drawer pays the holder of the check the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. Parental Consent vs. Parental Advice

There has been some confusion over the provisions of the Family Code of the Philippines mandating parties between the ages of eighteen and twenty-one years to obtain parental consent and the rule requiring parties between the ages of twenty-one and twenty-five to obtain parental advice before getting married. The

Law Professor will now clarify matters by tackling the difference between the two requirements.


The rule on parental consent is found under Article 14 of the Family Code. It states that in case either or both of the contracting parties are between the ages of eighteen and twenty-one, they shall exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned.

The parental consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications.

Non-compliance with the requirement of parental consent does not make the marriage invalid or void but merely annullable, which means that the marriage is valid until annulled. As a result, a petition for the annulment of the marriage may be filed by the parents, guardian or person having substitute parental authority over the party seeking the annulment, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife.


The rule on parental advice is found under Article 15 of the Family Code. It states that any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor.

A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement.

However, if the marriage license is issued within the said three months and the parties were able to get married on the basis of such marriage license, the said marriage is completely valid but will subject the parties to civil, criminal or administrative liabilities in accordance with Article 4, Paragraph 3 of the Family Code of the Philippines which states that:

An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable.


Our criminal laws provide for instances where a person may defend himself and not be prosecuted for what would normally be a criminal action. Under Section 1, Article 11 of the Revised Penal Code of the Philippines, the following do not incur any criminal liability:

Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression.

Second. Reasonable necessity of the means employed to prevent or repel it.

Third. Lack of sufficient provocation on the part of the person defending himself.

The justifying circumstance of self-defense is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it. (People v. Nacuspag, 115 SCRA 172 [1982]) Where the accused has admitted that he is the author of the death of the deceased, it is incumbent upon the appellant, in order to avoid criminal liability, to prove this justifying circumstance (self-defense) claimed by him, to the satisfaction of the court. To do so, he must rely on the strength of his own evidence, and not on the weakness of the prosecution for even if it were weak, it could not be disbelieved after the accused admitted the killing.

It is basic that for self-defense to prosper, the following requisites must concur: (1) there must be unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression were reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending himself. We shal now discuss the following requisites in detail:

A. Unlawful Aggression:

Unlawful aggression presupposes an actual or imminent danger on the life or limb of a person. Mere shouting, intimidating or threatening attitude of the victim, assuming that to be true, does not constitute unlawful aggression. Real aggression presupposes an act positively strong, showing the wrongful intent of the aggressor, which is not merely a threatening or intimidating attitude, but a material attack. Examples are the pointing of a gun or the brandishing of a knife or other deadly weapon.

B. Reasonable necessity of the means employed:

Whether the means employed is reasonable or not, will depend upon the kind of weapon of the aggressor, his physical condition, character, size, and other circumstances as well as those of the person attacked and the time and place of the attack. Although a knife is more dangerous than a club, its use is reasonable if there is no other available means of defense at the disposal of the accused.

C. Lack of sufficient provocation on the part of the person defending himself:

Sufficient means proportionate to the damage caused by the act, and adequate to stir one to its commission. Imputing to a person the utterance of vulgar language is sufficient provocation. This element refers to the person defending himself and is essentially inseparable and co-existent with the idea of self-defense. Article 247 of the Revised Penal Code

Article 247 of the Revised Penal Code involves death or physical injuries inflicted under exceptional circumstances. It states that:

Any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents.

Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.

In the case of People vs. Araquel, the Supreme Court explained the rationale of Article 247, to wit:

As may readily be seen from its provisions and its place in the Code, the abovequoted article, far from defining a felony, merely provides or grants a privilege or benefit _ amounting practically to an exemption from an adequate punishment _ to a legally married person or parent who shall surprise his spouse or daughter in the

act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be is punished only with destierro. And where physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circumstances mentioned therein, amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all.

For Article 247 to apply these elements must be present:

1. The offender is any legally married person;

2. The offender surprises his spouse in the act of committing sexual intercourse with another person;

3. The offender kills or seriously injures any or both of them;

4. The offender kills or seriously injures during the act of sexual intercourse or immediately thereafter.

The term immediately thereafter means that from discovery to the escape and the killing, there must be no interruption or interval of time. The pursuit and the killing must form part of one continuous act. However, it is not necessary that the victim is to be killed instantly by the accused after surprising his spouse in the act of intercourse with another person. What is required is that the death caused must be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the act of infidelity. This is because the purpose of the law is to afford protection to a spouse who is considered to act in a justified outburst of passion or a state of mental disequillibrium.

The act of commiting sexual intercourse means that a carnal act is being committed by the victims at the time they are killed or injured by the offender. Thus, it does not apply when a man kills his wife just because he saw another man jump out the window of his house upon his arrival or when his spouse and another man are merely sleeping on the same bed. It also does not include acts preparatory to sexual intercourse.

If death or serious physical injuries occur, the punishment is destierro. However, the banishment is intended more for the protection of the offender rather than a penalty.

This article cannot be availed by persons who have promoted or facilitated prostitution of their wife or daughter nor by those who have consented to the infidelity of the other spouse. Crimes committed under force or compulsion

What is the liability of a person who commits a crime under duress or compulsion? We ask this question in light of the release of the video showing certain individuals beheading their victims and who are now claiming that they did so only upon the orders and threats of members of the Abu Sayaf.

Under paragraphs 5 and 6, Article 12 of the Revised Penal Code of the Philippines, any person who act under the compulsion of irresistible force and any person who acts under the impulse of an uncontrollable fear of an equal or greater injury shall be exempted from criminal prosecution.

The irresistible force must be physical and must come from a third person. In this scenario, the accused must have acted not only without a will but against his will. It cannot consist of an impulse or passion or obfuscation. In a case, the Supreme Court excused an accused as an accessory, after it was shown that he was struck with the butt of a gun by the real killers to compel him to bury the victim. The court found that he was not liable because he acted under the compulsion of an irresistible force.

A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of uncontrollable fear of equal or greater injury is exempt from criminal liability because he does not act with freedom. The force must be irresistible to reduce him to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. It should not be inspired by speculative, fanciful, or remote fear. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat. A person who invokes the exempting circumstance of compulsion due to irresistible force must prove his defense by clear and convincing evidence. Exhaustion of Administrative Remedies

It has been consistently held by the Supreme Court, in a long line of cases, that before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation of a courts intervention is fatal to ones cause of action as aptly explained by the Supreme Court in the case of University of the Philippines v. Catungal, Jr., et al., (G.R. No. 121863, May 5, 1997), to wit:

The underlying principle of the rule on exhaustion of administrative remedies rests on the presumption that the administrative agency, if afforded a complete chance to pass upon the matter, will decide the same correctly. There are both legal and practical reasons for the principle. The administrative process is intended to provide less expensive and more speedy solutions to disputes. Where the enabling statute indicates a procedure for administrative review and provides a system of administrative appeal or reconsideration, the courts for reasons of law, comity, and convenience will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given an opportunity to act and correct the errors committed in the administrative forum.

The rule in administrative law is that parties requesting judicial action must first exhaust their remedies in the executive branch. This is premised not only on practical considerations but also on the comity existing between different

departments of the government, which comity requires the court to stay their hands until the administrative processes have been completed. (Madrinan vs. Sinco, 110 Phil. 160) Further, under the doctrine of exhaustion of administrative remedies, recourse through court action, as a general rule, cannot prosper until all the remedies have been exhausted at the administrative level, (Pacana vs. Consunji, 108 SCRA 631[1981]; Pestaas et al. v. Dyogi, et al., 81 SCRA 574 [1978]; Antonio v. Tanco, 65 SCRA 448 [1975]).

Thus, in Abe-Abe et al. v. Manta (90 SCRA 524, 531 [1979]), the Supreme Court emphatically declared:

When an adequate remedy may be had within the Executive Department of the government, but nevertheless, a litigant fails or refuses to avail himself of the same, the judiciary shall decline to interfere. This traditional attitude of the courts is based not only on convenience but likewise on respect; convenience of the party litigants and respect for a co-equal office in the government. If a remedy is available within the administrative machinery, this should be resorted to before resort can be made to (the) court. (citing Cruz vs. Del Rosario, 119 Phil. 63, 66).

There is no question that a statute may vest exclusive original jurisdiction in an administrative agency over certain disputes and controversies falling within the agencys special expertise. For example, the constitutionality of such grant of exclusive jurisdiction to the Housing and Land Use Regulatory Board over cases involving the sale of lots in commercial subdivisions was upheld in Tropical Homes Inc. v. National Housing Authority (152 SCRA 540 [1987]) and again sustained in a later decision in Antipolo Realty Corporation v. National Housing Authority (153 SCRA 399 [1987]) where the Supreme Court restated that the HLURB shall have exclusive jurisdiction to regulate the real estate trade and business in accordance with the terms of PD 957 which defines the quantum of judicial or quasi-judicial powers of the said agency.

As a result, the HLURB, in the exercise of its powers and functions, is authorized to interpret and apply contracts, determine the rights of the parties under these contracts, and even award damages, such as moral and exemplary, whenever appropriate. Thus, it has been held that one of the thrusts of the multiplication of administrative agencies is the interpretation of such contracts and agreements and that the determination of private rights under these agreements is no longer a uniquely judicial function.

Moreover, if a remedy is very much available within the administrative machinery of the administrative agency, then this alternative should first be utilized before resort can be made to the courts, not only to give the administrative agency the opportunity to decide the matter by itself correctly, but also to avoid the very pernicious evil the doctrine itself seeks to prevent the unnecessary and premature resort to courts and the clogging of its dockets.

It is also important to note that the primordial effect of non-compliance and failure to exhaust administrative remedies is that it deprives the complainants of a cause of action, which is, under the Rules of Court, a ground for a motion to dismiss. Such failure, therefore, is fatal and calls for the dismissal of the case. Libel Laws of the Philippines

Under Article 353 of the Revised Penal Code of the Philippines, libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice. [Daez v. Court of Appeals, G.R. No. 47971, 31 October 1990, 191 SCRA 61, 67]

In libel cases, the question is not what the writer of an alleged libel means, but what the words used by him mean. Jurisprudence has laid down a test to determine the defamatory character of words used in the following manner, viz:

Words calculated to induce suspicion are sometimes more effective to destroy reputation than false charges directly made. Ironical and metaphorical language is a favored vehicle for slander. A charge is sufficient if the words are calculated to induce the hearers to suppose and understand that the person or persons against whom they were uttered were guilty of certain offenses, or are sufficient to impeach their honesty, virtue, or reputation, or to hold the person or persons up to public ridicule. . . . [Lacsa v. Intermediate Appellate Court, 161 SCRA 427 (1988) citing U.S. v. O'Connell, 37 Phil. 767 (1918)]

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstances which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.

There is publication if the material is communicated to a third person. It is not required that the person defamed has read or heard about the libelous remark. What is material is that a third person has read or heard the libelous statement, for a mans reputation is the estimate in which others hold him in, not the good opinion which he has of himself. [Alonzo v. Court of Appeals, 241 SCRA 51 (1995)]

On the other hand, to satisfy the element of identifiability, it must be shown that at least a third person or a stranger was able to identify him as the object of the defamatory statement. In the case of Corpus vs. Cuaderno, Sr. (16 SCRA 807) the Supreme Court ruled that in order to maintain a libel suit, it is essential that the victim be identifiable (People vs. Monton, L-16772, November 30, 1962), although it is not necessary that he be named (19 A.L.R. 116). In an earlier case, the high court also declared that defamatory matter which does not reveal the identity of the person upon whom the imputation is cast, affords no ground of action unless it be shown that the readers of the libel could have identified the personality of the individual defamed. (Kunkle vs. Cablenews-American and Lyons 42 Phil. 760).

This principle has been recognized to be of vital importance, especially where a group or class of persons, as in the case at bar, claim to have been defamed, for it is evident that the larger the collectivity, the more difficult it is for the individual member to prove that the defamatory remarks apply to him. (Cf. 70 ALR 2d. 1384).


The law also presumes that malice is present in every defamatory imputation. Thus, Article 354 of the Revised Penal Code provides that:

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

Paragraph 2 aforequoted refers to a qualifiedly privileged communication, the character of which is a matter of defense that may be lost by positive proof of express malice on the part of the accused. Once it is established that the article is of a privileged character, the onus of proving actual malice rests on the plaintiff who must then convince the court that the offender was prompted by malice or ill will. When this is accomplished the defense of privilege becomes unavailing. [Santos v. Court of Appeals, No. L-45031, 21 October 1991, 203 SCRA 110, 114]

Prescinding from this provision, when the imputation is defamatory, as in this case, the prosecution need not prove malice on the part of the defendant (malice in fact), for the law already presumes that the defendants imputation is malicious (malice in law). The burden is on the side of the defendant to show good intention and justifiable motive in order to overcome the legal inference of malice.

In order to constitute malice, ill will must be personal. So if the ill will is engendered by ones sense of justice or other legitimate or plausible motive, such feeling negatives actual malice. [Aquino, Ramon C., The Revised Penal Code, Vol. III, Bk. II, 1997 Ed., citing People v. de los Reyes, Jr., 47 OG 3569]

It is established doctrine that the malice that attends the dissemination of the article alleged to be libelous must attend the distribution itself. It cannot be merely a resentment against a person, manifested unconnectedly several months earlier or one displayed at a much later date.


Under Article 355 of the Revised Penal Code, libel may be committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.


Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or bysimilar means, shall be responsible for the same. The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.


In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

It is important to remember that any of the imputations covered by Article 353 is defamatory and, under the general rule laid down in Article 354, every defamatory imputation is presumed to be malicious, even if it be true; if no good intention and justifiable motive for making it is shown. There is malice when the author of the imputation is prompted by personal ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been

defamed. Truth then is not a defense, unless it is shown that the matter charged as libelous was made with good motives and for justifiable ends.

Prejudicial Question

More often that not, we hear the term prejudicial question being raised by a party in the course of a criminal litigation proceeding. For defense lawyers, it is an effective tool for stalling the preliminary investigation or prosecution of a case, most especially in cases where their client is certain to be charged or convicted criminally. More than a delaying tactic, however, the existence of prejudicial question is a serious and fundamental issue that needs to be resolved in order to fully satisfy the requirements of due process and elementary fairness.

The term prejudicial question is found in Section 6, Rule 111 of the 2000 Revised Rules of Criminal Procedure, which states that:

A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.

As can be gleaned from above, a petition for suspension of the criminal action based on the existence of prejudicial question may be raised either during the preliminary investigation stage before the prosecutor conducting the same or during the pendency of a criminal trial where it is filed before the court hearing the case.

Jurisprudence has also defined a prejudicial question as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. (See Rojas vs. People, 57 SCRA

246; People vs. Aragon, 94 Phil. 357; Zapanta vs. Montessa, 4 SCRA 510 and Benitez vs. Concepcion, 2 SCRA 178)

The elements of a prejudicial questions are enumerated under Section 7, Rule 111 of the 2000 Revised Rules of Criminal Procedure, these are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed.

If both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exist, provided the other element or characteristic is satisfied. For example, in a criminal case for bigamy, the accused may raise the pendency of a civil suit for the declaration of nullity of his first marriage to defer the proceedings of the bigamy case.

Mere similarity of issues does not suffice to uphold the validity of a prejudical question. It must appear not only that the civil case involves the same facts upon which the criminal prosecution would be based, but also that the resolution of the issues raised in the civil action would be necessarily determinative of the guilt or innocence of the accused. If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, or there is no necessity _that the civil case be determined first before taking up the criminal case,_ therefore, the civil case does not involve a prejudicial question. Neither is there a prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other.

It must be remebered however, that a prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of a crime have been adequately alleged in the information, considering that the prosecution has not yet presented a single evidence on the indictment or may not yet have rested its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect a question on the merits of the criminal charge through a noncriminal suit. Principle of Abuse of Rights

The principle of abuse of rights is found under Articles 19, 20 and 21 of the Civil Code of the Philippines, which states that:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Art. 21. Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

The above articles, depart from the classical theory that he who uses a right injures no one. The modern tendency is to depart from the classical and traditional theory, and to grant indemnity for damages in cases where there is an abuse of rights, even when the act is not illicit.

When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. Although the requirements of each provision is different, these three (3) articles are all related to each other. As the eminent Civilist Senator Arturo Tolentino puts it: With this article (Article 21), combined with articles 19 and 20, the scope of our law on civil wrongs has been very greatly broadened; it has become much more supple and adaptable than the Anglo-American law on torts. It is now difficult to conceive of any malevolent exercise of a right which could not be checked by the application of these articles (Tolentino, 1 Civil Code of the Philippines 72).

There is however, no hard and fast rule which can be applied to determine whether or not the principle of abuse of rights may be invoked. The question of whether or not the principle of abuse of rights has been violated, resulting in damages under Articles 20 and 21 or other applicable provision of law, depends on the

circumstances of each case. (Globe Mackay Cable and Radio Corporation vs. Court of Appeals, 176 SCRA 778 [1989]).

The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries suffered thereby. Article 21 deals with acts contra bonus mores, and has the following elements: 1) There is an act which is legal; 2) but which is contrary to morals, good custom, public order, or public policy; 3) and it is done with intent to injure. Thus, under any of these three (3) provisions of law, an act which causes injury to another may be made the basis for an award of damages.

Of the three articles, Art. 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. If mere fault or negligence in ones acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. The absence of good faith is essential to abuse of right. Good faith is an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of the law, together with an absence of all information or belief of fact which would render the transaction unconscientious. In business relations, it means good faith as understood by men of affairs.

While Article 19 may have been intended as a mere declaration of principle, the cardinal law on human conduct expressed in said article has given rise to certain rules, e.g. that where a person exercises his rights but does so arbitrarily or unjustly or performs his duties in a manner that is not in keeping with honesty and good faith, he opens himself to liability.

Article 19 of the Civil Code, sets certain standards which may be observed not only in the exercise of ones rights but also in the performance of ones duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes the primordial limitation on all rights: that in their exercise, the norms of human conduct set forth

in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality.