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2009 BAR EXAMINATION QUESTION

CRIMINAL LAW

20 September 2009 2 P.M. – 5 P.M.

INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions (numbered I to
X), contained in six (6) pages; and Part II with nine (9) questions (numbered XI-XIX),
contained in five (5) pages, for a total number of eleven (11) pages.

Write your answers to Part I and Part II in the corresponding portions indicated in the
booklet.

Begin your answer to each numbered question on a separate page; an answer to a


subquestion under the same number may be written continuously on the same page and
succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions. Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

GOOD LUCK!

ANTONIO EDUARDO B. NACHURA


CHAIRPERSON
2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS TWELVE (12) PAGES (INCLUDING
THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

PART I

I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] Amado, convicted of rape but granted an absolute pardon by the President, and one
year thereafter, convicted of homicide, is a recidivist.

[b] The creditor who resorts to forced labor of a child under the pretext of reimbursing
himself for the debt incurred by the child’s father commits the crime of slavery.

[c] The use of an unlicensed firearm in homicide is considered a generic aggravating


circumstance which can be offset by an ordinary mitigating circumstance.

[d] A person who, on the occasion of a robbery, kills a bystander by accident is liable for
two separate crimes: robbery and reckless imprudence resulting in homicide.

[e] A policeman who, without a judicial order, enters a private house over the owner’s
opposition is guilty of trespass to dwelling.

II

Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he
escaped from jail. Captured, he was charged with, and convicted of, Evasion of Service
of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation
for the offense of Rebellion. Antero applied for and was granted the benefit of the
amnesty proclamation.

Antero then filed a petition for habeas corpus, praying for his immediate release from
confinement. He claims that the amnesty extends to the offense of Evasion of Service of
Sentence. As judge, will you grant the petition? Discuss fully. (4%)

III

Rigoberto gate-crashed the 71st birthday party of Judge Lorenzo. Armed with a piece of
wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back,
causing the latter’s hospitalization for 30 days. Upon investigation, it appeared that
Rigoberto had a grudge against Judge Lorenzo who, two years earlier, had cited
Rigoberto in contempt and ordered his imprisonment for three (3) days.

[a] Is Rigoberto guilty of Direct Assault? Why or why not? (3%)

[b] Would your answer be the same if the reason for the attack was that when Judge
Lorenzo was still a practicing lawyer ten years ago, he prosecuted Rigoberto and
succeeded in sending him to jail for one year? Explain your answer. (3%)

IV
Charlie hated his classmate, Brad, because the latter was assiduously courting Lily,
Charlie’s girlfriend. Charlie went to a veterinarian and asked for some poison on the
pretext that it would be used to kill a very sick, old dog. Actually, Charlie intended to
use the poison on Brad.

The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with
Brad’s food, did not kill Brad.

[a] Did Charlie commit any crime? If so, what and why? If not, why not? (3%)

[b] Would your answer be the same if Brad proved to be allergic to the powder, and after
ingesting it with his food, fell ill and was hospitalized for ten (10) days? Explain. (3%)

Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie. Because
Ruben also resented Freddie, he readily lent his gun, but told Ponciano: “O, pagkabaril
mo kay Freddie, isauli mo kaagad, ha.” Later, Ponciano killed Freddie, but used a knife
because he did not want Freddie’s neighbors to hear the gunshot.

[a] What, if any, is the liability of Ruben? Explain. (3%)

[b] Would your answer be the same if, instead of Freddie, it was Manuel, a relative of
Ruben, who was killed by Ponciano using Ruben’s gun? Explain. (3%)

VI

Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960. Dominador


witnessed the entire incident, but he was so scared to tell the authorities about it.

On January 2, 1970, Dominador, bothered by his conscience, reported the matter to the
police. After investigation, the police finally arrested Baldo on January 6, 1980. Charged
in court, Baldo claims that the crime he committed had already prescribed.

Is Baldo’s contention correct? Explain. (3%)

VII

Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending
before the court that she would convince the Presiding Judge to decide the case in
plaintiff’s favor. In consideration therefor, the plaintiff gave Charina P20,000.00.

Charina was charged with violation of Section 3 (b) of Republic Act No. 3019,
prohibiting any public officer from directly or indirectly requesting or receiving any gift,
present, percentage, or benefit in connection with any contract or transaction x x x
wherein the public officer, in his official capacity, has to intervene under the law.
While the case was being tried, the Ombudsman filed another information against
Charina for Indirect Bribery under the Revised Penal Code. Charina demurred to the
second information, claiming that she can no longer be charged under the Revised Penal
Code having been charged for the same act under R.A. 3019.

Is Charina correct? Explain. (3%)

VIII

While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen arrived.
A firefight ensued between the bank robbers and the responding policemen, and one of
the policemen was killed.

[a] What crime or crimes, if any, had been committed? Explain. (3%)

[b] Suppose it was Alfredo who was killed by the responding policemen, what charges
can be filed against Braulio, Ciriaco and Domingo? Explain. (2%)

[c] Suppose in the course of the robbery, before the policemen arrived, Braulio shot and
killed Alfredo following a heated disagreement on who should carry the money bags,
what would be the criminal liability of Braulio, Ciriaco and Domingo? Explain. (2%)

IX

Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed
the gun at the driver and shouted: “Tigil! Kidnap ito!”

Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board. Inside the
van were Jeremias, a 6-year-old child, son of a multi-millionaire, and Daday, the child’s
nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to
alight. Before Juanito was allowed to go, Virgilio instructed him to tell Jeremias’ parents
that unless they give a ransom of P10-million within two (2) days, Jeremias would be
beheaded. Daday was told to remain in the van and take care of Jeremias until the ransom
is paid. Virgilio then drove the van to his safehouse.

What crime or crimes, if any, did Virgilio commit? Explain. (5%)

To secure the release of his brother Willy, a detention prisoner, and his cousin Vincent,
who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to
issue an Order which would allow the two prisoners to be brought out of jail. At first, the
Clerk refused, but when Chito gave her P50,000.00, she consented.

She then prepared an Order requiring the appearance in court of Willy and Vincent,
ostensibly as witnesses in a pending case. She forged the judge’s signature, and delivered
the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in
the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the
two inmates unguarded for three minutes and provide them with an opportunity to
escape. Thus, Willy and Vincent were able to escape.

What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch
Clerk of Court, Edwin, and the jail warden? Explain your answer. (5%)

*** END OF PART I ***

PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] Life imprisonment is a penalty more favorable to the convict than reclusion perpetua.

[b] Voluntary surrender is a mitigating circumstance in all acts and omissions punishable
under the Revised Penal Code.

[c] In a prosecution for fencing under P.D. 1612, it is a complete defense for the accused
to prove that he had no knowledge that the goods or articles found in his possession had
been the subject of robbery.

[d] In the crime of libel, truth is an absolute defense.

[e] For a person who transacts an instrument representing the proceeds of a covered
unlawful activity to be liable under the Anti-Money Laundering Act (R.A. 9160, as
amended), it must be shown that he has knowledge of the identities of the culprits
involved in the commission of the predicate crimes.

XII

[a] In a conviction for homicide, the trial court appreciated two (2) mitigating
circumstances and one (1) aggravating circumstance. Homicide under Article 249 of the
Revised Penal Code is punishable by reclusion temporal, an imprisonment term of twelve
(12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence
Law, determine the appropriate penalty to be imposed. Explain. (3%)

[b] Will your answer be the same if it is a conviction for illegal possession of drugs under
R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also
imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? Why
or why not? (3%)
XIII

Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their
money upon a promise of a capital return of 25%, computed monthly, and guaranteed by
post-dated checks. During the first two months following the investment, the investors
received their profits, but thereafter, Angelo vanished.

Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas
Pambansa (BP) 22. In his motion to quash, Angelo contends that he committed a
continued crime, or delito continuado, hence, he committed only one count of estafa and
one count of violation of BP 22.

[a] What is delito continuado? (1%)

[b] Is Angelo’s contention tenable? Explain. (4%)

XIV

Following his arrest after a valid buy-bust operation, Tommy was convicted of violation
of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the
evidence because the police officers who conducted the buy-bust operation failed to
observe the requisite “chain of custody” of the evidence confiscated and/or seized from
him.

What is the “chain of custody” requirement in drug offenses? What is its rationale? What
is the effect of failure to observe the requirement? (3%)

XV

Joe was 17 years old when he committed homicide in 2005. The crime is punishable by
reclusion temporal. After two years in hiding, he was arrested and appropriately charged
in May 2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was
already in effect, Joe moved to avail of the process of intervention or diversion.

[a] What is intervention or diversion? Is Joe entitled to intervention or diversion?


Explain. (3%)

[b] Suppose Joe’s motion for intervention or diversion was denied, and he was convicted
two (2) years later when Joe was already 21 years old, should the judge apply the
suspension of sentence? Explain. (2%)

[c] Suppose Joe was convicted of attempted murder with a special aggravating
circumstance and was denied suspension of sentence, would he be eligible for probation
under Presidential Decree (PD) 968, considering that the death penalty is imposable for
the consummated felony? Explain. (2%)

XVI
Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte,
caused the disbursement of public funds allocated for their local development programs
for 2008. Records show that the amount of P2-million was purportedly used as financial
assistance for a rice production livelihood project. Upon investigation, however, it was
found that Roger and Jessie falsified the disbursement vouchers and supporting
documents in order to make it appear that qualified recipients who, in fact, are non-
existent individuals, received the money.

Roger and Jessie are charged with malversation through falsification and violation of
Section 3 (e) of R.A. 3019 for causing undue injury to the government. Discuss the
propriety of the charges filed against Roger and Jessie. Explain. (4%)

XVII

Wenceslao and Loretta were staying in the same boarding house, occupying different
rooms. One late evening, when everyone in the house was asleep, Wenceslao entered
Loretta’s room with the use of a picklock. Then, with force and violence, Wenceslao
ravished Loretta. After he had satisfied his lust, Wenceslao stabbed Loretta to death and,
before leaving the room, took her jewelry.

[a] What crime or crimes, if any, did Wenceslao commit? Explain. (4%)

[b] Discuss the applicability of the relevant aggravating circumstances of dwelling,


nocturnity and the use of the picklock to enter the room of the victim. (3%)

[c] Would your answer to [a] be the same if, despite the serious stab wounds she
sustained, Loretta survived? Explain. (3%)

XVIII

At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very
seductive dance number. While gyrating with their bodies, Leoncio dipped his private
parts in Evelyn’s buttocks. Incensed, Evelyn protested, but Leoncio continued and
tightly embraced her.

[a] What crime or crimes, if any, did Leoncio commit? Explain. (3%)

[b] Would your answer be the same if, even after the music had stopped, Leoncio
continued to dance dirty, rubbing his private parts on Evelyn’s buttocks? Explain. (3%)

XIX

Delmo learned that his enemy, Oscar, was confined at the Intensive Care Unit (ICU) of
the Philippine Medical Center. Intending to kill Oscar, Delmo disguised himself as a
nurse, entered the ICU, and saw a man lying on the hospital bed with several life-saving
tubes attached to the body. Delmo disconnected the tubes and left. Later, the resident
physician doing his rounds entered the ICU and, seeing the disconnected tubes, replaced
them. The patient survived. It turned out that the patient was Larry, as Oscar had been
discharged from the hospital earlier.

Delmo was charged with frustrated murder, qualified by evident premeditation and
treachery as aggravating circumstances. Discuss the propriety of the charge. (4%)

*** END OF PART II ***

RETURN THIS QUESTIONNAIRE WITH YOUR BOOKLET

POLITICAL AND PUBLIC


INTERNATIONAL LAW

06 September 2009
8 A.M. - 12 Noon
INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions
(numbered I to X), contained in seven (7) pages; and Part II with eight (8)
questions (numbered XI-XVIII), contained in six (6) pages, for a total number of
thirteen (13) pages.

Write your answers to Part I and Part II in the corresponding portions indicated in
the booklet.

Begin your answer to each numbered question on a separate page; an answer to a


subquestion under the same number may be written continuously on the same
page and succeeding pages until completed.

Answer the question directly and concisely. Do not repeat the question. Write
legibly

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

GOOD LUCK!!!
____________________________________
ANTONIO EDUARDO B. NACHURA
Chairperson
2009 Bar Examinations Committee

PLEASE CHECK THAT THIS SET CONTAINS FOURTEEN (14) PAGES


(INCLUDING THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

POLITICAL LAW

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the


statement is false. Explain your answer in not more than two (2) sentences. (5%)

[a] A law making "Bayan Ko" the new national anthem of the Philippines, in lieu
of "Lupang Hinirang," is constitutional.

[b] Under the archipelago doctrine, the waters around, between, and connecting
the islands of the archipelago form part of the territorial sea of the archipelagic
state.

[c] A law that makes military service for women merely voluntary is
constitutional.

[d] A law fixing the passing grade in the Bar examinations at 70%, with no grade
lower than 40% in any subject, is constitutional.

[e] An educational institution 100% foreign-owned may be validly established in


the Philippines.
II

Despite lingering questions about his Filipino citizenship and his one-year
residence in the district, Gabriel filed his certificate of candidacy for congressman
before the deadline set by law. His opponent, Vito, hires you as lawyer to contest
Gabriel's candidacy.

[a] Before election day, what action or actions will you institute against Gabriel,
and before which court, commission or tribunal will you file such action/s?
Reasons. (2%)

[b] If, during the pendency of such action/s but before election day, Gabriel
withdraws his certificate of candidacy, can he be substituted as candidate? If so,
by whom and why? If not, why not? (2%)

[c] If the action/s instituted should be dismissed with finality before the election,
and Gabriel assumes office after being proclaimed the winner in the election, can
the issue of his candidacy and/or citizenship and residence still be questioned? If
so, what action or actions may be filed and where? If not, why not? (2%)

III

The Municipality of Bulalakaw, Leyte, passed Ordinance No. 1234, authorizing


the expropriation of two parcels of land situated in the poblacion as the site of a
freedom park, and appropriating the funds needed therefor. Upon review, the |
Sangguniang Panlalawigan of Leyte disapproved the ordinance because the
municipality has an existing freedom park which, though smaller in size, is still
suitable for the purpose, and to pursue expropriation would be needless
expenditure of the people's money. Is the disapproval of the ordinance correct?
Explain your answer. (2%)

IV

The Municipality of Pinatukdao is sued for damages arising from injuries


sustained by a pedestrian who was hit by a glass pane that fell from a dilapidated
window frame of the municipal hall. The municipality files a motion to dismiss
the complaint, invoking state immunity from suit. Resolve the motion with
reasons. (3%)

To address the pervasive problem of gambling, Congress is considering the


following options: (1) prohibit all forms of gambling; (2) allow gambling only on
Sundays; (3) allow gambling only in government-owned casinos; and (4) remove
all prohibitions against gambling but impose a tax equivalent to 30% on all
winnings.

[a] If Congress chooses the first option and passes the corresponding law
absolutely prohibiting all forms of gambling, can the law be validly attacked on
the ground that it is an invalid exercise of police power? Explain your answer.
(2%)

[b] If Congress chooses the last option and passes the corresponding law
imposing a 30% tax on all winnings and prizes won from gambling, would the
law comply with the constitutional limitations on the exercise of the power of
taxation? Explain your answer. (2%)

VI

In a criminal prosecution for murder, the prosecution presented, as witness, an


employee of the Manila Hotel who produced in court a videotape recording
showing the heated exchange between the accused and the victim that took place
at the lobby of the hotel barely 30 minutes before the killing. The accused objects
to the admission of the videotape recording on the ground that it was taken
without his knowledge or consent, in violation of his right to privacy and the
Anti-Wire Tapping law. Resolve the objection with reasons. (3%)

VII

Crack agents of the Manila Police Anti-Narcotics Unit were on surveillance of a


cemetery where the sale and use of prohibited drugs were rumored to be rampant.
The team saw a man with reddish and glassy eyes walking unsteadily towards
them, but he immediately veered away upon seeing the policemen. The team
approached the man, introduced themselves as peace officers, then asked what he
had in his clenched fist. Because the man refused to answer, a policeman pried
the fist open and saw a plastic sachet filled with crystalline substance. The team
then took the man into custody and submitted the contents of the sachet to
forensic examination. The crystalline substance in the sachet turned out to be
shabu. The man was accordingly charged in court.

During the trial, the accused:

[a] challenged the validity of his arrest; (2%) and

[b] objected to the admission in evidence of the prohibited drug, claiming that it
was obtained in an illegal search and seizure. (2%)

Decide with reasons.


VIII

Congressman Nonoy delivered a privilege speech charging the Intercontinental


Universal Bank (IUB) with the sale of unregistered foreign securities, in violation
of R.A. 8799. He then filed, and the House of Representatives unanimously
approved, a Resolution directing the House Committee on Good Government
(HCGG) to conduct an inquiry on the matter, in aid of legislation, in order to
prevent the recurrence of any similar fraudulent activity.

The HCGG immediately scheduled a hearing and invited the responsible officials
of IUB, the Chairman and Commissioners of the Securities and Exchange
Commission (SEC), and the Governor of the Bangko Sentral ng Pilipinas (BSP).
On the date set for the hearing, only the SEC Commissioners appeared,
prompting Congressman Nonoy to move for the issuance of the appropriate
subpoena ad testificandum to compel the attendance of the invited resource
persons.

The IUB officials filed suit to prohibit HCGG from proceeding with the inquiry
and to quash the subpoena, raising the following arguments:

[a] The subject of the legislative investigation is also the subject of criminal and
civil actions pending before the courts and the prosecutor's office; thus, the
legislative inquiry would preempt judicial action; (3%) and

[b] Compelling the IUB officials, who are also respondents in the criminal and
civil cases in court, to testify at the inquiry would violate their constitutional right
against self-incrimination. (3%)

Are the foregoing arguments tenable? Reasons.

[c] May the Governor of the BSP validly invoke executive privilege and, thus,
refuse to attend the legislative inquiry? Why or why not? (3%)

IX

Warlito, a natural-born Filipino, took up permanent residence in the United


States, and eventually acquired American citizenship. He then married Shirley, an
American, and sired three children. In August 2009, Warlito decided to visit the
Philippines with his wife and children: Johnny, 23 years of age; Warlito, Jr., 20;
and Luisa, 17.

While in the Philippines, a friend informed him that he could reacquire Philippine
citizenship without necessarily losing U.S. nationality. Thus, he took the oath of
allegiance required under R.A. 9225.
[a] Having reacquired Philippine citizenship, is Warlito a natural-born or a
naturalized Filipino citizen today? Explain your answer. (3%)

[b] With Warlito having regained Philippine citizenship, will Shirley also become
a Filipino citizen? If so, why? If not, what would be the most speedy procedure
for Shirley to acquire Philippine citizenship? Explain. (3%)

[c] Do the children --- Johnny, Warlito Jr., and Luisa --- become Filipino citizens
with their father's reacquisition of Philippine citizenship? Explain your answer.
(3%)

Maximino, an employee of the Department of Education, is administratively


charged with dishonesty and gross misconduct. During the formal investigation of
the charges, the Secretary of Education preventively suspended him for a period
of sixty (60) days. On the 60th day of the preventive suspension, the Secretary
rendered a verdict, finding Maximino guilty, and ordered his immediate dismissal
from the service.

Maximino appealed to the Civil Service Commission (CSC), which affirmed the
Secretary's decision. Maximino then elevated the matter to the Court of Appeals
(CA). The CA reversed the CSC decision, exonerating Maximino. The Secretary
of Education then petitions the Supreme Court (SC) for the review of the CA
decision.

[a] Is the Secretary of Education a proper party to seek the review of the CA
decision exonerating Maximino? Reasons. (2%)

[b] If the SC affirms the CA decision, is Maximino entitled to recover back


salaries corresponding to the entire period he was out of the service? Explain your
answer. (3%)

*** END OF PART I ***

PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the


statement is false. Explain your answer in not more than two (2) sentences. (5%)
[a] Aliens are absolutely prohibited from owning private lands in the Philippines.

[b] A de facto public officer is, by right, entitled to receive the salaries and
emoluments attached to the public office he holds.

[c] The President exercises the power of control over all executive departments
and agencies, including government-owned or controlled corporations.

[d] Decisions of the Ombudsman imposing penalties in administrative


disciplinary cases are merely recommendatory.

[e] Dual citizenship is not the same as dual allegiance.

XII

William, a private American citizen, a university graduate and frequent visitor to


the Philippines, was inside the U.S. embassy when he got into a heated argument
with a private Filipino citizen. Then, in front of many shocked witnesses, he
killed the person he was arguing with. The police came, and brought him to the
nearest police station. Upon reaching the station, the police investigator, in
halting English, informed William of his Miranda rights, and assigned him an
independent local counsel. William refused the services of the lawyer, and
insisted that he be assisted by a Filipino lawyer currently based in the U.S. The
request was denied, and the counsel assigned by the police stayed for the duration
of the investigation.

William protested his arrest.

[a] He argued that since the incident took place inside the U.S. embassy,
Philippine courts have no jurisdiction because the U.S. embassy grounds are not
part of Philippine territory; thus, technically, no crime under Philippine law was
committed. Is William correct? Explain your answer. (3%)

[b] He also claimed that his Miranda rights were violated because he was not
given the lawyer of his choice; that being an American, he should have been
informed of his rights in proper English; and that he should have been informed
of his rights as soon as he was taken into custody, not when he was already at the
police station. Was William denied his Miranda rights? Why or why not? (3%)

[c] If William applies for bail, claiming that he is entitled thereto under the
"international standard of justice" and that he comes from a U.S. State that has
outlawed capital punishment, should William be granted bail as a matter of right?
Reasons. (3%)
XIII

A terrorist group called the Emerald Brigade is based in the State of Asyaland.
The government of Asyaland does not support the terrorist group, but being a
poor country, is powerless to stop it.

The Emerald Brigade launched an attack on the Philippines, firing two missiles
that killed thousands of Filipinos. It then warned that more attacks were
forthcoming. Through diplomatic channels, the Philippines demanded that
Asyaland stop the Emerald Brigade; otherwise, it will do whatever is necessary to
defend itself.

Receiving reliable intelligence reports of another imminent attack by the Emerald


Brigade, and it appearing that Asyaland was incapable of preventing the assault,
the Philippines sent a crack commando team to Asyaland. The team stayed only
for a few hours in Asyaland, succeeded in killing the leaders and most of the
members of the Emerald Brigade, then immediately returned to the Philippines.

[a] Was the Philippine action justified under the international law principle of
"self-defense"? Explain your answer. (3%)

[b] As a consequence of the foregoing incident, Asyaland charges the Philippines


with violation of Article 2.4 of the United Nations Charter that prohibits "the
threat or use of force against the territorial integrity or political independence of
any State." The Philippines counters that its commando team neither took any
territory nor interfered in the political processes of Asyaland. Which contention is
correct? Reasons. (3%)

[c] Assume that the commando team captured a member of the Emerald Brigade
and brought him back to the Philippines. The Philippine Government insists that a
special international tribunal should try the terrorist. On the other hand, the
terrorist argues that terrorism is not an international crime and, therefore, the
municipal laws of the Philippines, which recognize access of the accused to
constitutional rights, should apply. Decide with reasons. (3%)

XIV

The Philippine Government is negotiating a new security treaty with the United
States which could involve engagement in joint military operations of the two
countries' armed forces. A loose organization of Filipinos, the Kabataan at
Matatandang Makabansa (KMM) wrote the Department of Foreign Affairs (DFA)
and the Department of National Defense (DND) demanding disclosure of the
details of the negotiations, as well as copies of the minutes of the meetings. The
DFA and the DND refused, contending that premature disclosure of the offers
and counter-offers between the parties could jeopardize on-going negotiations
with another country. KMM filed suit to compel disclosure of the negotiation
details, and be granted access to the records of the meetings, invoking the
constitutional right of the people to information on matters of public concern.

[a] Decide with reasons. (3%)

[b] Will your answer be the same if the information sought by KMM pertains to
contracts entered into by the Government in its proprietary or commercial
capacity? Why or why not? (3%)

XV

The KKK Television Network (KKK-TV) aired the documentary, "Case Law:
How the Supreme Court Decides," without obtaining the necessary permit
required by P.D. 1986. Consequently, the Movie and Television Review and
Classification Board (MTRCB) suspended the airing of KKK-TV programs.
MTRCB declared that under P.D. 1986, it has the power of prior review over all
television programs, except "newsreels" and programs "by the Government", and
the subject documentary does not fall under either of these two classes. The
suspension order was ostensibly based on Memorandum Circular No. 98-17
which grants MTRCB the authority to issue such an order.

KKK-TV filed a certiorari petition in court, raising the following issues:

[a] The act of MTRCB constitutes "prior restraint" and violates the
constitutionally guaranteed freedom of expression; (3%) and

[b] While Memorandum Circular No. 98-17 was issued and published in a
newspaper of general circulation, a copy thereof was never filed with the Office
of the National Register of the University of the Philippines Law Center. (2%)

Resolve the foregoing issues, with reasons.

XVI

[a] Angelina, a married woman, is a Division Chief in the Department of Science


and Technology. She had been living with a married man, not her husband, for
the last fifteen (15) years. Administratively charged with immorality and conduct
prejudicial to the best interest of the service, she admits her live-in arrangement,
but maintains that this conjugal understanding is in conformity with their
religious beliefs. As members of the religious sect, Yahweh's Observers, they had
executed a Declaration of Pledging Faithfulness which has been confirmed and
blessed by their Council of Elders. At the formal investigation of the
administrative case, the Grand Elder of the sect affirmed Angelina's testimony
and attested to the sincerity of Angelina and her partner in the profession of their
faith. If you were to judge this case, will you exonerate Angelina? Reasons.
(3%)

[b] Meanwhile, Jenny, also a member of Yahweh's Observers, was severely


disappointed at the manner the Grand Elder validated what she considered was an
obviously immoral conjugal arrangement between Angelina and her partner.
Jenny filed suit in court, seeking the removal of the Grand Elder from the
religious sect on the ground that his act in supporting Angelina not only ruined
the reputation of their religion, but also violated the constitutional policy
upholding the sanctity of marriage and the solidarity of the family. Will Jenny's
case prosper? Explain your answer. (2%)

XVII

Filipinas Computer Corporation (FCC), a local manufacturer of computers and


computer parts, owns a sprawling plant in a 5,000-square meter lot in Pasig City.
To remedy the city's acute housing shortage, compounded by a burgeoning
population, the Sangguniang Panglungsod authorized the City Mayor to negotiate
for the purchase of the lot. The Sanggunian intends to subdivide the property into
small residential lots to be distributed at cost to qualified city residents. But FCC
refused to sell the lot. Hard pressed to find a suitable property to house its
homeless residents, the City filed a complaint for eminent domain against FCC.

[a] If FCC hires you as lawyer, what defense or defenses would you set up in
order to resist the expropriation of the property? Explain. (5%)

[b] If the Court grants the City's prayer for expropriation, but the City delays
payment of the amount determined by the court as just compensation, can FCC
recover the property from Pasig City? Explain. (2%)

[c] Suppose the expropriation succeeds, but the City decides to abandon its plan
to subdivide the property for residential purposes having found a much bigger lot,
can FCC legally demand that it be allowed to repurchase the property from the
City of Pasig? Why or why not? (2%)

XVIII

What are the essential elements of a valid petition for a people's initiative to
amend the 1987 Constitution? Discuss. (2%)

-NOTHING FOLLOWS-
LABOR & SOCIAL LEGISLATION

06 September 2009
8 A.M. - 12 Noon
INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions
(numbered I to X), contained in six (6) pages; and Part II with eight (8)
questions(numbered XI-XVIII), contained in six (6) pages, for a total number of
twelve (12) pages.

Write your answers to Part I and Part II in the corresponding portions indicated in
the booklet.

Begin your answer to each numbered question on a separate page; an answer to a


subquestion under the same number may be written continuously on the same
page and succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions. Write
legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

GOOD LUCK!

_____________________________________

ANTONIO EDUARDO B. NACHURA

CHAIRPERSON

2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS THIRTEEN (13) PAGES


(INCLUDING THIS PAGE)

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

LABOR AND SOCIAL LEGISLATION


PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the


statement is false. Explain your answer in not more than two (2) sentences. (5%)

[a] An employment contract prohibiting employment in a competing company


within one year from separation is valid.

[b] All confidential employees are disqualified to unionize for the purpose of
collective bargaining.

[c] A runaway shop is an act constituting unfair labor practice.

[d] In the law on labor relations, the substitutionary doctrine prohibits a new
collective bargaining agent from repudiating an existing collective bargaining
agreement.

[e] The visitorial and enforcement powers of the DOLE Regional Director to
order and enforce compliance with labor standard laws can be exercised even
when the individual claim exceeds P5,000.00.

II

[a] Enumerate at least four (4) policies enshrined in Section 3, Article XIII of the
Constitution that are not covered by Article 3 of the Labor Code on declaration of
basic policy. (2%)

[b] Clarito, an employee of Juan, was dismissed for allegedly stealing Juan’s
wristwatch. In the illegal dismissal case instituted by Clarito, the Labor Arbiter,
citing Article 4 of the Labor Code, ruled in favor of Clarito upon finding Juan’s
testimony doubtful. On appeal, the NLRC reversed the Labor Arbiter holding that

LABOR AND SOCIAL LEGISLATION

Article 4 applies only when the doubt involves "implementation and


interpretation" of the Labor Code provisions. The NLRC explained that the doubt
may not necessarily be resolved in favor of labor since this case involves the
application of the Rules onEvidence, not the Labor Code. Is the NLRC correct?
Reasons. (3%)

III

Richie, a driver-mechanic, was recruited by Supreme Recruiters (SR) and its


principal, Mideast Recruitment Agency (MRA), to work in Qatar for a period of
two (2) years. However, soon after the contract was approved by POEA, MRA
advised SR to forego Richie’s deployment because it had already hired another
Filipino driver-mechanic, who had just completed his contract in Qatar.
Aggrieved, Richie filed with the NLRC a complaint against SR and MRA for
damages corresponding to his two years’ salary under the POEA-approved
contract.

SR and MRA traversed Richie’s complaint, raising the following arguments:

[a] The Labor Arbiter has no jurisdiction over the case; (2%)

[b] Because Richie was not able to leave for Qatar, no employer-employee
relationship was established between them; (2%) and

[c] Even assuming that they are liable, their liability would, at most, be equivalent
to Richie’s salary for only six (6) months, not two years. (3%).

Rule on the validity of the foregoing arguments with reasons.

LABOR AND SOCIAL LEGISLATION

IV

Diosdado, a carpenter, was hired by Building Industries Corporation (BIC), and


assigned to build a small house in Alabang. His contract of employment
specifically referred to him as a "project employee," although it did not provide
any particular date of completion of the project.

Is the completion of the house a valid cause for the termination of Diosdado’s
employment? If so, what are the due process requirements that the BIC must
satisfy? If not, why not? (3%)

[a] Baldo was dismissed from employment for having beenabsent without leave
(AWOL) for eight (8) months. It turned outthat the reason for his absence was his
incarceration after he was mistaken as his neighbor’s killer. Eventually acquitted
and released from jail, Baldo returned to his employer and demanded
reinstatement and full backwages. Is Baldo entitled to reinstatement and
backwages? Explain your answer. (3%)

[b] Domingo, a bus conductor of San Juan Transportation Company, intentionally


did not issue a ticket to a female passenger, Kim, his long-time crush. As a result,
Domingo was dismissed from employment for fraud or willful breach of trust.
Domingo contests his dismissal, claiming that he is not a confidential employee
and, therefore, cannot be dismissed from the service for breach of trust. Is
Domingo correct? Reasons. (2%)

LABOR AND SOCIAL LEGISLATION

VI

Albert, a 40-year old employer, asked his domestic helper, Inday, to give him a
private massage. When Inday refused, Albert showed her Article 141 of the
Labor Code, which says that one of the duties of a domestic helper is to minister
to the employer’s personal comfort and convenience.

[a] Is Inday’s refusal tenable? Explain. (3%)

[b] Distinguish briefly, but clearly, a "househelper" from a "homeworker." (2%)

VII

Johnny is the duly elected President and principal union organizer of the
Nagkakaisang Manggagawa ng Manila Restaurant (NMMR), a legitimate labor
organization. He was unceremoniously dismissed by management for spending
virtually 95% of his working hours in union activities. On the same day Johnny
received the notice of termination, the labor union went on strike.

Management filed an action to declare the strike illegal, contending that:

[a] The union did not observe the "cooling-off period" mandated by the Labor
Code; (2%) and

[b] The union went on strike without complying with the strike-vote requirement
under the Labor Code. (2%)

Rule on the foregoing contentions with reasons.

LABOR AND SOCIAL LEGISLATION

[c] The Labor Arbiter found management guilty of unfair labor practice for the
unlawful dismissal of Johnny. The decision became final. Thereafter, the NMMR
filed a criminal case against the Manager of Manila Restaurant. Would the Labor
Arbiter’s finding be sufficient to secure the Manager’s conviction? Why or why
not? (2%)
VIII

Alexander, a security guard of Jaguar Security Agency (JSA), could not be given
any assignment because no client would accept him. He had a face only a mother
could love. After six (6) months of being on "floating" status, Alexander sued
JSA for constructive dismissal. The Labor Arbiter upheld Alexander’s claim of
constructive dismissal and ordered JSA to immediately reinstate Alexander. JSA
appealed the decision to the NLRC. Alexander sought immediate enforcement of
the reinstatement order while the appeal was pending.

JSA hires you as lawyer, and seeks your advice on the following:

[a] Because JSA has no client who would accept Alexander, can it still be
compelled to reinstate him pending appeal even if it has posted an appeal bond?
(2%)

[b] Can the order of reinstatement be immediately enforced in the absence of a


motion for the issuance of a writ of execution? (2%)

[c] If the order of reinstatement is being enforced, what should JSA do in order to
prevent reinstatement? (2%)

Explain your answers.

LABOR AND SOCIAL LEGISLATION

IX

[a] What is wage distortion? Can a labor union invoke wage distortion as a valid
ground to go on strike? Explain. (2%)

[b] What procedural remedies are open to workers who seek correction of wage
distortion? (2%)

[a] State briefly the compulsory coverage of the Government Service Insurance
Act. (2%)

[b] Can a member of a cooperative be deemed an employee for purposes of


compulsory coverage under the Social Security Act? Explain. (2%)

*** END OF PART I ***


LABOR AND SOCIAL LEGISLATION

PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the


statement is false. Explain your answer in not more than two (2) sentences. (5%)

[a] Seafarers who have worked for twenty (20) years on board the same vessel are
regular employees.

[b] Employment of children below fifteen (15) years of age in any public or
private establishment is absolutely prohibited.

[c] Government employees have the right to organize and join concerted mass
actions without incurring administrative liability.

[d] A waiver of the right to claim overtime pay is contrary to law.

[e] Agency fees cannot be collected from a non-union member in the absence of a
written authorization signed by the worker concerned.

XII

In her State of the Nation Address, the President stressed the need to provide an
investor-friendly business environment so that the country can compete in the
global economy that now suffers from a crisis bordering on recession.
Responding to the call, Congress passed two innovative legislative measures,
namely: (1) a law abolishing the security of tenure clause in the Labor Code; and
(2) a law allowing contractualization in all areas needed in the employer’s
business operations. However, to soften the impact of these new measures, the
law requires that all employers shall obtain mandatory unemployment insurance
coverage for all their employees.

LABOR AND SOCIAL LEGISLATION

The constitutionality of the two (2) laws is challenged in court. As judge, how
will you rule? (5%)

XIII

Atty. Renan, a CPA-lawyer and Managing Partner of an accounting firm,


conducted the orientation seminar for newly-hired employees of the firm, among
them, Miss Maganda. After the seminar, Renan requested Maganda to stay,
purportedly to discuss

some work assignment. Left alone in the training room, Renan asked Maganda to
go out with him for dinner and ballroom dancing. Thereafter, he persuaded her to
accompany him to the mountain highway in Antipolo for sight-seeing. During all
these, Renan told Maganda that most, if not all, of the lady supervisors in the firm
are where they are now, in very productive and lucrative posts, because of his
favorable endorsement.

[a] Did Renan commit acts of sexual harassment in a work- related or


employment environment? Reasons. (3%)

[b] The lady supervisors in the firm, slighted by Renan’s revelations about them,
succeeded in having him expelled from the firm. Renan then filed with the
Arbitration Branch of the NLRC an illegal dismissal case with claims for
damages against the firm. Will the case prosper? Reasons. (2%)

XIV

Jolli-Mac Restaurant Company (Jolli-Mac) owns and operates the largest food
chain in the country. It engaged Matiyaga Manpower Services, Inc. (MMSI), a
job contractor registered with the Department of Labor and Employment, to
provide its restaurants the necessary personnel, consisting of cashiers, motorcycle
delivery boys and food servers, in its operations. The Service Agreement
warrants, among others, that MMSI has a paid- up capital of P2,000,000.00; that
it would train and determine the

LABOR AND SOCIAL LEGISLATION

qualification and fitness of all personnel to be assigned to Jolli- Mac; that it


would provide these personnel with proper Jolli-Mac uniforms; and that it is
exclusively responsible to these personnel for their respective salaries and all
other mandatory statutory benefits.

After the contract was signed, it was revealed, based on research conducted, that
MMSI had no other clients except Jolli- Mac, and one of its major owners was a
member of the Board of Directors of Jolli-Mac.

[a] Is the Service Agreement between Jolli-Mac and MMSI legal and valid? Why
or why not? (3%)

[b] If the cashiers, delivery boys and food servers are not paid their lawful
salaries, including overtime pay, holiday pay, 13th

month pay, and service incentive leave pay, against whom may these workers file
their claims? Explain. (2%)

XV

Among the 400 regular rank-and-file workers of MNO Company, a certification


election was ordered conducted by the Med-Arbiter of the Region. The
contending parties obtained the following votes:

1. Union A - 70

2. Union B - 71

3. Union C - 42

4. Union D - 33

5. No union - 180

6. Spoiled votes - 4

There were no objections or challenges raised by any party on the results of the
election.

LABOR AND SOCIAL LEGISLATION

[a] Can Union B be certified as the sole and exclusive collective bargaining agent
among the rank-and-file workers of MNO Company considering that it garnered
the highest number of votes among the contending unions? Why or why not?
(3%)

[b] May the management or lawyer of MNO Company legally ask for the
absolute termination of the certification election proceedings because 180 of the
workers --- a clear plurality of the voters --- have chosen not to be represented by
any union? Reasons. (3%)

[c] If you were the duly designated election officer in this case, what would you
do to effectively achieve the purpose of certification election proceedings?
Discuss. (3%)

XVI

The Company and Triple-X Union, the certified bargaining agent of rank-and-file
employees, entered into a Collective Bargaining Agreement (CBA) effective for
the period January 1, 2002 to December 31, 2007.
For the 4th and 5th years of the CBA, the significant

improvements in wages and other benefits obtained by the Union were:

1) Salary increases of P1,000 and P1,200 monthly, effective January 1, 2006 and
January 1, 2007, respectively;

2) Vacation Leave and Sick Leave were adjusted from 12 days to 15 days
annually for each employee;

3) Medical subsidy of P3,000 per year for the purchase of medicines and
hospitalization assistance of P10,000 per year for actual hospital confinement;

LABOR AND SOCIAL LEGISLATION

4) Rice Subsidy of P600 per month, provided the employee has worked for at
least 20 days within the particular month; and

5) Birthday Leave with Pay and Birthday Gift of P1,500.

As early as October 2007, the Company and the Union started negotiations to
renew the CBA. Despite mutual good faith and earnest efforts, they could not
agree. However, no union filed a petition for certification election during the
freedom period. On March 30, 2008, no CBA had been concluded. Management
learned that the Union would declare a bargaining deadlock on the next scheduled
bargaining meeting.

As expected, on April 3, 2008, the Union declared a deadlock. In the afternoon of


the same day, management issued a formal announcement in writing, posted on
the bulletin board, that due to the CBA expiration on December 31, 2007, all
fringe benefits contained therein are considered withdrawn and can no longer be
implemented, effective immediately.

[a] When was the "freedom period" referred to in the foregoing narration of facts?
Explain. (2%)

[b] After April 3, 2008, will a petition for certification election filed by another
legitimate labor union representing the rank-and-file employees legally prosper?
Reasons. (3%)

[c] Is management’s withdrawal of the fringe benefits valid?

Reasons. (2%)

[d] If you were the lawyer for the union, what legal recourse
or action would you advise? Reasons. (3%)

LABOR AND SOCIAL LEGISLATION

XVII

Alfredo was dismissed by management for serious misconduct. He filed suit for
illegal dismissal, alleging that although there may be just cause, he was not
afforded due process by management prior to his termination. He demands
reinstatement with full backwages.

[a] What are the twin requirements of due process which the employer must
observe in terminating or dismissing an employee? Explain. (3%)

[b] Is Alfredo entitled to reinstatement and full backwages? Why or why not?
(3%)

XVIII

[a] Cite four (4) instances when an illegally dismissed employee may be awarded
separation pay in lieu of reinstatement. (3%)

[b] Explain the impact of the union security clause to the employees’ right to
security of tenure. (2%)

-NOTHING FOLLOWS-

CIVIL LAW

13 September 2009 8 A.M. - 12 NN.

INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions (numbered I to
X), contained in five (5) pages; and Part II with ten (10) questions (numbered XI-XX),
contained in five (5) pages, for a total number of ten (10) pages.

Write your answers to Part I and Part II in the corresponding portions indicated in the
booklet.
Begin your answer to each numbered question on a separate page; an answer to a
subquestion under the same number may be written continuously on the same page and
succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions. Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

GOOD LUCK!

ANTONIO EDUARDO B. NACHURA


CHAIRPERSON
2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS ELEVEN (11) PAGES (INCLUDING
THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] The doctrine of “processual presumption” allows the court of the forum to presume
that the foreign law applicable to the case is the same as the local or domestic law.

[b] In reserva troncal, all reservatarios (reservees) inherit as a class and in equal shares
regardless of their proximity in degree to the prepositus.

[c] An oral partnership is valid.

[d] An oral promise of guaranty is valid and binding.

[e] A dead child can be legitimated.

II

Dr. Lopez, a 70-year old widower, and his son Roberto both died in a fire that gutted their
home while they were sleeping in their air-conditioned rooms. Roberto’s wife, Marilyn,
and their two children were spared because they were in the province at the time. Dr.
Lopez left an estate worth P20M and a life insurance policy in the amount of P1M with
his three children --- one of whom is Roberto --- as beneficiaries.
Marilyn is now claiming for herself and her children her husband’s share in the estate left
by Dr. Lopez, and her husband’s share in the proceeds of Dr. Lopez’s life insurance
policy. Rule on the validity of Marilyn’s claims with reasons. (4%)

III

In December 2000, Michael and Anna, after obtaining a valid marriage license, went to
the Office of the Mayor of Urbano, Bulacan, to get married. The Mayor was not there,
but the Mayor’s secretary asked Michael and Anna and their witnesses to fill up and sign
the required marriage contract forms. The secretary then told them to wait, and went out
to look for the Mayor who was attending a wedding in a neighboring municipality.

When the secretary caught up with the Mayor at the wedding reception, she showed him
the marriage contract forms and told him that the couple and their witnesses were waiting
in his office. The Mayor forthwith signed all the copies of the marriage contract, gave
them to the secretary who returned to the Mayor’s office. She then gave copies of the
marriage contract to the parties, and told Michael and Anna that they were already
married. Thereafter, the couple lived together as husband and wife, and had three sons.

[a] Is the marriage of Michael and Anna valid, voidable, or void? Explain your answer.
(3%)

[b] What is the status of the three children of Michael and Anna? Explain your answer.
(2%)

[c] What property regime governs the properties acquired by the couple? Explain. (2%)

IV

Harry married Wilma, a very wealthy woman. Barely five (5) years into the marriage,
Wilma fell in love with Joseph. Thus, Wilma went to a small country in Europe, became
a naturalized citizen of that country, divorced Harry, and married Joseph. A year
thereafter, Wilma and Joseph returned and established permanent residence in the
Philippines.

[a] Is the divorce obtained by Wilma from Harry recognized in the Philippines? Explain
your answer. (3%)

[b] If Harry hires you as his lawyer, what legal recourse would you advise him to take?
Why? (2%)

[c] Harry tells you that he has fallen in love with another woman, Elizabeth, and wants to
marry her because, after all, Wilma is already married to Joseph. Can Harry legally
marry Elizabeth? Explain. (2%)

V
Four children, namely: Alberto, Baldomero, Caridad, and Dioscoro, were born to the
spouses Conrado and Clarita de la Costa. The children’s birth certificates were duly
signed by Conrado, showing them to be the couple’s legitimate children.

Later, one Edilberto de la Cruz executed a notarial document acknowledging Alberto and
Baldomero as his illegitimate children with Clarita. Edilberto died leaving substantial
properties. In the settlement of his estate, Alberto and Baldomero intervened claiming
shares as the deceased’s illegitimate children. The legitimate family of Edilberto
opposed the claim.

Are Alberto and Baldomero entitled to share in the estate of Edilberto? Explain. (4%)

VI

On December 1, 2000, Dr. Juanito Fuentes executed a holographic will, wherein he gave
nothing to his recognized illegitimate son, Jay. Dr. Fuentes left for the United States,
passed the New York medical licensure examinations, resided therein, and became a
naturalized American citizen. He died in New York in 2007. The laws of New York do
not recognize holographic wills or compulsory heirs.

[a] Can the holographic will of Dr. Fuentes be admitted to probate in the Philippines?
Why or why not? (3%)

[b] Assuming that the will is probated in the Philippines, can Jay validly insist that he be
given his legitime? Why or why not? (3%)

VII

Ramon Mayaman died intestate, leaving a net estate of P10,000,000.00. Determine how
much each heir will receive from the estate:

[a] If Ramon is survived by his wife, three full-blood brothers, two half-brothers, and one
nephew (the son of a deceased full-blood brother)? Explain. (3%)

[b] If Ramon is survived by his wife, a half-sister, and three nephews (sons of a deceased
full-blood brother)? Explain. (3%)

VIII

Jude owned a building which he had leased to several tenants. Without informing his
tenants, Jude sold the building to Ildefonso. Thereafter, the latter notified all the tenants
that he is the new owner of the building. Ildefonso ordered the tenants to vacate the
premises within thirty (30) days from notice because he had other plans for the building.
The tenants refused to vacate, insisting that they will only do so when the term of their
lease shall have expired. Is Ildefonso bound to respect the lease contracts between Jude
and his tenants? Explain your answer. (3%)
IX

Before migrating to Canada in 1992, the spouses Teodoro and Anita entrusted all their
legal papers and documents to their nephew, Atty. Tan. Taking advantage of the
situation, Atty. Tan forged a deed of sale, making it appear that he had bought the
couple’s property in Quezon City. In 2000, he succeeded in obtaining a TCT over the
property in his name. Subsequently, Atty. Tan sold the same property to Luis, who built
an auto repair shop on the property. In 2004, Luis registered the deed of conveyance, and
title over the property was transferred in his name.

In 2006, the spouses Teodoro and Anita came to the Philippines for a visit and discovered
what had happened to their property. They immediately hire you as lawyer. What action
or actions will you institute in order to vindicate their rights? Explain fully. (4%)

Rommel’s private car, while being driven by the regular family driver, Amado, hits a
pedestrian causing the latter’s death. Rommel is not in the car when the incident
happened.

[a] Is Rommel liable for damages to the heirs of the deceased? Explain. (2%)

[b] Would your answer be the same if Rommel was in the car at the time of the accident?
Explain. (2%)

*** END OF PART I ***

PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] A clause in an arbitration contract granting one of the parties the power to choose
more arbitrators than the other renders the arbitration contract void.

[b] If there is no marriage settlement, the salary of a “spouse” in an adulterous marriage


belongs to the conjugal partnership of gains.

[c] Acquisitive prescription of a negative easement runs from the time the owner of the
dominant estate forbids, in a notarized document, the owner of the servient estate from
executing an act which would be lawful without the easement.

[d] The renunciation by a co-owner of his undivided share in the co-owned property in
lieu of the performance of his obligation to contribute to taxes and expenses for the
preservation of the property constitutes dacion en pago.

[e] A person can dispose of his corpse through an act inter vivos.

XII

Emmanuel and Margarita, American citizens and employees of the U.S. State
Department, got married in the African state of Kenya where sterility is a ground for
annulment of marriage. Thereafter, the spouses were assigned to the U.S. Embassy in
Manila. On the first year of the spouses’ tour of duty in the Philippines, Margarita filed
an annulment case against Emmanuel before a Philippine court on the ground of her
husband’s sterility at the time of the celebration of the marriage.

[a] Will the suit prosper? Explain your answer. (3%)

[b] Assume Emmanuel and Margarita are both Filipinos. After their wedding in Kenya,
they come back and take up residence in the Philippines. Can their marriage be annulled
on the ground of Emmanuel’s sterility? Explain. (3%)

XIII

Rafael, a wealthy bachelor, filed a petition for the adoption of Dolly, a one-year old
foundling who had a severe heart ailment. During the pendency of the adoption
proceedings, Rafael died of natural causes. The Office of the Solicitor General files a
motion to dismiss the petition on the ground that the case can no longer proceed because
of the petitioner’s death.

[a] Should the case be dismissed? Explain. (2%)

[b] Will your answer be the same if it was Dolly who died during the pendency of the
adoption proceedings? Explain. (2%)

XIV

Rodolfo, married to Sharon, had an illicit affair with his secretary, Nanette, a 19-year old
girl, and begot a baby girl, Rona. Nanette sued Rodolfo for damages: actual, for hospital
and other medical expenses in delivering the child by caesarean section; moral, claiming
that Rodolfo promised to marry her, representing that he was single when, in fact, he was
not; and exemplary, to teach a lesson to like-minded Lotharios.

[a] If you were the judge, would you award all the claims of Nanette? Explain. (3%)

[b] Suppose Rodolfo later on acknowledges Rona and gives her regular support, can he
compel her to use his surname? Why or why not? (2%)

[c] When Rona reaches seven (7) years old, she tells Rodolfo that she prefers to live with
him, because he is better off financially than Nanette. If Rodolfo files an action for the
custody of Rona, alleging that he is Rona’s choice as custodial parent, will the court grant
Rodolfo’s petition? Why or why not? (2%)

XV

Sarah had a deposit in a savings account with Filipino Universal Bank in the amount of
five million pesos (P5,000,000.00). To buy a new car, she obtained a loan from the same
bank in the amount of P1,200,000.00, payable in twelve monthly installments. Sarah
issued in favor of the bank post-dated checks, each in the amount of P100,000.00, to
cover the twelve monthly installment payments. On the third, fourth and fifth months, the
corresponding checks bounced.

The bank then declared the whole obligation due, and proceeded to deduct the amount of
one million pesos (P1,000,000.00) from Sarah’s deposit after notice to her that this is a
form of compensation allowed by law. Is the bank correct? Explain. (4%)

XVI

Marciano is the owner of a parcel of land through which a river runs out into the sea. The
land had been brought under the Torrens System, and is cultivated by Ulpiano and his
family as farmworkers therein. Over the years, the river has brought silt and sediment
from its sources up in the mountains and forests so that gradually the land owned by
Marciano increased in area by three hectares. Ulpiano built three huts on this additional
area, where he and his two married children live. On this same area, Ulpiano and his
family planted peanuts, monggo beans and vegetables. Ulpiano also regularly paid taxes
on the land, as shown by tax declarations, for over thirty years.

When Marciano learned of the increase in the size of the land, he ordered Ulpiano to
demolish the huts, and demanded that he be paid his share in the proceeds of the harvest.
Marciano claims that under the Civil Code, the alluvium belongs to him as a registered
riparian owner to whose land the accretion attaches, and that his right is enforceable
against the whole world.

[a] Is Marciano correct? Explain. (3%)

[b] What rights, if any, does Ulpiano have against Marciano? Explain. (3%)

XVII

Rosario obtained a loan of P100,000.00 from Jennifer, and pledged her diamond ring.
The contract signed by the parties stipulated that if Rosario is unable to redeem the ring
on due date, she will execute a document in favor of Jennifer providing that the ring shall
automatically be considered full payment of the loan.

[a] Is the contract valid? Explain. (3%)

[b] Will your answer to [a] be the same if the contract stipulates that upon failure of
Rosario to redeem the ring on due date, Jennifer may immediately sell the ring and
appropriate the entire proceeds thereof for herself as full payment of the loan? Reasons.
(3%)

XVIII

The Ifugao Arms is a condominium project in Baguio City. A strong earthquake occurred
which left huge cracks in the outer walls of the building. As a result, a number of
condominium units were rendered unfit for use. May Edwin, owner of one of the
condominium units affected, legally sue for partition by sale of the whole project?
Explain. (4%)

XIX

In 1972, Luciano de la Cruz sold to Chua Chung Chun, a Chinese citizen, a parcel of land
in Binondo. Chua died in 1990, leaving behind his wife and three children, one of whom,
Julian, is a naturalized Filipino citizen. Six years after Chua’s death, the heirs executed an
extrajudicial settlement of estate, and the parcel of land was allocated to Julian. In 2007,
Luciano filed suit to recover the land he sold to Chua, alleging that the sale was void
because it contravened the Constitution which prohibits the sale of private lands to aliens.
Julian moved to dismiss the suit on grounds of pari delicto, laches and acquisitive
prescription. Decide the case with reasons. (4%)

XX

[a] If Ligaya, a Filipino citizen residing in the United States, files a petition for change of
name before the District Court of New York, what law shall apply? Explain. (2%)

[b] If Henry, an American citizen residing in the Philippines, files a petition for change of
name before a Philippine court, what law shall apply? Explain. (2%)

*** END OF PART II *** RETURN THIS QUESTIONNAIRE WITH YOUR


BOOKLET

LEGAL ETHICS AND PRACTICAL


EXERCISES

04 October 2009 2 P.M. – 5 P.M.

INSTRUCTIONS
This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions (numbered I to
X), contained in four (4) pages; and Part II with ten (10) questions (numbered XI-XX),
contained in four (4) pages, for a total number of eight (8) pages.

Write your answers to Part I and Part II in the corresponding portions indicated in the
booklet.

Begin your answer to each numbered question on a separate page; an answer to a


subquestion under the same number may be written continuously on the same page and
succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions. Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

GOOD LUCK!

ANTONIO EDUARDO B. NACHURA


CHAIRPERSON 2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS NINE (9) PAGES (INCLUDING
THIS PAGE).
WARNING: NOT FOR SALE OR UNAUTHORIZED USE

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] The Bangalore Draft, approved at a Roundtable Meeting of Chief Justices held at The
Hague, is now the New Code of Judicial Conduct in the Philippines.

[b] An attorney ad hoc is a lawyer appointed by the court to represent an absentee


defendant in a suit in which the appointment is made.

[c] A charging lien, as distinguished from a retaining lien, is an active lien which can be
enforced by execution.

[d] A lawyer cannot refuse to divulge the name or identity of his client.

[e] A notary public is disqualified from performing a notarial act when the party to the
document is a relative by affinity within the 4th civil degree.
II

[a] What is the object of the bar examinations? Explain. (2%)

[b] What are the three (3) tests to determine conflict of interest for practicing lawyers?
Explain each briefly. (3%)

III

[a] May a party appear as his own counsel in a criminal or in a civil case? Explain. (3%)

[b] What is the student practice rule? (2%)

IV

[a] In a case for homicide filed before the Regional Trial Court (RTC), Presiding Judge
Quintero issued an order for the arrest of the accused, granted a motion for the reduction
of bail, and set the date for the arraignment of the accused. Subsequently, Judge Quintero
inhibited himself from the case, alleging that even before the case was raffled to his
court, he already had personal knowledge of the circumstances surrounding the case. Is
Judge Quintero’s inhibition justified? Explain. (3%)

[b] After being diagnosed with stress dermatitis, Judge Rosalind, without seeking
permission from the Supreme Court, refused to wear her robe during court proceedings.
When her attention was called, she explained that whenever she wears her robe she is
reminded of her heavy caseload, thus making her tense. This, in turn, triggers the
outbreak of skin rashes. Is Judge Rosalind justified in not wearing her judicial robe?
Explain. (3%)

Cliff and Greta were law school sweethearts. Cliff became a lawyer, but Greta dropped
out. One day, Cliff asked Greta to sign a marriage contract. The following day, Cliff
showed Greta the document already signed by an alleged solemnizing officer and two
witnesses. Cliff then told Greta that they were already married and Greta consented to go
on a honeymoon. Thereafter, the couple cohabited and begot a child. Two years later,
Cliff left Greta and married a Venezuelan beauty. Incensed, Greta filed a disbarment
complaint against Cliff. Will the case prosper? Explain. (4%)

VI

Atty. Sabungero obtained a notarial commission. One Sunday, while he was at the
cockpit, a person approached him with an affidavit that needed to be notarized. Atty.
Sabungero immediately pulled out from his pocket his small notarial seal, and notarized
the document. Was the affidavit validly notarized? Explain. (3%)

VII
Atty. Manuel is counsel for the defendant in a civil case pending before the RTC. After
receiving the plaintiff’s Pre-Trial Brief containing the list of witnesses, Atty. Manuel
interviewed some of the witnesses for the plaintiff without the consent of plaintiff’s
counsel.

[a] Did Atty. Manuel violate any ethical standard for lawyers? Explain. (3%)

[b] Will your answer be the same if it was the plaintiff who was interviewed by Atty.
Manuel without the consent of plaintiff’s counsel? Explain. (2%)

VIII

Court of Appeals (CA) Justice Juris was administratively charged with gross ignorance of
the law for having issued an order “temporarily enjoining” the implementation of a writ
of execution, and for having issued another order for the parties to “maintain the status
quo” in the same case. Both orders are obviously without any legal basis and violate CA
rules. In his defense, Justice Juris claims that the challenged orders were collegial acts of
the CA Division to which he belonged. Thus, he posits that the charge should not be filed
against him alone, but should include the two

other CA justices in the Division. Is the contention of Justice Juris tenable? Explain.
(3%)

IX

Alexander Sison, resident of 111 Libertad St., Sampaloc, Manila, engages your services
as lawyer. He tells you that a certain Mr. Juan Jamero of 222 Juan Luna St., Tondo,
Manila, owes him P1,000,000.00; that the debt is long overdue; and that, despite repeated
demands, Jamero has failed to comply with his obligation. He also shows you a
promissory note, executed on January 3, 2008, wherein Jamero promises to pay the
amount of P1,000,000.00, with 12% interest per annum, within one (1) year from date of
note. Sison agrees to pay you attorney’s fees in the amount of P75,000.00, and a fee of
P3,000.00 for every appearance in court.

As Sison’s lawyer, prepare the complaint that you will file in court against Juan Jamero.
(10%)

Given the same facts in No. IX above, assume that summons had been served on Jamero,
but no responsive pleading was filed within the reglementary period.

Prepare a motion to declare Jamero in default. (4%)

*** END OF PART I ***


PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] The duty of a lawyer to his client is more paramount than his duty to the Court.

[b] It is ethical for a lawyer to advise his client to enter a plea of guilty in a criminal case
if the lawyer is personally convinced that he cannot win the case for his client.

[c] There is no presumption of innocence or improbability of wrongdoing in an attorney’s


favor when he deals with his client concurrently as lawyer and as businessman.

[d] The satisfaction of a judgment debt does not, by itself, bar or extinguish the attorney’s
liens, except when there has been a waiver by the lawyer, as shown by his conduct or his
passive omission.

[e] A companion or employee of the judge who lives in the judge’s household is included
in the definition of the “judge’s family.”

XII

Write the complete text of the attorney’s oath. (5%)

XIII

Atty. Hyde, a bachelor, practices law in the Philippines. On long weekends, he dates
beautiful actresses in Hong Kong.

Kristine, a neighbor in the Philippines, filed with the Supreme Court an administrative
complaint against the lawyer because of sex videos uploaded through the internet
showing Atty. Hyde’s sordid dalliance with the actresses in Hong Kong.

In his answer, Atty. Hyde (1) questions the legal personality and interest of Kristine to
institute the complaint and (2) insists that he is a bachelor and the sex videos relate to his
private life which is outside public scrutiny and have nothing to do with his law practice.

Rule on the validity of Atty. Hyde’s defenses. (5%)

XIV

Marlyn, a widow, engaged the services of Atty. Romanito in order to avert the
foreclosure of several parcels of land mortgaged by her late husband to several creditors.
Atty. Romanito advised the widow to execute in his favor deeds of sale over the
properties, so that he could sell them and generate funds to pay her creditors. The widow
agreed. Atty. Romanito did not sell the properties, but paid the mortgage creditors with
his own funds, and had the land titles registered in his name. Atty. Romanito succeeds in
averting the foreclosure. Is he administratively liable? Reasons. (3%)

XV

Atty. Wilmar represented Beatriz in a partition case among heirs, and won. When Wilmar
demanded payment of attorney’s fees, Beatriz refused to pay. Wilmar sued Beatriz for
the unpaid attorney’s fees and obtained a favorable judgment. Thereafter, Beatriz filed
an administrative complaint against Wilmar claiming that he lied when he stated in his
claim for attorney’s fees that the subject of the partition case involved the entire estate of
the deceased when, in fact, it covered only 50% thereof. Wilmar set up the defenses that
(1) Beatriz filed the complaint only to delay the execution of the judgment ordering her to
pay attorney’s fees and (2) Beatriz engaged in forum-shopping. Are the defenses of Atty.
Wilmar tenable? Explain. (4%)

XVI

Atty. Simeon persuaded Armando, Benigno and Ciriaco to invest in a business venture
that later went bankrupt. Armando, Benigno and Ciriaco charged Atty. Simeon with
estafa. Simultaneously, they filed an administrative complaint against the lawyer with the
Supreme Court.

[a] If Simeon is convicted of estafa, will he be disbarred? Explain. (3%)

[b] If Simeon is acquitted of the estafa charge, will the disbarment complaint be
dismissed? Explain. (3%)

XVII

When Atty. Romualdo interviewed his client, Vicente, who is accused of murder, the
latter confessed that he killed the victim in cold blood. Vicente also said that when he
takes the witness stand, he will deny having done so. Is Atty. Romualdo obliged, under
his oath as lawyer, to inform the judge that [a] his client is guilty and

[b] his client will commit perjury on the witness stand? Explain. (4%)

XVIII

On a Saturday, Atty. Paterno filed a petition for a writ of amparo with the Court of
Appeals (CA). Impelled by the urgency for the issuance of the writ, Atty. Paterno
persuaded his friend, CA Justice Johnny de la Cruz, to issue the writ of amparo and the
notice of hearing without the signature of the two other Justices-members of the CA
division. Are Atty. Paterno and Justice de la Cruz guilty of unethical conduct? Explain.
(4%)
XIX

Romeo Hacendero wants to authorize Juanito Ahente to sell, on cash basis, for a price not
lower than P500,000.00, a parcel of land, situated in Muñoz, Nueva Ecija, and covered by
Transfer Certificate of Title No. 123456, in the Register of Deeds of Nueva Ecija.
Prepare a Special Power of Attorney granting such authority. (4%)

XX

From the affidavits and the death certificate submitted during the preliminary
investigation, the following facts are established: At 6:00 o’clock in the evening of
September 13, 2009, at the corner of Dapitan and Dos Castillas Sts., Sampaloc, Manila,
Edgar Bastonero, alias Bugoy, and Carlos Tirador, alias Pogi, accosted Johnny Escolar, a
student, and demanded the latter’s cellular phone and wrist watch. Because Johnny
resisted, Bastonero pulled out a knife and stabbed Johnny several times in the chest,
causing instantaneous death. Bastonero and Tirador then ran away. The affidavits were
executed by William Tan and Henry Uy, classmates of Johnny, who witnessed the entire
incident. The death certificate was issued by Dr. Jose Cabra who conducted the autopsy
on Johnny.

As Assistant City Prosecutor in Manila, prepare the appropriate criminal information to


be filed in court. (10%)

*** END OF PART II ***

RETURN THIS QUESTIONNAIRE WITH YOUR BOOKLET

MERCANTILE LAW

20 September 2009 8 A.M. - 12 NN.

INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions (numbered I to
X), contained in six (6) pages; and Part II with ten (10) questions (numbered XI-XX),
contained in seven (7) pages, for a total number of thirteen (13) pages.

Write your answers to Part I and Part II in the corresponding portions indicated in the
booklet.

Begin your answer to each numbered question on a separate page; an answer to a


subquestion under the same number may be written continuously on the same page and
succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions. Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

GOOD LUCK!

ANTONIO EDUARDO B. NACHURA


CHAIRPERSON
2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS FOURTEEN (14) PAGES


(INCLUDING THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] The Denicola Test in intellectual property law states that if design elements of an
article reflect a merger of aesthetic and functional considerations, the artistic aspects of
the work cannot be conceptually separable from the utilitarian aspects; thus, the article
cannot be copyrighted.

[b] If the Ombudsman is convinced that there is a violation of law after investigating a
complaint alleging illicit bank deposits of a public officer, the Ombudsman may order the
bank concerned to allow in camera inspection of bank records and documents.
[c] Even if the seller and the buyer in a sale in bulk violate the Bulk Sales Law, the sale
would still be valid.

[d] Dividends on shares of stocks can only be declared out of unrestricted retained
earnings of the corporation.

[e] A bank under receivership can still grant new loans and accept new deposits.

II

Atlantis Realty Corporation (ARC), a local firm engaged in real estate development,
plans to sell one of its prime assets --- a three-hectare land valued at about P100-million.
For this purpose, the board of directors of ARC unanimously passed a resolution
approving the sale of the property for P75-million to Shangrila Real Estate Ventures
(SREV), a rival realty firm. The resolution also called for a special stockholders meeting
at which the proposed sale would be up for ratification.

Atty. Edric, a stockholder who owns only one (1) share in ARC, wants to stop the sale.
He then commences a derivative suit for and in behalf of the corporation, to enjoin the
board of directors and the stockholders from approving the sale.

[a] Can Atty. Edric, who owns only one (1) share in the company, initiate a derivative
suit? Why or why not? (2%)

[b] If such a suit is commenced, would it constitute an intra-corporate dispute? If so, why
and where would such a suit be filed? If not, why not? (2%)

[c] Will the suit prosper? Why or why not? (3%)

III

Armando, a resident of Manila, borrowed P3-million from Bernardo, offering as security


his 500 shares of stock worth P1.5¬million in Xerxes Corporation, and his 2007 BMW
sedan, valued at P2-million. The mortgage on the shares of stock was registered in the
Office of the Register of Deeds of Makati City where Xerxes Corporation has its
principal office. The mortgage on the car was registered in the Office of the Register of
Deeds of Manila. Armando executed a single Affidavit of Good Faith, covering both
mortgages.

Armando defaulted on the payment of his obligation; thus, Bernardo foreclosed on the
two chattel mortgages. Armando filed suit to nullify the foreclosure and the mortgages,
raising the following issues:

[a] The execution of only one Affidavit of Good Faith for both mortgages invalidated the
two mortgages; (2%) and

[b] The mortgage on the shares of stocks should have been registered in the Office of the
Register of Deeds of Manila where he resides, as well as in the stock and transfer book of
Xerxes Corporation. (3%)

Rule on the foregoing issues with reasons.

[c] Assume that Bernardo extrajudicially foreclosed on the mortgages, and both the car
and the shares of stock were sold at public auction. If the proceeds from such public sale
should be P1-million short of Armando’s total obligation, can Bernardo recover the
deficiency? Why or why not? (2%)

IV
Antarctica Life Assurance Corporation (ALAC) publicly offered a specially designed
insurance policy covering persons between the ages of 50 to 75 who may be afflicted
with serious and debilitating illnesses. Quirico applied for insurance coverage, stating
that he was already 80 years old. Nonetheless, ALAC approved his application.

Quirico then requested ALAC for the issuance of a cover note while he was trying to
raise funds to pay the insurance premium. ALAC granted the request. Ten days after he
received the cover note, Quirico had a heart seizure and had to be hospitalized. He then
filed a claim on the policy.

[a] Can ALAC validly deny the claim on the ground that the insurance coverage, as
publicly offered, was available only to persons 50 to 75 years of age? Why or why not?
(2%)

[b] Did ALAC’s issuance of a cover note result in the perfection of an insurance contract
between Quirico and ALAC? Explain. (3%)

Cecilio is planning to put up a grocery store in the subdivision where he and his family
reside. To promote this proposed business venture, he told his wife and three children to
send out promotional text messages to all the residents in the subdivision. Cecilio’s
family members did as instructed, and succeeded in reaching, through text messages,
more than 80% of the residents in the subdivision.

Is Cecilio habitually engaged in commerce even if the grocery store has yet to be
established? Explain your answer. (3%)

VI

Lorenzo drew a bill of exchange in the amount of P100,000.00 payable to Barbara or


order, with his wife, Diana, as drawee. At the time the bill was drawn, Diana was
unaware that Barbara is Lorenzo’s paramour.

Barbara then negotiated the bill to her sister, Elena, who paid for it for value, and who did
not know who Lorenzo was. On due date, Elena presented the bill to Diana for payment,
but the latter promptly dishonored the instrument because, by then, Diana had already
learned of her husband’s dalliance.

[a] Was the bill lawfully dishonored by Diana? Explain. (3%)

[b] Does the illicit cause or consideration adversely affect the negotiability of the bill?
Explain. (3%)

VII
Global Transport Services, Inc. (GTSI) operates a fleet of cargo vessels plying interisland
routes. One of its vessels, MV Dona Juana, left the port of Manila for Cebu laden with,
among other goods, 10,000 television sets consigned to Romualdo, a TV retailer in Cebu.

When the vessel was about ten nautical miles away from Manila, the ship captain heard
on the radio that a typhoon which, as announced by PAG-ASA, was on its way out of the
country, had suddenly veered back into Philippine territory. The captain realized that
MV Dona Juana would traverse the storm’s path, but decided to proceed with the
voyage. True enough, the vessel sailed into the storm. The captain ordered the jettison of
the 10,000 television sets, along with some other cargo, in order to lighten the vessel and
make it easier to steer the vessel out of the path of the typhoon. Eventually, the vessel,
with its crew intact, arrived safely in Cebu.

[a] Will you characterize the jettison of Romualdo’s TV sets as an average? If so, what
kind of an average, and why? If not, why not? (3%)

[b] Against whom does Romualdo have a cause of action for indemnity of his lost TV
sets? Explain. (3%)

VIII

Maharlikang Pilipino Banking Corporation (MPBC) operates several branches of


Maharlikang Pilipino Rural Bank in Eastern Visayas. Almost all the branch managers are
close relatives of the members of the Board of Directors of the corporation. Many
undeserving relatives of the branch managers were granted loans. In time, the branches
could not settle their obligations to depositors and creditors.

Receiving reports of these irregularities, the Supervising and Examining Department


(SED) of the Monetary Board prepared a detailed report (SED Report) specifying the
facts and the chronology of events relative to the problems that beset MPBC rural bank
branches. The report concluded that the bank branches were unable to pay their liabilities
as they fell due, and could not possibly continue in business without incurring substantial
losses to its depositors and creditors.

[a] May the Monetary Board order the closure of the MPBC rural banks relying only on
the SED Report, without need of an examination? Explain. (3%)

[b] If MPBC hires you as lawyer because the Monetary Board has forbidden it from
carrying on its business due to its imminent insolvency, what action will you institute to
question the Monetary Board’s order? Explain. (3%)

IX

When is there an ultra vires act on the part of [a] the corporation; [b] the board of
directors; and [c] the corporate officers. (3%)
X

What are the so-called exempt securities under the Securities Regulation Code? (2%)

*** END OF PART I ***

PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] A loan agreement which provides that the debtor shall pay interest at the rate
determined by the bank’s branch manager violates the disclosure requirement of the
Truth in Lending Act.

[b] Under the Warehouse Receipts Law, a warehouseman loses his lien upon the goods
when he surrenders possession thereof.

[c] The Howey Test states that there is an investment contract when a person invests
money in a common enterprise and is led to expect profits primarily from the efforts of
others.

[d] A document, dated July 15, 2009, that reads: “Pay to X or order the sum of P5,000.00
five days after his pet dog, Sparky, dies. Signed Y.” is a negotiable instrument.

[e] “A bank is bound to know its depositor’s signature” is an inflexible rule in


determining the liability of a bank in forgery cases.

XII

Gaudencio, a store owner, obtained a P1-million loan from Bathala Financing


Corporation (BFC). As security, Gaudencio executed a “Deed of Assignment of
Receivables,” assigning 15 checks received from various customers who bought
merchandise from his store. The checks were duly indorsed by Gaudencio’s customers.

The Deed of Assignment contains the following stipulation:

“If, for any reason, the receivables or any part thereof cannot be paid by the obligors, the
ASSIGNOR unconditionally and irrevocably agrees to pay the same, assuming the
liability to pay, by way of penalty, three percent (3%) of the total amount unpaid, for the
period of delay until the same is fully paid.”

When the checks became due, BFC deposited them for collection, but the drawee banks
dishonored all the checks for one of the following reasons: “account closed,” “payment
stopped,” “account under garnishment,” or “insufficiency of funds.” BFC wrote
Gaudencio notifying him of the dishonored checks, and demanding payment of the loan.
Because Gaudencio did not pay, BFC filed a collection suit.

In his defense, Gaudencio contended that [a] BFC did not give timely notice of dishonor
(of the checks); and [b] considering that the checks were duly indorsed, BFC should
proceed against the drawers and the indorsers of the checks.

Are Gaudencio’s defenses tenable? Explain. (5%)

XIII

Ciriaco leased a commercial apartment from Supreme Building Corporation (SBC). One
of the provisions of the one-year lease contract states:

“18. x x x The LESSEE shall not insure against fire the chattels, merchandise, textiles,
goods and effects placed at any stall or store or space in the leased premises without first
obtaining the written consent of the LESSOR. If the LESSEE obtains fire insurance
coverage without the consent of the LESSOR, the insurance policy is deemed assigned
and transferred to the LESSOR for the latter’s benefit.”

Notwithstanding the stipulation in the contract, without the consent of SBC, Ciriaco
insured the merchandise inside the leased premises against loss by fire in the amount of
P500,000.00 with First United Insurance Corporation (FUIC).

A day before the lease contract expired, fire broke out inside the leased premises,
damaging Ciriaco’s merchandise. Having learned of the insurance earlier procured by
Ciriaco, SBC demanded from FUIC that the proceeds of the insurance policy be paid
directly to it, as provided in the lease contract.

Who is legally entitled to receive the insurance proceeds? Explain. (4%)

XIV

XXX Corporation (XXX) and its sister company, YYY Corporation (YYY), are both
under judicial receivership. The receiver has the option to sell all or substantially all of
the properties of YYY to XXX, or simply merge the two corporations. Under either
option, the requirements under the Corporation Code have to be complied with.

The receiver seeks your advice on whether the Bulk Sales Law will apply to either, or
both, options. What will your advice be? Explain. (4%)

XV

After disposing of his last opponent in only two rounds in Las Vegas, the renowned
Filipino boxer Sonny Bachao arrived at the Ninoy Aquino International Airport met by
thousands of hero-worshipping fans and hundreds of media photographers. The
following day, a colored photograph of Sonny wearing a black polo shirt embroidered
with the 2-inch Lacoste crocodile logo appeared on the front page of every Philippine
newspaper.

Lacoste International, the French firm that manufactures Lacoste apparel and owns the
Lacoste trademark, decided to cash in on the universal popularity of the boxing icon. It
reprinted the photographs, with the permission of the newspaper publishers, and went on
a world-wide blitz of print commercials in which Sonny is shown wearing a Lacoste shirt
alongside the phrase “Sonny Bachao just loves Lacoste.”

When Sonny sees the Lacoste advertisements, he hires you as lawyer and asks you to sue
Lacoste International before a Philippine court:

[a] For trademark infringement in the Philippines because Lacoste International used his
image without his permission; (2%)

[b] For copyright infringement because of the unauthorized use of the published
photographs; (2%) and

[c] For injunction in order to stop Lacoste International from featuring him in their
commercials. (2%)

Will these actions prosper? Explain.

[d] Can Lacoste International validly invoke the defense that it is not a Philippine
company and, therefore, Philippine courts have no jurisdiction? Explain. (2%)

XVI

On September 15, 2007, XYZ Corporation issued to Paterno 800 preferred shares with
the following terms:

“The Preferred Shares shall have the following rights, preferences, qualifications, and
limitations, to wit:

1. The right to receive a quarterly dividend of One Per Centum (1%), cumulative and
participating;

2. These shares may be redeemed, by drawing of lots, at any time after two (2) years from
date of issue, at the option of the Corporation; x x x.”

Today, Paterno sues XYZ Corporation for specific performance, for the payment of
dividends on, and to compel the redemption of, the preferred shares, under the terms and
conditions provided in the stock certificates. Will the suit prosper? Explain. (3%)

XVII
Philippine Palaces Realty (PPR) had been representing itself as a registered broker of
securities, duly authorized by the Securities and Exchange Commission (SEC). On
October 6, 1996, PPR sold to spouses Leon and Carina one (1) timeshare of Palacio del
Boracay for US$7,500.00. However, its Registration Statement became effective only on
February 11, 1998 after the SEC issued a resolution declaring that PPR was authorized to
sell securities, including timeshares.

On March 30, 1998, Leon and Carina wrote PPR rescinding their purchase agreement and
demanding the refund of the amount they paid, because the Palacio del Boracay
timeshare was sold to them by PPR without the requisite license or authority from the
SEC. PPR contended that the grant of the SEC authority had the effect of ratifying the
purchase agreement (with Leon and Carina) of October 6, 1996.

Is the contention of PPR correct? Explain. (3%)

XVIII

Triple A Corporation (Triple A) was incorporated in 1960, with 500 founders’ shares and
78 common shares as its initial capital stock subscription. However, Triple A registered
its stock and transfer book only in 1978, and recorded merely 33 common shares as the
corporation’s issued and outstanding shares.

[a] In 1982, Juancho, the sole heir of one of the original incorporators filed a petition with
the Securities and Exchange Commission (SEC) for the registration of his property rights
over 120 founders’ shares and 12 common shares. The petition was supported by a copy
of the Articles of Incorporation indicating the incorporators’ initial capital stock
subscription. Will the petition be granted? Why or why not? (3%)

[b] On May 6, 1992, a special stockholders’ meeting was held. At this meeting, what
would have constituted a quorum? Explain. (3%)

[c] What is a stock and transfer book? (1%)

XIX

One of the passenger buses owned by Continental Transit Corporation (CTC), plying its
usual route, figured in a collision with another bus owned by Universal Transport, Inc.
(UTI). Among those injured inside the CTC bus were: Romeo, a stow away; Samuel, a
pickpocket then in the act of robbing his seatmate when the collision occurred; Teresita,
the bus driver’s mistress who usually accompanied the driver on his trips for free; and
Uriel, holder of a free riding pass he won in a raffle held by CTC.

[a] Will a suit for breach of contract of carriage filed by Romeo, Samuel, Teresita, and
Uriel against CTC prosper? Explain. (3%)

[b] Do Romeo, Samuel, Teresita, and Uriel have a cause of action for damages against
UTI? Explain. (3%)

[c] What, if any, are the valid defenses that CTC and UTI can raise in the respective
actions against them? Explain. (3%)

XX

Under the Securities Regulation Code, what is the Margin Trading Rule? (2%)

*** END OF PART II ***

RETURN THIS QUESTIONNAIRE WITH YOUR BOOKLET

CRIMINAL LAW

20 September 2009 2 P.M. – 5 P.M.

INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions (numbered I to
X), contained in six (6) pages; and Part II with nine (9) questions (numbered XI-XIX),
contained in five (5) pages, for a total number of eleven (11) pages.

Write your answers to Part I and Part II in the corresponding portions indicated in the
booklet.

Begin your answer to each numbered question on a separate page; an answer to a


subquestion under the same number may be written continuously on the same page and
succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions. Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

GOOD LUCK!

ANTONIO EDUARDO B. NACHURA


CHAIRPERSON
2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS TWELVE (12) PAGES (INCLUDING
THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] Amado, convicted of rape but granted an absolute pardon by the President, and one
year thereafter, convicted of homicide, is a recidivist.

[b] The creditor who resorts to forced labor of a child under the pretext of reimbursing
himself for the debt incurred by the child’s father commits the crime of slavery.

[c] The use of an unlicensed firearm in homicide is considered a generic aggravating


circumstance which can be offset by an ordinary mitigating circumstance.

[d] A person who, on the occasion of a robbery, kills a bystander by accident is liable for
two separate crimes: robbery and reckless imprudence resulting in homicide.

[e] A policeman who, without a judicial order, enters a private house over the owner’s
opposition is guilty of trespass to dwelling.

II

Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he
escaped from jail. Captured, he was charged with, and convicted of, Evasion of Service
of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation
for the offense of Rebellion. Antero applied for and was granted the benefit of the
amnesty proclamation.

Antero then filed a petition for habeas corpus, praying for his immediate release from
confinement. He claims that the amnesty extends to the offense of Evasion of Service of
Sentence. As judge, will you grant the petition? Discuss fully. (4%)

III

Rigoberto gate-crashed the 71st birthday party of Judge Lorenzo. Armed with a piece of
wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back,
causing the latter’s hospitalization for 30 days. Upon investigation, it appeared that
Rigoberto had a grudge against Judge Lorenzo who, two years earlier, had cited
Rigoberto in contempt and ordered his imprisonment for three (3) days.

[a] Is Rigoberto guilty of Direct Assault? Why or why not? (3%)

[b] Would your answer be the same if the reason for the attack was that when Judge
Lorenzo was still a practicing lawyer ten years ago, he prosecuted Rigoberto and
succeeded in sending him to jail for one year? Explain your answer. (3%)

IV

Charlie hated his classmate, Brad, because the latter was assiduously courting Lily,
Charlie’s girlfriend. Charlie went to a veterinarian and asked for some poison on the
pretext that it would be used to kill a very sick, old dog. Actually, Charlie intended to
use the poison on Brad.

The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with
Brad’s food, did not kill Brad.

[a] Did Charlie commit any crime? If so, what and why? If not, why not? (3%)

[b] Would your answer be the same if Brad proved to be allergic to the powder, and after
ingesting it with his food, fell ill and was hospitalized for ten (10) days? Explain. (3%)

Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie. Because
Ruben also resented Freddie, he readily lent his gun, but told Ponciano: “O, pagkabaril
mo kay Freddie, isauli mo kaagad, ha.” Later, Ponciano killed Freddie, but used a knife
because he did not want Freddie’s neighbors to hear the gunshot.

[a] What, if any, is the liability of Ruben? Explain. (3%)

[b] Would your answer be the same if, instead of Freddie, it was Manuel, a relative of
Ruben, who was killed by Ponciano using Ruben’s gun? Explain. (3%)

VI

Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960. Dominador


witnessed the entire incident, but he was so scared to tell the authorities about it.

On January 2, 1970, Dominador, bothered by his conscience, reported the matter to the
police. After investigation, the police finally arrested Baldo on January 6, 1980. Charged
in court, Baldo claims that the crime he committed had already prescribed.

Is Baldo’s contention correct? Explain. (3%)


VII

Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending
before the court that she would convince the Presiding Judge to decide the case in
plaintiff’s favor. In consideration therefor, the plaintiff gave Charina P20,000.00.

Charina was charged with violation of Section 3 (b) of Republic Act No. 3019,
prohibiting any public officer from directly or indirectly requesting or receiving any gift,
present, percentage, or benefit in connection with any contract or transaction x x x
wherein the public officer, in his official capacity, has to intervene under the law.

While the case was being tried, the Ombudsman filed another information against
Charina for Indirect Bribery under the Revised Penal Code. Charina demurred to the
second information, claiming that she can no longer be charged under the Revised Penal
Code having been charged for the same act under R.A. 3019.

Is Charina correct? Explain. (3%)

VIII

While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen arrived.
A firefight ensued between the bank robbers and the responding policemen, and one of
the policemen was killed.

[a] What crime or crimes, if any, had been committed? Explain. (3%)

[b] Suppose it was Alfredo who was killed by the responding policemen, what charges
can be filed against Braulio, Ciriaco and Domingo? Explain. (2%)

[c] Suppose in the course of the robbery, before the policemen arrived, Braulio shot and
killed Alfredo following a heated disagreement on who should carry the money bags,
what would be the criminal liability of Braulio, Ciriaco and Domingo? Explain. (2%)

IX

Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed
the gun at the driver and shouted: “Tigil! Kidnap ito!”

Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board. Inside the
van were Jeremias, a 6-year-old child, son of a multi-millionaire, and Daday, the child’s
nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to
alight. Before Juanito was allowed to go, Virgilio instructed him to tell Jeremias’ parents
that unless they give a ransom of P10-million within two (2) days, Jeremias would be
beheaded. Daday was told to remain in the van and take care of Jeremias until the ransom
is paid. Virgilio then drove the van to his safehouse.

What crime or crimes, if any, did Virgilio commit? Explain. (5%)


X

To secure the release of his brother Willy, a detention prisoner, and his cousin Vincent,
who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to
issue an Order which would allow the two prisoners to be brought out of jail. At first, the
Clerk refused, but when Chito gave her P50,000.00, she consented.

She then prepared an Order requiring the appearance in court of Willy and Vincent,
ostensibly as witnesses in a pending case. She forged the judge’s signature, and delivered
the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in
the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the
two inmates unguarded for three minutes and provide them with an opportunity to
escape. Thus, Willy and Vincent were able to escape.

What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch
Clerk of Court, Edwin, and the jail warden? Explain your answer. (5%)

*** END OF PART I ***

PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] Life imprisonment is a penalty more favorable to the convict than reclusion perpetua.

[b] Voluntary surrender is a mitigating circumstance in all acts and omissions punishable
under the Revised Penal Code.

[c] In a prosecution for fencing under P.D. 1612, it is a complete defense for the accused
to prove that he had no knowledge that the goods or articles found in his possession had
been the subject of robbery.

[d] In the crime of libel, truth is an absolute defense.

[e] For a person who transacts an instrument representing the proceeds of a covered
unlawful activity to be liable under the Anti-Money Laundering Act (R.A. 9160, as
amended), it must be shown that he has knowledge of the identities of the culprits
involved in the commission of the predicate crimes.

XII

[a] In a conviction for homicide, the trial court appreciated two (2) mitigating
circumstances and one (1) aggravating circumstance. Homicide under Article 249 of the
Revised Penal Code is punishable by reclusion temporal, an imprisonment term of twelve
(12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence
Law, determine the appropriate penalty to be imposed. Explain. (3%)

[b] Will your answer be the same if it is a conviction for illegal possession of drugs under
R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also
imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? Why
or why not? (3%)

XIII

Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their
money upon a promise of a capital return of 25%, computed monthly, and guaranteed by
post-dated checks. During the first two months following the investment, the investors
received their profits, but thereafter, Angelo vanished.

Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas
Pambansa (BP) 22. In his motion to quash, Angelo contends that he committed a
continued crime, or delito continuado, hence, he committed only one count of estafa and
one count of violation of BP 22.

[a] What is delito continuado? (1%)

[b] Is Angelo’s contention tenable? Explain. (4%)

XIV

Following his arrest after a valid buy-bust operation, Tommy was convicted of violation
of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the
evidence because the police officers who conducted the buy-bust operation failed to
observe the requisite “chain of custody” of the evidence confiscated and/or seized from
him.

What is the “chain of custody” requirement in drug offenses? What is its rationale? What
is the effect of failure to observe the requirement? (3%)

XV

Joe was 17 years old when he committed homicide in 2005. The crime is punishable by
reclusion temporal. After two years in hiding, he was arrested and appropriately charged
in May 2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was
already in effect, Joe moved to avail of the process of intervention or diversion.

[a] What is intervention or diversion? Is Joe entitled to intervention or diversion?


Explain. (3%)
[b] Suppose Joe’s motion for intervention or diversion was denied, and he was convicted
two (2) years later when Joe was already 21 years old, should the judge apply the
suspension of sentence? Explain. (2%)

[c] Suppose Joe was convicted of attempted murder with a special aggravating
circumstance and was denied suspension of sentence, would he be eligible for probation
under Presidential Decree (PD) 968, considering that the death penalty is imposable for
the consummated felony? Explain. (2%)

XVI

Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte,
caused the disbursement of public funds allocated for their local development programs
for 2008. Records show that the amount of P2-million was purportedly used as financial
assistance for a rice production livelihood project. Upon investigation, however, it was
found that Roger and Jessie falsified the disbursement vouchers and supporting
documents in order to make it appear that qualified recipients who, in fact, are non-
existent individuals, received the money.

Roger and Jessie are charged with malversation through falsification and violation of
Section 3 (e) of R.A. 3019 for causing undue injury to the government. Discuss the
propriety of the charges filed against Roger and Jessie. Explain. (4%)

XVII

Wenceslao and Loretta were staying in the same boarding house, occupying different
rooms. One late evening, when everyone in the house was asleep, Wenceslao entered
Loretta’s room with the use of a picklock. Then, with force and violence, Wenceslao
ravished Loretta. After he had satisfied his lust, Wenceslao stabbed Loretta to death and,
before leaving the room, took her jewelry.

[a] What crime or crimes, if any, did Wenceslao commit? Explain. (4%)

[b] Discuss the applicability of the relevant aggravating circumstances of dwelling,


nocturnity and the use of the picklock to enter the room of the victim. (3%)

[c] Would your answer to [a] be the same if, despite the serious stab wounds she
sustained, Loretta survived? Explain. (3%)

XVIII

At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very
seductive dance number. While gyrating with their bodies, Leoncio dipped his private
parts in Evelyn’s buttocks. Incensed, Evelyn protested, but Leoncio continued and
tightly embraced her.
[a] What crime or crimes, if any, did Leoncio commit? Explain. (3%)

[b] Would your answer be the same if, even after the music had stopped, Leoncio
continued to dance dirty, rubbing his private parts on Evelyn’s buttocks? Explain. (3%)

XIX

Delmo learned that his enemy, Oscar, was confined at the Intensive Care Unit (ICU) of
the Philippine Medical Center. Intending to kill Oscar, Delmo disguised himself as a
nurse, entered the ICU, and saw a man lying on the hospital bed with several life-saving
tubes attached to the body. Delmo disconnected the tubes and left. Later, the resident
physician doing his rounds entered the ICU and, seeing the disconnected tubes, replaced
them. The patient survived. It turned out that the patient was Larry, as Oscar had been
discharged from the hospital earlier.

Delmo was charged with frustrated murder, qualified by evident premeditation and
treachery as aggravating circumstances. Discuss the propriety of the charge. (4%)

*** END OF PART II ***

RETURN THIS QUESTIONNAIRE WITH YOUR BOOKLET

REMEDIAL LAW

04 October 2009 8 A.M. – 12 P.M.

INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions (numbered I to
X), contained in six (6) pages; and Part II with nine (9) questions (numbered XI-XIX),
contained in five (5) pages, for a total number of eleven (11) pages.

Write your answers to Part I and Part II in the corresponding portions indicated in the
booklet.

Begin your answer to each numbered question on a separate page; an answer to a


subquestion under the same number may be written continuously on the same page and
succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions. Write legibly.
HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.
GOOD LUCK!

ANTONIO EDUARDO B. NACHURA


CHAIRPERSON 2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS TWELVE (12) PAGES (INCLUDING
THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] The Vallejo standard refers to jurisprudential norms considered by the court in
assessing the probative value of DNA evidence.

[b] The One-Day Examination of Witness Rule abbreviates court proceedings by having
a witness fully examined in only one day during trial.

[c] A suit for injunction is an action in rem.

[d] Under the doctrine of adoptive admission, a third party’s statement becomes the
admission of the party embracing or espousing it.

[e] Summons may be served by mail.

II

Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the
ownership and possession of two parcels of land; one situated in Pampanga, and the other
in Bulacan.

[a] May the action prosper? Explain. (2%)

[b] Will your answer be the same if the action was for foreclosure of the mortgage over
the two parcels of land? Why or why not? (2%)

III

Amorsolo, a Filipino citizen permanently residing in New York City, filed with the RTC
of Lipa City a Complaint for Rescission of Contract of Sale of Land against Brigido, a
resident of Barangay San Miguel, Sto. Tomas, Batangas. The subject property, located in
Barangay Talisay, Lipa City, has an assessed value of P19,700.00. Appended to the
complaint is Amorsolo’s verification and certification of non-forum shopping executed in
New York City, duly notarized by Mr. Joseph Brown, Esq., a notary public in the State of
New York.

Brigido filed a motion to dismiss the complaint on the following grounds:

[a] The court cannot acquire jurisdiction over the person of Amorsolo because he is not a
resident of the Philippines; (2%)

[b] The RTC does not have jurisdiction over the subject matter of the action involving
real property with an assessed value of P19,700.00; exclusive and original jurisdiction is
with the Municipal Trial Court where the defendant resides; (3%) and

[c] The verification and certification of non-forum shopping are fatally defective because
there is no accompanying certification issued by the Philippine Consulate in New York,
authenticating that Mr. Brown is duly authorized to notarize the document. (3%)

Rule on the foregoing grounds with reasons.

IV

Pedrito and Tomas, Mayor and Treasurer, respectively, of the Municipality of San
Miguel, Leyte, are charged before the Sandiganbayan for violation of Section 3 (e),
Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). The information alleges,
among others, that the two conspired in the purchase of several units of computer through
personal canvass instead of a public bidding, causing undue injury to the municipality.

Before arraignment, the accused moved for reinvestigation of the charge, which the court
granted. After reinvestigation, the Office of the Special Prosecutor filed an amended
information duly signed and approved by the Special Prosecutor, alleging the same
delictual facts, but with an additional allegation that the accused gave unwarranted
benefits to SB Enterprises owned by Samuel. Samuel was also indicted under the
amended information.

Before Samuel was arraigned, he moved to quash the amended information on the ground
that the officer who filed the same had no authority to do so. Resolve the motion to quash
with reasons. (3%)

Frank and Gina were married on June 12, 1987 in Manila. Barely a year after the
wedding, Frank exhibited a violent temperament, forcing Gina, for reasons of personal
safety, to live with her parents. A year thereafter, Gina found employment as a domestic
helper in Singapore, where she worked for ten consecutive years. All the time she was
abroad, Gina had absolutely no communications with Frank, nor did she hear any news
about him. While in Singapore, Gina met and fell in love with Willie.

On July 4, 2007, Gina filed a petition with the RTC of Manila to declare Frank
presumptively dead, so that she could marry Willie. The RTC granted Gina’s petition.
The Office of the Solicitor General (OSG) filed a Notice of Appeal with the RTC, stating
that it was appealing the decision to the Court of Appeals on questions of fact and law.

[a] Is a petition for Declaration of Presumptive Death a special proceeding? Why or why
not? (2%)

[b] As the RTC judge who granted Gina’s petition, will you give due course to the OSG’s
Notice of Appeal? Explain. (3%)

VI

Arrested in a buy-bust operation, Edmond was brought to the police station where he was
informed of his constitutional rights. During the investigation, Edmond refused to give
any statement. However, the arresting officer asked Edmond to acknowledge in writing
that six (6) sachets of “shabu” were confiscated from him. Edmond consented and also
signed a receipt for the amount of P3,000.00, allegedly representing the “purchase price
of the shabu.” At the trial, the arresting officer testified and identified the documents
executed and signed by Edmond. Edmond’s lawyer did not object to the testimony. After
the presentation of the testimonial evidence, the prosecutor made a formal offer of
evidence which included the documents signed by Edmond.

Edmond’s lawyer objected to the admissibility of the documents for being the “fruit of
the poisoned tree.” Resolve the objection with reasons. (3%)

VII

Cresencio sued Dioscoro for collection of a sum of money. During the trial, but after the
presentation of plaintiff’s evidence, Dioscoro died. Atty. Cruz, Dioscoro’s counsel, then
filed a motion to dismiss the action on the ground of his client’s death. The court denied
the motion to dismiss and, instead, directed counsel to furnish the court with the names
and addresses of Dioscoro’s heirs and ordered that the designated administrator of
Dioscoro’s estate be substituted as representative party.

After trial, the court rendered judgment in favor of Cresencio. When the decision had
become final and executory, Cresencio moved for the issuance of a writ of execution
against Dioscoro’s estate to enforce his judgment claim. The court issued the writ of
execution. Was the court’s issuance of the writ of execution proper? Explain. (2%)

VIII

On July 15, 2009, Atty. Manananggol was served copies of numerous unfavorable
judgments and orders. On July 29, 2009, he filed motions for reconsideration which were
denied. He received the notices of denial of the motions for reconsideration on October
2, 2009, a Friday. He immediately informed his clients who, in turn, uniformly instructed
him to appeal. How, when and where should he pursue the appropriate remedy for each
of the following: (10%)

[a] Judgment of a Municipal Trial Court (MTC) pursuant to its delegated jurisdiction
dismissing his client’s application for land registration?

[b] Judgment of the Regional Trial Court (RTC) denying his client’s petition for a Writ of
Habeas Data?

[c] Order of a Family Court denying his client’s petition for Habeas Corpus in relation to
custody of a minor child?

[d] Order of the RTC denying his client’s Petition for Certiorari questioning the
Metropolitan Trial Court’s (MeTC’s) denial of a motion to suspend criminal
proceedings?

[e] Judgment of the First Division of the Court of Tax Appeals (CTA) affirming the RTC
decision convicting his client for violation of the National Internal Revenue Code?

IX

Modesto sued Ernesto for a sum of money, claiming that the latter owed him P1-million,
evidenced by a promissory note, quoted and attached to the complaint. In his answer
with counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory
note, but that it is Modesto who really owes him P1.5-million. Modesto filed an answer to
Ernesto’s counterclaim admitting that he owed Ernesto, but only in the amount of P0.5-
million. At the pre-trial, Modesto marked and identified Ernesto’s promissory note. He
also marked and identified receipts covering payments he made to Ernesto, to the extent
of P0.5-million, which Ernesto did not dispute.

After pre-trial, Modesto filed a motion for judgment on the pleadings, while Ernesto filed
a motion for summary judgment on his counterclaim. Resolve the two motions with
reasons. (5%)

Upon termination of the pre-trial, the judge dictated the pre-trial order in the presence of
the parties and their counsel, reciting what had transpired and defining three (3) issues to
be tried.

[a] If, immediately upon receipt of his copy of the pre-trial order, plaintiff’s counsel
should move for its amendment to include a fourth (4th) triable issue which he allegedly
inadvertently failed to mention when the judge dictated the order. Should the motion to
amend be granted? Reasons. (2%)
[b] Suppose trial had already commenced and after the plaintiff’s second witness had
testified, the defendant’s counsel moves for the amendment of the pre-trial order to
include a fifth (5th) triable issue vital to his client’s defense. Should the motion be
granted over the objection of plaintiff’s counsel? Reasons. (3%)

*** END OF PART I ***

PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] The accused in a criminal case has the right to avail of the various modes of
discovery.

[b] The viatory right of a witness served with a subpoena ad testificandum refers to his
right not to comply with the subpoena.

[c] In the exercise of its original jurisdiction, the Sandiganbayan may grant petitions for
the issuance of a writ of habeas corpus.

[d] An electronic document is the equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable by sight or other means, shown to
reflect the data accurately.

[e] The filing of a motion for the reconsideration of the trial court’s decision results in the
abandonment of a perfected appeal.

XII

Mike was renting an apartment unit in the building owned by Jonathan. When Mike
failed to pay six months’ rent, Jonathan filed an ejectment suit. The Municipal Trial
Court (MTC) rendered judgment in favor of Jonathan, who then filed a motion for the
issuance of a writ of execution. The MTC issued the writ.

[a] How can Mike stay the execution of the MTC judgment? Explain. (2%)

[b] Mike appealed to the Regional Trial Court (RTC), which affirmed the MTC decision.
Mike then filed a petition for review with the Court of Appeals (CA). The CA dismissed
the petition on the ground that the sheriff had already executed the MTC decision and had
ejected Mike from the premises, thus rendering the appeal moot and academic. Is the CA
correct? Reasons. (3%)

XIII
[a] Continental Chemical Corporation (CCC) filed a complaint for a sum of money
against Barstow Trading Corporation (BTC) for the latter’s failure to pay for its
purchases of industrial chemicals. In its answer, BTC contended that it refused to pay
because CCC misrepresented that the products it sold belonged to a new line, when in
fact they were identical with CCC’s existing products. To substantiate its defense, BTC
filed a motion to compel CCC to give a detailed list of the products’ ingredients and
chemical components, relying on the right to avail of the modes of discovery allowed
under Rule 27. CCC objected, invoking confidentiality of the information sought by
BTC. Resolve BTC’s motion with reasons. (3%)

[b] Blinded by extreme jealousy, Alberto shot his wife, Betty, in the presence of his
sister, Carla. Carla brought Betty to the hospital. Outside the operating room, Carla told
Domingo, a male nurse, that it was Alberto who shot Betty. Betty died while undergoing
emergency surgery. At the trial of the parricide charges filed against Alberto, the
prosecutor sought to present Domingo as witness, to testify on what Carla told him. The
defense counsel objected on the ground that Domingo’s testimony is inadmissible for
being hearsay. Rule on the objection with reasons. (3%)

XIV

The Republic of the Philippines, through the Department of Public Works and Highways
(DPWH) filed with the RTC a complaint for the expropriation of the parcel of land
owned by Jovito. The land is to be used as an extension of the national highway.
Attached to the complaint is a bank certificate showing that there is, on deposit with the
Land Bank of the Philippines, an amount equivalent to the assessed value of the property.
Then DPWH filed a motion for the issuance of a writ of possession. Jovito filed a motion
to dismiss the complaint on the ground that there are other properties which would better
serve the purpose.

[a] Will Jovito’s motion to dismiss prosper? Explain. (3%)

[b] As judge, will you grant the writ of possession prayed for by DPWH? Explain. (3%)

XV

[a] Florencio sued Guillermo for partition of a property they owned in common.
Guillermo filed a motion to dismiss the complaint because Florencio failed to implead
Hernando and Inocencio, the other co-owners of the property. As judge, will you grant
the motion to dismiss? Explain. (3%)

[b] Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio City a
complaint for annulment of sale against Henry. Marcos and Henry both reside in Asin
Road, Baguio City, while Mariano resides in Davao City. Henry filed a motion to
dismiss the complaint on the ground of prematurity for failure to comply with the
mandatory barangay conciliation. Resolve the motion with reasons. (3%)
XVI

[a] After the prosecution had rested and made its formal offer of evidence, with the court
admitting all of the prosecution evidence, the accused filed a demurrer to evidence with
leave of court. The prosecution was allowed to comment thereon. Thereafter, the court
granted the demurrer, finding that the accused could not have committed the offense
charged. If the prosecution files a motion for reconsideration on the ground that the court
order granting the demurrer was not in accord with the law and jurisprudence, will the
motion prosper? Explain your answer. (3%)

[b] A criminal information is filed in court charging Anselmo with homicide. Anselmo
files a motion to quash the information on the ground that no preliminary investigation
was conducted. Will the motion be granted? Why or why not? (3%)

XVII

Having obtained favorable judgment in his suit for a sum of money against Patricio,
Orencio sought the issuance of a writ of execution. When the writ was issued, the sheriff
levied upon a parcel of land that Patricio owns, and a date was set for the execution sale.

[a] How may Patricio prevent the sale of the property on execution? (2%)

[b] If Orencio is the purchaser of the property at the execution sale, how much does he
have to pay? Explain. (2%)

[c] If the property is sold to a third party at the execution sale, what can Patricio do to
recover the property? Explain. (2%)

XVIII

Pinoy died without a will. His wife, Rosie, and three children executed a deed of
extrajudicial settlement of his estate. The deed was properly published and registered
with the Office of the Register of Deeds. Three years thereafter, Suzy appeared, claiming
to be the illegitimate child of Pinoy. She sought to annul the settlement alleging that she
was deprived of her rightful share in the estate.

Rosie and the three children contended that (1) the publication of the deed constituted
constructive notice to the whole world, and should therefore bind Suzy; and (2) Suzy’s
action had already prescribed.

Are Rosie and the three children correct? Explain. (4%)

XIX

[a] Distinguish the two (2) modes of appeal from the judgment of the Regional Trial
Court to the Court of Appeals. (3%)
[b] What is the writ of amparo? How is it distinguished from the writ of habeas corpus?
(2%)

[c] What is the writ of habeas data? (1%)

*** END OF PART II ***

RETURN THIS QUESTIONNAIRE WITH YOUR BOOKLET

TAXATION

13 September 2009 2 P.M. – 5 P.M.

INSTRUCTIONS

This questionnaire is in TWO (2) PARTS: Part I with ten (10) questions (numbered I to
X), contained in six (6) pages; and Part II with ten (10) questions (numbered XI-XX),
contained in five (5) pages, for a total number of eleven (11) pages.

Write your answers to Part I and Part II in the corresponding portions indicated in the
booklet.

Begin your answer to each numbered question on a separate page; an answer to a


subquestion under the same number may be written continuously on the same page and
succeeding pages until completed.

Answer the questions directly and concisely. Do not repeat the questions. Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.


GOOD LUCK!

ANTONIO EDUARDO B. NACHURA


CHAIRPERSON
2009 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS TWELVE (12) PAGES (INCLUDING
THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE


PART I

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is
false. Explain your answer in not more than two (2) sentences. (5%)

[a] A law that allows taxes to be paid either in cash or in kind is valid.

[b] When the financial position of the taxpayer demonstrates a clear inability to pay the
tax, the Commissioner of Internal Revenue may validly compromise the tax liability.

[c] The doctrine of equitable recoupment allows a taxpayer whose claim for refund has
prescribed to offset tax liabilities with his claim of overpayment.

[d] A law imposing a tax on income of religious institutions derived from the sale of
religious articles is valid.

[e] A false return and a fraudulent return are one and the same.

II

Enumerate the four (4) inherent limitations on taxation. Explain each item briefly. (4%)

III

Melissa inherited from her father a 300-square-meter lot. At the time of her father’s
death on March 14, 1995, the property was valued at P720,000.00. On February 28, 1996,
to defray the cost of the medical expenses of her sick son, she sold the lot for
P600,000.00, on cash basis. The prevailing market value of the property at the time of the
sale was P3,000.00 per square meter.

[a] Is Melissa liable to pay capital gains tax on the transaction? If so, how much and
why? If not, why not? (4%)

[b] Is Melissa liable to pay Value Added Tax (VAT) on the sale of the property? If so,
how much and why? If not, why not? (4%)

IV

International Technologies, Inc. (ITI) filed a claim for refund for unutilized input VAT
with the Court of Tax Appeals (CTA). In the course of the trial, ITI engaged the services
of an independent Certified Public Accountant (CPA) who examined the voluminous
invoices and receipts of ITI. ITI offered in evidence only the summary prepared by the
CPA, without the invoices and the receipts, and then submitted the case for decision.
Can the CTA grant ITI’s claim for refund based only on the CPA’s summary? Explain.
(4%)

Jessie brought into the Philippines a foreign-made luxury car, and paid less than the
actual taxes and duties due. Due to the discrepancy, the Bureau of Customs instituted
seizure proceedings and issued a warrant of seizure and detention. The car, then parked
inside a pay parking garage, was seized and brought by government agents to a
government impounding facility. The Collector of Customs denied Jessie’s request for
the withdrawal of the warrant.

Aggrieved, Jessie filed against the Collector a criminal complaint for usurpation of
judicial functions on the ground that only a judge may issue a warrant of search and
seizure.

[a] Resolve with reasons Jessie’s criminal complaint. (4%)

[b] Would your answer be the same if the luxury car was seized while parked inside the
garage of Jessie’s residence? Why or why not? (4%)

VI

The Sangguniang Bayan of the Municipality of Sampaloc, Quezon, passed an ordinance


imposing a storage fee of ten centavos (P0.10) for every 100 kilos of copra deposited in
any bodega within the Municipality’s jurisdiction. The Metropolitan Manufacturing
Corporation (MMC), with principal office in Makati, is engaged in the manufacture of
soap, edible oil, margarine, and other coconut oil-based products. It has a warehouse in
Sampaloc, Quezon, used as storage space for the copra purchased in Sampaloc and
nearby towns before the same is shipped to Makati. MMC goes to court to challenge the
validity of the ordinance, demanding the refund of the storage fees it paid under protest.

Is the ordinance valid? Explain your answer. (4%)

VII

Kenya International Airlines (KIA) is a foreign corporation, organized under the laws of
Kenya. It is not licensed to do business in the Philippines. Its commercial airplanes do
not operate within Philippine territory, or service passengers embarking from Philippine
airports. The firm is represented in the Philippines by its general agent, Philippine
Airlines (PAL), a Philippine corporation.

KIA sells airplane tickets through PAL, and these tickets are serviced by KIA airplanes
outside the Philippines. The total sales of airline tickets transacted by PAL for KIA in
1997 amounted to P2,968,156.00. The Commissioner of Internal Revenue assessed KIA
deficiency income taxes at the rate of 35% on its taxable income, finding that KIA’s
airline ticket sales constituted income derived from sources within the Philippines.

KIA filed a protest on the ground that the P2,968,156.00 should be considered as income
derived exclusively from sources outside the Philippines since KIA only serviced
passengers outside Philippine territory.

Is the position of KIA tenable? Reasons. (4%)

VIII

The City of Manila enacted Ordinance No. 55-66 which imposes a municipal occupation
tax on persons practicing various professions in the city. Among those subjected to the
occupation tax were lawyers. Atty. Mariano Batas, who has a law office in Manila, pays
the ordinance-imposed occupation tax under protest. He goes to court to assail the
validity of the ordinance for being discriminatory. Decide with reasons. (3%)

IX

Republic Power Corporation (RPC) is a government-owned and controlled corporation


engaged in the supply, generation and transmission of electric power. In 2005, in order to
provide electricity to Southern Tagalog provinces, RPC entered into an agreement with
Jethro Energy Corporation (JEC), for the lease of JEC’s power barges which shall be
berthed at the port of Batangas City. The contract provides that JEC shall own the power
barges and the fixtures, fittings, machinery, and equipment therein, all of which JEC shall
supply at its own cost, and that JEC shall operate, manage and maintain the power barges
for the purpose of converting the fuel of RPC into electricity. The contract also stipulates
that all real estate taxes and assessments, rates and other charges, in respect of the power
barges, shall be for the account of RPC.

In 2007, JEC received an assessment of real property taxes on the power barges from the
Assessor of Batangas City. JEC sought reconsideration of the assessment on the ground
that the power barges are exempt from real estate taxes under Section 234 [c] of R.A.
7160 as they are actually, directly and exclusively used by RPC, a government-owned
and controlled corporation. Furthermore, even assuming that the power barges are
subject to real property tax, RPC should be held liable therefor, in accordance with the
terms of the lease agreement.

Is the contention of JEC correct? Explain your answer. (4%)

ABCD Corporation (ABCD) is a domestic corporation with individual and corporate


shareholders who are residents of the United States. For the 2nd quarter of 1983, these
U.S.-based individual and corporate stockholders received cash dividends from the
corporation. The corresponding withholding tax on dividend income --- 30% for
individual and 35% for corporate non-resident stockholders ---was deducted at source
and remitted to the BIR.
On May 15, 1984, ABCD filed with the Commissioner of Internal Revenue a formal
claim for refund, alleging that under the RP-US Tax Treaty, the deduction withheld at
source as tax on dividends earned was fixed at 25% of said income. Thus, ABCD
asserted that it overpaid the withholding tax due on the cash dividends given to its non-
resident stockholders in the U.S. The Commissioner denied the claim.

On January 17, 1985, ABCD filed a petition with the Court of Tax Appeals (CTA)
reiterating its demand for refund.

[a] Does ABCD Corporation have the legal personality to file the refund on behalf of its
non-resident stockholders? Why or why not? (3%)

[b] Is the contention of ABCD Corporation correct? Why or why not? (3%)

*** END OF PART I ***

PART II

XI

Raffy and Wena, husband and wife, are both employed by XXX Corporation. After
office hours, they jointly manage a coffee shop at the ground floor of their house. The
coffee shop is registered in the name of both spouses. Which of the following is the
correct way to prepare their income tax return? Write the letter only. DO NOT EXPLAIN
YOUR ANSWER. (2%)

[a] Raffy will declare as his income the salaries of both spouses, while Wena will declare
the income from the coffee shop.

[b] Wena will declare the combined compensation income of the spouses, and Raffy will
declare the income from the coffee shop.

[c] All the income will be declared by Raffy alone, because only one consolidated return
is required to be filed by the spouses.

[d] Raffy will declare his own compensation income and Wena will declare hers. The
income from the coffee shop shall be equally divided between them. Each spouse shall be
taxed separately on their corresponding taxable income to be covered by one consolidated
return for the spouses.

[e] Raffy will declare his own compensation income and Wena will declare hers. The
income from the coffee shop shall be equally divided between them. Raffy will file one
income tax return to cover all the income of both spouses, and the tax is computed on the
aggregate taxable income of the spouses.
XII

YYY Corporation engaged the services of the Manananggol Law Firm in 2006 to defend
the corporation’s title over a property used in the business. For the legal services
rendered in 2007, the law firm billed the corporation only in 2008. The corporation duly
paid.

YYY Corporation claimed this expense as a deduction from gross income in its 2008
return, because the exact amount of the expense was determined only in 2008. Is YYY’s
claim of deduction proper? Reasons. (4%)

XIII

In 1999, Xavier purchased from his friend, Yuri, a painting for P500,000.00. The fair
market value (FMV) of the painting at the time of the purchase was P1-million. Yuri paid
all the corresponding taxes on the transaction. In 2001, Xavier died. In his last will and
testament, Xavier bequeathed the painting, already worth P1.5-million, to his only son,
Zandro. The will also granted Zandro the power to appoint his wife, Wilma, as successor
to the painting in the event of Zandro’s death. Zandro died in 2007, and Wilma
succeeded to the property.

[a] Should the painting be included in the gross estate of Xavier in 2001 and thus, be
subject to estate tax? Explain. (3%)

[b] Should the painting be included in the gross estate of Zandro in 2007 and thus, be
subject to estate tax? Explain. (3%)

[c] May a vanishing deduction be allowed in either or both of the estates? Explain. (3%)

XIV

Emiliano Paupahan is engaged in the business of leasing out several residential apartment
units he owns. The monthly rental for each unit ranges from P8,000.00 to P10,000.00.
His gross rental income for one year is P1,650,000.00. He consults you on whether it is
necessary for him to register as a VAT taxpayer. What legal advice will you give him,
and why? (4%)

XV

Miguel, a citizen and resident of Mexico, donated US$1,000.00 worth of stocks in Barack
Motors Corporation, a Mexican company, to his legitimate son, Miguelito, who is
residing in the Philippines and about to be married to a Filipino girlfriend. Mexico does
not impose any transfer tax of whatever nature on all gratuitous transfers of property.

[a] Is Miguel entitled to claim a dowry exclusion? Why or why not? (3%)
[b] Is Miguel entitled to the rule of reciprocity in order to be exempt from the Philippine
donor’s tax? Why or why not? (3%)

XVI

Ernesto, a Filipino citizen and a practicing lawyer, filed his income tax return for 2007
claiming optional standard deductions. Realizing that he has enough documents to
substantiate his profession-connected expenses, he now plans to file an amended income
tax return for 2007, in order to claim itemized deductions, since no audit has been
commenced by the BIR on the return he previously filed. Will Ernesto be allowed to
amend his return? Why or why not? (4%)

XVII

A final assessment notice was issued by the BIR on June 13, 2000, and received by the
taxpayer on June 15, 2000. The taxpayer protested the assessment on July 31, 2000. The
protest was initially given due course, but was eventually denied by the Commissioner of
Internal Revenue in a decision dated June 15, 2005. The taxpayer then filed a petition for
review with the Court of Tax Appeals (CTA), but the CTA dismissed the same.

[a] Is the CTA correct in dismissing the petition for review? Explain your answer. (4%)

[b] Assume that the CTA’s decision dismissing the petition for review has become final.
May the Commissioner legally enforce collection of the delinquent tax? Explain. (4%)

XVIII

A taxpayer received an assessment notice from the BIR on February 3, 2009. The
following day, he filed a protest, in the form of a request for reinvestigation, against the
assessment and submitted all relevant documents in support of the protest. On September
11, 2009, the taxpayer, apprehensive because he had not yet received notice of a decision
by the Commissioner on his protest, sought your advice.

What remedy or remedies are available to the taxpayer? Explain. (4%)

XIX

Johnny transferred a valuable 10-door commercial apartment to a designated trustee,


Miriam, naming in the trust instrument Santino, Johnny’s 10-year old son, as the sole
beneficiary. The trustee is instructed to distribute the yearly rentals amounting to
P720,000.00. The trustee consults you if she has to pay the annual income tax on the
rentals received from the commercial apartment.

[a] What advice will you give the trustee? Explain. (3%)

[b] Will your advice be the same if the trustee is directed to accumulate the rental income
and distribute the same only when the beneficiary reaches the age of majority? Why or
why not? (3%)

XX

Masarap Food Corporation (MFC) incurred substantial advertising expenses in order to


protect its brand franchise for one of its line products. In its income tax return, MFC
included the advertising expense as deduction from gross income, claiming it as an
ordinary business expense. Is MFC correct? Explain. (3%)

*** END OF PART II ***

RETURN THIS QUESTIONNAIRE WITH YOUR BOOKLET