REMEDIAL LAW AND FRIA

The following are basic doctrines, principles, rules and theories in remedial law that all law
students and bar candidates should remember.

[1] AUTER ACTION PENDANT: It refers to the situation where two actions are pending
between the same parties for the same cause of action, so that one of them becomes unnecessary
and vexatious. It is based on the policy against multiplicity of suits.

[2] BERRY RULE: Filing of motion for new trial based on newly discovered evidence which
cannot be produced in court despite exercise of due diligence, and if considered would probably
alter the outcome of the case.

[3] BUBBLE BURST THEORY: The rule on presumption of law shall not apply in case there is
evidence to the contrary.

[4] CHAIN OF CUSTODY: Is "the duly recorded authorized movements and custody of seized
drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of
each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction." (see also: People vs. Alivio, G.R. No.
177771, May 30, 2011).

[5] CONTINUING THREAT: In order that writ of amparo can be issued, the threat on the right
to life liberty or security must be actual and continuing and not merely imaginary, thereby
depriving the petitioner of his said right from the inception up to the termination of the case.

[6] FALSA DEMONSTRATIO NON NOCET: It is a rule which states that where there are two
descriptions in a deed, the one as it were, super added to the other, and one description being
complete and sufficient in itself, and the other which is subordinate and super added is incorrect,
the incorrect description or feature or circumstance of the description is rejected as a surplusage,
and the complete and correct description is allowed to stand alone. (Please see: Myers vs. Ladd,
26 Ill, 515, 417)

[7] FRESH PERIOD: It is a procedural law as it prescribes a fresh period of 15 days within
which an appeal may be made in the event that the motion for reconsideration is denied by the
lower court. Following the rule on retroactivity of procedural laws, the “fresh period rule” should
be applied to pending actions, such as the present case. (Priscilla Alma Jose vs. Ramon
Javellana, et al., G.R. No. 158239, January 25, 2012)

[8] FRUIT OF THE POISONOUS TREE: The warrant issued by the judge did not comply with
the requisites of the law, and therefore, void, or when the search made without warrant is
unjustifiable, whether it is found or discovered afterwards, cannot be used as evidence against
the suspect. The items or articles obtained are the “fruits of a poisoned tree.”(People vs. Burgos,
144 SCRA 1; People vs. Montilla, 285 SCRA 703; Manalili vs. CA, 280 SCRA 400)

[9] HYPOTHETICAL ADMISSION or PRESUMPTION OF TRUTH: When a motion to

dismiss is filed, the material allegations of the complaint are deemed to be hypothetically

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admitted. This hypothetical admission, extends not only from the relevant and material facts well
pleaded in the complaint, but also to inferences that may be fairly deduced from them. (The
Municipality of Hagonoy, Bulcan, et al. vs. Hon. Simeon Dumdum, Jr., G.R. No. 168289, March
22, 2010)

[10] IMMUTABILITY OF JUDGMENT: Once the judgment becomes final and executory, it
can no longer be amended, set aside, or disturbed

[11] INDEPENDENT RELEVANT STATEMENT: Regardless of the truth or falsity of a

statement, when what is relevant is the fact that such statement has been made, the hearsay rule
does not apply and the statement may be shown. (Jose Espinelia.k.aDaniloEspineli vs. People of
the Philippines, G.R. No. 179535, June 9, 2014)

[12] INTERLOCKING CONFESSION: These are extrajudicial confessions which were

independently made without collusion, are identical with each other in their material respects and
confirmatory of the other. They are, therefore, also admissible as circumstantial evidence against
their co-accused implicated therein to show the probability of the latter’s actual participation in
the commission of the crime.

[13] JUDICIAL COURTESY: “[d]ue respect for the Supreme Court and practical and ethical
considerations should have prompted the appellate court wait for the final determination of the
petition [for certiorari] before taking cognizance of the case and trying to render moot exactly
what was before this [C]ourt.” The principle of judicial courtesy applies only “if there is a strong
probability that the issues before the higher court would be rendered moot and moribund as a
result of the continuation of the proceedings in the lower court.”(Juan Trajano aka Johnny vs.
Uniwide Sales Warehouse ClubG.R. 190253, June 11, 2014)

[14] LAW OF THE CASE: It has been defined as the opinion delivered on a former appeal, and
means, more specifically, that whatever is once irrevocably established as the controlling legal
rule of decision between the same parties in the same case continues to be the law of the case,
whether correct on general principles or not, so long as the facts on which such decision was
predicated continue to be the facts of the case before the court.

[15] MATERIAL DATES: Under the material dates rule, a petition must alleged three (3)
material dates which is necessary which are as follows: 1) The date when the judgment or final
order or resolution was received; 2) The date when the motion for reconsideration or new trial
was filed; and 3) The date when the notice of the denial thereof was received. (Great Southern
Maritime Services Corporation vs. Acuna, 452 SCRA 422, February 28, 2005)

[16] NON-PROSEQUITUR: Once a case is dismissed for failure to prosecute, the dismissal has
the effect of an adjudication on the merits and is understood to be with prejudice to the filing of
another action unless otherwise provided in the order of dismissal.

[17] NON-SUITED: Failure of the plaintiff to appear on the scheduled pre-trial conference
would result to the dismissal of the case with prejudice, unless otherwise ordered by the court to
be without prejudice.

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[18] PARTY AUTONOMY: Parties have the freedom to expressly stipulate or agree by virtue of
written agreement on how their disputes will be settled by submitting their differences to an
arbitrator before an action may be commenced in court.

[19] PRESUMED IDENTITY APPROACH: Where a foreign law is not pleaded or, even if
pleaded, is not proved, the presumption is that foreign law is the same as ours. (ATCI Overseas
Corporation, Amalia G. Ikdal And Ministry Of Public Health-Kuwait Vs. Ma. JosefaEchin, G.R.
No. 178551, October 11, 2010)

[20] PRIMARY JURISDICTION: When an administrative body is clothed with original and
exclusive jurisdiction, courts are utterly without power and authority to exercise concurrently
such jurisdiction. Accordingly, all the proceedings of the court in violation of that doctrine and
all orders and decisions reached are null and void. (Manolito Agra, et al., vs. Commission on
Audit, G.R. No. 167807, December 6, 2011)

[21] RECOUPMENT: A compulsory counterclaim arises out of or is connected with the

transaction or occurrence constituting the subject matter of the opposing party’s claim which
does not require the presence of a third person over whom the court cannot acquired jurisdiction;

[22] RELAXED ADMISSIBILITY OF EVIDENCE : In the proper resolution of the case, the
court has the discretion to admit a rather inadmissible evidence provided it has a relation to other
evidence already presented which is relevant to the fact in issue in the case.

[23] RES JUDICATA IN PRISON GREY: Accused cannot be twice put in jeopardy of an
offense, acquittal or conviction in either one will bar the prosecution for another offense, or his
was terminated without the express consent of the accused.

[24] SET-OFF: A permissive counterclaim does not arise out of and is not connected with the
transaction or occurrence constituting the subject matter of the opposing party’s claim which
required the presence of a third person for its adjudication;

[25] SEXUAL ABUSE SHIELD: The following evidence is not admissible in any criminal
proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged
victim engaged in other sexual behavior; and(2) Evidence offered to prove the sexual
predisposition of the alleged victim. (b) Exception.— Evidence of specific instances of sexual
behavior by the alleged victim to prove that a person other than the accused was the source of
semen, injury, or other physical evidence shall be admissible.

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[26] STATUTE OF NON-CLAIMS: Immediately after granting letters testamentary or
administration, the court shall issue a notice requiring all persons having money claims against
the decedent to file them in the office of the clerk of court which shall state the time of the filing
of the claim against estate, which shall not be more than twelve (12) months but less than six (6)
months after the date of first publication of the notice, but before distribution is entered, upon
application of an unpaid creditor who failed to file his claim, the court on cause shown may
allow the claim to be filed within the time not exceeding one (10 month.

[27] STRONG ARM OF EQUITY: At times referred to as the “Strong Arm of Equity,” [the
Court has] consistently ruled that there is no power the exercise of which is more delicate and
which calls for greater circumspection than the issuance of an injunction. It should only be
extended in cases of great injury where courts of law cannot afford an adequate or commensurate
remedy in damages; “in cases of extreme urgency; where the right is very clear; where
considerations of relative inconvenience bear strongly in complainant’s favor; where there is a
willful and unlawful invasion of plaintiff’s right against his protest and remonstrance, the injury
being a continuing one, and where the effect of the mandatory injunction is rather to re-establish
and maintain a pre-existing continuing relation between the parties, recently and arbitrarily
interrupted by the defendant, than to establish a new relation.”(Thunder Security and
Investigation Agency vs. National Food Authority, supra)

[28] TRANSCENDENTAL IMPORTANCE: Suspension of the rules of procedure in case the

subject matter of the action is of great importance/involving national interest;

[29] TWO-DISMISSAL: When the notice operates as an adjudication upon the merits when filed
by a plaintiff who has once dismissed in a competent court an action based on or including the
same claim.

[30] VIATORY RIGHT OF WITNESS: If the witness resides more than 100 km from the place
where he is to travel by the ordinary course of travel, or if he is a detention prisoner and no
permission is obtained from the court in which his case is pending, then he cannot be compelled
to attend the trial. The right is available only in CIVIL cases.
x x x."

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FRIA
The following is a list of proceedings under the Financial Rehabilitation and Insolvency Act (RA
10142) and the pertinent parties:

1.) Voluntary Rehabilitation/Debtor-initiated Rehab

For voluntary rehab of a sole proprietorship, it’s the owner who will approve or file the petition.
In case of a partnership, it has to be the majority of the partners. For a corporation, the petition
must be approved/filed by the majority of the board of directors/trustees as well as stockholders
representing 2/3 of the outstanding capital stock, or 2/3 of the members in case of non-stock
corporations.

2.) Involuntary Rehabilitation/Creditor-initiated Rehab

For the involuntary rehab of a sole proprietorship, partnership or corporation, the petition must
be filed/approved by a creditor or group of creditors with a claim or aggregate claim equal to at
least 25% of the subscribed capital stock/partners’ contributions or at least Php1,000,000.00 –
whichever is higher.

3.) Pre-Negotiated Rehab

This is for the petition for the approval of the pre-negotiated rehab plan and applies to sole
proprietorships, partnerships and corporations. The insolvent debtor and the rehab plan must be
approved by creditors holding at least 2/3 of the debtor’s total liabilities including secured
creditors holding more than 50% of the secured claims and unsecured creditors holding more
than 50% of the unsecured claims.

4.) Voluntary Liquidation

An insolvent debtor in a partnership, sole proprietorship or corporation will file/approve the

petition for voluntary liquidation.

5.) Involuntary Liquidation

This covers corporations, sole proprietorships and partnerships. The petition must be
filed/approved by 3 or more creditors with an aggregate claim of at least Php1,000,000.00 or
25% of the outstanding capital stock/partner’s contributions –whichever is higher.

6.) Suspension of Payment

The individual debtor files/approves the petition.

7.) Voluntary Liquidation

The individual debtor files/approves. He must have at least Php500,000.00 in debts and doesn’t
have sufficient assets to pay his liabilities.

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8.) Involuntary Liquidation

The subject is once again the individual debtor and the petition is for acts of insolvency. The
petition is filed by a creditor/group of creditors whose claim/aggregate claim is at least
Php500,000.00.