Professional Documents
Culture Documents
2018 Bar Exam Questions Suggested Answers
2018 Bar Exam Questions Suggested Answers
SUGGESTED ANSWERS
to the
2018 BAR EXAMINATIONS IN
POLITICAL AND INTERNATIONAL LAW
Congress enacted a law to provide Filipinos, especially the poor and the
marginalized, access and information to a full range of modern family planning
methods, including contraceptives, intrauterine devices, injectibles, non-
abortifacient hormonal contraceptives, and family planning products and
supplies, but expressly prohibited abortion. To ensure its objectives, the law
made it mandatory for health providers to provide information on the full range
of modern family planning methods, supplies and services, for schools to
provide reproductive health education, for non-governmental medical
practitioners to render mandatory 48 on hours pro bono reproductive health
services as a condition to Philhealth accreditation, and for couples desiring to
marry attend a family planning seminar prior to issuance to a marriage license. It
also punishes certain acts of refusal to carry out its mandates. The spouses
Aguiluz, both Roman Catholics, filed a petition to declare the law as
unconstitutional based on, among others, the following grounds:
1
SUGGESTED ANSWER:
(a) The law in question does not sanction abortion even in practical
terms. In the case of Imbong v. Ochoa (GR No. 204819, April 8,
2014), the law on its face expressly mentioned that abortion is
not permissible, and this was the determinative factor in making
the ruling. In the same case, the Court also found that the RH
law was replete with provisions that embody the policy of
protecting the unborn from the moment of fertilization.
In addition, the majority of the court believes that the
question of when life starts is a scientific and medical issue;
hence, the Court refused to make a ruling on this issue.
(b) Involuntary servitude denotes compulsion or coercion to do
something either through force, threats, intimidation or other
means. The accreditation with the PhilHealth, as ruled by the
Supreme Court in the case of Imbong v. Ochoa, should be
viewed as an incentive and not a punishment. These health
service providers also enjoy the liberty to choose which kind of
health service they wish to provide. Clearly, there is no
compulsion, force or threat upon them to render the pro bono
services against their will.
(c) What is prohibited in the Constitution is the establishment of a
state religion. While the establishment clause in the Constitution
restricts what the government can do with religion, it also limits
what religious sects can or cannot do with the government. They
can neither cause the government to adopt their particular
doctrine as policy for everyone, nor can they cause the
government to restrict other groups. To do so would cause the
State to adhere to a particular religion, and thus establish a state
religion (Imbong v. Ochoa, GR No. 204819, April 8, 2014).
2
II
(a) Was the CA correct in saying that the writ of amparo rendered
unnecessary the issuance of the temporary protection order? (2.5%)
SUGGESTED ANSWER:
3
already entails the protection of the aggrieved party. Thus, since
the writ of amparo was already granted and issued, there is no
more need to issue a temporary protection order (Yano v.
Sanchez, G.R. No. 186640, Feb. 11, 2010; Rodriguez v.
Macapagal-Arroyo, G.R. Nos. 191805 & 193160, Nov. 15, 2011).
(b) Will the president’s immunity from suit continue even after his term
has ended, considering that the events covered by the petition took
place during his terms? (2.5%)
SUGGESTED ANSWER:
III
What and whose vote is required for the following acts: (2% each)
SUGGESTED ANSWER:
4
the government. Repealing such tax exemption, however, is not inimical to
such lifeblood and a simple majority is needed instead of a qualified
majority.
SUGGESTED ANSWER:
SUGGESTED ANSWER:
(c) The proposal for the amendment shall be valid, upon a vote of
three-fourths of all its Members (Article XVII, Section 1, 1). For
the effectivity of the amendment; however, the vote needed is
the majority of all those who voted (Article XVII, Section 4).
[Note: Any of these two answers should be acceptable as the
question is not clear on whether it is asking for the voting
requirement for the validity of the proposal or the effectivity of the
amendment].
SUGGESTED ANSWER:
(e) The extension of the period for the suspension of the privilege of the
writ of habeas corpus?
SUGGESTED ANSWER:
5
IV
Andres, a resident and registered voter of Cuatro municipality, ran and was
elected as member of Sangguniang Panlalawigan (SP) of Amaya in the 2010 and
2013 local elections.
While Andres was serving his second term as SP member, a law was
enacted re-apportioning the four towns of Amaya into two legislative districts:
Uno and Dos comprising the First District, and Tres and Cuatro comprising the
Second District.
In the 2016 local elections, Andres ran and was elected as member of the
SP of Amaya representing Second district.
Andres seeks your legal advice regarding his intention to run as a member
of the SP of Amaya for the Second District in the next local election in 2019.
What will you advise Andres? (2.5%)
SUGGESTED ANSWER:
State whether or not the following acts are constitutional: (2% each)
SUGGESTED ANSWER:
6
or naturalized, would be unconstitutional with respect to
appointments to collegiate courts (CA, CTA, Sandiganbayan)
because all appointees to these courts must be natural-born
citizens (Article VIII, Section 7).
(b) A law requiring all candidates for national or local elective offices to
be college degree holders;
SUGGESTED ANSWER:
(b) The law requiring all candidates for national or local elective
offices to be college degree holders should be considered as
unconstitutional with respect to national elective offices, because
it is not one of the qualifications specifically required for these
offices. The qualifications for these positions under the
Constitution are exclusive in character and the Congress would
be incompetent to prescribe this requirement as an additional
qualification for candidates for national elective office. This
additional requirement would, however, be valid with respect to
candidates for local elective posts (Social Justice Society v.
Dangerous Drugs Board, 570 SCRA 410).
SUGGESTED ANSWER:
7
SUGGESTED ANSWER:
SUGGESTED ANSWER:
VI
About one year after Alejandro assumed office, the Interim Central
Committee of Ang Araw expelled Alejandro from the party for disloyalty and
replaced him with Andoy, its second nominee. Alejandro questioned before the
Comelec his expulsion ad replacement by Andoy.
SUGGESTED ANSWER:
8
VII
The 2016 mayorality race in the City of Ardania included Arnaldo and
Anacleto as contenders.
In his Comment, Anacleto claimed that, a year prior to filing his CoC, he
had complied with all the requirements of R.A. No. 9225 (Citizenship Retention
and Re-acquisition of Act of 2003) to reacquire his Philippine citizenship by
taking an oath of allegiance and executing a sworn renunciation of his Spanish
citizenship. He defended the use of his Spanish passport subsequent to taking
his oath of allegiance to the Philippines as a practical necessity since he had yet
to obtain his Philippine passport despite reacquiring his Philippine citizenship.
Even after he secured his Philippine passport, he said he had to wait for the
issuance of a Schengen visa to allow him to travel to Spain to visit his wife and
minor children.
SUGGESTED ANSWER:
(a) The sole act of using a foreign passport does not divest Anacleto
of his Filipino citizenship which he acquired by repatriation. By
representing himself as a Spanish citizen; however, Anacleto
voluntarily and effectively reverted to his earlier status as a dual
citizen. Such reversion was not retroactive; it took place the
instant Anacleto represented himself as a Spanish citizen by
using his Spanish passport. He is, thus, disqualified for being a
dual citizen, and his CoC should be cancelled (Macquiling v.
Comelec, G.R. No. 195649, April 16, 2013).
[Note: The use of the foreign passport amounts to a recantation of
the Oath of Renunciation required to qualify one to run for an
elective position].
9
(b) In case Anacleto’s CoC is properly cancelled, who should serve as
mayor of Ardania City: Arnaldo, who obtained the second highest
number votes, or Andrea, the duly-elected Vice Mayor of the City?
(2.5%)
SUGGESTED ANSWER:
VIII
The first petition was against Anselmo. Years, ago, Anselmo was charged
and convicted of the crime of rape by final judgment, and was sentenced to suffer
the principal penalty of reclusion perpetua which carried the accessory penalty
of perpetual absolute disqualification. While Anselmo was in prison, the
President commuted his sentenced and he was discharged for prison.
10
Both Anselmo and Ambrosio filed separate petitions with the Supreme
Court assailing the resolutions cancelling their respective CoCs. Both claimed
that the Comelec en banc acted with grave abuse of discretion amounting to lack
or excess of jurisdiction because the petition should have first heard and resolved
by one of the Comelec’s Division.
SUGGESTED ANSWER:
IX
In 2009, Agripina filed her certificate of candidacy for Congress for the
2010 elections. Agripina’s political rivals lost no time in causing the filing of
various actions to question her candidacy. They questioned her eligibility to run
as member of Congress. Since Agripina had to take an oath under RA No. 9225,
it meant that she needed to perform an act to perfect her Philippine citizenship.
11
They claimed, therefore, that Agripina could not be considered a natural-born
citizen. Agripina raised the defense that, having complied with the requirements
of RA No. 9225, she had reacquired, and was deemed never to have lost, her
Philippine citizenship.
SUGGESTED ANSWER:
12
X
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
(b) A law prohibiting any court, other than the Supreme Court, from
issuing a writ of injunction against an investigation being conducted
by the Ombudsman.
SUGGESTED ANSWER:
13
promulgate. The law therefore is an encroachment of the
Court's rule-making power (Carpio-Morales v CA, GR 217126-
27, 10 Nov 2015).
(c ) A law prohibiting any appeal from the decision or final order of the
Ombudsman in an administrative proceeding, except through a
petition for review on certiorari filed before the Supreme Court.
SUGGESTED ANSWER:
XI
14
The constitutionality of Section 6, Article V of the VFA is challenged on
two grounds: (1) it nullifies the exclusive power of the Supreme Court to adopt
rules of procedure for all courts in the Philippines; and (2) it violates the equal
protection clause to the extent that it allows the transfer of the custody of an
accused to a foreign power as providing a different rule of procedure for that
accused.
SUGGESTED ANSWER:
XII
15
Section 6 of Article IX-A of the Constitution allows each of the
Constitutional Commissions “en banc [to] promulgate its own rules concerning
pleadings and practice before it or before any of its offices. Such rules however
shall not diminish, increase, or modify substantive rights.”
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
Although the Rules of Procedure of the Sandiganbayan are covered by
the disapproval authority of the Supreme Court as stated in Section 5(5) of
Article VIII of the Constitution, the same thing cannot be said for the Rules
of Procedure promulgated by Congress by virtue of the doctrine of
separation of powers, unless these rules are tainted with grave abuse of
16
discretion. The Rules of Procedure of Constitutional Commissions are
likewise outside the disapproval authority of the Supreme Court as these
commissions are deliberately placed in the Constitution to be independent,
unless these are tainted with grave abuse of discretion.
XIII
PO1 Adrian argues against the admissibility of the urine test results and
seeks its exclusion. He claims that the mandatory drug test under RA No. 9165
is a violation of the accused’s right to privacy and against self-incrimination.
SUGGESTED ANSWER:
PO1 Adrian is correct that his rights to privacy and against self-
incrimination have been violated. The results of the “confirmatory” urine
test should therefore be rejected as evidence against him.
It should be noted that RA 9165 allows the conduct of urine tests only
for persons arrested for acts prohibited under said law, such as, among
others, the manufacturing, sale, use or possession of illegal drugs, and not
for any unlawful act, like extortion, for which PO1 Adrian was arrested (De
la Cruz v. People, G.R. No. 200748, July 23, 2014).
XIV
Amoroso was charged with treason before a military court martial. He was
acquitted.
He was later charged with the same offense before a Regional Trial Court.
He asks that the information be quashed on the ground of double jeopardy.
17
The prosecution objects, contending that for purpose of double jeopardy,
the military court martial cannot be considered as a “competent court”.
Should the Regional Trial Court grant Amoroso’s motion to quash on the
ground of double jeopardy? (2.5%)
SUGGESTED ANSWER:
XV
The Republic invoked state immunity and moved for the dismissal of the
case on the ground that it had not consented to be sued. Should the Republic’s
motion be granted? (2.5%)
SUGGESTED ANSWER:
18
That no consent was given by the Republic is shown by the fact that
the Bureau or the Government did seem to have complied with the demands
of the deed of donation.
Compliance with the state immunity is essential for two reasons:
1. It is required as a provision of the Constitution; and
2. Immunity is an essential element of state sovereignty.
ALTERNATIVE ANSWER:
The motion should be denied.
The doctrine of governmental immunity from suit cannot serve as an
instrument for perpetrating an injustice on a citizen. Here, the alleged
failure to abide by the conditions under which a donation was given should
not prove an insuperable obstacle to a civil action, the consent likewise being
presumed when the State entered into a contract. Under the circumstances,
the fundamental postulate of non-suability of the state cannot stand in the
way (Santiago vs. Republic, G.R. No. L-48214, December 19, 1978).
XVI
Five foreign nationals arrived at the NAIA from Hong Kong. After
retrieving their checked-in luggage, they placed all their bags in one pushcart and
proceeded to Express Lane 5. They were instructed to place their luggage on the
examiner’s table for inspection.
Can the shabu found inside the boxes admitted in evidence against the five
foreigners for the charge of illegal possession of drugs in violation of the
Comprehensive Dangerous Drugs Act of 2002? (2.5%)
19
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
XVII
Upon arriving at the police station, Ariston saw the City Mayor, whom he
approached and asked if they could talk privately. The mayor led Ariston to his
office and, while there in conversation with the Mayor, Ariston broke down and
admitted that he raped and killed the student. The mayor thereafter opened the
door of the room to let the public and media representatives witness Ariston’s
confession. In the presence of the Mayor, the police and the media, and in
response to questions asked by some members of the media, Ariston sorrowfully
confessed his guilt and sought forgiveness for his actions.
20
SUGGESTED ANSWER:
XVIII
The bag containing the ransom money was placed inside an unlocked trunk
of a car which was parked at the Angola Commercial Center in Mandaluyong
City.
The first police team, stationed in an area near where the car was parked,
witnessed the retrieval by the kidnappers on the bag from the unlocked trunk.
The kidnappers thereafter boarded their car and proceeded towards the direction
of Amorsolo St. in Makati City where the second police team was waiting.
21
Upon confirmation by radio report from the first police team that the
kidnappers were heading towards their direction, the second police team
proceeded to conduct surveillance on the car of the kidnappers, eventually saw it
enter Ayala Commercial Center in Makati City, and the police team finally
blocked it when it slowed down. The members of the second police team
approached the vehicle and proceeded to arrest the kidnappers.
SUGGESTED ANSWER:
XIX
President Alfredo died during his third year in office. In accordance with
the Constitution, Vice President Anastasia succeeded him. President Anastasia
then nominated the late President Alfredo’s Executive Secretary, Anna Maria, as
her replacement as Vice President. The nomination was confirmed by a majority
of all the Members of the House of Representatives and the Senate, voting
separately.
22
SUGGESTED ANSWER:
SUGGESTED ANSWER:
Yes, Anastacia can still run as President in the next election since she
has served for less than four years. Section 4, Article VII provides that “no
person who has succeeded as President and has served as such for more than
four years shall be qualified for election to the same office at any time.”
XX
Andreas and Aristotle are foreign nationals working with the Asian
Development Bank (ADB) in its headquarters in Manila. Both were charged
with criminal acts before the local trial courts.
Andreas was caught importing illegal drugs into the country as part of his
“personal effects” and was thus charged with violation of Comprehensive
Dangerous Drugs Act of 2002. Before the criminal proceedings could
commence, the President had him deported as an undesirable alien. Aristotle was
charged with grave oral defamation for uttering defamatory words against a
colleague at work. It his defense, Aristotle claim diplomatic immunity. He
presented as proof a communication from the Department of Foreign Affairs
stating that, pursuant to the Agreement between the Philippine Government and
the ADB, the bank’s officers and staff are immune from legal processes with
respect to acts performed by them in their official capacity.
SUGGESTED ANSWER:
23
204105, October 14, 2015). An act of State is one done by the
sovereign power of a country, or by its delegate, within the limits
of the power vested in him. An act of State cannot be questioned
or made the subject of legal proceedings in a court of law
(Black’s Law Dictionary, 4th ed., 44). With particular reference to
Political Law, an act of State is an act done by the political
departments of the government and not subject to judicial
review.
SUGGESTED ANSWER:
-NOTHING FOLLOWS-
24
Training & Convention Division
University of the Philippines Law Center
SUGGESTED ANSWERS
to the
2018 BAR EXAMINATIONS IN
LABOR LAW
I
Narciso filed a complaint against Norte University for the payment of
retirement benefits after having been a part-time professional lecturer in the
same school since 1974. Narciso taught for two semesters and a summer term
for the school year 1974-1975, took a leave of absence from 1975 to 1977, and
resumed teaching until 2003. Since then, his contract has been renewed at the
start of every semester and summer, until November 2005 when he was told
that
he could no longer teach because he was already 75 years old. Norte
University also denied Narciso's claim for retirement benefits stating that only
full-time permanent faculty, who have served for at least five years
immediately preceding the termination of their employment, can avail
themselves of post-employment benefits. As part-time faculty member, Narciso
did not acquire permanent employment status under the Manual of Regulations
for Private Schools, in relation to the Labor Code, regardless of his length of
service.
(a) Is Narciso entitled to retirement benefits? (2.5%)
SUGGESTED ANSWER:
1
ALTERNATIVE ANSWERS:
SUGGESTED ANSWER:
2
II
SUGGESTED ANSWER:
(a) No. The motion should be denied. Under Article 240 of the
Labor Code (LC), a petition for certification election may be
filed on the basis of a valid charter certificate issued to a
chartered local by a duly registered federation.
SUGGESTED ANSWER:
(b) No. The existence of another chartered local under the same
federation within the same bargaining unit is not among the
grounds to cancel union registration under Article 247 LC, as
amended by RA 9481.
ALTERNATIVE ANSWER:
(b) Petition for cancellation of union registration filed by employer
Neuman Corporation may prosper. While the employer may
file a case as it is considered a party-in-interest in cancellation
proceedings (Del Castillo, Asian Institute of Management v
Asian Institute of Management Faculty Association, G.R. No.
207971, January 23, 2017), the union’s certification may be
revoked or cancelled if it appears that there are sufficient
grounds for its cancellation viz., fraud or misrepresentation in
3
the election of officers xxx; fraud or misrepresentation in the
ratification of constitution and by-laws.
III
(a) Does the NLRC have jurisdiction to award money claims including
interest on the amount unpaid? (2.5%)
SUGGESTED ANSWER:
(a) The NLRC has jurisdiction over money claims arising from an
employer-employee relationship where the amount claimed is
in excess of PhP 5,000, including interest, regardless of whether
or not there is a claim for reinstatement. (Sec. 10, RA 8042, as
amended by RA 10022.
(b) Assuming that the NLRC has jurisdiction, has the action
prescribed?(2.5%)
SUGGESTED ANSWER:
4
of the complaint. Great injustice would be committed if the
employee’s claim were brushed aside on mere technicality,
especially when it was the employer’s action that prevented
Nicanor from filing the claims within the required period.
ALTERNATIVE ANSWER:
(b) Yes, the action has unfortunately prescribed as there is only a
three-year prescriptive period for monetary claims under the
Labor Code as in the case of retirement benefits.
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
IV
5
(a) What is the most procedurally peaceful means to resolve this
dispute? (2.5%)
SUGGESTED ANSWER:
(a) The parties may resolve this through plant-level mechanisms
such as a labor-management committee or a grievance
machinery under a collective bargaining agreement.
(b) Can the workers claim both separation pay and retirement
benefits? (2.5%)
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
(b) Yes. In the absence of any express or implied prohibition
against it, collection of both retirement benefits and separation
pay upon severance from employment is allowed. This is
grounded on the social justice policy that doubts should always
be resolved in favor of labor (Goodyear Philippines, Inc. v.
Angus, G.R. No. 185449, November 12, 2014).
6
below the prescribed
minimum. The hotel also claimed that she was not
entitled to holiday pay and
night shift differential pay because hotel workers
have to work on holidays and
may be assigned to work at night.
(a) Does the hotel have valid legal grounds to deduct food and lodging
costs from Nelda's basic salary? (2.5%)
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
(a) No. In Atok Big Wedge Association v. Atok Big Wedge Company,
(G.R. No. L-7349, July 19, 1955), the Supreme Court
distinguished facilities from supplement. Supplements
constitutes extra remuneration given to laborers above their
wage. Facilities are items of expense necessary for the laborer’s
and his family’s existence and subsistence. Board and
lodging are treated as supplement if the company benefits
from the employees not going home anymore or not leaving his
work station to eat. Since Nelda is a chambermaid, her board
and lodging should be treated as supplement.
(b) Applying labor standards law, how much should Nelda be paid for
work done on Good Friday? Show the computation in your test
booklet and encircle your final answer. (2.5%)
7
SUGGESTED ANSWER:
VI
A certification election was conducted in Nation Manufacturing
Corporation, whereby 55% of eligible voters in the bargaining unit cast their
votes. The results were as follows:
SUGGESTED ANSWER:
(b) Assume that the eligibility of 30 voters was challenged during the
pre-election conference. The ballots of the 30 challenged voters
were placed inside an envelope sealed by the DOLE Election
Officer. Considering the said envelope remains sealed, what
should
be the next course of action with respect to the said
challenged votes? (2.5%)
SUGGESTED ANSWER:
8
challenged votes should be opened. Pursuant to Rule IX,
Section 11 of the Rules Implementing Book V of the Labor
Code, the envelope with the challenged votes shall be
opened and the question of eligibility shall be passed upon
by the DOLE med-arbiter.
VII
SUGGESTED ANSWER:
ALTERNATIVE ANSWER :
9
demandable and enforceable as a matter of right. The “basic salary” of an
employee for the purposes of computing the 13th month pay include all
remuneration or earnings paid by his employer for services rendered but
does not include allowances and monetary benefits which are not
considered or integrated as part of the regular or basic salary (Protacio v.
LayaMananghaya & Co., G.R. No. 168654, March 25, 2009).
10
VIII
(b) the Contractor shall employ the necessary personnel like helpers,
salesmen, and drivers who are determined by the Contractor to be
efficiently trained;
(d) the Contractor's personnel will comply with the Client's policies,
rules, and regulations; and
(e) the Contractor's two service vehicles and necessary equipment will
be utilized in carrying out the provisions of this Agreement.
SUGGESTED ANSWER:
Yes, Nathaniel is correct. Similar to the case of Coca-Cola Bottlers
Philippines, Inc. v. Agito, (G.R. No. 179546, February 13, 2009), the lack of
control by the Contractor (Newmark) over the worker Nathaniel can be
gleaned from the Service Agreement. It is apparent that Newmark has to
comply with Nutrition City’s regulations, and that Nutrition City has the
right to request the replacement of Newmark’s personnel. It is likewise
apparent that the Agreement did not identify the work needed to be
performed and the final result to be accomplished, pointing to the
conclusion that Newmark did not obligate itself to perform an identifiable
job, work, or service. Nathaniel, thus, was under the control of Nutrition
City.
With respect to the service vehicles and equipment, these may not be
considered as substantial capital on the part of Newmark, as the facts do
not establish their sufficiency to carry out the Agreement. The presence of
11
Newmark’s vehicles and equipment did not necessarily preclude the use of
Nutrition City’s own capital and assets.
ALTERNATIVE ANSWER:
IX
Nelda and Narda, both for themselves and the latter, also on behalf of her
minor children, separately filed claims for compensation as a result of the death
of Sgt. Nemesis. The line of Duty Board of the AFP declared Sgt. Nemesis'
death to have been "in line of duty", and recommended that all benefits due to
Sgt. Nemesis be given to his dependents. However, the claims were denied by
GSIS because Sgt. Nemesis was not in his workplace nor performing his duty
as
a soldier of the Philippine Army when he died.
SUGGESTED ANSWER:
(a) The death of Sgt. Nemesis arose out of and in the course of his
employment as a soldier on active duty in the AFP and hence,
12
compensable. The concept of a “workplace” cannot always be
literally applied to a soldier on active duty. Sgt. Nemesis had
permission to go to Nueva Vizcaya and he and his companions
had permit to carry their firearms which they could use to
defend themselves when attacked. A soldier on active duty is
really on duty 24 hours a day since he can be called upon
anytime by his superiors, except when he is on vacation leave
status, which Sgt. Nemesis was not, at the time of his death
(Hinoguin v. ECC, G.R. No. 8430, April 17, 1989).
SUGGESTED ANSWER:
(b) To be considered as a beneficiary, the spouse must be the legal
spouse and living with the employee at the time of his death.
Nelda, as the surviving spouse who has been separated de facto
from the deceased employee, may still however be entitled if
the separation was due to the covered employee’s
abandonment of the spouse without valid reason, or for other
justifiable reasons. Narda, not being a legitimate spouse, is
not entitled to the benefits; however, the ECC may act as
referee and arbitrator between two (2) claimants to help each
other reach a mutually acceptable compromise settlement of
allocating the compensation among themselves and their
dependent children (Samar Mining Co. Inc. v. WCC, G.R. No.
L-29938-39, March 31, 1971).
(c) Are the minor children entitled to the benefits considering that they
were not fully dependent on Sgt. Nemesis for support? (2.5%)
SUGGESTED ANSWER:
(c) Being a dependent does not mean absolute dependency for the
necessities of life, but rather, that the claimant looked up to
and relied on the contribution of the covered employee for his
13
means of living as determined by his position in life. One need
not be in the deceased’s household in order to be a dependent.
(Malate Taxicab v. Del Villar G.R. No. L-7489, Feb. 29, 1956).
SUGGESTED ANSWER:
(b) No. Nonato was repatriated due to a finished contract and not
due to any accident or illness he suffered while on board N-
Train's vessel. Moreover, Nonato was declared fit-to-work by
14
the company-designated physician. Under the 2010 POEA-
SEC, if a doctor appointed by the seafarer disagrees with the
assessment of the company-designated physician, a third
doctor may be agreed upon jointly between the employer and
the seafarer. The third doctor’s decision shall be final and
binding on both parties. In this case, no third doctor was
appointed. Thus, the fit-to-work assessment by the company-
designated physician stands.
ALTERNATIVE EXPLANATION:
XI
Your favorite relative, Tita Nilda, approaches you and seeks your advice
on her treatment of her kasambahay, Noray. Tita Nilda shows you a document
called a "Contract of Engagement" for your review. Under the Contract of
Engagement, Noray shall be entitled to a rest day every week, provided that she
may be requested to work on a rest day if Tita Nilda should need her services
that day. Tita Nilda also claims that this Contract of Engagement should
embody all terms and conditions of Noray's work as the engagement of a
kasambahay is a private matter and should not be regulated by the State.
(a) Is Tita Nilda correct in saying that this is a private matter and
should not be regulated by the State? (2.5%)
SUGGESTED ANSWER:
15
regulated by the police power of the State. Through the Batas
Kasambahay (R.A. 10361), the State recognizes this employment
relationship and establishes minimum labor standards for
domestic workers, toward decent employment and income,
enhanced coverage of social protection and respect for human
rights, and strengthened social dialogue. Also, since domestic
workers are generally working women in vulnerable working
conditions, the State regulates domestic worker employment to
prevent abuse and exploitation and uphold the gender rights of
domestic workers.
(b) Is the stipulation that she may be requested to work on a rest day
legal? (2.5%)
SUGGESTED ANSWER:
(c) Are stay-in family drivers included under the Kasambahay Law?
(2.5%)
SUGGESTED ANSWER:
(c) No. Family drivers are not included under the Kasambahay
Law. A “Kasambahay” refers to any person engaged in
domestic work within an employment relationship such as, but
not limited to, the following: general househelp, nursemaid or
“yaya”, cook, gardener, or laundry person, but shall exclude
any person who performs domestic work only occasionally or
sporadically and not on an occupational basis.
16
ALTERNATIVE ANSWER:
(c) The Republic Act No. 10361 does not exclude family drivers
from the coverage of the Kasambahay law. It is only in the
Implementing Rules that the family drivers were excluded.
Note that the Labor Code explicitly includes “family drivers
and other persons in the personal service of another in the
coverage of the Labor Code, and hence, it is believed that the
family drivers should fall within the ambit of the Kasambahay
Law. The exclusion of driver in the Implementing Rules is
without basis.
Domestic helper or househelper or domestic servant
shall refer to any person, whether male or female, who renders
services in and about the employer’s home and which services
are usually necessary or desirable for the maintenance and
enjoyment thereof, and ministers exclusively to the personal
comfort and enjoyment of the employers’ family. Such
definition covers family drivers, domestic servants, laundry
women, yayas, gardeners, houseboys and other similar
househelps (Apex Mining Company, Inc. v. NLRC, 196 SCRA
251 [1991]).
XII
SUGGESTED ANSWER:
17
Golden Donuts, (G.R. No. 106341, September 2, 1994), the Supreme Court
held that a managerial employee is bound by more exacting work ethics,
with a high standard of responsibility. Sexual harassment of a subordinate
amounts to “moral perversity” which provides a justifiable ground for
dismissal due to lack of trust and confidence.
ALTERNATIVE ANSWER:
XIII
18
Nicodemus
asserted that wearing shorts and sneakers made him more
productive, and cited
his above-average output. When he came to work still in
violation of the uniform
policy, the company sent him a letter of termination
of employment. Nicodemus
filed an illegal dismissal case. The Labor Arbiter
ruled in favor of Nicodemus and
ordered his reinstatement with backwages.
Network Corporation, however,
refused to reinstate him. The NLRC 1st
Division sustained the Labor Arbiter's
judgment. Network Corporation still
refused to reinstate Nicodemus. Eventually,
the Court of Appeals reversed the
decision of the NLRC and ruled that the
dismissal was valid. Despite the
reversal, Nicodemus still filed a motion for
execution with respect to his
accrued backwages.
(a) Were there valid legal grounds to dismiss Nicodemus from his
employment?2.5%)
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
(a) The “dismissal too harsh” doctrine may be invoked which
means the illegal dismissal case filed by Nicodemus may
prosper. It may be argued that the “uniform policy” need not
warrant dismissal as penalty for violation, as it may have no
direct bearing on company operations. This is in the context of
Nicodemus’ above-average performance as an employee.
19
XIV
SUGGESTED ANSWER:
SUGGESTED ANSWER:
(b) No. Article 239 of the Labor Code provides that the
information and statements given in confidence at the
conciliation-mediation proceedings shall be treated as
privileged communication and shall not be used as evidence in
any arbitration proceeding, except when there is a waiver of
confidentiality. In the present case, Nelson’s willingness to
settle for 75% of his money claim may not be used against him
in the money claims case before the Regional Director due to
the confidentiality rule.
20
XV
(a) Yes. Nini and Nono, in effect, are supervisors as defined under
Article 219(m) who may join a supervisory union pursuant to
Article 255 of the Labor Code.
ALTERNATIVE ANSWER:
(a) No. Nini and Nono are confidential employees as they have
access to confidential labor relations information. The broad
rationale behind this rule is that employees should not be
placed in a position involving a potential conflict of interest
(San Miguel Corp. Supervisors and Exempt Employees Union v.
Laguesma, 277 SCRA 370 [1997]).
(b) May the two unions be affiliated with the same Union Federation?
(2.5%)
SUGGESTED ANSWER:
XVI
21
requirement for continued employment with Nagrab Corporation." Nagrab
Corporation subsequently acquired all the assets and rights of Nuber
Corporation and absorbed all of the latter's employees. Nagrab Union
immediately demanded enforcement of the above-stated CBA provision with
respect to the absorbed
employees. Nagrab Corporation refused on the ground
that this should not apply to the absorbed employees who were former
employees of another corporation whose assets and rights it had acquired.
SUGGESTED ANSWER:
(b) How would you advise the human resources manager of Nagrab
Corporation to proceed? (2.5%)
SUGGESTED ANSWER:
22
3) There is sufficient evidence to support the sole and
exclusive bargaining agent’s decision to expel the
employee from membership.
XVII
(a) Should all striking employees be admitted back to work upon the
assumption of jurisdiction by the Secretary of Labor and
Employment? Will these include striking employees who damaged
company properties? (2.5%)
SUGGESTED ANSWER:
(a) Yes. Under Article 278(g) of the Labor Code, all striking
employees shall immediately return to work and the employer
shall immediately resume operations and re-admit all workers
under the same terms and conditions prevailing before the
strike or lockout.
Regarding the striking union members who damaged
company property, the employer should still reinstate them,
but after their reinstatement, the employer may institute the
appropriate disciplinary proceedings, or raise the matter on
the illegality of the strike on the ground of violence and illegal
acts committed during the strike before the Secretary of Labor
and Employment assumed jurisdiction.
ALTERNATIVE ANSWER:
(a) Yes, all striking employees should be admitted to work upon
assumption of jurisdiction by the Secretary of DOLE. The
mere issuance of an assumption order by the Secretary
automatically carries with it a return-to-work order, even if
the directive to return to work is not expressly stated in the
23
assumption order (Telefunken Semiconductors Employees
Union-FFW v Court of Appeals, 348 SCRA 565 [2000]).
(b) May the company readmit strikers only by restoring them to the
payroll? (2.5%)
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
XVIII
Nestor and Nadine have been living in for the last 10 years without the
benefit of marriage. Their union has produced four children. Nadine was three
months pregnant with her 5th child when Nestor left her for another woman.
When Nadine was eight months pregnant with her 5th child, she applied for
maternity leave benefits. Her employer refused on the ground that this was
already her 5th pregnancy and that she was only living in with the father of her
child, who is now in a relationship with another woman. When Nadine gave
birth,
Nestor applied for paternity leave benefits. His employer also denied the
application on the same grounds that Nadine's employer denied her application.
24
(a) Can Nadine's employer legally deny her claim for maternity
benefits? (2.5%) .
SUGGESTED ANSWER:
(a) Yes, Nadine is not entitled to maternity benefits since it is only
available for the first four (4) deliveries or miscarriages. On
the other hand, her employer cannot refuse on the ground that
Nadine was only living in with her partner since a valid marriage is
not a condition for the grant of maternity leave benefits.
(b) Can Nestor's employer legally deny his claim for paternity
benefits? (2.5%)
SUGGESTED ANSWER:
(b) Yes, Nestor is not entitled to paternity benefits since it is only
available for the first four (4) deliveries or miscarriages of his
legitimate spouse with whom he is living with.
XIX
25
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
26
Pfizer Philippines, Inc] v. Albayda. Jr. G.R. No 172724, August
23, 2010). The mere fact that it would be inconvenient does
not by itself make the transfer illegal (DSS Security v. NLRC,
325 SCRA 157 [2000]).
SUGGESTED ANSWER:
XX
While Nad, Ned, and Nod were distributing the flyers at the company
assembly plant, a company supervisor barged in and demanded that they cease
from distributing the flyers, stating that the assembly line employees were
trying to beat a production deadline and were thoroughly distracted. Norlyn
tried to
show the HR manager's text message authorizing flyer distribution
during work
hours, but the supervisor brushed it aside.
27
As a result, Nad, Ned, and Nod were suspended for violating
company
rules on trespass and highly-limited union activities during work
hours. The Union filed an unfair labor practice (ULP) case before the NLRC for
union
discrimination.
(a) Will the ULP case filed by the Union prosper? (2.5%)
SUGGESTED ANSWER:
(a) Yes. The supervisor of Nad, Ned and Nod directly interfered
with union activities and ultimately with the right to self-
organization. Good faith can be ascribed to Nad, Ned and
Nod’s actions, as prior permission was obtained thru the HR
Manager who apparently failed to communicate such
permission to the plant supervisor.
ALTERNATIVE ANSWER:
(a) No. Unfair labor practice refers to acts that violate the
workers’ right to organize. The prohibited acts are related to
the workers’ right to self-organization, and to the observance
of the collective bargaining agreement. Without this element,
the acts of the Northern Light Corporation in suspending Nad,
Ned and Nod for violating company rules (on trespass and
highly-limited activities during work hours), even if unfair, are
not unfair labor practices (General Santos Coca-Cola Plant
Free Workers Union-TUPAS v Coca-Cola Bottlers Phil. Inc., GR
No. 178647, February 13, 2009).
(b) Assume the NLRC ruled in favor of the Union. The Labor Arbiter's
judgment included, among others, an award for moral and
exemplary damages at PhP50,000.00 each for Nad, Ned, and Nod.
Northern Lights Corporation argued that any award of damages
should be given to the Union, and not individually to its members.
Is
Northern Lights Corporation correct? (2.5%)
SUGGESTED ANSWER:
28
exemplary damages in illegal dismissal cases (applicable to
suspension) resulting from unfair labor practices may be made
in individual or aggregate amounts. If the offended parties can
be identified, then damages may be awarded individually, such
as in the case at hand.
- NOTHING FOLLOWS -
29
Training & Convention Division
University of the Philippines Law Center
SUGGESTED ANSWERS
to the
2018 BAR EXAMINATIONS IN
CIVIL LAW
Sidley and Sol were married with one (1) daughter, Solenn. Sedfrey and
Sonia were another couple with one son, Sonny. Sol and Sedfrey both perished in
the same plane accident. Sidley and Sonia met when the families of those who
died sued the airlines and went through grief-counseling sessions. Years later,
Sidley and Sonia got married. At that time, Solenn was four (4) years old and
Sonny was 5 years old. These two (2) were then brought up in the same
household. Fifteen (15) years later, Solenn and Sonny developed romantic
feelings towards each other, and eventually eloped. On their own and against
their parents’ wishes, they procured a marriage license and got married in church.
(a) Is the marriage of Solenn and Sonny valid, voidable, or void? (2.5%)
SUGGESTED ANSWER:
The marriage is voidable for lack of parental consent. At the time of
their marriage, Solenn and Sonny were only 19 and 20 years old,
respectively. Assuming their marriage was under the Family Code, Article 14
provides that parental consent is required where either or both of the parties
are between 18 and 21 years old at the time of marriage. In the absence of
such parental consent, Article 45 of the Family Code provides that the
marriage is voidable. Since the marriage was against their parents’ wishes,
their marriage is voidable. Unlike in the Civil Code, their being step-siblings
is immaterial under the Family Code and will not render the marriage void
since such is not considered incestuous nor against public policy.
SUGGESTED ANSWER:
Yes, it can be ratified by free cohabitation. Article 45(1) of the Family
Code provides that such voidable marriage may be ratified by free
1
cohabitation of the party/ies over 18 years old but below 21 who married
without the consent of his/her parents, by living together as husband and wife
after attaining the age of 21.
Here, Solenn and Sonny freely cohabitated and lived as husband and
wife after attaining 21 years, then the marriage is considered ratified,
provided that the parents have not filed an action for annulment before the
parties reached 21 years old.
II
After finding out that his girlfriend Sandy was four months pregnant,
Sancho married Sandy. Both were single and had never been in any serious
relationship in the past. Prior to the marriage, they agreed in a marriage
settlement that the regime of conjugal partnership of gains shall govern their
property relations during marriage. Shortly after the marriage, their daughter,
Shalimar, was born.
Before they met and got married, Sancho purchased a parcel of land on
installment, under a Contract of Sale, with the full purchase price payable in equal
annual amortizations over a period of ten (10) years, with no down payment, and
secured by a mortgage on the land. The full purchase price was PhP 1million,
with interest at the rate of 6% per annum. After paying the fourth (4th) annual
installment, Sancho and Sandy got married, and Sancho completed the payments
in the subsequent years from his salary as an accountant. The previous payments
were also paid out of his salary. During their marriage, Sandy also won
PhP1million in the lottery and used it to purchase jewelry. When things didn’t
work out for the couple, they filed an action for declaration of nullity of their
marriage based on the psychological incapacity of both of them. When the
petition was granted, the parcel of land and the jewelry bought by Sandy were
found to be the only properties of the couple.
SUGGESTED ANSWER:
2
(b) What system of property relationship will be liquidated following the
declaration of nullity of their marriage? (2.5%)
SUGGESTED ANSWER:
The property regime that will be liquidated is co-ownership under
Article 147 of the Family Code. When a man and a woman who are
capacitated to marry each other live exclusively with each other as husband
and wife under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through
their work or industry shall be governed by the rules on co-ownership
(Article 147, Family Code). Sancho and Sandy were capacitated to marry
each other; however, their marriage was declared void under Article 36.
(c) In the liquidation, who should get the parcel of land? The jewelry?
(2.5%)
SUGGESTED ANSWER:
Sancho should get the parcel of land while Sandy should get the
jewelry. According to Article 147 of the Family Code, property acquired
through their work or industry by a man and a woman, who are capacitated
to marry each other and who cohabited under a void marriage, shall be
governed by rules on co-ownership and in the absence of proof to the
contrary, properties acquired while they live together shall be presumed to
have been obtained by their joint efforts, work or industry. In the given case,
Sancho bought the parcel of land and paid for it using his salary while Sandy
used her winnings from the lottery to purchase the jewelry.
It was not established that Sandy cared for or maintained the family;
hence, she should not be deemed to have contributed to the acquisition of the
parcel of land. The jewelry was acquired by Sandy using her lottery winnings
which she obtained not by work or industry but by chance.
3
SUGGESTED ANSWER:
No, Shalimar is not entitled to presumptive legitime. The liquidation of
the co-ownership under Article 147 did not provide for the obligation to pay
the presumptive legitime of the common children. Said obligation applies
only to the liquidation of the absolute community or conjugal partnership of
gains pursuant to Articles 50 and 51 of the Family Code, which provisions
are inapplicable to a void marriage under Article 36 of the Family Code. The
rules on co-ownership apply and the properties of the parties should be
liquidated in accordance with the Civil Code provisions on co-ownership
[Dino v. Dino, 640 SCRA 178 (2011); Valdes v. RTC, 260 SCRA 221 (1996)].
III
Silverio was a woman trapped in a man’s body. He was born male and his
birth certificate indicated his gender as male, and his name as Silverio Stalon.
When he reached the age of 21, he had a sex reassignment surgery in Bangkok,
and, from then on, he lived as a female. On the basis of his sex reassignment, he
filed an action to have his first name changed to Shelley, and his gender, to
female. While he was following up his case with the Regional Trial Court of
Manila, he met Sharon Ston, who also filed a similar action to change her first
name to Shariff, and her gender, from female to male.
Sharon was registered as a female upon birth. While growing up, she
developed male characteristics and was diagnosed to have congenital adrenal
hyperplasia (“CAH”) which is a condition where a person possesses both male
and female characteristics. At puberty, tests revealed that her ovarian structures
had greatly minimized, and she had no breast or menstrual development. Alleging
that for all intents and appearances, as well as mind and emotion, she had become
a male, she prayed that her birth certificate be corrected such that her gender
should be changed from female to male, and that her first name should be changed
from Sharon to Shariff.
Silverio and Sharon fell in love and decided to marry. Realizing that their
marriage will be frowned upon in the Philippines, they travelled to Las Vegas,
USA where they got married based on the law of the place of celebration of the
marriage. They, however, kept their Philippine citizenship.
(a) Is there any legal bases for the court to approve Silverio’s petition for
correction of entries in his birth certificate? (2.5%)
SUGGESTED ANSWER:
No, there is no legal bases for the court to approve Silverio’s petition.
As settled in the case of Silverio v. Republic (G.R. No. 174689, October 22,
4
2007), our laws do not sanction change of name and correction of entry in the
civil register as to sex on the ground of sex reassignment. Sex reassignment is
not one of the grounds for which change of first name may be allowed under
Republic Act No. 9048. The petition for correction of entry as to sex of the
birth certificate of Silverio cannot prosper, because the said document
contained no error and it cannot be corrected. Silverio was born a male. The
sex of a person is determined at birth. Considering that there is no law legally
recognizing sex reassignment, the determination of a persons sex made at the
time of his or her birth, if not attended by error, is immutable.
(b) Will your answer be the same in the case of Sharon’s petition?
(2.5%)
SUGGESTED ANSWER:
No, my answer will not be the same. In the case of Republic v.
Cagandahan (G.R. 166676, September 12, 2008), the Supreme Court held that
where the person is biologically or naturally intersex the determining factor
in his gender classification would be what the individual, having reached the
age of majority, with good reason thinks of his/her sex. Sharon is considered
an intersex, because he has CAH, which means that she has the biological
characteristics of both male and female. Based on that case, Sharon’s petition
should be granted since he has simply let nature take its course and has not
taken unnatural steps to arrest or interfere with what he was born with. The
change of name should also be granted considering that it merely recognizes
Sharon’s preferred gender.
(c) Can the marriage of Silverio (Shelley) and Sharon (Shariff) be legally
recognized as valid in the Philippines? (2.5%)
SUGGESTED ANSWER:
No, it cannot be legally recognized as valid. Laws relating to the status,
condition and legal capacity of persons are binding upon citizens of the
Philippines even though living abroad (Article 15, Civil Code). One of the
requisites of a marriage is that the contracting parties must be a male and a
female (Article 2, Family Code). Since Silverio and Sharon are Filipino
5
citizens their status, condition and legal capacity is determined by Philippine
law, their marriage abroad is not a valid marriage under Philippine law,
because both contracting parties are males.
ALTERNATIVE ANSWER:
Yes. If Silverio and Sharon used their original birth certificates-- one
showing that one is registered male and the one showing that other is
registered female, then the marriage may be a valid marriage under
Philippine law.
IV
6
(a) Was the first sale to Dr. Santos, and the subsequent repurchase,
valid? (2.5%)
SUGGESTED ANSWER:
Yes, the sale is valid but only with respect to the shares pertaining to
Soler, Sulpicio and Segundo. Upon Severino’s death, his heirs became the co-
owners of the only property he left since the rights to the succession are
transmitted from the moment of the death of the decedent (Art. 777, Civil
Code). In a co-ownership, each co-owner may alienate his part but the effect
of the alienation with respect to the co-owners shall be limited to the portion
which may be allotted to the co-owner who alienated his share (Article 493,
Civil Code). The repurchase by Soler and Sulpicio was valid up to their
respective shares. The repurchase of Segundo’s share did not make
Saturnina the owner of the share redeemed although she is entitled to
reimbursement.
(b) Was the second sale to Dr. Sazon valid? May the twins redeem their
share after they reach the age of majority? (2.5%)
SUGGESTED ANSWER:
The second sale was valid only as to the aliquot shares of Saturnina and
of the three older siblings. Under Article 225 of the Family Code, the father
and the mother shall jointly exercise legal guardianship over the property of
the unemancipated common child without the necessity of a court
appointment. This guardianship, however, only extends to powers of
administration over the property of the child, and does not include the power
to alienate, which is an act of strict dominion. Saturnina had no authority to
sell the twins’ property, and the sale to that extent is unenforceable. Since it is
already unenforceable, the twins do not need to redeem the property upon
reaching the age of majority.
ALTERNATIVE ANSWER:
The second sale is valid as to Saturnina and the other siblings, but as to
the twins the sale is invalid and the twins are allowed to recover or demand
the reconveyance of their share in the property.
7
V
Sol Soldivino, widow, passed away, leaving two (2) legitimate children: a
25-year old son, Santino (whom she had not spoken to for five [5] years prior to
her death since he attempted to kill her at that time), and a 20-year-old daughter,
Sara. She left an estate worth PhP 8 million and a will which contained only one
provision: that PhP1 million should be given to “the priest who officiated at my
wedding to my children’s late father.” Sara, together with two (2) of her friends,
acted as an attesting witness to the will.
On the assumption that the will is admitted for probate and that there are no
debts, divide the estate and indicate the heirs/legatees entitled to inherit, the
amount that each of them will inherit, and where (i.e., legitime/free
portion/intestate share) their shares should be charged. (5%)
SUGGESTED ANSWER:
Santino and Sara are entitled to P3.5 Million each while the priest who
officiated at the wedding of Sol to her children’s father is entitled to receive
P1 Million as legacy from the free portion of the Sol’s estate. 2 Million out of
the 3.5 Million comes from their legitime, while the remaining 1.5 Million is
from the free portion.
Santino is not disqualified to inherit from her mother, because an
attempt against the life of the decedent is a cause for unworthiness of an heir
only if there is a final judgment of conviction (Article 1032, Civil Code). The
given facts do not mention that Santino was convicted of an attempt against
the life of Sol.
Sara is also capacitated to inherit from Sol. The statement found in
Article 1027 of the Civil Code that an attesting witness to the execution of a
will shall be incapable of succeeding is qualified by Article 823, Civil Code,
which provides that the devise or legacy in favor of a person who is an
attesting witness to the execution to the will shall be void. Sara is not a
devisee or legatee under Sol’s will. She is an intestate and compulsory heir.
The priest is also capable of succeeding as a legatee, because under
Article 1027, Civil Code only the priest who heard the confession of the
testator during his last illness and his relatives within the fourth degree and
the church to which he belongs are disqualified from inheriting from the
decedent by will. The priest only officiated the wedding of the decedent.
8
VI
Sammy and Santi are cousins who separately inherited two (2) adjoining
lots from their grandfather. Sammy is based overseas but wants to earn income
from his inherited land, so he asked a local contractor to build a row of apartments
on his property which he could rent out. The contractor sent him the plans and
Sammy noticed that the construction encroached on a part of Santi’s land but he
said nothing and gave approval to construct based on the plans submitted by the
local contractor. Santi, based locally, and who loved his cousin dearly, did not
object even if he knew of the encroachment since he was privy to the plans and
visited the property regularly. Later, the cousins had a falling out and Santi
demanded that the portion of the apartments that encroached on his land be
demolished.
Can Santi successfully file legal action to require the demolition? (5%)
SUGGESTED ANSWER:
No, Santi cannot successfully file a legal action to require the
demolition. Since the builder and the landowner both acted in bad faith,
their rights shall be the same as though both had acted in good faith (Article
453, Civil Code). Sammy is not a builder in good faith with respect to the
portion of the apartment encroaching on Santi’s property, because he knew
that he was not the owner of the land when he built the apartment. There is
bad faith, likewise, on Santi’s part, because he did not object to the
construction although he had knowledge thereof (Article 453, Civil Code).
In cases where both the landowner and the builder acted in good faith,
the landowner does not have the option to demand the demolition of the work
(Article 448, Civil Code).
VII
Sydney, during her lifetime, was a successful lawyer. By her own choice,
she remained unmarried and devoted all her time to taking care of her nephew and
two (2) nieces: Socrates, Saffinia, and Sophia. She wrote a will giving all her
properties remaining upon her death to the three (3) of them. The will was
admitted to probate during her lifetime. Later, she decided to make a new will
giving all her remaining properties only to the two (2) girls, Saffinia and Sophia.
She then tore up the previously probated will. The second will was presented for
probate only after her death. However, the probate court found the second will to
be void for failure to comply with formal requirements.
9
SUGGESTED ANSWER:
No, the said doctrine will not apply.
In the case of Molo v. Molo (G.R. No. L-2538, September 21, 1951), the
court stated that the doctrine of relative revocation is a rule where revocation
of the old will is a suspensive condition or depends upon the efficacy of the
new disposition, and if the new will intended as a substitute is inoperative, the
revocation fails and the original will remains in force. This was applied
based on the fact that the original will appears to be lost; hence, the second
will was executed with a revocatoty clause, but in both instances, the wife was
instituted as the universal heir.
In this case, however, the revocation of the original was not through
the execution of a subsequent will with a revocatory clause, but through
destruction with intent to do so. It does not appear either that the
revocation of the old will operates as a suspensive condition to the efficacy of
the subsequent will, because the testator revoked the 1st original will, as she
does not wish to institute the same heirs, unlike in Molo v. Molo where the
wife was the heir in both wills.
ALTERNATIVE ANSWER:
Yes, because the act of destroying the previous will is connected with
the making of the new will raising a presumption that the testator meant the
revocation of the previous will dependent upon the efficacy of the new will.
This is the doctrine of dependent relative revocation. Here, the revocation is
conditional and dependent upon the efficacy of the new will. Since the new
will in this case turns out to be void for failure of to comply with formal
requirements, the previous will is not considered revoked [III Tolentino, Civil
Code of the Philippines, 1990 ed., p. 145].
(b) Will your answer be the same if the second will was found to be valid
but both Saffinia and Sophia renounce their inheritance? (2.5%)
SUGGESTED ANSWER:
10
VIII
Sofronio was a married father of two when he had a brief fling with
Sabrina, resulting in her pregnancy and the birth of their son Sinforoso. Though
his wife knew nothing of the affair, Sofronio regretted it, but secretly provided
child support for Sinforoso. Unfortunately, when Sinforoso was 10 years old,
Sofronio died. Only Sofronio’s father, Salumbides, knew of Sabrina and
Sinforoso. For the purpose of providing support to Sinforoso, Salumbides gave
Sabrina usufructruary rights over one of his properties — a house and lot — to
last until Sinforoso reaches the age of majority. Sabrina was given possession of
the property on the basis of caucion juratoria. Two (2) years after the creation of
the usufruct, the house accidentally burned down, and three (3) years thereafter,
Sinforoso died before he could reach the age of 18.
Will the usufruct continue after the house has burned down? If yes, will it
continue after Sinforoso’s death? (2.5 %)
SUGGESTED ANSWER:
Yes, the usufruct will continue after the house was burned. If the
usufruct is constituted on immovable property of which a building forms
part, and the latter should be destroyed in any manner whatsoever, the
usufructuary shall have a right to make use of the land and the materials
(Article 607, Civil Code). The usufruct over the land and the materials
continues. The thing was lost only in part, the right continues on the
remaining parts (Article 604, Civil Code).
No, it will be extinguished after Sinforoso’s death. A usufruct granted
for the time that may elapse before a third person attains a certain age, shall
subsist for the number of years specified, even if the third person should die
before the period expires, unless such usufruct has been expressly granted
only in consideration of the existence of such person or contrary intention
clearly appears (Article 603, 606, Civil Code). The circumstances given show
that the usufruct was established by Salumbides in consideration of the
existence of Sinfroso. It was meant for his support; hence, his death
extinguished the usufruct even though he died before reaching the age of
majority.
IX
Newlyweds Sam and Sienna had contracted with Sangria Hotel for their
wedding reception. The couple was so unhappy with the service, claiming,
among other things, that there was an unreasonable delay in the service of dinner
and that certain items promised were unavailable. The hotel claims that, while
there was a delay in the service of the meals, the same was occasioned by the
sudden increase of guests to 450 from the guaranteed expected number of 350, as
11
stated in the Banquet and Meeting Services Contract. In the action for damages
for breach of contract instituted by the couple, they claimed that the Banquet and
Meeting Services Contract was a contract of adhesion since they only provided
the number of guests and chose the menu. On the other hand, the hotel’s defense
was that the proximate cause of the complainant’s injury was the unexpected
increase in their guests, and this was what set the chain of events that resulted in
the alleged inconveniences.
(a) Does the doctrine of proximate cause apply in this case? (2.5%)
SUGGESTED ANSWER:
No, the doctrine does not apply. In the case of Spouses Guanio v.
Makati Shangri-la Hotel (G.R. No. 190601, September 7, 2011), the doctrine of
proximate cause, is applicable only in actions for quasi-delicts, not in actions
involving breach of contract. The doctrine is a device for imputing liability to
a person where there is no relation between him and another party. Where,
however, there is a pre-existing contractual relation between the parties, it is
the parties themselves who make law between them.
Here, there is a contract, the terms and conditions of such contract will
govern the rights and obligations between the contracting parties in case of
breach thereof, not the doctrine of proximate cause.
SUGGESTED ANSWER:
Yes, it is a contract of adhesion, but the same is not void.
A contract of adhesion is defined as one in which one of the parties
imposes a ready-made form of contract, which the other party may accept or
reject, but which the latter cannot modify. Here, the contract is ready-made
by Sangria, as the spouses only chose the menu and provided the number of
guests but they cannot modify the terms thereof; hence, a contract of
adhesion.
Although a contract of adhesion, it is not entirely against the law and is
as binding as ordinary contracts, the reason being that the party who adheres
to the contract is free to reject it entirely, but the effect, as ruled in Orient Air
v. CA (G.R. No. 76931, May 29, 1991), is that in case of ambiguity it is
12
construed against the party who caused it to be drafted and could have
avoided it by the exercise of a little more care.
X
Sinclair and Steffi had an illicit relationship while Sinclair was married to
another. The relationship produced a daughter Sabina, who grew up with her
mother. For most parts of Sabina’s youth, Steffi spent for her support and
education. When Sabina was 21 years old, Sinclair’s wife of many years died.
Sinclair and Steffi lost no time in legitimizing their relationship. After the 40-day
prayers for Sinclair’s late wife, Sinclair and Steffi got married without a marriage
license, claiming that they have been cohabiting for the last 20 years.
SUGGESTED ANSWER:
Sabina is an illegitimate child of Sinclair and Steffi because she was
conceived and born outside a valid marriage (Article 165, Family Code). She
was not legitimated by the subsequent marriage between Sinclair and Steffi.
Only children conceived and born outside of wedlock of parents who, at the
time of conception of the former, were not disqualified by any impediment to
marry each other may be legitimated (Art. 177, Family Code). At the time of
Sabina’s conception, her parents were disqualified by an impediment to
marry each other, because Sinclair was married to someone else.
SUGGESTED ANSWER:
13
Family Code). Considering the foregoing rules, Sinclair is enjoined by law to
finance Sabrina’s law education even beyond the age of majority.
XI
Samantha sold all her business interest in a sole proprietorship to Sergio for
the amount of PhP 1 million. Under the sale agreement, Samantha was supposed
to pay for all prior unpaid utility bills incurred by the sole proprietorship. A
month after the Contract to Sell was executed, Samantha still had not paid
the PhP 50,000 electricity bills incurred prior to the sale. Since Sergio could not
operate the business without electricity and the utility company refused to restore
electricity services unless the unpaid bills were settled in full, Sergio had to pay
the unpaid electricity bills. When the date for payment arrived, Sergio only
tendered PhP 950,000 representing the full purchase price, less the amount he paid
for the unpaid utility bills. Samantha refused to accept the tender on the ground
that she was the one supposed to pay the bills and Sergio did not have
authorization to pay on her behalf.
(a) What is the effect of payment made by Sergio without the knowledge
and consent of Samantha? (2.5%)
SUGGESTED ANSWER:
14
(b) Is Samantha guilty of mora accipiendi? (2.5%)
SUGGESTED ANSWER:
Yes, Samantha is guilty of mora accipiendi.
The requisites for mora accipiendi are: (i) offer of performance by the
debtor; (ii) offer must be to comply with prestation as it should be
performed; and (iii) the creditor refuses to accept the performance without
just cause.
Here, Sergio validly made an offer to comply with the prestation of
payment, albeit for P950,000 only. Sergio’s offer is justified based on the
concept of partial legal compensation up to the amount of P50,000, since
Sergio and Samantha are in their own right principal debtors and creditors
of each other. Samantha’s refusal was without just cause as she cannot be
permitted to benefit or use as a defense her own failure to fulfill her part of
the obligation to pay the electricity bills.
XII
SUGGESTED ANSWER:
A contract of simple loan is created when a depositor opens a deposit
account with a bank. Fixed, savings and current deposits of money in banks
and similar institutions shall be governed by the provisions concerning
simple loan (Article 1980, Civil Code]. The creditor is the depositor, while the
debtor is the bank.
15
(b) In this case, did the bank have the right to take over Saachi’s bank
deposit? (2.5%)
SUGGESTED ANSWER:
No, the bank did not have the right to take over Saachi’s bank deposit.
In the case of Metropolitan Bank & Trust Co. v. Rosales (G.R. No. 183204,
January 13, 2014), it was held that the "Hold Out" clause, which was similar
to the Holdout Agreement in the instant case, can be invoked only if there
was a valid and existing obligation arising from any of the sources of
obligation enumerated in Article 1157 of the Civil Code, to wit: law,
contracts, quasi-contracts, delict, and quasi- delict. The only possible source
of obligation of Saachi to Shanghainese Bank based on the given facts is
delict. As the criminal case filed by the bank against Saachi was still pending
and no final judgment of conviction has been rendered, Saachi had no valid
and existing obligation to the bank; thus, the bank had no right to take over
the deposits of Saachi.
XIII
SUGGESTED ANSWER:
Yes, SEP can legally recover the deficiency. The prohibition against
further collection under Article 1484 of the Civil Code, or the Recto Law,
only applies if the seller chooses to foreclose the chattel mortgage and not
when the seller opts to exact the fulfilment of the obligation (Tajanlangit v.
Southern Motors, G.R. 10789, May 28, 1957). SEP chose to exact the
16
fulfillment of the obligation by commencing a collection suit against SI. SEP
did not opt to foreclose the chattel mortgage over the equipment. The
machineries were sold in an execution sale and not in a foreclosure sale;
hence, the prohibition against further collection does not apply.
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
XIV
17
annotation of an adverse claim against 50 sq. m. on Lot A’s Transfer Certificate of
Title, asserting the existence of a legal easement.
(a) Does a legal easement in fact exist? If so, what kind? (2.5%)
SUGGESTED ANSWER:
Yes, a legal easement of lateral and subjacent support exists.
According to Article 684 of the Civil Code, no proprietor shall make such
excavations upon his land as to deprive any adjacent land or building of
sufficient lateral or subjacent support. In the given case, an easement of
lateral and subjacent support exists in the property of Soccoro in favor of the
property of Segunda. In the case of Castro v. Monsod, (G.R. No. 183719,
February 2, 2011) in which the situation of the properties of the two
landowners were similar to that in the given problem, the Supreme Court
held that an easement existed in favor of the property of higher elevation,
because it was the owner of the said property which sued to have the
easement recognized. Such finding, however, does not mean that no similar
easement exists in favor of the property of lower elevation, since Article 684
does not make a distinction as to the elevation of the property.
SUGGESTED ANSWER:
No. The annotation of an adverse claim over registered land under
Section 70 of Presidential Decree 1529 requires a claim on the title of the
disputed land Castro v. Monsod, 641 SCRA 486, Feruary 2, 2011). Segunda is
not claiming ownership over the property of Socorro. She only wanted a
judicial recognition of the existence of the easement. According to the
Supreme Court in the cited case, an annotation of the existence of the lateral
and subjacent support is no longer necessary, because it exists whether or not
it is annotated or registered in the registry of property. A judicial recognition
of the same already binds the property and the owner of the same, including
her successors-in-interest.
18
ALTERNATIVE ANSWER:
No, it is not proper because an annotation of the existence of the lateral
and subjacent support is no longer necessary. It exists whether or not it is
annotated or registered in the registry of property. Although, there is nothing
which bars the annotation of an easement, not as an adverse claim, but as a
real right.
XV
(a) Can Simon compel Shannon to reduce the lease agreement into
writing? (2.5%)
SUGGESTED ANSWER:
Yes, Simon can compel Shannon to reduce the agreement into writing.
While an agreement for the leasing of real property for a longer period than
one year is covered by the Statute of Frauds, thus, requiring a written
memorandum of its essential provisions under Article 1403, Civil Code.
According to Article 1406 of the Civil Code, the parties may only avail
themselves of the right under Article 1357 of the Civil Code if the contract is
enforceable under the Statute of Frauds. The contract was taken out of the
operation of the Statute of Frauds under the Doctrine of Part Performance.
Under Article 1357 of the Civil Code, the contracting parties may
compel each other to observe the form of contract required by law.
(b) Does the sublease without Simon’s knowledge and consent constitute
a ground for terminating the lease? (2.5%)
SUGGESTED ANSWER:
No, it does not constitute a ground for terminating the lease. In the
contract of lease of things, if there is no express prohibition, the lessee may
19
sublet the thing leased (Article 1650, Civil Code). In this contract, there
appears to be no prohibition regarding subleasing; thus, there is no violation
of the contract which can be used as a ground for terminating the contract.
The act of a lessee in subleasing the thing without notifying the lessor leased
is not one of the causes for which the lessor may terminate the lease and
judicially eject the lessee (Article 1673, Civil Code).
XVI
Selena was a single 18-year old when she got pregnant and gave birth to
Suri. She then left to work as a caregiver in Canada, leaving Suri with her parents
in the Philippines. Selena, now 34 years old and a permanent resident in Canada,
met and married Sam who is a 24-year old Canadian citizen who works as a
movie star in Canada. Sam’s parents are of Filipino ancestry but had become
Canadian citizens before Sam was born. Wanting Suri to have all the advantages
of a legitimate child, Selena and Sam decided to adopt her. Sam’s parents,
already opposed to the marriage of their son to someone significantly older,
vehemently objected to the adoption. They argued that Sam was not old enough
and that the requisite age gap required by the Inter-Country Adoption Act between
Sam as adopter and Suri as adoptee was not met.
SUGGESTED ANSWER:
No, Sam’s parents are incorrect. Under Section 9 of Republic Act No.
8043 or the Inter-Country Adoption Act of 1995, the requirement that the
adopter must be at least twenty-seven years of age and at least sixteen years
older than the adoptee does not apply if the adopter is the spouse of the
parent by nature of the adoptee. Since, Sam is the spouse of Selena, who is
the parent by nature of Suri, Sam may adopt Suri even if he is below twenty-
seven years of age and is not at least sixteen years older than the adoptee.
[NOTE: The Inter-Country Adpotion Act of 1995 requires that only a child who
is below 15 years of age and is voluntarily or involuntarily committed to the
Department of Social Work and Services (DSWD) may be adopted under the
inter-country adoption law, and the adopter must be at least 27 years of age and
at least 16 years older than the child to be adopted at the time of application
unless the adopter is the natural parent of the child to be adopted or the spouse
of such parent].
20
XVII
Sofia and Semuel, both unmarried, lived together for many years in the
Philippines and begot three children. While Sofia stayed in the Philippines with
the children, Semuel went abroad to work and became a naturalized German
citizen. He met someone in Germany whom he wanted to marry. Semuel
thereafter came home and filed a petition with the Regional Trial Court
(RTC) for partition of the common properties acquired during his union with
Sofia in the Philippines. The properties acquired during the union consisted of a
house and lot in Cavite worth PhP 2 million, and some personal properties,
including cash in bank amounting to PhP 1 million. All these properties were
acquired using Semuel’s salaries and wages since Sofia was a stay-at-home
mother. In retaliation, Sofia filed an action, on behalf of their minor children, for
support.
SUGGESTED ANSWER:
21
(b) Should Semuel be required to support the minor children? (2.5%)
SUGGESTED ANSWER:
ANOTHER ANSWER:
Even if the new national law of Samuel does not oblige him to support
his minor illegitimate children in the Philippines, the said foreign law
cannot be applied in the Philippines for two reasons: (1) the Philippines
may refuse to apply said foreign law, because it is contrary to a sound
and established policy of the forum; and (2) the Philippine laws which
have for their object public policy cannot be rendered ineffective by a
foreign law [Art. 17, par. 3, NCC; Del Soccoro v. Van Wilsem, 744 SCRA
516 (2014)].
XVIII
(a) Should either, or both, SAL and SMA be held liable for damages that
Shasha suffered? (2.5%)
22
SUGGESTED ANSWER:
ALTERNATIVE ANSWER :
SAL and SMA may be held solidarily liable to Sasha. SAL is liable to
Sasha for breach of the contract of carriage, because it failed to bring Sasha
to the latter’s destination as agreed upon in the contract. SAM, on the other
hand, is liable to Sasha for tort under the provisions of Article 2176, in
relation to Article 2180 of the Civil Code. While SAM is an independent
contractor, and not an agent of SAL, both SAL and SAM are solidarily liable
to Sasha, because a contractual obligation can be breached by tort and when
the same act or omission causes the injury, one resulting in culpa contractual
and the other in culpa aquiliana, Article 2194 of the Civil Code can well
apply. In fine, a liability for tort may arise even under a contract, where tort
is that which breaches the contract. Stated differently, when an act which
constitutes a breach of contract would have itself constituted the source of a
quasi-delictual liability had no contract existed between the parties, the
23
contract can be said to have been breached by tort, thereby allowing the rules
on tort to apply (LRTA v. Navidad, G.R. No. 145804, February 6, 2003).
(b) Assuming that one is an agent of the other, is the agency coupled
with interest? (2.5%)
SUGGESTED ANSWER:
Yes, the agency was constituted as a means of fulfilling an obligation
which had already been contracted and also a bilateral contract depends
upon the agency [Article 1927, Civil Code]. In the case of Philex Mining v.
CIR, (G.R. No. 148187, April 16, 2008) the Court defined an agency coupled
with an interest as one that cannot be revoked or withdrawn by the principal
due to an interest of a third party that depends upon it, or the mutual interest
of both principal and agent.
Here, since the ticket is exclusively endorsable to the agent, SAM, then
it has a mutual interest with the principal, SAL, in the fulfillment of the
obligation.
XIX
24
secure payment of his taxes, if found to be due. In consideration of the issuance
of the bond, he executed an Indemnity Agreement with SSC whereby he agreed to
indemnify the latter in the event that he was found liable to pay the tax. The BIR
eventually decided against Sebastian, and judicially commenced action against
both Sebastian and SSC to recover Sebastian's unpaid taxes. Simultaneously, BIR
also initiated action to foreclose on the bond. Even before paying the BIR, SSC
sought indemnity from Sebastian on the basis of the Indemnity Agreement.
Sebastian refused to pay since SSC had not paid the BIR anything yet, and alleged
that the provision in the Indemnity Agreement which allowed SSC to recover
from him, by mere demand, even if it (SSC) had not yet paid the creditor, was
void for being contrary to law and public policy.
SUGGESTED ANSWER:
XX
Simeon was returning to Manila after spending a weekend with his parents in Sariaya,
Quezon. He boarded a bus operated by the Sabbit Bus Line (SBL) on August 30, 2013. In the
middle of the journey, the bus collided with a truck coming from the opposite direction, which
was overtaking the vehicle in front of the truck. Though the driver of the SBL bus tried to avoid
the truck, a mishap occurred as the truck hit the left side of the bus. As a result of the accident,
Simeon suffered a fractured leg and was unable to report for work for one week. He sued SBL
for actual and moral damages. SBL raised the defense that it was the driver of the truck who
was at fault, and that it exercised the diligence of a good father of a family in the selection and
supervision of its driver.
SUGGESTED ANSWER:
It depends on what the source of obligation the action is based.
25
If based on contract, SBL will be liable for actual damages, but not
moral damages. As a common carrier, SBL is required to observe
extraordinary diligence, and the law expressly provides that its liability does
not cease upon proof that it exercised the diligence of a good father of a
family in selecting and supervising its driver. It is not liable, however, for
moral damages as Art. 2220 requires it to have acted fraudulently or in bad
faith, which is not provided by the facts.
If the action, however, is anchored under quasi-delict, SBL will be
liable for actual and moral damages. As a common carrier, it is required to
exercise extraordinary diligence. Moral damages also may be awarded
under Article 2219 if the plaintiff suffered physical injuries as a result of a
quasi-delictual act.
ALTERNATIVE ANSWER:
In a contract of carriage, the carrier is required to exercise
extraordinary diligence and is liable whenever a passenger suffers injury
before he reaches his destination. In an action to recover damages arising
from breach of contract of carriage, the passenger needs only to prove the
existence of the contract and the failure of the carrier to safely bring him to
his destination. Moral damages may not however be recovered from the
carrier unless: (a) the passenger dies, or (b) the carrier is guilty of bad faith
or gross negligence. Neither applies in this case. (Estrada v. Philippine Rabbit
Bus Co., G.R. No. 203902, July 19, 2017).
(b) Will SBL be liable to pay interest if it is required to pay damages,
and delays in the payment of the judgment award? What is the rate of
interest, and from when should the interest start running? (2.5%)
SUGGESTED ANSWER:
Yes, SBL will be liable to pay interest at the rate of 6% from the
finality of the judgment until satisfaction. According to the case of Nacar v.
Gallery Frames (G.R. No. 189871, August 13, 2013), when the judgment of the
court awarding a sum of money becomes final and executory, the rate of legal
interest, shall be 6% per annum from such finality until its satisfaction.
- NOTHING FOLLOWS -
26
Training & Convention Division
University of the Philippines Law Center
SUGGESTED ANSWERS
to the
2018 BAR EXAMINATIONS IN
TAXATION LAW
1
(b) Does this amount to double taxation? (2.5%)
SUGGESTED ANSWER:
Yes. The three taxes are all in the nature of local business taxes on
wholesalers, retailers and service providers which are imposed by the same
taxing authority on the same subject matter for the same tax period; hence,
the elements of double taxation are present (Nursery Care Corporation v.
Anthony Acebedo, G.R. No. 180651, July 30, 2014).
ALTERNATIVE ANSWER:
Yes. Double taxation means taxing the same property twice when it
should be taxed only once; that is, “taxing the same person twice by the same
jurisdiction for the same thing”.
2
No. 181277, July 3, 2013, 700 SCRA 428, 439-442 both cited in Nursery Care
Corporation v. Acevedo, G.R. No. 180651, July 30, 2014).
II
Kronge Konsult, Inc. (KKI) is a Philippine corporation engaged in
architectural design, engineering, and construction work. Its principal office is
located in Makati City, but it has various infrastructure projects in the country
and abroad. Thus, KKI employs both local and foreign workers. The company
has adopted a policy that the employees’ salaries are paid in the currency of the
country where they are assigned or detailed.
Below are some of the employees of KKI. Determine whether the compensation
they received from KKI in 2017 is taxable under Philippine laws and whether
they are required to file tax returns with the Bureau of Internal Revenue (BIR).
(2% each)
(a) Kris Konejero, a Filipino accountant in KKI’s Tax Department in
the Makati office, and married to a Filipino engineer also working in
KKI;
SUGGESTED ANSWER:
Taxable.(Sec. 23 & 24(A), NIRC). Kris must file tax returns with the
BIR, unless she qualifies for substituted filing of income tax returns because
the tax was correctly withheld by the employer (Sec. 51(A)(2)(b), NIRC).
3
SUGGESTED ANSWER:
His compensation from January 1 up to the time he left the Philippines
is taxable and he must file tax returns, unless the compensation income is his
only returnable income and the withholding tax thereon was correctly
withheld by KKI (Sec. 51(A)(2)(b), NIRC). The compensation for his services
abroad from the date of his actual assignment thereat up to the time of the
completion of the project is tax-exempt being an income from without
earned by a non-resident citizen (Sec. 23 and Sec. 42, NIRC). He is not
required to file a return for this income derived from without, because said
income is not subject to income tax in the Philippines (Sec. 23, NIRC).
4
III
Kim, a Filipino national, worked with K-Square, Inc. (KSI), and was
seconded to various KSI-affiliated corporations:
1. from 1999 to 2004 as Vice President of K-Gold Inc.,
2. from 2004 to 2007 as Vice President of KPB Bank;
3. from 2007 to 2011 as CEO of K-Com Inc.;
4. from 2011 to 2017 as CEO of K-Water Corporation, where Kim
served as CEO for seven years until his retirement last December 12, 2017 upon
reaching the compulsory retirement age of 60 years.
All the corporations mentioned are majority-owned in common by the Koh
family and covered by a BIR-qualified multi employer-employee retirement plan
(MEERP), under which the employees may be moved around within the
controlled group (i.e., from one KSI subsidiary or affiliate to another) without
loss of seniority rights or break in the tenure. Kim was well-loved by his
employer and colleagues, so upon retirement, and on his last day in office, KSI
gave him a Mercedes Benz car worth PhP 5 million as a surprise, with a streamer
that reads: “You’ll be missed. Good luck, Sir Kim.”
(a) Are the retirement benefits paid to Kim pursuant to the MEERP
taxable? (2.5%)
SUGGESTED ANSWER:
(a) No. The recipient having served the group of companies covered by
the BIR-Qualified Retirement Plan for at least 10 years, not less than 50
years of age at the time of retirement and avails of the benefit only once, will
receive his retirement benefits tax-free (Sec. 32(B)(6)(a), NIRC).
(b) Which internal revenue tax, if any, will apply to the grant of the car
to Kim by the company? (2.5%)
SUGGESTED ANSWER:
It is subject to the income tax. The value of the Mercedes Benz car is
an income to Kim. It is in the nature of a compensatory gift which is
considered as income to the recipient. The car is in reality a recompense for
Kim’s past services. Compensation for services in whatever form paid is
part of gross income [Sec. 32(A)(1), NIRC; Commissioner v. Duberstein, 363
US 278 (1960)].
5
ALTERNATIVE ANSWER:
The car was given on account of merits and the services he rendered to
KSI which do not constitute a demandable debt is renumeratory donation
and bsed on the generosity of KSI. It is a gift subject to donor’s tax,
provided Kim accepts the car (Art. 726, Civil Code).
IV
SUGGESTED ANSWER:
No. Donations in favor of an educational institution is exempt from
donor’s tax (Sec. 101, NIRC).
(b) How much in deduction from gross income may Katrina claim on
account of the said donation? (2.5%)
SUGGESTED ANSWER:
If Klaret School is an accredited non-government organization,
having been established as a non-profit domestic corporation, organized and
operated exclusively for educational purposes, the donation to it as a
qualified donee-institution is deductible in full (Sec. 34(H)(2)(c), NIRC).
The deduction from gross income shall be the acquisition cost of said
property by the donor which is P6.5 million (Sec. 34(H)(3), NIRC).
6
ALTERNATIVE ANSWER:
Katrina may claim a deduction from her gross income an amount not
in excess of ten percent (10%) of her taxable income derived from trade,
business or profession as computed prior to the deduction of the value of the
donation made to Klaret School, and other charitable contributions that
may have been made by Katrina during the taxable year, after compliance
with the substantiation requirements (NIRC of 1997, Sec. 34 (H).
V
Spouses Konstantino and Korina are Filipino citizens and are principal
shareholders of a restaurant chain, Korina’s, Inc. The restaurant’s principal office
is in Makati City, Philippines.
Korina’s became so popular as a Filipino restaurant that the owners
decided to expand its operations overseas. During the period 2010-2015 alone, it
opened ten (10) stores throughout North America and five (5) stores in various
parts of Europe where there were large Filipino communities. Each store abroad
was in the name of a corporation organized under the laws of the state or country
in which the store was located. All stores had identical capital structures: 60% of
the outstanding capital stock was owned by Korina’s, Inc., while the remaining
40% was owned directly by the spouses Konstantino and Korina.
Beginning 2017, in light of the immigration policy enunciated by US
President Donald Trump, many Filipinos have since returned to the Philippines
and the number of Filipino immigrants in the US dropped significantly. On
account of these developments, Konstantino and Korina decided to sell their
shares of stock in the five (5) US corporations that were doing poorly in gross
sales. The spouses’ lawyer-friend advised them that they will be taxed 5% on the
first PhP100,000 net capital gain, and 10% on the net capital gain in excess of
PhP100,000.
Is the lawyer correct? If not, how should the spouses Konstantino and
Korina be taxed on the sale of their shares? (5%)
SUGGESTED ANSWER:
The lawyer’s advice is wrong. The capital gains tax of 5% for the first
P100,000 net capital gain, and 10% on the net capital gain in excess of
P100,000 applies only to the net capital gains realized from the sale, barter,
exchange or other disposition of shares of stock in a domestic corporation
(Sec. 24(C), NIRC). Since the shares of stock sold are shares of foreign
corporations held as capital assets, the recognized portion of the capital gain
7
realized from the sale must be reported as part of their gross income in their
income tax returns where the taxable income will be subject to the
graduated income tax rates for individuals (Sec. 24(A)(1)(a) in relation to
Sec. 39, NIRC).
VI
Kria, Inc., a Korean corporation engaged in the business of manufacturing
electric vehicles, established a branch office in the Philippines in 2010. The
Philippine branch constructed a manufacturing plant in Kabuyao, Laguna, and
the construction lasted three (3) years. Commercial operations in the Laguna
plant began in 2014.
In just two (2) years of operation, the Philippine branch had remittable
profits in an amount exceeding 175% of its capital. However, the head office in
Korea instructed the branch not to remit the profits to the Korean head office
until instructed otherwise. The branch chief finance officer is concerned that the
BIR might hold the Philippine branch liable for the 10% improperly accumulated
earnings tax (IAET) for permitting its profits to accumulate beyond reasonable
business needs.
(a) Is the Philippine branch of Kria subject to the 10% IAET under the
circumstances stated above? (2.5%)
SUGGESTED ANSWER:
No. The IAET will not apply to a branch of a foreign corporation, it
being a Resident Foreign Corporation (RR No. 2-2001). The IAET applies
only to Domestic Corporations which permits their profits to accumulate
beyond its reasonable business needs, instead of being distributed as
dividends.
SUGGESTED ANSWER:
8
remitted by a branch to its head office shall be subject to the BPRT (Sec.
28(A)(5), NIRC; Bank of America v. CA, G.R. No. 103092, July 21, 1994).
VII
Karissa is the registered owner of a beachfront property in Kawayan,
Quezon which she acquired in 2015. Unknown to many, Karissa was only
holding the property in trust for a rich politician who happened to be her lover. It
was the politician who paid for the full purchase price of the Kawayan property.
No deed of trust or any other document showing that Karissa was only holding
the property in trust for the politician was executed between him and Karissa.
Karissa died single on May 1, 2017 due to a freak surfing accident. She left
behind a number of personal properties as well as real properties, including the
Kawayan property. Karissa’s sister, Karen, took charge of registering Karissa’s
estate as a taxpayer and reporting, for income tax and VAT purposes, the rental
income received by the estate from real properties. However, it was only on
October 1, 2017 when Karen managed to file an estate tax return for her sister’s
estate. The following were claimed as deductions in the estate tax return:
1. Funeral expenses amounting to PhP 250,000;
2. Medical expenses amounting to PhP 100,000, incurred when Karissa
was hospitalized for pneumonia a month before her death; and
3. Loss valued at PhP 6 million, arising from the destruction of Karissa’s
condominium unit due to fire which occurred on September 15, 2017.
(a) Should the beachfront property be included in Karissa’s gross
estate? (2.5%)
SUGGESTED ANSWER:
Yes. The property is registered in the name of the decedent, so it’s a
property owned by her as of the time of death which must properly be
included as part of her gross estate. The extent of her interest in the
property, which is full ownership, must form part of her gross estate (Sec.
85(A), NIRC).
SUGGESTED ANSWER:
The claim of funeral expenses amounting to P250,000 is improper
being excessive in amount. The amount allowable as deduction for funeral
expenses is actual funeral expenses or 5% of the gross estate, whichever is
9
lower, but in no case shall it exceed P200,000 (Sec. 86(a)(1)(a), NIRC). The
law allows the claim of medical expenses within one year prior to the
decedent’s death in an amount not exceeding P500,000. Since the amount
claimed as deduction was only P100,000 and was incurred within one month
from death, it constitutes a proper deduction (Sec. 86(A)(6), NIRC).
Likewise, the loss incurred during the settlement of the estate (after death)
but not beyond the last day prescribed by law for payment of the estate tax
(6 months from date), is a proper deduction from the gross estate, provided,
it is not compensated by insurance and not claimed as deduction for income
tax purposes. (Sec. 86(A)(1)(e), NIRC)
[Note: We suggest full credit be given for any answer. Exclude the question
on deduction. The provisions were amended by the TRAIN Law and is no
longer relevant to new entrants of the profession].
VIII
Upon the death of their beloved parents in 2009, Karla, Karlo, and Karlie
inherited a huge tract of farm land in Kanlaon City. The siblings had no plans to
use the property. Thus, they decided to donate the land, but were not sure to
whom the donation should be made. They consult you, a well-known tax law
expert, on the tax implications of the possible donations they plan to make, by
giving you a list of the possible donees:
1. The Kanlaon City High School Alumni Association (KCHS AA),
since the siblings are all alumni of the same school and are active
members of the organization. KCHS AA is an organization
intended to promote and strengthen ties between the school and its
alumni;
2. The Kanlaon City Water District which intends to use the land for its
offices; or
3. Their second cousin on the maternal side, Kikay, who serves as the
caretaker of the property.
Advise the siblings which donation would expose them to the least tax
liability. (5%)
SUGGESTED ANSWER:
I would advise them that the proposed donation to Kanlaon City
Water District, a government entity, will be exempt from donor’s tax, hence,
10
would expose the siblings to the least donor’s tax liability (Sec. 101(A)(2),
NIRC). Donation to KCHS AA and donation to Kikay, the siblings’ second
cousin, are both donations to strangers, which will expose them to a donor’s
tax of 30% based on the fair market value of the property to be donated
(Sec. 99(B), NIRC).
[Note: The group suggests that any answer be given full credit. The provisions
were amended by the TRAIN Law].
IX
Karlito, a Filipino businessman, is engaged in the business of metal
fabrication and repair of LPG cylinder tanks. He conducts business under the
name and style of “Karlito’s Enterprises,” a single proprietorship. Started only
(5)years ago, the business has grown so enormously that Karlito decided to
incorporate it by transferring all the assets of the business, particularly the
inventory of goods on hand, machineries and equipment, supplies, parts, raw
materials, office furniture and furnishings, delivery trucks and other vehicles,
buildings, and tools to the new corporation, Karlito’s Enterprises, Inc., in
exchange for 100% of the capital stock of the new corporation, the stock
subscription to which shall be deemed fully paid in the form of the assets
transferred to the corporation by Karlito.
As a result, Karlito’s Enterprises, the sole proprietorship, ceased to do
business and applied for cancellation of its BIR Certificate of Registration.
The BIR, however, assessed Karlito VAT on account of the cessation of
business based on the current market price of the assets transferred to Karlito’s
Enterprises, Inc.
(a) Is the transfer subject to VAT? (2.5%)
SUGGESTED ANSWER:
Yes, the transfer of properties is subject to VAT, but only if Karlito is
VAT-registered or VAT registerable person. The transaction is a taxable
exchange involving properties which are for sale or for use in the course of
trade or business (Sec. 105, NIRC; Sec. 4.106-8, RR No. 16-2005).
ANOTHER ANSWER:
Yes, the same is subject to VAT as “transaction deemed sale” due to
retirement from or cessation of business with respect to all goods on hand,
whether capital goods, stock-in-trade, et.al., such as in the case of a change
11
of ownership of business when a sole proprietorship incorporates (Section
106 (B)4, NIRC, in relation to Section 4.106-7 (a)(4)(i), RR No. 16-2005).
[Note: We suggest that any answer should be given full credit. (1) The
exchange of property for shares of stock resulting to corporate control is
rendered exempt from VAT under Section 109(X), NIRC, as amended by
TRAIN Law. (2) It is confusing to the bar candidates on whether it is subject to
VAT due to the actual exchange or due to cessation of the business. While they
might be inclined to consider the transaction as a deemed-sale in view of the
cessation of business and eventual cancellation of Certificate of Registration, it
must be noted that at the time of cessation, the inventory of properties is no
longer with Karlito as an actual exchange took place before he retired from
business.]
SUGGESTED ANSWER:
No. The same is considered as tax-free exchange where no gain or loss
shall be recognized in a transfer of property to a corporation by a person in
exchange for stock or unit of participation in such corporation of which as a
result of such exchange Karlito gained control of said corporation (Section
40(C)(2), NIRC).
X
Klaus, Inc., a domestic, VAT-registered corporation engaged in the land
transportation business, owns a house and lot along Katipunan St., Quezon City.
This property is being used by Klaus, Inc.’s president and single largest
shareholder, Atty. Krimson, as his residence. No business activity transpires
there except for the company’s Christmas party which is held there every
December. Atty. Krimson recently grew tired of the long commute from
Katipunan to his office in Makati City and caused the company to sell the house
and lot. The sale was recorded in the books of Klaus, Inc. as investment in real
property.
(a) Is the sale of the said property subject to VAT? (2.5%)
SUGGESTED ANSWER:
Yes. The real property sold is used in trade or business since it is
utilized to extend a fringe benefit, free use of housing unit, to the president
12
of Klaus, Inc. It is considered as a transaction incidental to the VAT-
registered business of the seller (Mindanao Geothermal II v. CIR, G.R. No.
193301, March 11, 2013).
SUGGESTED ANSWER:
The property used in trade or business is not a capital asset but an
ordinary asset; hence, the gain from the sale will be subject to the regular
corporate income tax of 30%.
XI
Koko’s primary source of income is his employment with the government.
He earns extra from the land he inherited from his parents, and which land he has
been leasing to a private, non-stock, non-profit school since 2005.
Last January, the school offered to buy the land from Koko for an amount
equivalent to its zonal value plus 15% of such zonal value. Koko agreed but
required the school to pay, in addition to the purchase price, the 12% VAT. The
school refused Koko’s proposal to pass on the VAT contending that it was an
entity exempt from such tax. Moreover, it said that Koko was not regularly
engaged in the real estate business and, therefore, was not subject to VAT.
Consequently, Koko should not charge any VAT to the school.
(a) Is the contention of the school correct? (2.5%)
SUGGESTED ANSWER:
No. The exemption of the buyer pertains only to taxes for which it is
legally liable but not to taxes passed-on to it. The VAT is not a tax on the
buyer but merely considered as part of the purchase price. Accordingly, if
the sale is subject to VAT, the tax-exempt buyer cannot invoke its exemption
in order to avoid the imposition of the VAT on the transaction. Be that as it
may, the transaction will be subject to VAT only if Koko is either (1) VAT-
registered or (2) VAT-registerable person at the time of sale; otherwise, the
sale of the rented property will not be subject to VAT.
13
SUGGESTED ANSWER:
Yes. All transactions involving real property for sale or for lease in the
course of trade or business by VAT-registered person will be subject to
VAT(Sec. 106(A)(1)(a). Since the sale will take place at a time when the
seller is already VAT-registered, the sale is subject to VAT.
XII
The BIR Commissioner, in his relentless enforcement of the Run After Tax
Evaders (RATE) program, filed with the Department of Justice (DOJ) charges
against a movie and television celebrity. The Commissioner alleged that the
celebrity earned around PhP 50 million in fees from product endorsements in
2016 which she failed to report in her income tax and VAT returns for said year.
The celebrity questioned the proceeding before the DOJ on the ground that
she was denied due process since the BIR never issued any Preliminary
Assessment Notice (PAN) or a Final Assessment Notice (FAN), both of which
are required under Section 228 of the NIRC whenever the Commissioner finds
that proper taxes should be assessed.
Is the celebrity’s contention tenable? (2.5%)
SUGGESTED ANSWER:
No. In cases where a fraudulent return is filed with the intent to evade
a tax, a proceeding in court for the collection of such tax maybe filed without
assessment (Sec. 222(a), NIRC). Assessment is not necessary before the filing
of a criminal complaint for tax evasion (CIR v. Pascor Realty and
Development Corp., G.R. No. 128315, June 29, 1999).
XIII
The Collector at the Port of Koronadal seized 100 second-hand right-hand
drive buses imported from Japan. He issued warrants of distraint and scheduled
the vehicles for auction sale. Kamilo, the importer of the second-hand buses,
filed a replevin suit with the Regional Trial Court (RTC). The RTC granted the
replevin upon filing of a bond.
Did the RTC err in granting the replevin? (2.5%)
SUGGESTED ANSWER:
Yes. The RTC erred in granting the replevin. The Collector of
Customs has primary and exclusive jurisdiction in seizure cases. Such
14
exclusive jurisdiction precludes the regular courts from taking cognizance of
the subject matter and divests such courts of the prerogative to replevin
property subject to seizure and forfeiture proceedings for violation of the
Tariff and Customs Code (Collector v. Villaluz, L-34038, June 18, 1976; 71
SCRA 356).
XIV
The City of Kabankalan issued a notice of assessment against KKK, Inc.
for deficiency real property taxes for the taxable years 2013 to 2017 in the
amount of PhP 20 million. KKK paid the taxes under protest and instituted a
complaint entitled “Recovery of Illegally and/or Erroneously-Collected Local
Business Tax, Prohibition with Prayer to Issue TRO and Writ of Preliminary
Injunction” with the RTC of Negros Occidental.
The RTC denied the application for TRO. Its motion for reconsideration
having been denied as well, KKK filed a petition for certiorari with the Court of
Appeals (CA) assailing the denial of the TRO.
Will the petition prosper? (5%)
SUGGESTED ANSWER:
No. The Court of Appeals (CA) has no jurisdiction over the case
considering that it is the CTA which has exclusive appellate jurisdiction over
cases involving local taxes decided by RTC in the exercise of latter’s original
jurisdiction.
XV
In 2015, Kerwin bought a three-story house and lot in Kidapawan, North
Cotabato. The property has a floor area of 600 sq.m. and is located inside a gated
subdivision. Kerwin initially declared the property as residential for real property
tax purposes.
15
In 2016, Kerwin started using the property in his business of
manufacturing garments for export. The entire ground floor is now occupied by
state-of-the-art sewing machines and other equipment, while the second floor is
used as offices. The third floor is retained by Kerwin as his family’s residence.
Kerwin’s neighbors became suspicious of the activities going on inside the
house, and they decided to report it to the Kidapawan City Hall. Upon
inspection, the local government discovered that the property was being utilized
for commercial use. Immediately, the Kidapawan Assessor reclassified the
property as commercial with an assessment level of 50% effective January 2017,
and assessed Kerwin back taxes and interest. Kerwin claims that only 2/3 of the
building was used for commercial purposes since the third floor remained as
family residence. He argues that the property should have been classified as
partly commercial and partly residential.
(a) Is the Kidapawan assessor correct in assessing back taxes and
interest? (2.5%)
SUGGESTED ANSWER:
No. The assessor cannot assess back taxes and interest. Since this
involves a reassessment of real property due to a major change in its actual
use, the same cannot be given a retroactive effect. The reassessment shall
only be effective at the beginning of the quarter next following the
reassessment (Sec. 221, LGC).
(b) Is Kerwin correct that only 2/3 of the property should be considered
commercial? (2.5%)
SUGGESTED ANSWER:
Yes. The property must be classified, valued and assessed on the
basis of its actual use regardless of where located, whoever owns it, and
whoever uses it (Sec. 217, LGC).
ALTERNATIVE ANSWER:
No. One of the fundamental principles in the appraisal, assessment,
levy and collection of real property tax under Section 198 of the LGC is that
the real property shall be classified for assessment purposes on the basis of
its actual use. Section 199 of the LGC defines “actual use” as referring to the
purpose for which the property is principally or predominantly utilized by
the person in possession thereof. Hence, considering that, as admitted by
Kerwin, 2/3 of the property is used for commercial purposes, the entire
property must be classified as “commercial” for real property tax purposes.
16
(c) If Kerwin wants to file an administrative protest against the
assessment, is he required to pay the assessment taxes first? With
whom shall the protest be filed and within what period? (2.5%)
SUGGESTED ANSWER:
(a) Yes. No protest shall be entertained unless Kerwin first pays the
tax. The words “paid under protest” must be annotated on the tax receipts
issued by the treasurer. The protest in writing must be filed with the
treasurer within 30 days from payment of the tax (Sec. 252, LGC).
XVI
In an action for ejectment filed by Kurt, the lessor-owner, against Kaka,
the lessee, the trial court ruled in favor of Kurt. However, the trial court first
required Kurt to pay the realty taxes due on the property for 2016 before he may
recover possession thereof.
Kurt objected, arguing that the delinquent realty taxes were never raised as
an issue in the ejectment case. At any rate, Kurt claimed that it should be Kaka
who should be made liable for the realty taxes since it was Kaka who possessed
the property throughout 2016.
Is Kurt correct in resisting the trial court’s requirement to pay the taxes
first? (2.5%)
SUGGESTED ANSWER:
No. The Court may require the payment of delinquent real property
taxes before ruling on the ejectment case. The law provides that in any
action involving the ownership or possession of, or succession to, real
property, the Court may, motu proprio upon representation of the local
treasurer, award such ownership, possession or succession to any party to
the action upon payment to the court of the taxes with interest due on the
property (Sec. 268, LGC). Kurt cannot invoke the possession by Kaka in
order to escape payment, because the delinquent real property tax is a lien
on the property superior to all liens (Sec. 257, LGC).
XVII
Kilusang Krus, Inc. (KKI) is a non-stock, non-profit religious organization
which owns a vast tract of land in Kalinga.
KKI has devoted 1/2 of the land for various uses: a church with a cemetery
exclusive for deceased priests and nuns, a school providing K to 12 education,
17
and a hospital which admits both paying and charity patients. The remaining 1/2
portion has remained idle.
The KKI Board of Trustees decided to lease the remaining 1/2 portion to a
real estate developer which constructed a community mall over the property.
Since the rental income from the lease of the property was substantial, the
KKI decided to use the amount to finance (1) the medical expenses of the charity
patients in the KKI Hospital and (2) the purchase of books and other educational
materials for the students of KKI School.
(a) Is KKI liable for real property taxes on the land? (2.5%)
SUGGESTED ANSWER:
Yes, but only on the leased portion. Article VI, Section 28(3) of the
1987 Constitution provides that “charitable institutions, churches and
personages or convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and improvements, actually, directly,
and exclusively used for religious, charitable, or educational purposes shall
be exempt from taxation”. The test of exemption from taxation is the use of
the property for purposes mentioned in the Constitution. The leased portion
of the land may be subject to real property tax since such lease is for
commercial purposes, thereby, removing the asset from the property tax
exemption granted under the Constitution (CIR v. De La Salle University,
Inc., G.R. Nos. 196596, 198841, 198941, November 9, 2016).
(b) Is KKI’s income from the rental fees subject to income tax? (2.5%)
SUGGESTED ANSWER:
Yes. Despite falling under the organizations enumerated under Section
30 of the NIRC, the last paragraph of the same provision makes KKI’s
income of whatever kind and character from any of its properties, real or
personal, or from any of its activities conducted for profit regardless of the
disposition made of such income, subject to income tax (Sec. 30, NIRC last
paragraph).
XVIII
Kathang Isip, Inc. (KII) is a domestic corporation engaged in the business
of manufacturing, importing, exporting, and distributing toys both locally and
abroad. Its principal office is located in Kalookan City, Philippines. It has 50
18
branches in different cities and municipalities in the country. When KII applied
for renewal of its mayor’s permit and licenses in its principal office in January
this year, Kalookan City demanded payment of the local business tax on the basis
of the gross sales reported by the corporation in its audited financial statements
for the preceding year. KII protested, contending that Kalookan City may tax
only the sales consummated by its principal office but not the sales consummated
by its branch offices located outside Kalookan City.
When Kalookan City denied the protest, KII engaged the services of Atty.
Kristeta Kabuyao to file the necessary judicial proceedings to appeal the decision
of Kalookan City. Atty. Kabuyao is a legal expert, but resides in Kalibo, Aklan
where her husband operates a resort. She, however, practices in Metro Manila,
including Kalookan City. The counsel representing the city, in the case filed in
Kalookan City by KII, questioned the use of Atty. Kabuyao’s Professional Tax
Receipt (PTR) issued in Aklan for a case filed in Kalookan City.
(a) Is KII’s contention that Kalookan City can only collect local
business taxes based on sales consummated in the principal office
meritorious? (2.5%)
SUGGESTED ANSWER:
Yes. Section 150 of the Local Government Code (LGC) provides that
for purposes of collection of taxes on business, when the taxpayer is
operating a branch or sales outlet elsewhere, the tax on the sales made
therein shall accrue and shall be paid to the city or municipality where such
branch or sales outlet is located.
(b) Is the Kalookan City counsel correct in saying that Atty. Kabuyao’s
PTR issued in Aklan cannot be used in Kalookan? (2.5%)
SUGGESTED ANSWER:
No. As provided under Section 139 of the LGC, payment of Atty.
Kabuyao of her PTR in Aklan entitles her to practice her profession in any
part of the Philippines.
XIX
The BIR assessed Kosco, Inc., an importer of food products, deficiency
income and value-added tax, plus 50% surcharge after determining that Kosco
Inc. had under-declared its sales by an amount exceeding 30% of that declared in
its income tax and VAT returns. Kosco denied the alleged under-declaration,
protested the deficiency assessment for income and value-added taxes and
challenged the imposition of the 50% surcharge on the ground that the surcharge
may only be imposed if Kosco Inc. fails to pay the deficiency taxes within the
time prescribed for their payment in the notice of assessment.
19
(a) Is the imposition of the 50% surcharge proper? (2.5%
SUGGESTED ANSWER:
Yes. As provided under Section 248(B) of the NIRC, 50% surcharge
on tax or on deficiency tax is also imposable in case a false or fraudulent
return is willfully made. Further, failure to report sales, receipts or income
in an amount exceeding 30% of that declared per return constitutes
substantial underdeclaration of sales and is prima facie evidence of a false or
fraudulent return. If not controverted, Kosco, Inc.’s underdeclaration of
sales is considered substantial as to consider the tax returns it filed as
falsified or fraudulent; hence, the imposition of 50% surcharge is proper.
(b) If your answer to (a) is yes, may Kosco enter into a compromise
with the BIR for reduction of the amount of surcharge to be paid?
(2.5%)
SUGGESTED ANSWER:
No. Surcharge is in the nature of a penalty, and not an internal
revenue tax that may be subject to compromise, pursuant to Section 204 of
the NIRC.
XX
Krisp Kleen, Inc. (KKI) is a corporation engaged in the manufacturing and
processing of steel and its by-products. It is both registered with the Board of
Investments, with a pioneer status, and with the BIR as a VAT entity. On
October 10, 2010, it filed a claim for refund/credit of input VAT for the period
January 1 to March 31, 2009 before the Commissioner of Internal Revenue
(CIR). On February 1, 2011, as the CIR had not yet made any ruling on its claim
for refund/credit, KKI, fearful that its period to appeal to the courts might
prescribe, filed an appeal with the Court of Tax Appeals (CTA).
(a) Can the CTA act on KKI’s appeal? (2.5%)
SUGGESTED ANSWER:
No. Pursuant to the pronouncement made the Supreme Court in the
case of Commissioner of Internal Revenue v. Aichi Forging Company of Asia,
Inc. (G.R. No. 184823, February 12, 2013), the observance of the “120+30-
day” period is jurisdictional. Now, counting 120 days from October 10, 2010,
the last day for the CIR to act on the claim for refund/credit fell on
February 7, 2011, thus making the February 1, 2011 filing premature.
20
(b) Will your answer be the same if KKI filed its appeal on March 20,
2011 and CIR had not yet acted on its claim? (2.5%)
SUGGESTED ANSWER:
Yes. The filing on March 20, 2011 is still not compliant with the
“120+30-day” rule. As mentioned, the CIR has until February 7, 2011 to
decide on the claim for refund/credit of input VAT. After the lapse of the
120-day period, the taxpayer-claimant has 30 days to file an appeal before
the CTA. In the present case, KKI had until March 9, 2011 to file the appeal
based on a deemed adverse decision on the claim for refund/credit; hence,
the filing on March 20, 2011 was belatedly done, and the CTA has no
jurisdiction over such claim for refund/credit.
-NOTHING FOLLOWS-
21
Training & Convention Division
University of the Philippines Law Center
SUGGESTED ANSWERS
to the
2018 BAR EXAMINATIONS IN
MERCANTILE LAW
Yeti Export Corporation {YEC), thru its President, negotiated for Yahoo
Bank of Manila {YBM) to issue a letter of credit to course the importation of
electronic parts from China to be sold and distributed to various electronic
manufacturing companies in Manila. YBM issued the letter of credit and forwarded
it to its correspondent bank, Yunan Bank (YB) of Beijing, to notify the Chinese
exporters to submit the bill of lading in the name of YBM covering the goods to be
exported to Manila and to pay the Chinese exporters the purchase price upon
verification of the authenticity of the shipping documents.
The electronic parts arrived in the Port of Manila, and YBM released them to
the custody of YEC as an entrustee under a trust receipt. When YEC unpacked the
imported parts in its warehouse, it found that they were not only of inferior quality
but also did not fit the descriptions contained in the bill of lading. YEC refused to
pay YBM the amount owed under the trust receipt. YBM thereafter commenced the
following:
(a) Civil suit to hold YB liable for failure to ensure that the electronic
parts loaded for exportation in China corresponded with those
described in the bill of lading. Is there any merit in the case against
YB? (2.5%)
SUGGESTED ANSWER:
1
(Marphil Export Corporation v. Allied Banking Corporation, (G.R.
No. 187922, September 21, 2016). YB not a negotiating bank
either, because it did not buy the draft of the beneficiary of the
letter of credit. Even if, however, YB acted as a confirming or
negotiating bank, such kind of correspondent bank has no similar
obligation to ensure that the goods shipped match with those
described in the bill of lading.
(b) Criminal suit against YEC and its President for estafa, and sought the
payment of the amount covered in the trust receipt. The defense of the
YEC President is that he cannot be held liable for a transaction of the
corporation, of which he only acted as an officer, and that it is YEC as
the principal that should be held liable under the trust receipt, which
was entered into in the name of YEC and pursuant to YEC's corporate
purposes. He cited as his legal ground the "Doctrine of Separate
Juridical Personality." Is the President's contention meritorious?
(2.5%)
SUGGESTED ANSWER:
2
II.
Yolanda executed and signed a promissory note with all the requisites for
negotiability being present, except for the amount which was left blank. She kept
the promissory note in her desk and decided to place the amount at a later date. The
indicated payee, Yohann, managed to obtain the promissory note from Yolanda's
desk and filled out the amount for the sum of PhP 10 million, which was the
amount actually lent by him to Yolanda, but excluding the agreed interest. Yohann
later endorsed and delivered the check to Yvette, under circumstances that would
constitute the latter to be a holder in due course.
(a) May Yvette hold Yolanda liable on the note? (2.5%)
SUGGESTED ANSWER:
(a) Yvette cannot hold Yolanda liable on the note. This is a case of
incomplete and undelivered instrument, insofar as Yolanda is
concerned. Where an incomplete instrument has not been
delivered, it will not, if completed and negotiated without
authority, be a valid contract in the hands of any holder, including
a holder in due course as against Yolanda, whose signature was
placed thereon before delivery (Section 15 of the Negotiable
Instruments Law [NIL]).
(b) Would your answer be the same if the promissory note was actually
completed by Yolanda (including the amount of PhP 10 million), but
stolen from her desk by Yohann? Can Yvette enforce the note against
Yolanda? (2.5%)
SUGGESTED ANSWER:
(b) The answer will not be the same. Now that the instrument is
complete but undelivered and in the hands of Yvette, a holder in
due course, a valid and intentional delivery to make all parties
prior to Yvette liable is conclusively presumed under Section 16 of
the NIL, therefore, Yvette can hold Yolanda , a prior party, liable.
A complete but undelivered instrument is only a personal defense
not available againt a holder in due course.
3
III
On November 23, 2017, Yas Ysmael loaned the amount of PhP 5 million to
Yarn & Thread Corporation (YTC), through its President, Ylmas
Yektas (Yektas), which loan was evidenced by a Promissory Note
(PN), which reads as follows:
Date: _______________
Within one year from date hereof, I promise to pay to the order of YAS
YSMAEL, the sum of PhP5,000,000 with interest at 120% per
annum.
By:
(Sgd.)
Ylmas Yektas
Yektas was the controlling stockholder of YTC at the time the PN was
issued. As security for the payment of the PN, Yektas issued and
delivered to Yas Ysmael a postdated personal check covering the face
value of the PN drawn from his account with Yellow Bell Bank and
Trust Company (YBTC). The proceeds of the loan under the PN were
used by YTC as working capital.
A year later, Yas Ysmael inserted the date of “ November 23, 2017” on the
date section of the PN, and made a formal demand upon YTC, through
Yektas, to pay the note, but which was refused on the ground that
Yektas was no longer the President and controlling shareholder of
YTC. By this time, all the shares of YTC had already been sold to a
new group of investors. Yas Ysmael deposited the personal check
issued by Yektas which bounced. He then filed a collection suit
against YTC and Yektas including the accrued interest.
The defendants raised the following defenses in the collection suit. Rule on
the merits of each defense. (2% each)
(a) A PN issued with a blank date is one that is not payable on demand or
on a fixed or determinable future time, and therefore the insertion of
the date constituted material alteration that nullified it, so that no cause
of action arose.
4
SUGGESTED ANSWER:
(b) Yektas cannot be made liable on the PN since he signed in his capacity
as President of YTC, which fact was known to Ysmael although not
indicated on the PN.
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
(b) The defense is meritorious. Since the matter of signing the note by
Yektas on behalf of YTC is known to Ysmael, then, Yektas has no
personal liability as it may be inferred from the note that he is
acting only in a representative capacity.
SUGGESTED ANSWER:
(c) The defense is not meritorius. An accommodation party signs a
negotiable instrument as a maker, drawer, endorser, acceptor
without receiving value therefor and only for the purpose of
lending his name in another, he is liable to a holder for value
5
notwithstanding that such holder, at the time of taking the
instrument, knew him only to be an accommodation party
(Section 29 of NIL).
(d) YTC, now owned by new owners, cannot be held liable on the PN
since it was entered into by its former owner and President, which act
the new Board of Directors did not ratify.
SUGGESTED ANSWER:
(d) The defense is not meritorius. In stock sales, where shareholder
sell a block of stock to new or existing shareholders, the
transaction takes place at the shareholder level only. Because the
corporation has a legal personality separate and distinct from that
of its shareholders, a change in the composition of shareholders
will not affect its existence or extinguish its separate legal
personality (SME Bank v. Samson, (G.R. No. 186641, October 8,
2013)).
(e) The PN is void for being in violation of the Usury Law seeking interest
at an unconscionable rate of 120% p.a.
SUGGESTED ANSWER:
(e) The defense is not meritorius. The Usury law is currently
suspended in view of CB Circular 905 series of 1982, which lifted
the ceiling on interest rate for loans. If the interest rate is deemed
to be unconscionable by the courtdespite the absence of the Usury
Law, the legal rate of interest shall be deemed to apply; thus, the
PN remains valid.
ALTERNATIVE ANSWER:
(e) The PN remains valid, because the obligation to pay the principal
amount of the loan is distinct from the obligation to pay the
interest on the loan.
6
IV
Ysidro, a paying passenger, was on board Bus No. 904 owned and operated
by Yatco Transportation Company (“Yatco”). He boarded the bus at Munoz, Nueva
Ecija with Manila as his final destination. He was seated on the first row, window
seat on the left side of the bus. As the bus was negotiating the national highway in
front of the public market of Gerona, Tarlac, the bus came to a full stop because of
the traffic. The driver of the bus took this opportunity to check on the tires of the
bus and to relieve himself. As he was alighting from the bus to do these, an
unidentified man standing along the highway hurled a huge rock at the left side of
the bus and hit Ysidro between his eyes. He lost consciousness and immediately the
driver, with the conductor, drove the bus to bring him to the nearest hospital. He
expired before the bus could reach the hospital.
Ysidro’s wife and children brought a civil action to collect damages from
Yatco, alleging that, as a common carrier, it was required to exercise extraordinary
diligence in ensuring the safety of its passengers. They contended that in case of
injuries and/or death on the part of any of its passengers, the common carrier is
presumed to be at fault. In its defense, Yatco alleged that it is not an absolute
insurer of its passengers and that Ysidro’s death was not due to any defect in the
means of transport or method of transporting passengers, or the negligent acts of its
employees. Since the accident was due to the fault of a stranger over whom the
common carrier had no control, or of which it did not have any prior knowledge to
be able to prevent it, the cause of Ysidro’s death should be considered a fortuitous
event and not the liability of the common carrier.
SUGGESTED ANSWER:
(b) What kind of diligence is required of common carriers like Yatco for
the protection of its passengers? (2.5%)
SUGGESTED ANSWER:
7
(c) Will your answer be the same as your answer in (b) above, if the
assailant was another paying passenger who boarded the bus and
deliberately stabbed Ysidro to death? (2.5%)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
8
VI.
Shortly after Yin and Yang were wed, they each took out separate life
insurance policies on their lives, and mutually designated one another as sole
beneficiary. Both life insurance policies provided for a double indemnity clause,
the cost for which was added to the premium rate. During the last 10 years of their
marriage, the spouses had faithfully paid for the annual premiums over the life
policies from both their salaries. Unfortunately, Yin fell in love with his
officemate, Yessel, and they carried on an affair. After two years, their relationship
bore them a daughter named Yinsel. Without the knowledge of Yang, Yin changed
the designation of the beneficiary to an "irrevocable designation" of Yinsel and
Yessel jointly. When Yang learned of the affair, she was so despondent that, having
chanced upon Yin and Yessel on a date, she rammed them down with the car she
was driving, resulting in Yin's death and Yessel's complete loss of mobilization.
Yang was sued for parricide, and while the case was pending, she filed a claim on
the proceeds of the life insurance of Yin as irrevocable beneficiary, or at least his
legal heir, and opposed the claims on behalf of Yessel and her daughter Yinsel.
Yang claimed that her designation as beneficiary in Yin's life insurance policy was
irrevocable, in the nature of one "coupled with interest," since it was made in
accordance with their mutual agreement to designate one another as sole beneficiary
in their respective life policies. She also claimed that the beneficiary designation of
Yessel and the illegitimate minor child Yinsel was void being the product of an
illicit relationship, and therefore without "insurable interest."
SUGGESTED ANSWER:
(a) Yang is not correct. The insured shall have the right to change the
beneficiary he designated in the policy, unless he has expressly
waived this right in the policy. There is nothing in the life
insurance policy taken by Yang which indicated that the
designation of Yin is irrevocable. As such, it is deemed to be
revocable.
(b) Do Yessel and Yinsel have “insurance interest” on the life of Yin?
(2.5%)
SUGGESTED ANSWER:
(b) Yessel has no insurable interest on the life of Yin, because she can
not be lawfully designated as beneficiary. Persons who are
proscribed to become donees under the rules on donation cannot
be designated as beneficiary in life insurance. These include
9
persons in illicit relations as in the case of Yin and Yessel. Yinsel,
however, has insurable interest on the life of Yin. There is no
proscription in naming an illegitimate child as a beneficiary (Heirs
of Loreta Maramag v. Maramag, (G.R. No. 181132, June 5, 2009)).
VII
(a) May the acts of entering into the film distribution contract, the
subsequent execution and performance of the terms of the contract in
the Philippines, and the appointment of Atty. Yson, be considered as
act of “doing business” in the Philippines that will require Yelp
Pictures to register as a foreign corporation and obtain a license to do
business in the Philippines? (2.5%)
SUGGESTED ANSWER:
10
(b) Will your answer in (a) be the same if Yelp Picture exercises the
option, becomes a substantial shareholder, and is able to elect two (2)
directors in the Board of Directors of Yehey Movies? (2.5%)
SUGGESTED ANSWER:
(b) It will be the same. Mere passive investment in equity and voting
the equity shares of the corporation to elect its director in the
board of a domestic corporation is not tantamount to doing
business.
(c) Must the option granted to Yelp Pictures be registered under the SRC?
(2.5%)
SUGGESTED ANSWER:
(c)
(c) While options are securities, the option was granted only to Yelp
Pictures and not to the public. As a consequence, the option need
not be registered with the SEC.
VIII
Yolly, one of the staff members in the office of the Corporate Secretary of
YEI was immediately asked to type the resolution and file the disclosure with the
PSE and the Securities and Exchange Commission (SEC). Before doing that, she
secretly called her brother who works with a stock brokerage company, to purchase,
in the name of Yolly’s husband, 5,000 shares in YCC. After the acquisition was
disclosed to the SEC and the PSE, the market price of YCC increased by 50%.
(a) In acquiring 75% of the total capital stock of YHC, should YEI be
required to do a mandatory tender offer? (2.5%)
SUGGESTED ANSWER:
(a) In acquiring 75% of the total capital stock of YCC, YEI should be
required to do a mandatory tender offer. By acquiring the
11
combined 75% shareholdings of YMI and YCIin YCC, YEI
effectively owns 45% of YCC. Add that to the 20% it directly owns
in YCC, YEI now owns and controls 65% of YCC. Once a person
singly or in concert with others acquires more than 50% of the
voting stock of a public company, the mandatory tender offer rule
applies. The tender offer rule covers not only direct acquisition
but also indirect acquisition or any type of acquisition. Whatever
may be the method by which control of a public company is
obtained either through the direct purchase of its stocks or
through indirect means, mandatory tender offer rule applies
(Cemco Holdings v. National Life Insurance Company, [529 SCRA
(2007).
SUGGESTED ANSWER:
(b) Yolly cannot be held liable for insider trading. Insider trading is
the buying and selling of securities by an insider while in the
possession of a material non-public information. While Yolly is an
insider, because she has access to material non-public information
by reason of her relationship with the Issuer, she did not, however,
buy or sell securities. She is liable, however, for having
communicated material non-public information about the issuer to
any broker who by virtue of such communication becomes an
insider considering that Yolly, the insider communicating the
information knows or has reason to believe that the broker will
likely buy or sell a security of the issuer while in possession of such
information (Section 27.3 of the SRC). The law makes no
distinction that the insider is buying for himself or for the account
of another, as such, it is immaterial that the broker purchased
securities for the account of Yolly’s husband. The information
about the MTO is also material as it will likely affect the decision
of a reasonable person to buy or sell the securities.
12
IX
Yangchou lnc.'s (YI) Articles of Incorporation (AOI) provides for two (2)
types of shares of stock: common and preferred shares. Its AOI further provides that
"the preferred shares shall have a guaranteed annual dividend of 3% of the par
value." Its By-Laws also specifically provides that "preferred shareholdings shall be
cumulative and participating." No other terms of preference are provided for
preferred shares in either the AOI or By-Laws of YI.
For the first five years of operations, the company was operating at a loss. At
the end of the sixth year, YI realized a net profit of PhP 100 million, and
unrestricted retained earnings of PhP 30 million. The YI Board of Directors
declared and paid out dividends of 1 % on common shares, and 5% on preferred
shares, which amounted to a total of PhP 30 million.
Should Vi's Board heed the demand of its preferred shareholders? (2.5%)
SUGGESTED ANSWER:
YI’s Board should not heed the demand of its preferred shareholders.
While the preferred shares are cumulative and participating, the holders
thereof are entitled to dividends only if the unrestricted retained earnings are
sufficient to pay such dividends. Dividends are declared based on unrestricted
retained earnings and not on the amount of net profit Republic Planters Bank
v. Agana, (G.R. No. 51765, March 3, 1997; Section 43 of the Corporation Code).
ALTERNATIVE ANSWER:
13
shares for cash pursuant to a notarized Deed of Sale in favor of Ynchon, and which
certificate was duly endorsed and delivered. When Ynchon presented the Deed of
Sale and the endorsed certificate of stock, as well as proof of payment to the Bureau
of Internal Revenue (BIR) of the tax due on the sale of shares, the Corporate
Secretary of Yakal Inc. refused to register the sale on the ground of lack of written
authority from Ybarra to cancel the certificate and have the shares registered in the
name of Ynchon.
(a) Does Ynchon have a cause of action to file a petition for mandamus to
compel the corporation to register the 500 shares in his name in the
corporation books? (2.5%)
SUGGESTED ANSWER:
(a) Yes, Ynchon has a cause of action to file the petition for
mandamus to compel the corporation to register the 500 shares in
the corporation’s books. In Andaya v. Rural Bank of Cabadbaran,
(G.R. No. 188769, August 3, 2016), the Supreme Court abandoning
its previous ruling in (Ponce v. Alsons Cement) ruled that the
transferees of shares of stock are real parties in interest having a
cause of action for mandamus to compel registration of the
transfer and the corresponding issuance of stock certificates even
without the written authority from the seller to cancel the
certificate and register the shares in the books of the corporation.
(b) Who is liable to pay the remaining unpaid 50% balance - Ybarra or
Ynchon? (2.5%)
SUGGESTED ANSWER:
(b) Ynchon should be the one to pay the remaining balance but
without prejudice to his right to recover from Ybarra. The effect
of the sale of the shares was to extinguish the obligation of the
seller to the Corporation to pay whatever is the balance in the
contract of subscription. The sale of shares to the buyer with the
consent of the corporation effectively resulted in novation
(Interport Resources Corporation v. Securities Specialist Inc., G.R.
No. 154069, June 6, 2016).
14
XI
The Board of Directors consults with you as legal counsel on the proper
answers to the following issues: (2.5% each)
SUGGESTED ANSWER:
15
necessary for the stockholders’ ratification, and would the dissenting
stockholders have a right to exercise their right of appraisal?
SUGGESTED ANSWER:
(c) Once the increase in the Authorized Capital Stock of Yenetic has been
legally effected with the SEC, can the new shares from the unissued
shares be offered to a new limited group of investors without having to
offer them to the shareholders of record since no pre-emptive right is
provided for in the AOI and By-laws of Yenetic?
SUGGESTED ANSWER:
(c) The new shares from the unissued shares cannot be validly offered to a
new limited group of investors without having to offer to shareholders
of record, as pre-emptive rights are not explicitly denied in the AOI.
Section 39 of the Corporation Code provides that all stockholders of a
stock corporation shall enjoy pre-emptive right to subscribe to all
issues or disposition of shares of any class, in proportion to their
respective shareholdings. There need not be an explicit grant of pre-
emptive rights in the AOI for it to exercised.
XII
Yashtag Holdings, lnc.'s (Yashtag Holdings) AOI states that its primary
purpose is "to invest in real and personal properties of every kind or otherwise
acquire and deal with stocks, bonds, and other securities or evidence of
indebtedness of any other corporation, and to hold or to own, use, sell, deal in, and
dispose of, any such stock." It further states that it has an authorized capital stock of
PhP 1 million, all of which have been fully subscribed and paid up.
16
Holdings issued two (2) postdated checks to each lender/investor, one representing
the principal amount, and the other covering the guaranteed interest that ranged
between 18-32% p.a. On the maturity dates of the checks, the individual
lender/investor can review the loans/investment, and may either collect only the
interest or roll over the same with the principal amounts. Eventually, the bursting of
the real estate bubble brought about a serious financial crisis around the world,
including the Philippines. Yashtag Realty collapsed and with it Yashtag Holdings
defaulted in the payment of its loans/investments, as well as the dishonor of the tens
of thousands of postdated checks issued to its various lenders/investors.
Yeh, Yah, and Yo filed several charges against Yashtag Holdings and its
President, making them solidarily liable for the investments they failed to recover.
Yeh, Yah, and Yo proved that Yashtag Holdings, acting through Mr. Yokada, was
able to get a total of PhP 800 million of loans/investments from the public under the
scheme, and from which Mr. Yokada, as the controlling stockholder, was able to
withdraw a total amount of PhP 300 million for his personal account and entered
into the books of Yashtag Holdings as "Advances to Stockholders." Mr. Yokada
pleads as a defense that he cannot be made personally liable on the claim of the
group under the doctrines of "Separate Juridical Personality" and "Limited
Liability."
(a) What are the doctrines of "Separate Juridical Personality" and "Limited
Liability"? (2.5%)
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
[NOTE: The following answer should also be given credit because the
question may be construed as to whether this defense is pertinent
under the second question].
(a) The limited liability rule, also known as the real or the
hyphotecary nature of maritime law, simply means that that the
liability of the shipowner or ship agent arising from the
transportation of goods and passengers is limited to their interest
17
in the vessel which is hyphotecated for such obligations or which
stands as a guaranty for their settlement. This rule may be best
explained by the doctrine, “no vessel, no liability” [Aboitiz Shipping
Corporation v. General Accident Fire and Life Assurance
Corporation, 217 SCRA 359, (1993)].
(b) Decide on the merits of Mr. Yokada’s defense against being made
liable for Yashtag Holdings’ obligations. (2.5%)
SUGGESTED ANSWER:
(b) Yokada cannot validaly invoke the doctrine of separate juridical
personality and limited liability. Yokada acted in bad faith in
withrawing 300M for his personal account. Having acted in bad
faith, he becomes solidarily liable with the corporation;
furthermore, having issued securities to the public without prior
approval of the SEC is also another basis to hold him solidarily
liable with the issuer corporation.
ALTERNATIVE ANSWER:
NOTE: (b) It is respectfully suggested that an examinee who answers that the
limited liability rule is a maritime law concept and has no bearing to
the issue, should also be given credit.
XIII
18
Mr. Yamato subsequently defaulted on the loan and vanished. Thus, YBC
Bank extrajudicially foreclosed on the REM, and was the highest bidder at the
public auction sale. It was only then that the bank determined that there were
actually two separate TCTs issued for the property and one of which was in the
name of Mr. Yamsuan who occupied the property after having bought it earlier
from Mr. Yamato.
(a) Can YBC Bank unilaterally increase the interest rates on the loan?
(2.5%)
SUGGESTED ANSWER:
(a) YBC Bank cannot unilaterally increase the interest rates on the
loan. A stipulation allowing the bank to increase the interest rate
unilaterally is a solely-potestative condition which violates the
principle of mutuality of contracts and as such is null and void
[PNB v. Padilla SCRA 259 SCRA 174 (1991)].
(b) Is YBC Bank a mortgagee buyer in good faith? Is it preferred over Mr.
Yamsuan? (2.5%)
SUGGESTED ANSWER:
XIV
On June 21, 2008, Yate took out a life insurance policy on her life in the
amount of PhP 10 million and named her husband Vandy and daughter as joint
irrevocable beneficiaries. Before the policy was issued and the premiums were paid,
Yate underwent a medical checkup with a physician accredited by the insurer, and
the only result found was that she was suffering from high blood pressure. Yate was
previously diagnosed by a private physician of having breast cancer which she did
not disclose to the insurer in her application, nor to the insurer's accredited
physician because by then, she was told that she was already cancer-free after
undergoing surgery which removed both her breasts. She was later diagnosed with
psychotic tendency that graduated into extreme despondency. She was found dead
hanging in her closet 36 months after the issuance of the policy. The police
authorities declared it to be a case of suicide. The policy did not include suicide as
an excepted risk.
19
(a) Can the insurer raise the issue of failure to disclose that she had cancer
as a cause for denying the claim of the beneficiaries? (2.5%)
SUGGESTED ANSWER:
(a) The insurer cannot raise the issue of concealment, because only
material facts known to the insured at the time of the issuance of
the policy should be disclosed to the insurer (Section 28 of the
Insurance Code). Yate’s previous cancer diagnosis is no longer a
material fact at the time she procured the policy.
(b)
Are the beneficiaries entitled to receive the proceeds of the life
insurance notwithstanding the fact that the cause of death was suicide?
(2.5%)
SUGGESTED ANSWER:
(b) Yes, the beneficiaries are entitled to received the proceeds. The
rule is that the insurer in life insurance is liable in case of suicide
only when it is committed after the policy has been in force for a
period of two years from the date of issue or last reinstatement.
The rule, however, admits of an exception so that when suicide is
committed in the state of insanity, it shall be compensable
regardless of the date of commission (Section 183 of the Insurance
Code). In the facts given, Yate was diagnosed with psychotic
tendency that graduated into extreme despondency; thus, even
though Yate committed suicide 36 months from issuance of the
policy, the insurer is liable.
XV
20
(a) Can Aling Voling successfully obtain court relief to prohibit Aling
Yasmin from using the brand name "Ysmaellas" in her products on the
basis of her (Aling Yoling's) copyright? What is the difference between
registration as a copyright and registration as a trade or brand name?
(2.5%)
SUGGESTED ANSWER:
(b) Can Aling Yasmin seek injunctive relief against Aling Yoling from
using the brand name “Ysmaellas,” the latter relying on the doctrine of
“prior use” as evidenced by her prior copyright registration? (2.5%)
SUGGESTED ANSWER:
(b) Aling Yasmien can seek injunctive relief against Aling Yoling from
using the brand name “ Ysmaellas “ because of the doctrine of
prior use. It is ownership of the trademark that confers the right to
register. Registration does not confer ownership. Since Aling
Yasmin was the first one to use the brand or trade name in
commerce, then she is considered the owner thereof [EY Industrial
Sales v. Shen Dar 634 SCRA 363(2010)].
21
(c) Can Aling Yoling seek the cancellation of Aling Yasmin’s trademark
registration of the brand name “Ysmaellas” on the ground of “Well
Known Brand” clearly evidenced by her (Aling Yoling’s) prior
copyright registration, actual use of the brand, and several magazine
coverages? (2.5%)
SUGGESTED ANSWER:
(c) NO, Aling Yoling can not seek the cancellation of Aling Yasmin’s
trademark registration of the brand name “ Ysmaellas on the
ground of well-known brand, because the well- known mark rule
only applies to a mark which is well-known internationally and in
the Philippines [Section 123 ( E ) of the Intellectual Property Code].
She, however, can seek the cancellation of the trademark for being
the prior user even though the mark is not well-known.
XVI
Yosha was able to put together a mechanical water pump in his garage
consisting of suction systems capable of drawing water from the earth using less
human effort than what was then required by existing models. The water pump
system provides for a new system which has the elements of novelty and inventive
steps. Yosha, while preparing to have his invention registered with the IPO, had
several models of his new system fabricated and sold in his province.
SUGGESTED ANSWER:
(a) Yosha’s invention is still patentable despite the fact he had sold
several models to the public before the formal application for
registration of the patent was filed with the IPO. It is true that an
invention shall not be considered new if it forms part of a prior art
and that prior art shall consist of everything which has been made
available to the public anywhere in the world, before the filing
date or the priority date of the application claiming the
invention.This, however, presupposes that the one who has made
available the patentable invention to the public is a person other
than the applicant for patent.
22
(b) If Yosha is able to properly register his patent with the IPO, can he
revent anyone who has possession of the earlier models from using
them? (2.5%)
SUGGESTED ANSWER:
(b) Yosha can no longer prevent anyone who has possession of the
earlier models from using them even if Yosha is able to properly
register the patent with the IPO. One of the limitations of patent
rights is the use of the patented product which has been put on the
market in the Philippines by the owner of the product insofar as
such use is performed after the product has been so put on the said
market [Section 172 of the Intellectual Property Code].
XVII
SUGGESTED ANSWER:
(a) CSC is correct in dismissing the case. The E-commerce law does
not cover or allow e-filing or facsimile transmission as a mode of
23
filing of pleadings in administrative cases [Torres v. PAGCOR,
(G.R. No. 193531, December 6, 2011)].
(b) Can Yvan’s bank be ordered by the court to disclose if there were
unreasonable increases in his bank deposit when the alleged acts were
committed? (2.5%)
SUGGESTED ANSWER:
(b) No, Yvan’s bank cannot be ordered by the court to disclose if there
were unreasonable increases in his bank deposit when the alleged
acts were committed. The inquiry into bank deposits allowable
under RA 1405 must be premised on the fact that the money
deposited in the account is itself the subject of the action;
otherwise, the inquiry will amount to an impermissible
encroachment into one’s right to privacy (BSB Group v. Go, G.R.
No. 168644, February 16, 2010)].
XVIII
(a) Is the legal position of YB, in requiring written permission from the
depositor, correct? (2.5%)
SUGGESTED ANSWER:
24
(b) Does AMLC have the power to order a banking institution to reveal
matters relating to bank accounts? (2.5%)
SUGGESTED ANSWER:
- Nothing follows -
25
Training & Convention Division
University of the Philippines Law Center
SUGGESTED ANSWERS
to the
2018 BAR EXAMINATIONS IN
CRIMINAL LAW
On the agreed date, Rafael drove Roberto and Ruel to the nearest corner near
Ricardo's house. Roberto and Ruel walked about 50 meters where Ruel took his
post as guard, and Roberto walked about five (5) meters more, aimed the gun at
Ricardo's bedroom, and peppered it with bullets. When he thought that he had
accomplished his plan, Roberto ran away, followed by Ruel, and together they rode
in Rafael's car where they drove to the next town to spend the night there. It turned
out that Ricardo was out of town when the incident happened, and no one was in his
room at the time it was peppered with bullets. Thus, no one was killed or injured
during the incident.
(a) Was a crime committed? If yes, what is/are the crime/s committed
(2.5%); and
SUGGESTED ANSWER:
Yes. In the case of Intod v. Court of Appeals (G.R. No. 103119, Oct. 21,
1992), the Supreme Court ruled that when factual impossibility occurs because
extraneous circumstances unknown to the actor or beyond his control,
rendered the intended crime impossible of accomplishment, the offense
committed is an impossible crime (Art. 4, Par. 2, RPC); the factual situation
that made impossible the accomplishment of the crime intended when they
1
prepared Ricardo’s room with bullets, was the physical absence of the
intended victim of the room.
SUGGESTED ANSWER:
All the perpetrators (Roberto, Ricardo and Rafael) are criminally liable
as principals since the conspiracy among them was clearly established by their
participation.
Roberto is principal by direct participation as he took a direct part in
the execution of the plan to kill Ricardo by firing his gun at the room of the
intended victim. Rafael is principal by indispensable cooperation not only
becuase he lent his gun to Roberto fully knowing the unlawful intent of the
latter, but also drove him to the place of the commission of crime and to a
place where he could escape.
Ruel being involved in the criminal plan to kill Ricardo acted in
conspiracy with the two (2) other perpetrators staying in the place from the
time they planned the crime up to its finalization. They were together in the
car driven by Rafael going to the next town in escaping from the scene of the
crime.
II
2
SUGGESTED ANSWER:
SUGGESTED ANSWER:
No, the defense of Red and Rod’s is also not meritorious. The concerted
manner in which the three (Rico, Red and Rod) perpetrated the crime showed
clearly the presence of conspiracy. When a homicide takes place by reason or
on the occasion of robbery, all those who took part shall be guilty of the special
complex crime of robbery with homicide, whether or not they actually
participated in the killing.
Regardless of the fact that the killing of the woman depositor was
individually performed by Rico, the basic principal in conspiracy is that the
“act of one is the act of all”, the criminal liability of Rod and Red is one and
the same with that of Rico (P. v. Hinlo (G.R. No. 212151, Feb. 18, 2015).
III
On February 5, 2017, Rho Rio Fraternity held initiation rites. Present were:
(i) Redmont, the Lord Chancellor and head of the fraternity; (ii) ten ( 10) members,
one (1) of whom was Ric, and (iii) five (5) neophytes, one (1) of whom was
Ronald. Absent were: (i) Rollie, the fraternity's Vice Chancellor and who actually
planned the initiation; and (ii) Ronnie, the owner of the house where the initiation
was conducted.
During the investigation of the case, it was found out that, although Ronald
really wanted to join the fraternity because his father is also a member of the same
fraternity, it was his best friend Ric who ultimately convinced him to join the
fraternity and, as a prerequisite thereto, undergo initiation. It was also shown that
Redmont and Ric did not actually participate in the beating of the neophytes
(hazing). The two (2) either merely watched the hazing or helped in preparing food.
3
And, lastly, two (2) days prior thereto, Ronnie texted Rollie that the fraternity may
use his house as the venue for the planned initiation.
Aside from those who actually participated in the hazing, Redmont, Rollie,
Ric, and Ronnie were criminally charged for the hazing of Ronald that resulted in
the latter's death.
SUGGESTED ANSWER:
(b) Can all those criminally charged be exonerated upon proof that
Ronald, knowing the risks, voluntarily submitted himself to the initiation? Will the
absence of proof that the accused intended to kill the victim affect their liability?
(2.5%)
SUGGESTED ANSWER:
The defense of consent will not apply, because the very act of inflicting
physical pain or psychological suffering is, by itself punishable; that it resulted
in the neophytes death or physical injuries merely aggravates the act resulting
in the imposition of higher penalty.
4
R.A. 8049, the Anti-Hazing Law, is also malum prohibtum, thus then
existence criminal intent is immaterial.
ALTERNATIVE ANSWER:
IV
On the way home from work, Rica lost her necklace to a snatcher. A week
later, she saw what looked like her necklace on display in a jewelry store in Raon.
Believing that the necklace on display was the same necklace snatched from her the
week before, she surreptitiously took the necklace without the knowledge and
consent of the store owner. Later, the loss of the necklace was discovered, and Rica
was shown on the CCTV camera of the store as the culprit. Accordingly, Rica was
charged with theft of the necklace. Rica raised the defense that she could not be
guilty as charged because she was the owner of the necklace and that the element of
intent to gain was lacking.
SUGGESTED ANSWER:
Under Art. 308 of the RPC, theft is committed by any person who, with
intent to gain but without violence, against, or intimidation of persons nor
force upon things, shall take personal property of another without the latter's
consent. While the CCTV captured Rica surreptitiously taking the necklace
from a jewelry store without the knowledge and consent of the store owner, she
cannot be charged with theft, because the taking was made under a claim of
ownership. The fact of ownership negates any intention to gain, as Rica cannot
steal the necklace which she claims to own.
(b) It is proven that the store acquired the necklace from another person
who was the real owner of the necklace? (2.5%)
5
SUGGESTED ANSWER:
Even if it was proven that the necklace was bought by the store from
another person who was the real owner of the necklace, Rica still cannot be
held liable for theft absent a felonious intent. “Actus non facit reum, nisi mens
sit rea”. A crime is not committed if the mind of the person performing the act
complained of is innocent.
The ruling in U.S. v. Vera, 1 Phil 485, May 31, 1974 is emphatic; i.e. if a
person takes personal property of another believing it to be his own, the
presumption of intent to gain is rebutted and therefore he is not guilty of theft.
V
With a promise of reward, Robert asked Romy to bring him a young girl that
he (Robert) can have carnal knowledge with. Romy agreed, seized an eight-year old
girl and brought her to Robert. After receiving his reward, Romy left while Robert
proceeded to have carnal knowledge with the girl.
(a) For what felony may Robert and Romy be charged? (2.5%)
SUGGESTED ANSWER:
(b) Will your answer in (a) be the same if the victim is a 15-year old lass
who was enticed, through cunning and deceit of Romy, to voluntarily
go to the house of Robert where the latter subsequently had carnal
knowledge with her? (2.5%)
SUGGESTED ANSWER:
Yes. R.A. No. 7610 covers sexual abuse committed against a child or
children below eighteen (18) years of age. Children, who for money, profit or
6
any other consideration due to the coercion or influence of any adult, syndicate
or group, indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse. Robert and Romy
may be prosecuted under the said law.
VI
A group of homeless and destitute persons invaded and occupied the houses
built by the National Housing Authority (NHA) for certain military personnel. To
gain entry to the houses, the group intimidated the security guards posted at the
entrance gate with the firearms they were carrying and destroyed the padlocks of
the doors of the houses with the use of crowbars and hammers. They claimed that
they would occupy the houses and live therein because the houses were idle and
they were entitled to free housing from the government.
For the reason that the houses were already awarded to military personnel
who have been found to have fully complied with the requirements for the award
thereof, NHA demanded the group to vacate within ten (10) days from notice the
houses they occupied and were still occupying. Despite the lapse of the deadline,
the group refused to vacate the houses in question.
What is the criminal liability of the members of the group, if any, for their
actions? (5%)
SUGGESTED ANSWER:
VII
Robbie and Rannie are both inmates of the National Penitentiary, serving the
maximum penalty for robbery which they committed some years before and for
which they have been sentenced by final judgment. One day, Robbie tried to collect
money owed by Rannie. Rannie insisted that he did not owe Robbie anything, and
after a shouting episode, Rannie kicked Robbie in the stomach. Robbie fell to the
ground in pain, and Rannie left him to go to the toilet to relieve himself. As Rannie
was opening the door to the toilet and with his back turned against Robbie, Robbie
stabbed him in the back with a bladed weapon that he had concealed in his waist.
Hurt, Rannie ran to the nearest "kubol" where he fell. Robbie ran after him· and,
7
while Rannie was lying on the ground, Robbie continued to stab him, inflicting a
total of 15 stab wounds. He died on the spot. Robbie immediately surrendered to the
Chief Warden. When prosecuted for the murder of Rannie, Robbie raised
provocation and voluntary surrender as mitigating circumstances. The prosecution,
on the other hand, claimed that there was treachery in the commission of the crime.
SUGGESTED ANSWER:
SUGGESTED ANSWER:
VIII
8
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
9
circumstance with one mitigating circumstance, two (2) mitigating
circumstances may be appreciated in favor of the accused in
determining the maximum imposable penalty.
Thus, the maximum imposable penalty is prision mayor in
its medium period. The minimum imposable penalty shall be
within the range prision correccional which is the penalty next
lower to the maximum imposable penalty.
IX
Rashid asked Rene to lend him PhP50,000, payable in six (6) months and, as
payment for the loan, Rashid issued a postdated check for the said amount plus the
agreed interest. Rashid assured Rene that the account would have sufficient funds
on maturity date. On that date, Rene presented the check to the drawee bank for
payment but it was dishonored for the reason that it was drawn against insufficient
funds (DAIF).
Rene sent Rashid a timely notice of dishonor of the check and demanded the
latter to make good the same within five (5) days from notice. After the lapse of the
five (5)-day notice, Rene redeposited the check with the drawee bank but it was
again dishonored for the same reason, i.e., DAIF. Rene thereafter filed two (2)
separate criminal actions against Rashid: (1) Estafa under Art. 315(2)(d) of the
RPC, as amended by R.A. No. 4885, i.e, estafa committed by postdating a check, or
issuing a check in payment of an obligation without sufficient funds in the bank;
and (2) Violation of B.P. 22 or the Bouncing Checks Law.
SUGGESTED ANSWER:
Yes. Rashid can be liable for estafa and also for violation of B.P. Bldg.
22. While the two criminal actions of estafa under Art. 315(2)(d) of the RPC
10
and violation of Batas Pambansa (BP) Bilang 22 may refer to identical acts
committed by Rashid, the prosecution thereof cannot be limited to one offense,
because a single criminal act may give rise to a multiplicity of offenses and
where there is variance or differences between the elements of an offense in
one law and another law, as in this case, there will be no double jeopardy,
because what the rule on double jeopardy prohibits refers to identity of
elements in the two (2) offenses. Otherwise stated, prosecution for the same
act is not prohibited. What is forbidden is prosecution for the same offense.
Essentially, while a BP 22 case and an estafa case may be rooted from an
identical set of facts, they nevertheless present different causes of action,
which, under the law, are considered “separate, distinct, and independent”
from each other. Both cases, therefore, can proceed to their final adjudication
– both as to their criminal and civil aspects (Rimando v. Spouses Aldaba and
People, G.R. No. 203583, 13 October 2014).
(b) If the check is presented for payment after four (4) months, but before
it becomes stale, can the two actions still proceed? (2.5%)
SUGGESTED ANSWER:
Yes. The presentation of the check beyond the 90-day period would be
of no consequence per Section 2 of B.P. Blg. 22. The 90-day period is not an
element of the offense but merely a condition for the prima facie presumption
of knowledge of the insufficiency of funds. That the check must be deposited
within ninety (90) days is simply one of the conditions for the prima facie
presumption of knowledge of lack of funds to arise. It does not discharge
Rashid from his duty to maintain sufficient funds in the account.
Rafa caught his wife, Rachel, in the act of having sexual intercourse with
Rocco in the maid's room of their own house. Rafa shot both lovers in the chest, but
they survived. Rafa charged Rachel and Rocco with adultery, while Rachel and
Rocco charged Rafa with frustrated parricide and frustrated homicide.
In the adultery case, Rachel and Rocco raised the defense that Rafa and
Rachel, prior to the incident in question, executed a notarized document whereby
they agreed to live separately and allowed each of them to get a new partner and
11
live with anyone of their choice as husband and wife. This document was executed
after Rachel discovered that Rafa was cohabiting with another woman. Thus, they
also raised the defense of in pari delicto. In the frustrated parricide and frustrated
homicide cases, Rafa raised the defense that, having caught them in flagrante
delicto, he has no criminal liability.
SUGGESTED ANSWER:
While the defense of pari delicto is not available in criminal cases, but
when the facts stated in the notarized agreement between Rafa and Rachel
constitute consent on the part of both of them, it is submitted that the action
for adultery will not prosper otherwise it cannot affect the private criminal
action for adultery.
(b) Will the actions for frustrated parricide and frustrated homicide
prosper? (2.5%)
SUGGESTED ANSWER:
Yes. The actions for frustrated parricide and frustrated homicide will
prosper, and Rafa will be found guilty of these crimes. The penalty, however,
that the Trial Court can impose is only destierro not penalties for frustrated
parricide and frustrated homicide, being the spouse of Rachel (Art. 246, RPC).
ALTERNATIVE ANSWER:
No, the actions for frustrated parricide and frustrated homicide will not
prosper because Rafa is entitled to the benefit of Article 247 of the Revised
Penal Code.
Article 247 of the RPC states that any legally married person who having
surprised his spouse in the act of committing sexual intercourse with another
person, shall kill any of them or both of them in the act or immediately
thereafter, or shall inflict upon them any serious physical injury, shall suffer
the penalty of destierro. If he shall inflict upon them physical injuries of any
other kind, he shall be exempt from punishment.
12
The action will prosper to allow the court to receive evidence. However,
Rafa can be held liable only for destierro based on Art. 247 of the RPC. The
act committed by Rafa amounts to at least, serious physical injuries, so the
penalty of destierro will be imposed. If the court finds that the act amounts to
less than serious physical injuries, Rafa will not have any criminal liability.
XI
Wielding loose firearms, Rene and Roan held up a bank. After taking the
bank's money, the robbers ran towards their getaway car, pursued by the bank
security guards. As the security guards were closing in on the robbers, the two fired
their firearms at the pursuing security guards. As a result, one of the security guards
was hit on the head causing his immediate death.
For the taking of the bank's money and killing of the security guard with the
use of loose firearms, the robbers were charged in court in two separate
informations, one for robbery with homicide attended by the aggravating
circumstance of use of loose firearms, and the other for illegal possession of
firearms.
SUGGESTED ANSWER:
latter being the main purpose of the criminal. The elements of robbery with
homicide are: (a) the taking of personal property with the use of violence or
intimidation against a person; (b) the property thus taken belongs to another;
(c) the taking is characterized by intent to gain or animus lucrandi; and (d) on
the occasion, the crime of homicide, which is therein used in a generic sense,
was committed.
13
separate prosecutions for homicide and illegal possession
are no longer in order. Instead, illegal possession of firearm
is merely to be taken as an aggravating circumstance in the
crime of murder. It is clear from the foregoing that where
murder results from the use of an unlicensed firearm, the
crime is not qualified illegal possession but, murder. In such
a case, the use of the unlicensed firearm is not considered as
a separate crime but shall be appreciated as a mere
aggravating circumstance. Thus, where murder was
committed, the penalty for illegal possession of firearms is
no longer imposable since it becomes merely a special
aggravating circumstance. The intent of Congress is to treat
the offense of illegal possession of firearm and the
commission of homicide or murder with the use of
unlicensed firearm as a single offense.
XII
Orphaned when still an infant, Rocky lived under the care of his grandmother
Rosario. Now 18, Rocky entered Rosario's bedroom who was then outside doing
her daily marketing. He ransacked the bedroom and took Rosario's money and
valuables amounting to PhP100,000.
When Rosario came home, she found her room in disarray, and her money
and valuables gone. She confronted Rocky, who confessed to taking the money and
valuables in order to pay his debts.
SUGGESTED ANSWER:
14
SUGGESTED ANSWER:
Rocky could incur civil liability only, not criminal liability, as Art. 332
(RPC) provides that no criminal but only civil shall result from the commission
of the crime of theft, swindling or malicious mischief committed caused
mutually by the following persons:
XIII
The brothers Roberto and Ricardo Ratute, both Filipino citizens, led a group
of armed men in seizing a southern island in the Philippines, and declaring war
against the duly constituted government of the country. The Armed Forces of the
Philippines (AFP), led by its Chief of Staff, General Riturban, responded and a full
scale war ensued between the AFP and the armed men led by the brothers. The
armed conflict raged for months.
When the brothers-led armed men were running out of supplies, Ricalde, also
a Filipino, and a good friend and supporter of the Ratute brothers, was tasked to
leave for abroad in order to solicit arms and funding for the cash-strapped brothers.
He was able to travel to Rwanda, and there he met with Riboli, a citizen and
resident of Rwanda, who agreed to help the brothers by raising funds
internationally, and to send them to the Ratute brothers in order to aid them in their
armed struggle against the Philippine government. Before Ricalde and Riboli could
complete their fund-raising activities for the brothers, the AFP was able to reclaim-
the island and defeat the Ratute-led uprising.
Ricalde and Riboli were charged with conspiracy to commit treason. During
the hearing of the two cases, the government only presented as witness, General
Riturban, who testified on the activities of the Ratute brothers, Ricalde, and Riboli.
SUGGESTED ANSWER:
15
(b) Will the testimony of General Riturban, assuming he can testify on
acts within his personal knowledge, be sufficient to convict the Ratute
brothers, Ricalde, and Riboli? (2.5%)
SUGGESTED ANSWER:
Yes, assuming Gen. Riturban can testify on acts within his personal
knowledge, as to the offense of seizing a Southern Island in the Philippines
which raged for months in the country. This is sufficient to convict the Ratute
brothers and Riboli but the crime could be Rebellion, and the two-witness rule
is not required in the case of Rebellion.
XIV
Robin and Rowell are best friends and have been classmates since grade
school. When the boys graduated from high school, their parents gifted them with a
trip to Amsterdam, all expenses paid. At age 16, this was their first European trip.
Thrilled with a sense of freedom, they decided to try what Amsterdam was known
for. One night, they scampered out of their hotel room, went to the De Wallen,
better known as the Red-light District of Amsterdam. There, they went to a "coffee
shop" which sells only drinks and various items made from opium poppy, cannabis,
and marijuana, all of which are legal in Amsterdam. They represented themselves to
be of age, and were served, and took shots of, cannabis and marijuana products.
They indulged in these products the whole night, even if it was their first time to try
them.
(a) Can Robin and Rowell be prosecuted for use of dangerous drugs for
their one-night use of these products in Amsterdam? (2.5%)
SUGGESTED ANSWER:
16
they did not use the dangerous drug within its territory, under the principle of
territoriality.
SUGGESTED ANSWER:
(c) If found liable under either (a) or (b) above, what is the penalty that
may be imposed on them? (2.5%)
SUGGESTED ANSWER:
If found guilty, they will be exempt from criminal liability, because they
are minors (16 years old), as provided in Chapter 2, section 6 of RA 9344
("Juvenile Justice and Welfare Act of 2006"), to wit:
17
ALTERNATIVE ANSWER:
The penalty that may be imposed is reclusion perpetua. Article 68 (2) of
the Revised Penal Code states that the penalty next lower than that prescribed
by law shall be imposed upon a person over 15 years and under 18 years, but
always in the proper period. Robin and Rowell are minors who acted with
discernment, so as to fall under the scope of Section 98 of the Dangerous Drugs
Act, in relation to Article 68 (2) of the Revised Penal Code. Discernment is that
mental capacity of a minor to fully appreciate the consequences of his unlawful
act. The surrounding circumstances must demonstrate that the minor knew
what he was doing and that it was wrong (People v. Jacinto, G.R. No. 182239,
16 March 2011).In this case, Robin and Rowell: (a) misrepresented that they
were of age so that they may be able to consume cannabis and marijuana
products; and (b) deliberately shared photos of their experience with said
products, indicate their mental capacity to understand that said products are
prohibited drugs as defined under the Dangerous Drugs Act.
(d) Can Roccino be prosecuted for the act of accessing and sharing on
Facebook the private pictures sent by PM to his brother? If yes, for
what crime? (2.5%)
SUGGESTED ANSWER:
Roccino, who accessed the private messages of his brother and shared in
Facebook pictures of other people without their consent, can be charged with
violation of RA 10173 (Data Privacy Act of 2012) in relation to Chapter II,
section 6 of RA 10175 (“Cybercrime Prevention Act of 2012″: All crimes defined
and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications
technologies). Roccino committed unauthorized access and disclosure of
personal data (Sections 29 and 32 of RA 10173).
XV
18
motion for reconsideration having been denied, the People of the Philippines went
up on certiorari to the Court of Appeals (CA) questioning Judge Rossano's ruling.
As the CA decision became final and executory, the criminal case before the
RTC was calendared for trial. At the scheduled trial, the prosecution called Reichter
to the witness stand in order to testify on the same matter it earlier announced. The
defense objected on the ground that the CA erred in its disposition of the certiorari
case. Judge Rossano sustained the objection and again disallowed Reichter from
testifying in the criminal case. Repeated pleas from the prosecution for Judge
Rossano to reconsider his ruling and to allow Reichter to testify fell on deaf ears.
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
19
ANOTHER ALTERNATIVE ANSWER:
Judge Rosario can be held liable for violation of Section 3 (e) of RA No.
3019 for giving unwarranted preference, advantage or benefits to private party
through manifest partiality and evident bad faith. In People v. Reyes, G.R. No.
177105-06, August 12, 2010, arrogant refusal to recognize and obey the CA
decision causing undue injury to the complainant and giving unwarranted
benefits to private individuals constitutes evident bad faith and manifest
partiality contemplated in in violation of Section 3 (e) of R.A. No. 3019.
XVI
For the past five years, Ruben and Rorie had been living together as husband
and wife without the benefit of marriage. Initially, they had a happy relationship
which was blessed with a daughter, Rona, who was born on March 1, 2014.
However, the partners' relationship became sour when Ruben began indulging in
vices, such as women and alcohol, causing frequent arguments between them. Their
relationship got worse when, even for slight mistakes, Ruben would lay his hands
on Rorie. One day, a tipsy Ruben barged into their house and, for no reason,
repeatedly punched Rorie in the stomach. To avoid further harm, Rorie ran out of
the house. But Ruben pursued her and stripped her naked in full view of their
neighbors; and then he vanished.
Ten days later, Ruben came back to Rorie and pleaded for forgiveness.
However, Rorie expressed her wish to live separately from Ruben and asked him to
continue providing financial support for their daughter Rona. At that time, Ruben
SUGGESTED ANSWER:
For beating and humiliating Rorie, such acts violate Ra 9262, known as
the "Anti-Violence Against Women and Their Children Act of 2004,”
particularly section 3 (a) thereof under "Physical Violence" referring to acts
that include bodily or physical harm against a woman with whom the person
has or had a sexual or dating relationship.
20
(b) For withdrawing support for Rona? (2.5%)
SUGGESTED ANSWER:
XVII
In the case for falsification of a public document, Robina's defense was that,
at the time she filed the MLA, she had every intention to reacquire Philippine
citizenship, as in fact she filed for dual citizenship six months thereafter, and that
she had no intent to gain or to injure the Philippine government since she expected
that her application for dual citizenship would be approved before the MLA could
21
be approved. On the other hand, she claimed in the action against Ramsey that
intent to gain was present since he received the purchase price as a result of his
misrepresentation. Ramsey's defense was that he had a valid Transfer Certificate of
Title in his name, and he had a right to rely on his title.
(a) Will the case for falsification of public document filed against Robina
prosper? (2.5%)
SUGGESTED:
ALTERNATIVE ANSWER:
(b) Will the case for falsification of private document filed against
Ramsey prosper? (2.5%)
22
SUGGESTED:
XVIII
One morning, Reymart, a 7-year old pupil, cried loudly and complained to
Mrs. Robinson that Richard had boxed him on the ear. Confronted by Mrs.
Robinson about Reymart's accusation, Richard sheepishly admitted the same.
Because of this, Mrs. Robinson ordered Richard to lie face down on a desk during
class. After Richard obliged, Mrs. Robinson hit him ten (10) times on the legs with
a ruler and pinched his ears. Richard ran home and reported to his mother what he
had suffered at the hands of Mrs. Robinson. When Richard's parents went to Mrs.
Robinson to complain, she interposed the defense that she merely performed her
duty as a teacher to discipline erring pupils.
Richard's parents ask your advice on what actions can be instituted against
Mrs. Robinson for acts committed on their minor child.
(a) May Mrs. Robinson be charged with child abuse OR slight physical
injuries? (2.5%)
SUGGESTED:
Yes, Mrs. Robinson can be charged with either child abuse under R.A.
23
7610 R.A. 7610 or slight physical injuries if the injuries inflicted constitute
slight physical injuries.
(Sec. 10 of R.A. 7610 provides:
Any person who shall commit any other acts of child
abuse, cruelty or exploitation or be responsible for other
conditions prejudicial to the child’s development including
those covered by Art. 59 of P.D. 603 but not covered by the
Revised Penal Code shall suffer the penalty of prision
mayor”.
In other words, Richard’s parents was choose to prosecute Mrs.
Robinson under the Revised Penal Code or R.A. 7610. I will advise them to
consider R.A. 7610 as there was no showing of the extent of the physical
injuries inflicted.
(b) May Mrs. Robinson be charged with child abuse AND slight physical
injuries? (2.5%)
SUGGESTED:
No, Mrs. Robinson cannot be charged with both of child abuse and slight
physical injuries, because the latter is deemed absorbed in the charge of child
abuse.
XIX.
Ricky was driving his car when he was flagged down by a traffic enforcer for
over speeding. Realizing his undoing, but in a hurry for a meeting, Ricky shoved a
PhP500 bill in the traffic enforcer's pocket and whispered to the latter to refrain
from issuing him a traffic violation receipt. The traffic enforcer still issued him a
ticket, and returned his money.
SUGGESTED:
24
if the P500 bill was returned it cannot erase the fact that gifts or presents was
given to the traffic enforcer.
ALTERNATIVE ANSWER:
Art. 212 provides that the penalties imposed upon the officer corrupted
except those of disqualification and suspension shall be imposed upon the
corruptor. Since the traffic officer was not corrupted as he still a issued a
ticket and returned the money, it would seem that in this particular instance
there is no penalty provided for Ricky who shoved the money to the traffic
officer’s pocket. As there is no penalty imposable on Ricky as no public officer
was corrupted, it seems there was no crime committed. An act however illegal
or immoral cannot be considered a crime if there is no penalty imposed by the
law.
This is like the situation of a battered-wife who killed her husband who
was sleeping due to exhaustion after subjecting her to physical, psychological
and verbal abuse. It is clear she committed parricide in killing her husband
but since R.A. 9262, Sec. 26 says: Victim survivors of Battered-Woman
Syndrome do not incur any criminal or civil liability, there is no crime
committed by the wife as there is no penalty imposable on her.
No crime was committed because the traffic enforcer still issued him a
ticket and returned his money. There was no penalty imposed. The crime of
corruption of a public official under Art 212, RPC would have been committed
had the traffic enforcer accepted Ricky’s money, and refrained from issuing
him a traffic violation receipt.
-NOTHING FOLLOWS-
25
Training & Convention Division
University of the Philippines Law Center
SUGGESTED ANSWERS
to the
2018 BAR EXAMINATIONS IN
REMEDIAL LAW
SUGGESTED ANSWERS:
(b) Was the action properly instituted before the RTC of Davao
City? (2.5%)
SUGGESTED ANSWERS:
(b) No. Batas Pambansa Blg. 129 vests the Municipal Trial Court
with the exclusive jurisdiction over unlawful detainer cases,
regardless of the assessed value of the property; hence, the
action was wrongfully instituted with the RTC.
(c) Should the complaint be verified or is the certification
sufficient? (2.5%)
SUGGESTED ANSWERS:
(c) Yes. Considering that the action is for unlawful detainer, the
Rules on Summary Procedure will apply. Rule II, Section 3(B)
of the Rules on Summary Procedure requires that all pleadings
submitted to the court be verified; hence, a mere certification on
non-forum shopping, the complaint being an initiatory pleading
is insufficient.
II
If you were the Judge, will you grant the motion to dismiss? (5%)
SUGGESTED ANSWER:
No. While the payment of the prescribed docket fee is a jurisdictional
requirement, even its non-payment at the time of filing does not
automatically cause the dismissal of the case. The court may allow payment
of the fee within a reasonable time, but in no case beyond the applicable
prescriptive or reglementary period. Here, Dendenees Inc. and David
merely relied on the assessment made by the clerk of court. If incorrect, the
clerk of court has the responsibility of reassessing how much they must pay
within the prescriptive period (Proton Pilipinas v. Banque Nationale de
Paris, (G.R. No. 151242, June 15, 2005).
2
ALTERNATIVE ANSWER:
SUGGESTED ANSWERS:
3
application for attachment, the applicants affidavit and bond,
and the order must be served upon him.
In this case, since copies of the complaint and summons
were served after the writ of preliminary attachment was served
upon Dodong, the writ therefore, was improvidently issued; the
writ of preliminary attachment may be dissolved.
ALTERNATIVE ASNWER:
(a) Yes, the party whose property has been ordered attached may
file a motion to quash the order by filing a motion in court in
which the action is pending before or after the levy (Rule 57,
Sec. 13).
Other grounds:
SUGGESTED ANSWER:
4
On the other hand, a claim for damages by the person
against whom the writ of preliminary attachment was issued is
governed by Rule 57, Section 20 of the Rules of Court, which
states that “an application for damages on account of improper,
irregular or excessive attachment must be filed before the trial
or before appeal is perfected or before the judgment becomes
executory, with due notice to the attaching party and his surety
or sureties setting forth the facts showing his right to damages
and the amount thereof. Such damages may be awarded only
after proper hearing and shall be included in the judgment on
the main case x x x”.
Considering that the Rules of Court provided different
purposes for the filing of a counter-bond and the filing of claim
for damages, Dodong’s posting of a counter-bond cannot be
deemed a waiver of his claim for damages.
IV
Dick Dixson had sons with different women — (i) Dexter with longtime
partner Delia and (ii) Dongdong and Dingdong with his housemaid Divina.
When Dick fell ill in 2014, he entrusted all his property titles and shares of stock
in various companies to Delia who, in turn, handed them to Dexter for
safekeeping. After the death of Dick, Dexter induced Dongdong and Dingdong
to sign an agreement and waiver of their right to Dick’s estate in consideration of
PhP 45 million. As Dexter reneged on his promise to pay, Dongdong and
Dingdong filed with the RTC of Manila a complaint for annulment of the
agreement and waiver. The summons and complaint were received by Dalia, the
housemaid of Dexter, on the day it was first served. Hence, Dexter filed a
motion to dismiss on the ground of lack of jurisdiction over his person. RTC
Manila granted the motion to dismiss.
5
Will the two-dismissal rule apply making the second dismissal with
prejudice? (5%)
SUGGESTED ANSWER:
No, the two-dismissal rule will not apply, because the first dismissal
was at the instance of the defendant.
The requirements for the application of the two-dismissal rule under
Rule 17, Section 1 of the Rules of Court are: (a) [t]here was a previous case
that was dismissed by a competent court; (b) [b]oth cases were based on or
include the same claim; (c) [b]oth notices for dismissal were filed by the
plaintiff; and (d) [w]hen the motion to dismiss filed by the plaintiff was
consented to by the defendant on the ground that the latter paid and
satisfied all the claims of the former (Ching, et al. v. Cheng, et al., G.R. No.
175507, 8 October 2014).
In this case, the third requisite is absent because the first dismissal
was upon the motion to dismiss filed by Dexter; hence, the two-dismissal
rule will not apply.
Dorton Inc. (Dorton) sued Debra Commodities Inc. (Debra), Daniel, and
Debbie in the RTC of Manila for recovery of sum of money. The complaint
alleged that, on October 14, 2017, Debra obtained a loan from Dorton in the
amount of PhP 10 million with interest of 9% per annum. The loan was
evidenced by a promissory note (PN) payable on demand signed by Daniel and
Debbie, the principal stockholders of Debra, who also executed a Surety
Agreement binding themselves as sureties. Copies of both the PN and the Surety
Agreement were attached to the complaint. Dorton further alleged that it made a
final demand on March 1, 2018 for Debra and the sureties to pay, but the demand
was not heeded.
Debra, Daniel, and Debbie filed their answer, and raised the affirmative
defense that, while the PN and the Surety Agreement appeared to exist, Daniel
and Debbie were uncertain whether the signatures on the documents were theirs.
The PN and the Surety Agreement were pre-marked during pre-trial, identified
but not authenticated during trial, and formally offered.
Can the RTC of Manila consider the PN and the Surety Agreement in
rendering its decision? (5%)
6
SUGGESTED ANSWER:
Yes, the RTC of Manila may consider the PN and the surety
agreement in rendering its decision.
The PN and the surety agreement are actionable documents, defined
under Rule 8, Section 7 of the Rules of Court as a written instrument upon
which an action is founded upon Rule 8, Section 8, moreover, provides that
when an action is founded upon a written instrument, copied in or attached
to the corresponding pleading, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party, under oath
specifically denies them, and sets forth what he claims to be the facts.
In this case, Debra, Daniel, and Debbie are parties to the PN and the
surety agreement. Since the PN and surety agreement are attached to the
complaint, Debra, Daniel, and Debbie are deemed to have admitted the
genuineness and due execution thereof for their failure to: (a) deny the
genuineness and due execution of these documents under oath; and (b) to set
for what they claim to be facts.
The court, therefore, may consider the PN and the surety agreement
in rendering its decision.
VI
Daribell Inc. (Daribell) filed a complaint for sum of money and damages
against spouses Dake and Donna Demapilis for unpaid purchases of construction
materials in the sum of PhP 250,000. In their answer, spouses Demapilis
admitted the purchases from Daribell, but alleged that they could not remember
the exact amount since no copies of the documents were attached to the
complaint. They nevertheless claimed that they made previous payments in the
amounts of PhP 110,000 and PhP 20,000 and that they were willing to pay the
balance of their indebtedness after account verification. In a written
manifestation, spouses Demapilis stated that, in order to buy peace, they were
willing to pay the sum of PhP 250,000, but without interests and costs.
Subsequently, Daribell filed a Motion for partial summary judgment. Thereafter,
Daribell filed an amended complaint, alleging that the total purchases of
construction materials were PhP 280,000 and only PhP 20,000 had been paid.
Daribell also served upon the spouses Demapilis a request for admission asking
them to admit the genuineness of the statement of accounts, delivery receipts and
invoices, as well as the value of the principal obligation and the amount paid as
stated in the amended complaint.
7
Daribell thereafter amended the complaint anew. The amendment
modified the period covered and confirmed the partial payment of PhP110,000
but alleged that this payment was applied to the spouses’ other existing
obligations. Daribell however reiterated that the principal amount remains
unchanged.
SUGGESTED ANSWERS:
(a) No. The second amended complaint merely supersedes the first
amended complaint and nothing more, pursuant to Rule 10,
Section 8 of the Rules of Court; thus, the Request for Admission
is not deemed abandoned or withdrawn by the filing of the
Second Amended Complaint (Spouses Villuga v. Kelly Hardware
and Construction Supply, Inc., G.R. No. 176570, 18 July 2012).
SUGGESTED ANSWERS:
SUGGESTED ANSWERS:
8
In this case, the facts subject of an unanswered request
for admission are deemed admissions by the adverse party
(Rule 26, Section 2, Rules of Court). Applying the Supreme
Court’s ruling in Spouses Villuga v. Kelly Hardware and
Construction Supply, Inc., (G.R. No. 176570, 18 July 2012), these
facts may be the basis of a summary judgment.
VII
Due to conflicting claims of Dory and DBS over the rental payments,
Digna filed a complaint for interpleader in the RTC of Manila. Digna also prayed
that it be allowed to consign in court the succeeding monthly rentals, and that
Dory and DBS be required to litigate their conflicting claims. It later appeared
that an action for nullification of a dacion en pago was filed by Dory against
DBS in the RTC of Quezon City. In said case, Dory raised the issue on which of
the two corporations had better right to the rental payments. Dory argued that, to
avoid conflicting decisions, the interpleader case must be dismissed.
Does the action for nullification of the dacion en pago bar the filing of the
interpleader case? (2.5%)
SUGGESTED ANSWER:
Yes. The interpleader case should be dismissed in view of the action
for nullification of the dacion en pago.
Under Rule 2, Section 4 of the Rules of Court, if two or more suits are
instituted on the basis of the same cause of action, the filing of one or a
judgment upon the merits in any one is available as a ground for dismissal
of the others. In the situation above, the interpleader case filed by Digna
seeks to resolve who between Dory and DBS has the right to receive the
rental payments. Similarly, Dory’s action for nullification of the dacion en
pago will determine who between Dory and DBS has the right to collect
rental payments from Digna. Considering that the two cases involve the
same cause of action, the interpleader case should be dismissed.
9
ALTERNATIVE ANSWER:
Yes, the interpleader case must be dismissed. Interpleader, in this
case, should have been raised as a compulsory counterclaim. Failure to raise
the same amounts to a waiver of the counterclaim (Wack Wack Golf &
Country Club, Inc. v. Won and Tan, G.R. L-23851, March 26, 1976).
VIII
Spouses Dondon and Donna Dumdum owned a residential lot in Dapitan
City. Doy Dogan bought said lot and took possession thereof with the promise
to pay the purchase price of PhP 2 million within a period of six (6) months.
After receiving only PhP 500,000, spouses Dumdum executed the Deed of
Absolute Sale and transferred the title to Doy Dogan. The balance was not paid
at all. Spouses Dumdum, through counsel, sent a demand letter to Doy Dogan
for him to pay the balance of PhP 1.5 million plus interest of PhP150,000. Doy
Dogan responded in a letter by saying that “while the remaining balance is
admitted, the interest charged is excessive.” There being no payment, Spouses
Dumdum filed a complaint for reconveyance with damages against Doy Dogan
in the RTC of Dapitan City.
In his Answer, Doy Dogan raised, by way of affirmative defense, that the
purchase price had been fully paid and for this reason the complaint should have
been dismissed.
SUGGESTED ANSWER:
No. It was improper for the RTC of Dapitan City to grant the motion
for judgment of the pleadings.
Rule 34 of the Rules of Court states that a judgment on the pleadings
is proper where an answer failed to tender an issue or otherwise admits the
material allegations of the adverse party’s pleading. In this case, Doy
Dogan alleged that he paid the purchase price in full, contrary to Spouses
Dumdum’s allegation that Doy Dogan did not pay the balance of Php1.5
Million. He tendered an issue in his answer as to whether or not he has an
10
outstanding unpaid balance with Spouses Dumdum. The answer claims that
the purchase price has been fully paid; hence, a judgment on the pleadings
was improper.
IX
In 2015, Dempsey purchased from Daria a parcel of land located in
Dumaguete, Negros Oriental. The latter executed a Deed of Absolute Sale and
handed to Dempsey the owner’s duplicate copy of TCT No. 777 covering the
property. Since he was working in Manila and still had to raise funds to cover
taxes, registration and transfer costs, Dempsey kept the TCT in his possession
without having transferred it to his name. A few years thereafter, when he
already had the funds to pay for the transfer costs, Dempsey went to the Register
of Deeds of Dumaguete and discovered that, after the sale, Daria had filed a
petition for reconstitution of the owner’s duplicate copy of TCT No. 777 which
the RTC granted. Thus, unknown to Dempsey, Daria was able to secure a new
TCT in her name.
The Supreme Court had consistently held that when the owner’s
duplicate certificate of title has not been lost, but is in fact in the possession
of another person, then the reconstituted certificate is void, because the
court that rendered the decision had no jurisdiction. As a rule,
reconstitution can validly be made only in case of loss of the original
certificate. In this regard, the remedy to nullify an order granting
reconstitution is a petition for annulment under Rule 47 of the Rules of
Court (Eastworld Motor Industries Corporation v. Skunac Corporation, G.R.
No. 163994, 16 December 2005).
11
for Annulment of Judgment under Rule 47 to nullify the reconstituted title
in Daria’s name.
X
In a buy-bust operation, 30 kilos of shabu were seized from Dave and
Daryll. They were arrested and placed on inquest before Prosecutor Danilo
Doon who ordered their continued detention. Thereafter, the information for
the sale and distribution of shabu was filed in court. When arraigned, Dave and
Daryll pleaded not guilty to the charge. During pre-trial, counsel for both of the
accused raised, for the first time, the illegality of the arrest. The case proceeded
to trial. After trial, the court scheduled the promulgation of judgment with
notice to both the accused and their counsel, Atty. Dimayuga. During the
promulgation, only Dave and Atty. Dimayuga were present. Both the accused
were convicted of the crime charged.
(a) Was the challenge to the validity of the arrest timely raised?
(2.5%)
SUGGESTED ANSWERS:
(a) No, the challenge to the validity of the arrest was not timely
raised. As a rule, an accused may question the validity of his
arrest through a motion to quash before he enters his or her
plea; otherwise, the objection is deemed waived, and an accused
is estopped from questioning the legality of his or her arrest
(Veridiano v. People of the Philippines, G.R. No. 200370, 7 June
2017).
SUGGESTED ANSWERS:
(b) In this case, Dave and Daryll questioned the legality of their
arrest only during pre-trial, after they were arraigned; hence,
the challenge to the validity of the arrest was not timely raised.
To be able to file an appeal, Daryll should: (a) surrender,
and (b) file a motion for leave of court to file an appeal, stating
therein the reasons for his absence during the promulgation,
within 15 days from the date of promulgation of judgment.
12
As a rule, the accused who fails to appear at the
promulgation of the judgment of conviction shall lose the
remedies available under the Rules of Court against the
judgment, such as the filing of: (a) a motion for new trial or
reconsideration; or (b) an appeal from the judgment of
conviction. The Rules of Court, however, allow the accused to
regain his standing in court to avail of these remedies by: (a) his
surrender; and (b) his filing of a motion for leave of court to
avail of these remedies, stating therein the reasons for his
absence within 15 days from the date of promulgation of
judgment (Villena v. People of the Philippines, G.R. No. 184091,
31 January 2011).
XI
In 2007, Court of Appeals Justice (CA Justice) Dread Dong (J. Dong) was
appointed to the Supreme Court (Court) as Associate Justice. Immediately after
the appointment was announced, several groups questioned his qualification to
the position on the ground that he was not a natural born Filipino citizen. In the
same year, the Court issued an Order enjoining him from accepting the
appointment or assuming the position and discharging the functions of his office
until he is able to successfully complete all the necessary steps to show that he is
a natural born citizen of the Philippines. He however, continued to exercise his
functions as CA Justice.
When the OSG refused to initiate a quo warranto proceeding, Atty. Dacio
filed a petition for certiorari against the OSG, and certiorari and prohibition
against J. Dong. The petition for certiorari against the OSG alleged that the OSG
committed grave abuse of discretion when it deferred the filing of a quo
warranto proceeding against J. Dong, while the petition for certiorari and
prohibition against J. Dong asked the Court to order him to cease and desist from
further exercising his powers, duties and responsibilities as CA Justice. In both
instances, Atty. Dacio relied on the fact that at the time of J. Dong’s appointment
as CA Justice, J. Dong’s birth certificate indicated that he was a Chinese citizen
and his bar records showed that he was a naturalized Filipino citizen.
13
(a) May the OSG be compelled, in an action for certiorari, to initiate a
quo warranto proceeding against J. Dong? (2.5%)
SUGGESTED ANSWERS:
(a) No. the OSG has the discretion in determining the presence of
the requisites for a Quo Warranto proceeding. Besides, there is
already a pending case for the purpose of determining
citizenship.
For a Quo Warranto proceeding to be successful the
private person suing must show a clear right to the contested
office (Ferdinand Topacio v. Associate Justice Gregory Ong and
the Office of the Solicitor General, G.R. No. 179895, 18 December
2008).
(b) Does Atty. Dacio have the legal personality to initiate the action for
certiorari and prohibition against J. Dong? (2.5%)
SUGGESTED ANSWERS:
(b) No. He is not clothed with legal interest. Rule 65, Sections 1 and
2 of the Rules of Court state that only an aggrieved party may
file petitions for certiorari and prohibition in the appropriate
court.
14
XII
Dodo was knocked unconscious in a fist fight with Dindo. He was rushed
to the emergency room of the Medical City where he was examined and treated
by Dr. Datu. As he was being examined, a plastic sachet appearing to contain
shabu fell from Dodo’s jacket which was on a chair beside him. Dodo was thus
arrested by the same policemen who assisted him to the hospital. At Dodo’s
trial, the public prosecutor called Dr. Datu to the witness stand. When the public
prosecutor asked Dr. Datu as to what he saw in the emergency room, Dodo’s
counsel objected, claiming doctor-patient privilege rule.
SUGGESTED ANSWER:
The objection should be overruled. The doctor-patient privilege under
Rule 130, Section 24 of the Rules of Court is limited to “any advice or
treatment given by him or any information which he may have acquired in
attending such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would blacken the
reputation of the patient” (See also: Lim v. Court of Appeals, G.R. No. 91114,
25 September 1992).
In this case, Dr. Datu is being called to testify on what he saw in the
emergency room, which does not pertain any information which he
acquired in attending to Dodo in a professional capacity. Simply, Dr. Datu
was being asked to testify as an ordinary witness, and not as Dodo’s
physician; hence, doctor-patient privilege under Rule 130, Section 24 of the
Rules of Court does not apply.
XIII
15
SUGGESTED ANSWER:
Yes. The subject matter of Danilo’s statements could be admitted as
independently relevant statement. They are intended to merely establish
either the truth or falsity of Drew’s statements.
ALTERNATIVE ANSWER:
16
reaction upon being refused water by the nurse is irrelevant to
prove Denny’s purported commission of the crime of homicide.
(iv) Danilo’s testimony is admissible to prove the fact that Drew
signed a document which identified Denny as the shooter
because he has personal knowledge of the same. Rule 130,
Section 36 states:
“Sec. 36. Testimony generally confined to
personal knowledge; hearsay excluded. — A witness
can testify only to those facts which he knows of his
personal knowledge; that is, which are derived from
his own perception, except as otherwise provided in
these rules”.
Danilo personally saw Drew sign the document which
purportedly identified Denny as the shooter; thus, his testimony
regarding the fact that Drew signed said document is
admissible.
XIV
Dave is on trial for sexual assault of Delly, a law student who sidelines as
a call center agent. Dave offers the testimony of Danny, who says that Dave is
known in the community as a decent and discerning person. The prosecution
presents a rebuttal witness, Dovie, who testifies that, if Dave was reputed to be a
good person, that reputation was a misperception because Dave had been
previously convicted of homicide. Is Dovie’s testimony admissible as to the
character of Dave? (2.5%)
SUGGESTED ANSWER:
XV
17
alleged in his application that a certain alias Django was keeping about 10 kilos
of shabu in a wooden cabinet located at Dillian’s Store in Paseo de Sta. Rosa,
Laguna. The Executive Judge of Manila personally examined Atty. Dalmacio
and his witnesses and thereafter issued the search warrant particularly describing
the place to be searched and the items to be seized.
SUGGESTED ANSWERS:
SUGGESTED ANSWERS:
18
criminal action; hence, the legal concept of venue being
jurisdictional is not applicable in the case at bar.
XVI
Danjo was repatriated to the Philippines in 2018. While Danjo was lurking
outside the Dys’ house, which was only about 100 meters away from the police
station, SPO1 Dody recognized Danjo. Realizing that the police station had a
copy of Danjo’s warrant of arrest, SPO1 Dody immediately pursued and arrested
Danjo.
(a) Was the warrant of arrest issued against Danjo who was not
in the Philippines valid? (2.5%)
SUGGESTED ANSWERS:
19
was filed pursuant to section 7 of this Rule. In case of doubt on
the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days
from notice and the issue must be resolved by the court within
thirty (30) days from the filing of the complaint of information”.
Likewise, in Ocampo v. Abando, (G.R. No. 176830, 11
February 2014), the Supreme Court held that,
“[I]t is enough that the judge personally
evaluates the Prosecutor’s report and supporting
documents showing the existence of probable cause
for the indictment and, on the basis thereof, issue a
warrant of arrest; or on the basis of his evaluation
he finds no probable cause, to disregard the
Prosecutor’s resolution and require the submission
of additional affidavits of witnesses to aid him in
determining its existence”.
It is provided that the Judge, may at his discretion, issue a
warrant of arrest to order the arrest of Danjo if the prosecution
sufficiently established the existence of a probable cause as
required by the Revised Rules of Criminal Procedure.
It is clear, therefore, that the warrant of arrest issued
against Danjo is valid
(b) Can the warrant of arrest be served Danjo upon his return?
(2.5%)
SUGGESTED ANSWERS:
(b) Yes, the warrant of arrest may be served on Danjo upon his
return to the Philippines.
The Supreme Court in Manangan v. Court of First
Instance of Nueva Vizcaya (G.R. No. 82760, 30 August 1990)
ruled that unlike a search warrant, which is valid for only ten
(10) days from date (Rule 126, Sec. 9), a Warrant of Arrest
remains valid until arrest is effected or the Warrant lifted.
20
In the case at bar, absent any indication that the
warrant of arrest is lifted by the Court , the warrant of arrest
issued for the arrest of Danjo is still valid.
XVII
Don Deles, a contractor, was sued together with Mayor Dante Dungo and
Congressman Dal Dilim for malversation of public funds before the Office of the
Ombudsman. Danny Din, a material witness of the complainant Diego
Domingo, was hired as an engineer by a construction company in Qatar and had
to depart in two (2) months. To perpetuate Danny Din’s testimony, Diego
Domingo applied for his conditional examination before the Sandiganbayan.
SUGGESTED ANSWER:
XVIII
Demo filed a motion for bill of particulars for the Republic to clarify
certain matters in its amended complaint. The Sandiganbayan immediately
granted the motion. Upon submission of the bill of particulars by the Republic,
Demo filed a motion to dismiss arguing that the answers in the bill of particulars
were indefinite and deficient responses to the question of what the alleged
illegally acquired funds or properties of Demo were. The Sandiganbayan
dismissed the case.
SUGGESTED ANSWERS:
ALTERNATIVE ANSWER:
22
(b) What can the defendant, in a civil case, do in the event that his
motion for bill of particulars is denied? (2.5%) (BRUSELAS)
SUGGESTED ANSWER:
(b) Under Rule 12, Section 5 of the Rules of Court, after notice of
denial of his motion, the moving party may file his responsive
pleading within the period to which he was entitled at the time
of filing his motion, which shall not be less than five (5) days in
any event. If tainted with grave abuse of discretion, the moving
party may question the denial thru a Rule 65 certiorari.
XIX
Drylvik, a German national, married Dara, a Filipina, in Dusseldorf,
Germany. When the marriage collapsed, Dara filed a petition for declaration of
nullity of marriage before the RTC of Manila. Drylvik, on the other hand, was
able to obtain a divorce decree from the German Family Court. The decree, in
essence, states:
The marriage of the Parties contracted on xxx before the Civil Registrar of
Dusseldorf is hereby dissolved. The parental custody of the children Diktor and
Daus is granted to the father.
Drylvik filed a motion to dismiss in the RTC of Manila on the ground that
the court no longer had jurisdiction over the matter as a decree of divorce had
already been promulgated dissolving his marriage to Dara. Dara objected, saying
that while she was not challenging the divorce decree, the case in the RTC still
had to proceed for the purpose of determining the issue of the children’s custody.
Drylvik counters that the issue had been disposed of in the divorce decree, thus
constituting res judicata.
SUGGESTED ANSWER:
SUGGESTED ANSWER:
(b) No, a foreign divorce decree between a foreign spouse and a
Filipino spouse, uncontested by both parties is insufficient by
itself to cancel the entry in the civil registry. Before a foreign
divorce decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its
conformity to the foreign law allowing it (Republic v. Manalo,
G.R. No. 221029, 24 April 2018).
24
XX
SUGGESTED ANSWERS:
(a) The remedy available to the oppositors of the appointment of
Dominic as special administrator is to file a petition for certiorari
under Rule 65 of the Rules of Court. The appointment of special
administrators, being discretionary, is thus interlocutory and
may be assailed through a petition for certiorari under Rule 65 of
the Rules of Court (Ocampo v. Ocampo, G.R. No. 187879, 5 July
2010).
(b) If there are no qualified heirs, can the government initiate escheat
proceedings over the assets of the deceased? To whom, in
particular, shall the estate of the deceased go and for whose benefit?
(2.5%)
SUGGESTED ANSWER:
(b) If there are no qualified heirs, Rule 91, Section 1 of the Rules of
Court provides that the Solicitor General or his representatives
in behalf of the Republic of the Philippines, may file a petition
with the Regional Trial Court where the deceased last resided
or in which he had estate, if he resided outside the Philippines,
setting forth the facts and praying that the estate of the
deceased be declared escheated.
Rule 91, Section 3 of the Rules of Court provides that
once a judgment has been rendered in escheat proceedings, the
properties of the deceased shall be assigned as follows: (a)
personal estate to the municipality or city where he last resided
in the Philippines; (b) real estate to the municipalities or cities
in which the same is located; and (c) if the deceased never
25
resided in the Philippines, the whole estate may be assigned to
the respective municipalities or cities where the same is located.
Such estate shall be for the benefit of public schools, and public
charitable institutions and centers in said municipalities or
cities.
XXI
The municipality of Danao, Cebu was a quiet and peaceful town until a
group of miners from Denmark visited the area and discovered that it was rich in
nickel. In partnership with the municipal mayor, the Danish miners had to
flatten 10 hectares of forest land by cutting all the trees before starting their
mining operations. The local DENR, together with the Samahan Laban sa
Sumisira sa Kalikasan, filed a petition for writ of Kalikasan against the
municipal mayor and the Danish miners in the RTC of Cebu.
(a) Is the petition within the jurisdiction of the RTC of Cebu? (2.5%)
SUGGESTED ANSWERS:
(a) No, the petition for a writ of kalikasan is not within the
jurisdiction of the RTC of Cebu. Rule 7, Section 3 of the Rules
of Procedure for Environmental Cases provides that a petition
for a writ of kalikasan is filed with the Supreme Court or any of
the stations with the Court of Appeals.
(b) What is the Precautionary Principle? (2.5%)
SUGGESTED ANSWERS:
XXII
Danica obtained a personal loan of PhP 180,000 from Dinggoy, payable in
18 equal monthly installments of PhP 10,000 until fully paid. In order to
complete her payment at an earlier date, Danica instead paid PhP 20,000
monthly, and continued doing so until the 18th month, which payments Dinggoy
all accepted. Later on, she realized that she had overpaid Dinggoy by 100% as
she should have already completed payment in nine (9) months. She demanded
the return of the excess payment, but Dinggoy completely ignored her. Thus,
26
Danica availed of the Rules of Procedure for Small Claims Cases by filing before
the Municipal Trial Court (MTC) a Statement of Claim, together with the
required documents.
Should the MTC proceed with the case under the: (i) Revised Rules on
Summary Procedure; (ii) the Rules of Procedure for Small Claims; or (iii) the
regular procedure for civil cases? (5%)
SUGGESTED ANSWER:
The Municipal Trial Court (MTC) should try the case under the
Revised Rules of Procedure for Small Claims (the “Revised Rules”). As per
the latest amendment of said rules (En Banc Resolution dated 10 July 2018
in A.M. No. 08-8-7-SC), the MTC shall apply the Revised Rules in all actions
which are purely civil in nature where the claim or relief prayed for is solely
for payment or reimbursement of sum of money not exceeding
Php300,000.00,[1] exclusive of interest and costs.
Having overpaid by one hundred percent (100%) of the amount of the
loan, Danica’s claim for reimbursement amounts to One Hundred Eight
Thousand Pesos (Php180,000.00), which is within the threshold of the
Revised Rules. Thus, the MTC should proceed to hear the case under the
Revised Rules.
[1]
The 2016 amendment increased the amount covered from Php100,000.00 to Php200,000.00.
-NOTHING FOLLOWS-
27
Training & Convention Division
University of the Philippines Law Center
SUGGESTED ANSWERS
to the
2018 BAR EXAMINATIONS IN
LEGAL ETHICS
The lawyer’s oath is a source of any lawyer’s obligations and its violation
is a ground for the lawyer’s suspension, disbarment, or other disciplinary action.
Without stating your name and other circumstances that will identify you,
substantially write down the lawyer’s oath that a person who has passed the bar
examinations is required to take and subscribe to before the Supreme Court.
(5%)
SUGGESTED ANSWER:
II
In a complaint filed before the Integrated Bar of the Philippines (IBP)
against Atty. Cirilo Celis, a senior citizen, it was shown that: a) he failed to pay
his IBP dues for six (6) years; b) he indicated uniformly in his pleadings for three
(3) consecutive years “IBP Muntinlupa OR No. 12345” as proof of payment of
his IBP fees; and c) he did not indicate any Professional Tax Receipt number. to
prove payment of his professional dues.
1
In his defense, Atty. Celis alleged that he is only engaged in a “limited”
law practice, and his principal occupation, as disclosed in his income tax return,
is that of a farmer of a 30-hectare orchard and pineapple farm in Camarines Sur.
He also claimed that he believed in good faith that, as a senior citizen, he was
exempt from payment of taxes, such as income tax, under Republic Act No.
7432 which grants senior citizens “exemption from the payment of individual
income taxes provided that their annual taxable income does not exceed the
poverty level as determined by the NEDA for that year.”
(a) the validity of his claim that, being engaged in a limited practice of
law and being a senior citizen who is exempt from the payment of
taxes, he is not required to pay his IBP and professional dues;
(2.5%)
SUGGESTED ANSWER:
(a) In accordance with Sections 9 and 10, Rule 139-A, Atty. Celis
can engage in the practice of law only by paying his IBP dues,
and it does not matter that his practice is “limited”. While it is
true that R.A. No. 7432, Sec. 4, grants senior citizen exemption
from the payment of individual income taxes provide that their
annual taxable income does not exceed the poverty level as
determined by the National Economic and Development
Authority (NEDA) for that year, the exemption does not include
payment of membership or association dues, which is not a tax
(Santos, Jr. vs. Llamas, 322 SCRA 529 [2000]).
(b) the obligations, if any, under the Rules of Court and the Code of
Professional Responsibility that Atty. Celis may have violated.
(2.5%)
SUGGESTED ANSWER:
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Sec. 10, Rule 139-A, Rules of Court – “Subject to the
provision of Section 12 of this Rule, default in the payment of
annual dues for six months shall warrant suspension of
members in the Integrated Bar, and default in such payment for
one year shall be a ground for removal of the name of the
delinquent member from the Roll of Attorneys.”
III
Carina was dismissed by her employer for breach of trust and confidence,
and for willful violation of company rules and policies. She filed an action for
illegal dismissal claiming that her termination was without legal basis. The Labor
Arbiter found that she was illegally dismissed and awarded her the amount of
PhP 80 million. On appeal to the National Labor Relations Commission (NLRC),
the award was reduced to PhP 40 million as separation pay, plus PhP 5 million
for the value of her stock option plans which would have vested if she were not
illegally dismissed from her job. Unsatisfied with the NLRC’s decision, she
appealed to the Court of Appeals (CA) the amount of monetary award granted by
the NLRC. She engaged the services of Casal, Casos and Associates to handle
her appeal. Her retainer agreement with Casal, Casos and Associates provided
for contingent fees equivalent to 10% of her claim for separation pay and 10% of
the value of stock options to be awarded to her.
The CA decision was not favorable to Carina, so she appealed the same to
the Supreme Court (the Court). While the case was pending appeal with the
Court, Carina entered into a compromise agreement with her employer to
terminate the case upon payment to her of the full amount of PhP 40 million, less
the PhP 15 million previously paid to her by her employer. Before the
compromise agreement was finalized, Carina terminated the services of Casal,
Casos and Associates and asked them to withdraw from the case pending before
the Court. The parties negotiated the compromise agreement without the
participation of their lawyers since the employer imposed the condition that no
lawyers should be involved in the compromise negotiation. She, together with
her employer, then filed the Compromise Agreement for approval by the Court,
and sought the termination of the case, with prejudice.
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attend to her case. In reply, the intervenors said that the engagement was with the
law firm and not with individual lawyers. The law firm also presented letters
signed by their client commending them for work done well in the case.
(a) May lawyers legally charge their clients based on contingent fees?
(2.5%)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
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(c) Can Carina refuse to pay attorneys’ fees on the ground that the
lawyers who personally handled her case had already resigned from
the law firm with which she had contracted? (2.5%)
SUGGESTED ANSWER:
(c) When a client engages a law firm to represent him, his contract
is with a law firm and not with the individual lawyers. The
resignation, illness or inability of some of their lawyers will not
affect the ability of the law firm to continue its services.
Certainly, it cannot be used to evade payment of attorneys’ fees
due to the law firm.
SUGGESTED ANSWER:
(d) If the evidence shows that the employer of Carina imposed the
“no lawyers in the negotiation of the compromise agreement
rule’ because of connivance in evading payment of Carina’s
lawyers, then the defendant employer should be held solidarily
liable in the payment of attorneys’ fees to Carina’s lawyers.
When the other party to the case is also guilty of fraud in the
payment of legal fees, he becomes a joint tortfeasor and should
be held solidarily liable with Carina. By participating in the
fraud, Carina’s employer also becomes liable even if Casals,
Casos and Associates was hired only to represent Carina
(Malvar v. Kraft Foods, G.R. 183952, Sepember 8, 2013).
SUGGESTED ANSWER:
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attorney’s fees, the payment of attorneys’ fees is different from
ordinary obligations and contracts. The Civil Code provisions
on payment of legal rate of interest in the event of default apply
only to ordinary obligations and contracts (Bach v. Ongkiko
Kalaw Manhit and Acorda Law Office, G.R. No. 160334,
Sepember 11, 2006).
IV
SUGGESTED ANSWER:
(a) Yes, he is engaged in the practice of law, which has been defined
as “any activity in or out of court which requires the application
of law, legal procedure, knowledge, training and experience”
(Cayetano v. Monsod, 201 SCRA 210 [1991]). Work in the
government that requires the use of legal knowledge is
considered practice of law (Lingan v. Calubaquib, 727 SCRA 355
[2014], Fajardo v. Alvarez, A.C. No. 9018, April 20, 2016).
Lawyers who teach law are considered engaged in the practice
of law (Re: Letter of the UP Law Faculty, A.M. No. 10-10-4-SC,
March 8, 2011).
SUGGESTED ANSWER:
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requiring practice of law for at least 10 years. There is no
requirement that he should have done actual trial or litigation
work.
Carlos contracted two marriages: the first was with Consuelo, whom he
left in the province, and the second was with Corinne in Manila, with whom he
had six (6) children. Both women were unaware of Carlo’s marriage to the
other.
a) the acts complained of took place before they were admitted to the
bar; and
SUGGESTED ANSWERS:
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fitness of the respondent before he became a lawyer.
Admission to the practice only creates the rebuttable
p resu m p t ion th a t th e ap p l ican t h as al l th e
qualifications to become a lawyer, this may be refuted
by clear and convincing evidence to the contrary even
after admission to the Bar.”
(b) In the same Garrido case, the defense of the second marriage
being void while the third marriage is valid, was also raised. The
Supreme Court held as follows:
“While Atty. Valencia (third wife) contends
that Atty. Garrido’s marriage with Maelotisea
(second wife) was null and void, the fact remains that
(s)he took a man away from a woman who bore him
six (6) children. Ordinary decency would have
required her to ward off Atty. Garrido’s advances, as
he was a married man, in fact a twice-married man
with both marriages subsisting at that time, she
should have said no to Atty. Garrido from the very
start. Instead, she continued her liaison with Atty.
Garrido, driving him, upon the death of Constancia,
away from legitimizing his relationship with
Maelotisea and their children. Worse than this,
because of Atty. Valencia’s presence and willingness,
Atty. Garrido even left his second family and six
children for a third marriage with her. This scenario
smacks of immorality even if viewed outside of the
prism of law.
We are not unmindful of Atty. Valencia’s
expressed belief that Atty. Garrido’s second marriage
to Maelotisea was invalid, hence, she felt free to
marry Atty. Garrido. While this may be correct in
the strict legal sense and was later on confirmed by
the declaration of the nullity of Atty. Garrido’s
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marriage to Maelotisea, we do not believe at all in the
honesty of this expressed belief.”
VI
Mrs. Conchita Conchu engaged the services of Atty. Carlo Colorado to act
as private prosecutor to handle a criminal case against persons suspected of
slaying her husband. Atty. Colorado performed his duties -he interviewed
witnesses to build up his case and rel igiously attended hearings. However, he
failed to attend one hearing (allegedly because he did not receive a notice) in
which the court, over Mrs. Conchu’s objections, granted bail to all the accused.
Mrs. Conchu belligerently confronted Atty. Colorado about his absence. Stung
by Mrs. Conchu’s words, Atty. Colorado filed with the court a “Motion to
Withdraw as Counsel”. The motion did not bear the consent of Mrs. Conchu, as
in fact, Mrs. Conchu refused to sign her conformity to Atty. Colorado’s
withdrawal. Meanwhile, the hearing in the criminal case continued, but Atty.
Colorado no longer appeared at the hearings nor did he contact Mrs. Conchu.
Mrs. Conchu then filed a complaint seeking disciplinary sanctions against Atty.
Colorado. Atty. Colorado cited “loss of confidence” and “serious differences”
with the client as his reasons for withdrawing his services unilaterally.
SUGGESTED ANSWER:
Atty. Colorado can be sanctioned for his actions. Under the Rules of
Court, an attorney who undertakes to conduct an action impliedly stipulates
to carry it to its conclusion. He is not at liberty to abandon it without
reasonable cause. A lawyer’s right to withdraw from a case before its final
adjudication arises only from the client’s written consent or from the
court’s approval of his motion to withdraw based on a good cause.
Furthermore, being an officer of the court in whose favor a lawyer owes the
duty to assist in administering justice, he may not withdraw or be permitted
to withdraw as counsel in a case if such withdrawal will work injustice to a
client or frustrate the ends of justice (Orcino v. Gaspar, 279 SCRA 479
[1997]).
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VII
Atty. Celso Casis’ relationship with Miss Cory Cerrada began when he
represented her in several criminal cases for estafa and violation of B.P. 22. His
expertise and diligence in personally assisting and facilitating her release on bail
and other legal actions saved her from many legal predicaments. Despite her
initial resistance, Miss Cerrada, convinced by Atty. Casis’ sincerity and
representation that he was separated from his wife and was taking necessary
steps for the annulment of his marriage, began to live with him openly as
husband and wife. One day, Atty. Casis’ wife suddenly entered Miss Cerrada’s
home and assaulted her, inflicting injuries. Miss Cerrada then filed a complaint
with the IBP charging Atty. Casis with gross immorality and gross misconduct.
However, shortly afterwards, upon Atty. Casis’ pleas, Miss Cerrada filed a
motion to withdraw the complaint. The IBP had required Atty. Casis to file an
answer but he did not do so, relying on Miss Cerrada’s withdrawal of the
complaint against him. Can the IBP continue to investigate Atty. Casis and
recommend the imposition of sanctions against him, and for the Court to impose
sanctions, if warranted, notwithstanding Miss Cerrada’s filing of the motion to
withdraw the complaint against him? (2.5%)
SUGGESTED ANSWER:
VIII
Judge Celso Camarin posted in the bulletin board of his sala for two
weeks, an advertisement which says: “Wanted attractive waitresses, personable
waiters and cooks who may be interested in applying for employment in my
family’s restaurant business. Interested applicants may submit applications to
Branch XXX, RTC of Camarines Sur.” The screening of some applicants was
also conducted in the Judge’s office. What provisions, if any, of the Code of
Judicial Conduct did Judge Camarin violate? (2.5%)
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SUGGESTED ANSWER:
In the case of Dionisio vs. Escano, 302 SCRA 411, February 1, 1999,
involving the same facts, the Supreme Court found the erring judge to have
violated the following rules of the Code of Judicial Ethics.
Canon 11, Rule 2.00 – A Judge should avoid impropriety and the
appearance of impropriety in all activities.
Canon 5, Rule 5.02 – A judge refrain from financial and business
dealings that tend to reflect adversely on the court’s impartiality, interfere
with the proper performance of judicial activities, or increase involvement
with lawyers or persons likely to come before the court. A Judge should so
manage investments and other financial interest to minimize the number of
case giving grounds for disqualification, and if necessary divest such
investment and interests. Divestment shall be made within one year from
the effectivity of this Code or from appointment, as the case may be.
Rule 5.03 – Subject to the provisions of the preceding rule, a judge
may hold and manage investment but should not serve as an office, director,
advisor, or employee of any business except as director, or non-legal
consultant of a family business.
The corresponding provisions of the New Code of Judicial Conduct
for the Philippine Judiciary would be:
Canon 4, Section 1 – Judges shall avoid impropriety and the
appearance of impropriety in all their activities.
Section 7 – Judges shall inform themselves about their personal
fiduciary financial interests and shall make reasonable efforts to be
informed about the financial interest of the members of their family.
Section 8 – Judges shall not use or lend the prestige of the judicial
office to advance their private interest, or of those of any member of their
family or of anyone else, no shall they convey or permit others to convey the
impression that anyone is in special position to influence them in the
performance of their judicial duties.
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IX
SUGGESTED ANSWER:
X
In a complaint for disbarment, Connie alleged that she engaged the
services of Atty. Cesar Corpuz in the preparation and execution in her favor of a
Deed of Sale over a parcel of land from her common-law husband.
Subsequently, Atty. Corpuz filed a civil case on behalf of Constancia, the legal
wife of Connie’s common-law husband, for the annulment of the Deed of Sale,
impleading Connie as defendant.
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SUGGESTED ANSWER:
XI
Atty. Claire Cortez, a member of the Philippine Bar who was also
admitted to the New York Bar, was disbarred from the practice of law in New
York for violation of Anti-Money Laundering laws of that State. She returned to
the Philippines in order to resume her Philippine law practice.
Can she also be disbarred from practicing law in the Philippines for the
same infraction committed in the foreign jurisdiction? (5%)
SUGGESTED ANSWER:
Yes, she can, if the ground for which she was disbarred in New York
is also a ground for disbarment in the Philippines. But she is entitled to due
process and she can be disbarred here only after notice and hearing. The
disbarment decision in New York will only constitute prima facie evidence of
her guilt (In re: Maquera 435 SCRA 417 [2004]).
XII
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Atty. Calumpang had made absolutely no progress in the titling of the land. He
also could not return the advance money paid by Corinna because he had
converted the money to his personal use. After almost a decade, and the property
could still not be titled in Corinna’s name, she filed an action with the
SUGGESTED ANSWER:
XIII
Concio filed a criminal action for medical malpractice against Dr. Cielo
which was eventually dismissed for failure to prove that Dr. Cielo was negligent.
Concio was represented in this action by Atty. Cogie Ciguerra (Ciguerra). After
they lost the medical malpractice case, Ciguerra started writing a series of posts
on his Facebook (FB) account containing insulting and verbally abuse language
against Dr. Cielo. Among others, Ciguerra called Dr. Cielo a quack doctor,
“reyna ng kaplastikan at kapalpakan”, and accused her of maintaining a payola
or extra-legal budget to pay off prosecutors and judges in order to win her cases.
He also called on patients to boycott the clinic of Dr. Cielo.
Dr. Cielo filed a disbarment case against Ciguerra for posting on his FB
account, sexist, vulgar, and obscene comments, and language disrespectful of
women in his FB posts. Ciguerra’s defense is that his FB posts were private
remarks on his private FB account and only meant to be shared among his FB
friends, and Dr. Cielo was not part of them. He also claimed that the disbarment
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case was filed in violation of his constitutionally-guaranteed right to privacy. The
Court, however, found that Ciguerra’s FB account did not have privacy settings.
Can Ciguerra be disbarred for the series of posts in his FB account against
Dr. Cielo? (5%)
SUGGESTED ANSWER:
XIV
(a) In a school convocation where Judge Conde was the guest speaker,
Judge Conde openly disagreed and criticized a recently-decided
Supreme Court decision and even stressed that the decision of the
Supreme Court in that case was a serious violation of the
Constitution.
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(b) In his class discussions, Judge Conde named Cacai’s mother, an
MTC judge, as one of the judges involved in a marriage scam. At
that time, the case against her mother was still pending. Judge
Conde also included in his class discussion Cacai’s brother whom
he referred to as a “court-noted drug addict.”
Cacai asserted that the acts of Judge Conde were open displays of
insensitivity, impropriety, and lack of delicadeza bordering on oppressive and
abusive conduct. She also alleged that Judge Conde acted with absolute
disrespect for the Court and violated the “subjudice rule” when he discussed the
marriage scam involving her mother because, at that time, the case was still
pending.
In his defense, Judge Conde argued that the case he discussed in the
school convocation was already of public knowledge and had been published
after it had become final. He also said it was part of his academic freedom to
openly discuss and criticize a decision of the Court since it was already decided
with finality, was patently erroneous, and clearly a violation of the Constitution.
With respect to discussions in class about Cacai’s mother, he said that the
marriage scam where her mother was charged scandalized the Judiciary and
became public knowledge when the Office of the Court Administrator held a
press conference on the matter and, that as a citizen, he could comment thereon
in the exercise of his rights to freedom of speech and expression. He also
asserted that his discussions in both fora could not be the subject of an
administrative complaint because they were not done in the performance of his
judicial duties.
SUGGESTED ANSWERS:
(a) The New Code of Judicial Conduct provides that judges, like
any other citizens, are entitled to freedom of expressions, belief,
association and assembly, but in exercising such right, they shall
always conduct themselves in such a manner as to preserve the
dignity of the judicial office and the impartiality of the
judiciary. Judge Conde, however, should not have criticized in
public the Supreme Court decision as a serious violation of the
Constitution. He should have avoided any discussion in order to
preserve the traditional non-involvement of the judiciary in
public discussion of controversial issues (In re: Query of the
MTC Lawyers of Zamboanga del Norte, A.M. No. 86-11-3690).
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(b) Judge Conde is guilty of conduct unbecoming of a judge in
using intemperate language and unnecessary comments tending
to project Cacai’s mother as a corrupt and ignorant judge and
her brother as a drug addict (in his class discussion). While the
Code of Judicial Conduct recognizes the right of judges to
freedom of expression, this freedom should be exercised in a
manner that would preserve the dignity, independence and
respect for himself and judiciary as a whole. A magistrate
should not descend to the level of a sharp-tongued, ill-mannered
petty tyrant by uttering harsh words, snide remarks and
sarcastic comments. Judge Conde can be held administratively
liable even though his improper comments were made in his
class discussions because ethical conduct is expected of him as a
judge not only in the performance of his judicial duties, but in
his professional and private activities as well. A judge, in order
to promote public confidence in the integrity and impartiality of
the judiciary, must behave with propriety at all times. A judge’s
official life cannot be detached or separated from his personal
existence. Judge Conde also violated the subjudice rule which
restricts comments and disclosures pertaining to judicial
proceedings in order to avoid obstructing the administration of
justice. At the time Judge Conde discussed the marriage scam,
the case was still pending (Tormis v Paredes, A.M. No. RTJ-13-
2366, February 4, 2015).
XV
Charo Conti engaged the services of Atty. Cesar Compostela for the
registration of a property located in Cebu, and which property she had inherited
together with her siblings. It was agreed in writing that Charo would pay Atty.
Compostela PhP 20,000 as acceptance fee and PhP 2,000 as appearance fee.
During the last hearing of the case, Atty. Compostela demanded an additional
amount of PhP 20,000 for the preparation of a memorandum, which he said
would further strengthen Charo’s position, plus 20% of the total area of the
property as additional fees for his services. Charo did not agree to Atty.
Compostela’s demands since they were contrary to their agreement. Besides, the
property was co-owned with her siblings and she could not agree to Atty.
Compostela’s demands without the consent of her co-heirs.
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Four (4) years later, the petition for registration was approved and the
Land Registration Authority notified Charo that the decree of registration and the
original of the owner’s duplicate copy of the title had already been transmitted to
the Register of Deeds (RD). When Charo went to the RD, she was surprised to
discover that the owner’s duplicate copy of the title had already been claimed by,
and released to, Atty. Compostela. Despite demand, Atty. Compostela refused to
deliver the title to Charo until she paid the additional attorneys’ fees that he was
demanding. Charo then instituted a complaint for disbarment against him. In his
defense, Atty. Compostela claimed that:
(a) he had a right to retain the owner’s duplicate of the title as his
retaining lien; and
SUGGESTED ANSWER:
18
XVI
When the debt became due, Carmen deposited the check but it was
dishonored for insufficient funds. Carmen then sued Carmina and Celeste for
estafa through falsification of a commercial document. After finding probable
cause, the prosecutor filed a criminal case in court, where the sisters were
required to file their joint Judicial Affidavit. In their affidavit, they raised the
defense that they could not be guilty of estafa because: (i) the check was issued
only as a form of security; (ii) even if issued as payment, it was for a pre-existing
debt; and (iii) it was only upon Carmen’s insistence that they issued the check.
Before the case could be decided, the sisters offered to settle their debt
through a dacion en pago. They offered a Honda CRV which they jointly owned
in full settlement of the loan. Carmen agreed.
SUGGESTED ANSWER:
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(b) The Judicial Affidavit (10%); and
SUGGESTED ANSWER:
PRELIMINARY STATEMENT
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Q4. In answer to Q2, you mentioned that you are executing
this Judicial Affidavit to support your defenses in the
criminal case of estafa filed against you. Why do you
believe you are not guilty?
A4. We are not guilty because of the following reasons:
i the check was issued only as a form of security;
ii Even if issued as payment, it was for a pre-existing
debt, and
iii It was only upon the Carmen Carunungan’s
insistence that We issued the check.
Q5. Is there anything else you want to add to the above?
A5. No more sir.
Witnesses:
___________________________
ABC
ATTESTATION
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3. Neither I nor any other person then present coached
Carmina Corominas and Celeste Corominas regarding their
answers.
IN WITNESS WHEREOF, I hereunto affixed my
signature this ___ day of November 2018 at ________________.
Atty. “A”
Address
IBP OR No. place and date of issuance
PTR OR No. place and date of payment
MCLE Exemption ____________
Date of Issue _______________
Valid until _________________
JURAT
Notary Public
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(c) The Dacion en Pago (10%).
SUGGESTED ANSWER:
WITNESSETH:
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the CREDITOR hereby accepts the said vehicle as full payment
of the said indebtedness to her,
CARMEN CARUNUNGAN
Creditor
WITNESSES:
____________________ ____________________
ACKNOWLEDGMENT
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the foregoing instrument, and they acknowledged to me that the
same is their free and voluntary act and deed.
NOTARY PUBLIC
Until December 31, 2018
Doc. No. ____
Page No,____
Book No. ____
Series of 2018.
-NOTHING FOLLOWS-
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