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Tuesday, December 28, 2010

Pregnancy



I can still remember an advertisement in the local radio advocating woman’s right that the a woman will be discharged from her teaching position on account of her being pregnant, the principal saying that it will ruin the reputation of the school because a woman is pregnant while she is single.

Labor Code provides that “Article 137. Prohibited Acts. – It shall be unlawful for any employer:

1. To deny any woman employee the benefits provided for in the Chapter or to discharge any woman employed by him for the purposes of preventing her from enjoying any of the benefits provided under this code. 

2. To discharge such woman on account of her pregnancy or while on leave or in confinement due to her pregnancy. 

3. To discharge or refuse the admission of such woman upon returning to her work for fear that she may again be pregnant.” 

Also Magna Carta for Women provides laws prohibiting discrimination against women.

Rape


The Anti-Rape Law of 1997 (RA 8353)

Elements: Rape is committed:

1. By a man who have carnal knowledge of a woman under any of the following circumstances:        
a. through force, threat or intimidation        
b. when the offended party is deprived of reason or otherwise unconscious        
c. by means of fraudulent machination or grave abuse of authority        
d. when the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present.

2. By any person who, under any of the circumstances mentioned in par 1 hereof,    shall commit an act of sexual assault by inserting:        
a. his penis into another person’s mouth or anal orifice, or        
b. any instrument or object, into the genital or anal orifice of another person.

        In 2001, Victor Pearson an American veteran was arrested for 87 counts of rape in Bacolod City, Negros Occidental. Allegedly he raped 8 women including minors who were at the age of 13-16 at that time.  He is a decorated Vietnam War veteran who has settled in the Philippines. He is said to have converted to Islam in 1980 and married 6 times, and was divorced twice. He served his sentence in Bacolod Provincial Jail before he was transferred to National Penitentiary to serve his remaining sentence of 80 years imprisonment because the Supreme Court upheld the lower court’s decision of convicting him on two counts of rape. Few of these women cling on him because of support. Some of them even said that it is good that they married an American because he is responsible. 

      His story is recently featured in a documentary named “Kano: an American and his harem” made by Coreen Jimenez after studying his story for an investigative magazine. This documentary won several awards including IDFA or International Documentary Film festival Amsterdam for first appearance.

Thursday, December 23, 2010

Kidnap victim: Lao




Kenn Klefford Lao –(Jolo, Sulu) is a 21 years old Commerce student of Notre Dame of Jolo College and a son of a prominent physician in the town of Jolo. Two months before he was kidnapped by some people in the area. They said that the abductors are members of the notorious Abu Sayyaf Group or (ASG), but there is no link yet as to the identity of the abductors. 

During the kidnapping, he said he was going to meet his textmate, but few hours past and he was nowhere to be found. The driver said that he searched for the boy in the area but wasn’t able to see him. In the evening a mysterious caller said that he had the boy and asked for a ransom for the boy to be released.

At 8:45 pm on Wednesday, the boy was rescued from his abductors near the boundary of Indanan and Patikul in Sulu after two months in captivity. PNP chief said that they went on a mission at 7:30 pm upon receiving the report of a concerned citizen.

Good thing that the boy was rescued, after multiple cases of kidnapping in the town, people are afraid even to step in to the town of Jolo. The connotation is that many Abu Sayyaf members in the town and once there, one may be kidnapped.

I grew up in Jolo, it was when I am in college that I went to a near by city to study. I can still remember Jolo, many crimes were not solved. People are afraid, even the policemen are even afraid to catch criminals because of the possibility of retaliation to their own families. What more if you are a witness, you will just make your life short if you will talk.

I am glad that this town is improving. Hope their will be more people who can the change the image of this town. I salute those policemen who rescued the kidnap victim. You all did a great job.  



Wednesday, December 22, 2010

Amnesty vs Pardon




Amnesty- is an act of grace concurred in by the Legislature, usually extended to classes of persons who committed political offences which puts into oblivion the offense itself.

Pardon – act of grace which exempts individual on whom it is bestowed from punishment which the law inflicts for a crime he has committed.

Amnesty covers all political offenses, granted only to classes of persons, a public act to which court may take judicial notice, it looks backward and puts into oblivion the offense itself and may be granted even before trial while, pardon covers an infraction of peace/common crimes, granted only to individuals, does not require concurrence of Congress, private act which must be pleaded and prove, looks forward and relieves the pardonee of the consequences of the offense, and can be granted only after conviction.



Tuesday, December 21, 2010

OFW (Overseas Filipino Workers)




OFW (Overseas Filipino Workers)


Don’t you know that OFW arrival in the Philippines is 1500 per day during ordinary day and 3000 during the Christmas season?

It’s nice to know that the OFWs are the today’s heroes because of the remittance they send every month for their families in the Philippines.

According to Labor Code of the Philippines,
“Article 22. Mandatory Remittance of Foreign Exchange Earnings. It shall be mandatory for all Filipino workers abroad to remit a portion of their foreign earnings to their families, dependents, and/or beneficiaries in the country in accordance with rules and regulations prescribed by the Secretary of Labor and Employment.”

Requirements:            
All overseas Filipino workers are required to remit a portion of their exchange earnings ranging from 50% to 80% of the basic salary, depending on the worker’s kind of job, to their families/ beneficiaries. (POEA Rules Book)

Seamen of mariners – 80% 
Workers for Filipino contractors and construction companies – 70%
Professionals whose employment contract provide for lodging facilities – 70 %
Professionals without board and lodging – 50%
Domestic and other service workers – 50%

Saturday, December 18, 2010

What is 13th month pay?



It is the time of the year when people receive benefits for the Christmas season. 13th month pay is one of them.

In accordance with Presidential Decree Number 851 (The 13th Month Pay Law), employers are required to pay all their employees a 13th month pay equivalent to 1/12 of his basic salary not later than 24 of December every year.

This pay is payable to the employee even if the employee retired from work before the end of the year, by computing its pro-rata equivalent to the months the employee worked in a company.

The Decree shall not be applicable to:
(a) Distressed employers, such as           
     (1) Those which are currently incurring substantial losses or           
     (2) in the case of non-profit institutions and organizations, where their income, whether from donations, contributions, grants and other earnings from any source, has consistently declined by more than forty (40%) percent of their normal income for the last two (2) years, subject to the provision of Section 7 of this issuance; 
  
(b) The Government and any of its political subdivisions, including government-owned and controlled corporations, except those corporations operating essentially as private subsidiaries of the Government; 
  
(c) Employers already paying their employees 13-month pay or more in a calendar year or its equivalent at the time of this issuance; 
  
(d) Employers of household helpers and persons in the personal service of another in relation to such workers; and 
  
(e) Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing a specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance insofar as such workers are concerned.

Friday, December 17, 2010

Classification of Banks:

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1. Universal Banks – Primarily governed by the General Banking Law, can exercise the owners of an investment house and invest in non-allied enterprises and have the highest capilization requirement.

2. Commercial banks – Ordinary banks governed by the GBL which have a lower capitalization requirement the universal banks and cannot exercise the powers of an investment house and invest in non-allied enterprises.

3. Thrift banks- These are a.) Savings and mortgage banks; b.) Stock savings and loan associations; c.) Private development banks, which are primarily governed by the Thrift Banks Act (RA 7906).

4. Rural banks- mandated to make needed credit available and readily accessible on reasonable terms and which are primarily governed by the Rural Banks Act of 1992 (RA 7363)

5. Cooperative Banks- Those banks organized whose majority shares are owned and controlled by cooperatives primarily to provide financial and credit services to cooperative rural banks. They are governed primarily by the cooperative code (RA 6935).

6. Islamic banks- Banks whose business dealings and activities are subject to the basic principles and rulings of Islamic Sharia, such as the Al amanah Islamic Investment Bank of the Philipippnes which was created by RA 6848.

7. Other classification of banks as determined by the Monetary Board of the Banko Sentral ng Pilipinas. 

Monday, December 13, 2010

Movies with legal theme that you should watch.



Sit back and relax. Enjoy these movies.

01.  A Civil Action- played by John Travolta, here he is a greedy lawyer whose qualification in accepting a case is only if he can get money out of the defendants. In the end, he learned his lesson. 

02.  Exorcism of Emily Rose – A true story of Emily Rose who undergone exorcism and later the judge convicted the priest for his negligence in the process of exorcism that caused Emily’s death.

03.  To kill a mocking bird – A black and white movie about the attorney who helped a black man who was accused of raping a white girl.

04.  I am Sam – Played by Sean Penn, an excellent movie involving the issue of custody of a child. Whether it will be given to foster parents or to her father who has a mental capacity of a 7 years old.

05.  The Client- written by John Grisham, this is a story of a boy who witnessed the murder of a man.

06.  Runaway Jury- An excellent movie about a member of a jury in a case who induced the plaintiff’s party and defendant’s party to win their case by paying him.


if you know movies with legal theme post a comment. i'll be glad to add your favourite movies to this list.

Thursday, December 9, 2010

Tax Evasion vs. Tax Avoidance


Tax Evasion is the use by the taxpayer of illegal or fraudulent means to defeat or reduce the payment of a tax. It is punishable by law.
Examples: Deliberate failure to report taxable income or property; deliberate reduction of income that has been received.

Tax Avoidance is the use by the taxpayer of legally permissible means or methods in order to avoid or reduce tax liability. It is not punishable by law.
Examples: Situations where a person refrains from engaging in some activity or enjoying some privilege in order to avoid the incidental taxation or to lower his tax bracket for a taxable year to avoid the higher rate of tax.

Tax evasion should be applied to the escape from taxation accomplished by breaking the letter of the law for example deliberate omission to report a taxable item. Tax avoidance on the other hand, covers escape, accomplished by legal means which may be contrary to the intent of the sponsors of the tax law but nevertheless do  not violate the letter of the law.

Source: Textbook on Agrarian Reform and Taxation by Hector de Leon
            Fundamentals of Taxation



Tuesday, December 7, 2010

Obligation and contract important terms Part 1

Obligation – a juridical necessity to give, to do, or not to do.                   
A juridical relation whereby a person (creditor) mat demand from another (debtor) the observance of a determinate conduct, and in case of breach may obtain satisfying from the assets of the latter.

Quasi-contracts- Those juridical relations arising from lawful, voluntary and unilateral acts, by virtue of which the parties become bound to each other based on the principle that no one shall be unjustly enriched or benefited at the expense of another.

Negotiorum gestio – arises whenever a person voluntarily takes charge of the agency or management of the business or property of another without any power or authority from the latter.

Solutio Indebiti – arise when a person unduly delivers a thing through mistake to another who has no right to demand it.

Quasi –delicts – An act or omission by a person (torteasor) which causes damage to another giving rise to an obligation to pay for the damage doner, there being fault or negligence but there is no pre-existing contractual relation between the parties (art 2176).

Negligence – failure to observe for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.

Determinate or specific – object is particularly designated or physically segregated from all other of the same class.

Generic – object is designated merely by its class or genus.
Limited generic thing – when the generic objects are confined to a particular class, e.g. an obligation to deliver one of my cars,

Jus ad rem – a right enforceable only against a definite person or group of persons.

Jus in re – a right enforceable against the whole world.

Default or Delay – Non- fulfillment of the obligation with respect to time.

Mora solviendi- delay of the debtor to perform his obligation.

Mora accipiendi- delay of the creditor to accept the delivery of the thing which is the object of the obligation.

Fraud – Deliberate and intentional evasion of the fulfillment of an obligation.          Implies some kind of malice or dishonesty and it cannot cover cases of mistake and errors in judgment made is good faith.Diligence of Good Father of a Family – reasonable diligence which an ordinary prudent person would have done under the same circumstances.

Fortuitous event – an event which could not be foreseen or which though foreseen was inevitable.

Accion subrogatoria – to be subrogatred to all the rights and action of the debtor save those which are inherent in his person.

Accion paulina – impugn all the acts which the debtor may have done to defraud them.

Pure obligation – One whose effectivity is subrogated to the fulfillment or non-fulfillment of a condition or upon the expiration of a condition or upon the expiration of a term or period and is demandable at once.

Conditional obligation – one whose effectivity is subrogated to the fulfillment or non–fulfillment of a future and uncertain fact or event.