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Tuesday, December 25, 2012

LEGAL HD

Thursday, November 29, 2012

POLITICAL LAW DOCTRINES


Doctrine of State immunity from suit.

The basic postulate enshrined in the Constitution that “[t]he State may not be sued without its consent,” reflects nothing less than a recognition of the sovereign character of the State and an express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts.  It is based on the very essence of sovereignty.  As has been aptly observed by Justice Holmes, a sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.  True, the doctrine, not too infrequently, is derisively called “the royal prerogative of dishonesty” because it grants the state the prerogative to defeat any legitimate claim against it by simply invoking its non-suability. We have had occasion to explain in its defense, however, that a continued adherence to the doctrine of non-suability cannot be deplored, for the loss of governmental efficiency and the obstacle to the performance of its multifarious functions would be far greater in severity than the inconvenience that may be caused private parties, if such fundamental principle is to be abandoned and the availability of judicial remedy is not to be accordingly restricted.  (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug]

Doctrine of Constitutional Supremacy

Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes, is null and void and without any force and effect.  Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.  (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])

WRIT OF AMPARO


Writ of Amparo

Section 1. Petition. - The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

Sec. 2. Who May File. - The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:
1. Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;

2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

3. Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. 

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein.

Sec. 3. Where to File. - The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.

When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.

Sec. 4. No Docket Fees. - The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately.

Sec. 5. Contents of Petition. - The petition shall be signed and verified and shall allege the following:
1. The personal circumstances of the petitioner;

2. The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

3. The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

4. The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

5. The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

6. The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.

Sec. 6. Issuance of the Writ. - Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance.

Sec. 7. Penalty for Refusing to Issue or Serve the Writ. - A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.

Sec. 8. How the Writ is Served. - The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply.

Sec. 9. Return; Contents. - Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:
1. The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission;

2. The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission;

3. All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and

4. If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: 

1. to verify the identity of the aggrieved party;

2. to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible;

3. to identify witnesses and obtain statements from them concerning the death or disappearance;

4. to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance;

5. to identify and apprehend the person or persons involved in the death or disappearance; and

6. to bring the suspected offenders before a competent court. 

The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case.

A general denial of the allegations in the petition shall not be allowed.

Sec. 10. Defenses not Pleaded Deemed Waived. - All defenses shall be raised in the return, otherwise, they shall be deemed waived.

Sec. 11. Prohibited Pleadings and Motions. - The following pleadings and motions are prohibited:
1. Motion to dismiss;

2. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings;

3. Dilatory motion for postponement;

4. Motion for a bill of particulars;

5. Counterclaim or cross-claim;

6. Third-party complaint;

7. Reply;

8. Motion to declare respondent in default;

9. Intervention;

10. Memorandum;

11. Motion for reconsideration of interlocutory orders or interim relief orders; and

12. Petition for certiorari, mandamus or prohibition against any interlocutory order. 

Sec. 12. Effect of Failure to File Return. - In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte.

Sec. 13. Summary Hearing. - The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus.

Sec. 14. Interim Reliefs. - Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs:
(a) Temporary Protection Order. - The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue.

The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.

(b) Inspection Order. - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons.

(c) Production Order. - The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.

(d) Witness Protection Order. - The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.

Sec. 15. Availability of Interim Reliefs to Respondent. - Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section.

A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.

Sec. 16. Contempt. - The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine.

Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims by substantial evidence.

The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.

Sec. 18. Judgment. - The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.

Sec. 19. Appeal. - Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.

The appeal shall be given the same priority as in habeas corpus cases.

Sec. 20. Archiving and Revival of Cases. - The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives.

A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case.

The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year.

Sec. 21. Institution of Separate Actions. - This Rule shall not preclude the filing of separate criminal, civil or administrative actions.

Sec. 22. Effect of Filing of a Criminal Action. - When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

Sec. 23. Consolidation. - When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

Sec. 24. Substantive Rights. - This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution.

Sec. 25. Suppletory Application of the Rules of Court. - The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule.

Sec. 26. Applicability to Pending Cases. - This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts.

Sec. 27. Effectivity. - This Rule shall take effect on October 24, 2007, following its publication in three (3) newspapers of general circulation.

MINING PROBLEM

KASAMBAHAY BILL EXPLAINED BY JINGGOY ESTRADA

Tuesday, November 27, 2012

compressed workweek (concept)

compressed workweek - refers to ones where the normal workweek is reduced to less than six (6) days but the total numbers of work hours of 48 hours per week remains.   the normal work hours in a day is increased to more than 8 hours but not to exceed twelve hours, without corresponding overtime premium. the concept can be adjusted accordingly depending on the normal workweek of the company.

Civil Interdiction

civil interdiction covers deprivation of the ff rights:

a. parental authority
b. guardianship as to the person or property of any ward.
c. marital authority
d. manage his properties
e. dispose of such property by any act or conveyance intervivos.

Atty Tranquil Criminal law

Atty Gorospe Lecture in Political Law

Atty Sandoval Lecture in Political Law

Atty Sababan TAX

TAX PRINCIPLES


Tax credit generally refers to an amount that is subtracted directly from one’s total tax liability, an allowance against the tax itself, or a deduction from what is owned.
          A tax credit reduces the tax due, including –whenever applicable – the income tax that is determined after applying the corresponding tax rates to taxable income.  (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G. R. No. 159647, April 15, 2005)

A tax deduction is defined as a subtraction from income for tax purposes, or an amount that is allowed by law to reduce income prior to the application of the tax rate to compute the amount of tax which is due.
          A tax deduction reduces the income that is subject to tax in order to arrive at taxable income. (Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G. R. No. 159647, April 15, 2005)


A tax amnesty is a general pardon or intentional overlooking by the State of its authority to impose penalties on persons otherwise guilty of evasion or violation of a revenue or a tax law. 
          It partakes of an absolute waiver by the government of its right to collect what is due it and to give tax evaders who wish to relent a chance to start with a clean slate. A tax amnesty, much like a tax exemption, is never favored nor presumed in law. The grant of a tax amnesty, similar to a tax exemption, must be construed strictly against the taxpayer and liberally in favor of the taxing authority.  (Philippine Banking Corporation, etc., v. Commissioner of Internal Revenue, G. R. No. 170574, January 30, 2009)

Tax avoidance is the use of legally permissible means to reduce the tax while tax evasion is the use of illegal means to escape the payment of taxes.

Tax sparing is a provision in some tax treaties which provides that the state of residence allows as credit the amount that would have been paid, as if no reduction has been made. (Vogel, Klaus on Double Taxation Conventions, Third Edition, p.1255 cited in Segarra, Venice H, Tax Treaties: Trick or treat ?, Philippine Daily Inquirer, December 6, 2002, p. C5)
          There may be instances where a particular income is exempt from taxation in order to encourage foreign investments which may lead to economic development.  If the tax credit method is used, there would be no more tax to credit since there is no more tax to credit as a result of the tax exemption.  Consequently, when the tax method credit method is applied to these items of income, such incentives are siphoned off since, in effect, the tax benefits are cancelled out.  (Ibid.) Thus, the need for the tax sparing provision.

RULE OF PROCEDURE FOR SMALL CLAIMS CASES


‘ ‘RULE OF PROCEDURE FOR SMALL CLAIMS CASES
SECTION 1. Title. — This Rule shall be known as “The Rule of Procedure for Small Claims Cases.”
SEC. 2. Scope. — This Rule shall govern the procedure in actions before the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for payment of money where the value of the claim does not exceed One Hundred Thousand Pesos (P100,000.00) exclusive of interest and costs.
SEC. 3. Definition of Terms. — For purposes of this Rule:
(a) Plaintiff refers to the party who initiated a small claims action. The term includes a defendant who has filed a counterclaim against plaintiff;
(b) Defendant is the party against whom the plaintiff has filed a small claims action. The term includes a plaintiff against whom a defendant has filed a claim, or a person who replies to the claim;
(c) Person is an individual, corporation, partnership, limited liability partnership, association, or other juridical entity endowed with personality by law;
(d) Individual is a natural person;
(e) Motion means a party’s request, written or oral, to the court for an order or other action. It shall include an informal written request to the court, such as a letter;
(f) Good cause means circumstances sufficient to justify the requested order or other action, as determined by the judge; and
(g) Affidavit means a written statement or declaration of facts that are sworn or affirmed to be true.
SEC. 4. Applicability. — The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts shall apply this Rule in all actions which are: (a) purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money, and (b) the civil aspect of criminal actions, either filed before the institution of the criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule 111 of the Revised Rules Of Criminal Procedure.
These claims or demands may be:
(a) For money owed under any of the following:
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For damages arising from any of the following:
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
(c) The enforcement of a barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec. 417 of Republic Act 7160, otherwise known as the Local Government Code of 1991.
SEC. 5. Commencement of Small Claims Action. — A small claims action is commenced by filing with the court an accomplished and verified Statement of Claim (Form 1-SCC) in duplicate, accompanied by a Certification of Non-forum Shopping (Form 1-A, SCC), and two (2) duly certified photocopies of the actionable document/s subject of the claim, as well as the affidavits of witnesses and other evidence to support the claim. No evidence shall be allowed during the hearing which was not attached to or submitted together with the Claim, unless good cause is shown for the admission of additional evidence.
No formal pleading, other than the Statement of Claim described in this Rule, is necessary to initiate a small claims action.
SEC. 6. Joinder of Claims. — Plaintiff may join in a single statement of claim one or more separate small claims against a defendant provided that the total amount claimed, exclusive of interest and costs, does not exceed P100,000.00.
SEC. 7. Affidavits. — The affidavits submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence.
A violation of this requirement shall subject the party, and the counsel who assisted the party in the preparation of the affidavits, if any, to appropriate disciplinary action. The inadmissible affidavit(s) or portion(s) thereof shall be expunged from the record.
SEC. 8. Payment of Filing Fees. — The plaintiff shall pay the docket and other legal fees prescribed under Rule 141 of the Revised Rules of Court, unless allowed to litigate as an indigent.
A claim filed with a motion to sue as indigent (Form 6-SCC) shall be referred to the Executive Judge for immediate action in case of multi-sala courts, or to the Presiding Judge of the court hearing the small claims case. If the motion is granted by the Executive Judge, the case shall be raffled off or assigned to the court designated to hear small claims cases. If the motion is denied, the plaintiff shall be given five (5) days within which to pay the docket fees, otherwise, the case shall be dismissed without prejudice. In no case shall a party, even if declared an indigent, be exempt from the payment of the P1,000.00 fee for service of summons and processes in civil cases.
SEC. 9. Dismissal of the Claim. — After the court determines that the case falls under this Rule, it may, from an examination of the allegations of the Statement of Claim and such evidence attached thereto, by itself, dismiss the case outright on any of the grounds apparent from the Claim for the dismissal of a civil action.
SEC. 10. Summons and Notice of Hearing. — If no ground for dismissal is found, the court shall forthwith issue Summons (Form 2-SCC) on the day of receipt of the Statement of Claim, directing the defendant to submit a verified Response.
The court shall also issue a Notice (Form 4-SCC) to both parties, directing them to appear before it on a specific date and time for hearing, with a warning that no unjustified postponement shall be allowed, as provided in Section 19 of this Rule.
The summons and notice to be served on the defendant shall be accompanied by a copy of the Statement of Claim and documents submitted by plaintiff, and a copy of the Response (Form 3-SCC) to be accomplished by the defendant. The Notice shall contain an express prohibition against the filing of a motion to dismiss or any other motion under Section 14 of this Rule.
SEC. 11. Response. — The defendant shall file with the court and serve on the plaintiff a duly accomplished and verified Response within a non-extendible period of ten (10) days from receipt of summons. The Response shall be accompanied by certified photocopies of documents, as well as affidavits of witnesses and other evidence in support thereof. No evidence shall be allowed during the hearing which was not attached to or submitted together with the Response, unless good cause is shown for the admission of additional evidence.
SEC. 12. Effect of Failure to File Response. — Should the defendant fail to file his Response within the required period, the court by itself shall render judgment as may be warranted by the facts alleged in the Statement of Claim limited to what is prayed for. The court however, may, in its discretion, reduce the amount of damages for being excessive or unconscionable.
SEC. 13. Counterclaims Within the Coverage of this Rule. — If at the time the action is commenced, the defendant possesses a claim against the plaintiff that (a) is within the coverage of this Rule, exclusive of interest and costs; (b) arises out of the same transaction or event that is the subject matter of the plaintiff’s claim; (c) does not require for its adjudication the joinder of third parties; and (d) is not the subject of another pending action, the claim shall be filed as a counterclaim in the Response; otherwise, the defendant shall be barred from suit on the counterclaim.
The defendant may also elect to file a counterclaim against the plaintiff that does not arise out of the same transaction or occurrence, provided that the amount and nature thereof are within the coverage of this Rule and the prescribed docket and other legal fees are paid.
SEC. 14. Prohibited Pleadings and Motions. — The following pleadings, motions, or petitions shall not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
SEC. 15. Availability of Forms; Assistance by Court Personnel. — The Clerk of Court or other court personnel shall provide such assistance as may be requested by a plaintiff or a defendant regarding the availability of forms and other information about the coverage, requirements as well as procedure for small claims cases.
SEC. 16. Appearance. — The parties shall appear at the designated date of hearing personally or through a representative authorized under a Special Power of Attorney (Form 5-SCC) to enter into an amicable settlement, to submit to Judicial Dispute Resolution (JDR) and to enter into stipulations or admissions of facts and of documentary exhibits.
SEC. 17. Appearance of Attorneys Not Allowed. — No attorney shall appear in behalf of or represent a party at the hearing, unless the attorney is the plaintiff or defendant.
If the court determines that a party cannot properly present his/her claim or defense and needs assistance, the court may, in its discretion, allow another individual who is not an attorney to assist that party upon the latter’s consent.
SEC. 18. Non-appearance of Parties. — Failure of the plaintiff to appear shall be cause for the dismissal of the claim without prejudice. The defendant who appears shall be entitled to judgment on a permissive counterclaim.
Failure of the defendant to appear shall have the same effect as failure to file a Response under Section 12 of this Rule.
This shall not apply where one of two or more defendants who are sued under a common cause of action and have pleaded a common defense appears at the hearing.
Failure of both parties to appear shall cause the dismissal with prejudice of both the claim and counterclaim.
SEC. 19. Postponement When Allowed. — A request for postponement of a hearing may be granted only upon proof of the physical inability of the party to appear before the court on the scheduled date and time. A party may avail of only one (1) postponement.
SEC. 20. Duty of the Court. — At the beginning of the court session, the judge shall read aloud a short statement explaining the nature, purpose and the rule of procedure of small claims cases.
SEC. 21. Judicial Dispute Resolution. — At the hearing, the judge shall conduct Judicial Dispute Resolution (JDR) through mediation, conciliation, early neutral evaluation, or any other mode of JDR. Any settlement (Form 7-SCC) or resolution (Form 8-SCC) of the dispute shall be reduced into writing, signed by the parties and submitted to the court for approval (Form 12-SCC).
SEC. 22. Failure of JDR. — If JDR fails and the parties agree in writing (Form 10-SCC) that the hearing of the case shall be presided over by the judge who conducted the JDR, the hearing shall so proceed in an informal and expeditious manner and terminated within one (1) day.
Absent such agreement, (a) in case of a multi-sala court, the case shall, on the same day, be transmitted (Form 11-SCC) to the Office of the Clerk of Court for immediate referral by the Executive Judge to the pairing judge for hearing and decision within five (5) working days from referral; and (b) in case of a single sala court, the pairing judge shall hear and decide the case in the court of origin within five (5) working days from referral by the JDR judge.
SEC. 23. Decision.—After the hearing, the court shall render its decision on the same day, based on the facts established by the evidence (Form 13-SCC). The decision shall immediately be entered by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the parties.
The decision shall be final and unappealable.
SEC. 24. Execution. — If the decision is rendered in favor of the plaintiff, execution shall issue upon motion (Form 9-SCC).
SEC. 25. Applicability of the Rules of Civil Procedure. — The Rules of Civil Procedure shall apply suppletorily insofar as they are not inconsistent with this Rule.
SEC. 26. Effectivity.—This Rule shall take effect on October 1, 2008 for the pilot courts designated to apply the procedure for small claims cases following its publication in two newspapers of general circulation.

North Korea

North Korea

North Korea

Thursday, November 22, 2012

Philippines Lawyer’s Oath


Lawyer’s Oath

I, ____________, do solemnly swear that I will maintain allegiance to the Republic of the
Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly
constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will
not wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor
consent to the same; I will delay no man for money or malice and will conduct myself as a lawyer
according to the best of my knowledge and discretion with all good fidelity as well to the courts as to
my clients; and I impose upon myself this voluntary obligation without any mental reservation or
purpose of evasion. So help me God.

Law Practice


Public Officials Who Cannot Practice Law in the Philippines:
1. Judges and other officials or employees of the superior court
2. Officials and employees of the Office of the Solicitor General
3. Government Prosecutors
4. President, Vice-President, members of the Cabinet, their deputies and
assistants
5. Chairmen and members of the Constitutional Commissions
6. Ombudsman and his deputies
7. Governors, city and municipal mayors
8. Those who, by special law are prohibited from engaging in the practice of
their legal profession.

Public Officials with restrictions in the practice of law:
1. Senators and Members of the House of Representatives
2. Members of the Sanggunian
3. Retired Justice or Judge
4. Civil Service officers or employees without permit from their respective
department heads.

Labor Law related Doctrines


Theory of imputed knowledge - A rule in insurance law that any information material to the transaction, either
possessed by the agent at the time of the transaction or acquired by him before its completion, is deemed to be the knowledge of the principal, at least so far as the transaction is concerned, even though in fact the knowledge is not communicated to the principal at all.


"No work no pay" principle - Actual work is the basis of claim for wages.


Non-diminution of benefits - This principle mandates that the reduction or diminution or withdrawal by employers of any benefits, supplements or payments as provided in existing laws, individual agreements or collective bargaining agreements between workers and employers or voluntary employer practice or policy, is not allowed. The benefits being given to employees cannot be taken back or reduced unilaterally by the employer because the benefits have become part of the employment contract, written or unwritten.


Reasonable connection rule - The primary standard is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. If the employee has been performing the job for at least one year, even if the performance is not continuous or only intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity, if not indispensability, of the activity of the business.



Wednesday, November 21, 2012

Legal Maxims Criminal Law


BASIC MAXIMS IN CRIMINAL LAW

Doctrine of Pro Reo

Whenever a penal law is to be construed or applied and the law admits of two interpretations – one lenient to the offender and one strict to the offender – that interpretation which is lenient or favorable to the offender will be adopted.

Nullum crimen, nulla poena sine lege

There is no crime when there is no law punishing the same.  This is true to civil law countries, but not to common law countries. Because of this maxim, there is no common law crime in the Philippines.  No matter how wrongful, evil or bad the act is, if there is no law defining the act, the same is not considered a crime.

Actus non facit reum, nisi mens sit rea

The act cannot be criminal where the mind is not criminal.  This is true to a felony characterized by dolo, but not a felony resulting from culpa.  This maxim is not an absolute one because it is not applied to culpable felonies, or those that result from negligence.

Tuesday, November 20, 2012

important doctrines in criminal law

Privilege of Neutral Reportage- Under this privilege, a republisher who accurately and disinterestedly reports certain defamatory statements made against public figures is shielded from liability regardless of the republisher awareness of the truth or falsity of the accusation. The privilege applies where the defamed person is a public figure who is involved in an exiting controversy and a party to that controversy makes the defamatory statement.

Void for vagueness -A law must be clear enough to be understood by men of ordinary intelligence. If it cannot be so understood, then it is vague and if it is vague it is necessarily void.

The three fold rule_The three fold rule s when a convict were to suffer at least 4 penalties, the convict's sentence shall not be more than three-fold the length of the time of the most severe.

Bribery- Sample quetion in Criminal Law


President Aquino posted P70,000 from his personal money as bail for the newly appointed COMELEC chairman COMELEC Commissioner Grace Padaca. What laws could have been committed?

I respectfully submit that Commissioner Grace Padaca committed Indirect Bribery under Article 211 of the Revised Penal Code. She accepted the cash bond posted by the President for her. She now enjoys provisional liberty under the guaranty of the cash bond posted by the President. She personally benefited from the cash bond. She will soon decide election cases and protest. The bail bond posted by the President for her will go a long way in her mind and in her heart. Her independence is now compromised . Anticipation of the future favors by virtue of one's office is the essence of the crime. (Bar Materials by Dean Estrada)

Monday, November 19, 2012

How to pass, nay, top the bar exams By Artemio V. Panganiban


With Due Respect
How to pass, nay, top the bar exams 

By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 23:46:00 04/19/2008

Filed Under: Laws, Education

MANILA, Philippines?Last Sunday, I commented on the dismal results of the 2007 bar exams. I said that it was high time the Supreme Court, the Philippine president and the law schools collaborated to produce better lawyers. ?We concur,? chorused many readers. But the more pressing query of law students and reviewees for the 2008 test is ?Can you give us tips on how to pass the 2008 tests?
Having taken the exams eons ago, I felt inadequate answering the question. Besides, I placed only sixth. So I called someone more qualified, 2005 topnotcher Joan de Venecia. In turn, she summoned help from two other numero unos, Arlene Maneja (2002) and Mercedita Ona (2007). Incidentally, Arlene comes from UST, Joan from UP and Mercedita from Ateneo de Manila. Here are their common tips.
Believe that you deserve to take the test. Forget the times you botched up a recitation or failed an exam. You?re past that. Believe that you have been allowed to sit for the bar because you have a fighting chance to pass it. Cultivate composure with that thought. You?ll need it.
Make time for serious self-evaluation. Have an honest assessment of the subjects you are good at, and those you feel you have an inadequate foundation on. If you sincerely believe that you do not have sufficient knowledge of a particular subject, accept it humbly and know that you still have a number of months to study for it. Adjust the number of days devoted to each subject according to the results of your self-assessment. A schedule is recommended to serve as a guide as to how many days you can allot for every subject.
Have a study plan and be realistic about it. At the start of the bar review, set aside all the materials you want to cover?all the books, reviewers and notes for each subject. Make it your guide and pace yourself. People without a plan either underestimate the workload or get swamped with available materials; either way, they don?t finish everything. So too, organize your review materials. Time is of the essence during the bar review. You cannot afford to waste time by looking for misplaced review materials. Maintain eight separate boxes or drawers for each of the subjects. This will help you sort through your materials and decide which to read during your pre-week.
Be realistic about your capabilities. People say they will ?start afresh? during the bar review?study more, play less. That?s nice but it rarely happens. So, in setting a study plan, be kind to yourself. Give yourself time to attend review lectures, to wake up late, to be lazy, to go out and to have fun. The bar test is difficult enough without making yourself sick because of unrealistic expectations.
Do not compare yourself with other reviewees. We all have our own rhythm. Listen to yours. Bar preparation is an individual task. It is ultimately your understanding of the law and its varied nuances, not how many readings you do, or the laws that you memorize verbatim that makes the difference.
Be physically fit. Try to get regular exercise. Eat nourishing meals. Get enough sleep every day. Take vitamins and supplements. Manage your stress. Remember, all your efforts will be wasted when your body bogs down.
Use your time wisely. Sit in a review class or do personal reading? If you know the subject well enough, refresh yourself by attending review classes. If not, read up first. Review classes assume a certain level of knowledge and, without it, you?ll be lost during the discussion and waste valuable time. Know that you still have the pre-week review for all those ?bar tips? that most reviewers give.
Abandon all emotional problems. Inform your family and friends about what you are going through in preparing for and in taking the exam. Ask for their understanding and support. The last thing you need is additional source of stress when preparing for the bar is draining enough. Avoid all distractions. Keep your focus.
Perfect your handwriting and grammar. Bar examiners have to go through thousands of exam booklets, and they are only human. As would any other normal person, they appreciate, and understand more, an answer that is at the very minimum, readable and logical. All three topnotchers have good handwriting, and believe that their passing, nay topping, the bar was in large part due to this. So, practice writing neatly, legibly and fast.
If you are a visual person write down your notes. This exercise will aid your quest for a beautiful penmanship, and help you retain the facts and the law that may be difficult to retrieve as you store more information in your brain bank.
Study smartly. Streamline. Codal provisions, a good reviewer for each subject and updates on jurisprudence should suffice. Master the basics. Understand the substance of the law and how to apply it to given situations. Recall legal provisions during your spare time. Listen to audio codals when you travel.
Ask for updates. Doctrines that you have studied in school may have already been overturned or modified by the Supreme Court or by Congress. Request your bar operations team to include abbreviated facts in the updates, because bar questions are often facts-based.
Pray. Pray. Pray.
A final reminder. There is no shortcut to passing the bar. If you want to pass on the first take, you have to put in the hours, and get yourself in the mood to study. Do not focus on things you cannot control (e.g., bar examiners, kinds of questions). Devote all your energies to studying and positive thinking. Good luck!
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Comments are welcome at chiefjusticepanganiban@hotmail.com