Thursday, November 22, 2012
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.
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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.
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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 - it is 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.
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 - it is 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.
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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)
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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
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
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!
*
* *
Comments are welcome at chiefjusticepanganiban@hotmail.com
Subsidiary Penalty
What is subsidiary penalty?
It is a penalty that takes the place of the fine for insolvent convicts. It is neither a principal nor accessory penalty, but a substitute penalty for fine only. The subsidiary penalty may be in the form of imprisonment or deprivation of right depending upon the principal penalty imposed on the convict. It is imposable whether the violation is under the Revised Penal Code or under special laws. Excerpts from Boado Notes and cases on the Revised Penal Code.
It is a penalty that takes the place of the fine for insolvent convicts. It is neither a principal nor accessory penalty, but a substitute penalty for fine only. The subsidiary penalty may be in the form of imprisonment or deprivation of right depending upon the principal penalty imposed on the convict. It is imposable whether the violation is under the Revised Penal Code or under special laws. Excerpts from Boado Notes and cases on the Revised Penal Code.
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