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Audiobook BAR FAQs Civil Law Q&A Persons and Family Relations Q&A

BAR Reviewer in Persons and Family Relations Part 2

Philippine Bar Exams Reviewer for Civil Law – Persons and Family Relations Part 2 Natural and Juridical Persons 15 Questions and Answers (with Subquestions)

Question #1 Define persons.

In its juridical sense, a “person” may be defined as a being, physical or moral, real or juridical and legal, which is susceptible to obligations, or of being the subject of legal relations.

Question #2

How are persons classified? Distinguish one from the other.

Persons are classified into natural and juridical persons.

The two may be distinguished from each other as follows:

(1) A natural person or human being has physical existence, whereas a juridical person exists only in contemplation of law;

(2) A natural person is the product of procreation, whereas a juridical person is the product of legal fiction.

Question #3
What is meant by “juridical capacity” and “capacity to act”? Distinguish one from the other.

“Juridical capacity” is the fitness to be the subject of legal relations, while “capacity to act” is the power to do acts with legal effect.

They may be distinguished from each other as follows:

(1) Juridical capacity is inherent in every natural person, and therefore, is not acquired, whereas capacity to act is not, and therefore, is acquired.

(2) Juridical capacity is lost only through death, whereas capacity to act may be lost through other means or circumstances.

(3) Juridical capacity cannot be limited or restricted, whereas capacity to act can be limited or restricted by certain circumstances.

(4) Juridical capacity can exist without capacity to act, but the existence of the latter always implies that of the former.

Question #4

What are the circumstances which modify or limit capacity to act?
The following circumstances, among others, modify or limit the capacity to act:

Age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship.

The consequences of these circumstances are governed in the Civil Code, other codes, the rules of court, and in special laws.

Capacity to act is not limited on account of religious belief or political opinion. Question #5
What is meant by status?
The status of a person is the legal condition or class to which one belongs in society. Question #6

What is meant by civil personality?
Civil personality is merely the external manifestation of either juridical capacity or capacity to act. Consequently, it may be defined as the aptitude of being the subject of rights and obligations. Question #7
When does civil personality begin in natural persons?

Article 5 of P.D. No. 603, which declares that the civil personality of the child shall commence from the time of his conception, for all poses favorable to him, subject to the requirements of Article 41 of the Civil Code of the Philippines.

For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb.

However, if the fetus had an intra-uterine life of less than 7 months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb.

Question #8
How is civil personality extinguished?
Death extinguishes civil personality.
However, the rights and obligations of the deceased are not necessarily extinguished by his death.

Question #9

What is the effect if there is a doubt as to which of two persons, who are called to succeed each other, died first?

If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.

Question #10
What are the presumptions on survivorship under the Revised Rules of Court?

The presumptions on survivorship under the Revised Rules of Court are those provided for in Rule 131, Section 3.

They are as follows:

That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to have survived;

4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older;

5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

Question #11

When is the presumption given in Article 43 of the Civil Code of the Philippines applicable? How about the presumptions on survivorship?

The presumption given in Article 43 of the Civil Code of the Philippines is applicable when the following requisites are present:

First, the parties are heirs to one another; Second, there is no proof as to who died first; and

Third, there is doubt as to who died first.

The presumptions on survivorship, on the other hand, is applicable if the following requisites are present:

First, there are two or more persons;

Second, they perish in the same calamity;

Third, it is not shown who died first; and

Fourth, there are no particular circumstances from which it can be inferred that one died ahead of the other.

Question #12

How are juridical persons classified?

The following are the different kinds of Juridical Persons:

1. The State and its political subdivisions;

2. Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law;

3. Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member;

4. The Roman Catholic Church being considered as one because of tradition; 5. The estate of a deceased person.
Question #13
What is the capacity of a juridical person?

A juridical person can acquire and possess property of all kinds as well as incur obligations and bring civil or criminal actions, provided that they are in conformity with the laws and regulations of their organization.

Question #14
Who are citizens of the Philippines under the new Constitution?
The following are citizens of the Philippines in accordance with the new Constitution:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;

(2) Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and

(4) Those who are naturalized in accordance with law. Question #15

For the exercise of civil rights and the fulfillment of civil obligations, what is the domicile of natural and juridical persons?

For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of habitual residence.

While the domicile of juridical persons is the place fixed by the law creating or recognizing the juridical person; and in the absence thereof, the place where their legal representation is established or where they exercise their principal functions.

Categories
Audiobook BAR FAQs Civil Law Q&A Persons and Family Relations Q&A

BAR Reviewer in Persons and Family Relations Part 1

Philippine Bar Exams Reviewer for Civil Law Persons and Family Relations (Part 1) General Considerations – 39 Questions and Answers

#1. ​When do laws in the Philippines take effect?

Laws in the Philippines take effect after fifteen (15) days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.

#2​​What is a retroactive law?

It is one intended to affect transactions which occurred, or rights which accrued, before it becomes operative, and which ascribes to them effects not inherent in their nature, in view of the law in force at the time of their occurrence.

#3. What are the exceptions to the rule that laws shall have no retroactive effect? The following are the exceptions to the rule that laws shall have no retroactive effect:

  1. When the law itself expressly provides for its retroactivity;
  2. When the law is penal insofar as it favors the accused; provided that the accused is not a habitual delinquent;
  3. When the law is procedural so long as it does not affect or change vested rights;
  4. When the law creates new substantive rights;
  5. When the law is curative in character in the sense that the purpose of its enactment is to cure defects or imperfections in judicial or administrative proceedings; and
  6. When the law is interpretative of other laws.

#4. ​What are mandatory laws?

Laws the violations of which, tenders the act or proceeding illegal and void.

$5. What are prohibitory laws?

Laws which, if omitted, renders the proceeding or acts relating to it generally illegal or void.

#6. What are the exceptions to the rule that an act executed against provisions of mandatory or prohibitory laws shall be void?

The following are the exceptions:

  1. Where the law itself authorizes its validity;
  2. Where the law makes the act valid but punishes the violator;
  3. Where the law makes the act only voidable; and
  4. Where the law declares the nullity of an act but recognizes its effects as legally existing.

#7. ​What is a waiver?
It is the intentional relinquishment of a known right or such conduct as warrants an inference of

relinquishment of such right. #8. What is a right?

The power or privilege given to one person and, as a rule, is demandable of another. It denotes an interest or title in an object or property.

#9. Rights may be waived. In what cases may waiver be prohibited and declared null and void? Waiver is prohibited and may be declared dull and void when:

  1. It is contrary to law, public order, public policy, morals and good customs;
  2. When prejudicial to a third person with a right recognized by law.

#10. What are some instances where waiver is considered void? Waiver is considered void in such instances such are:

  1. Waiver of future support;
  2. Waiver of political rights;
  3. Waiver of future inheritance especially if the waiver intended to prejudice creditors.

#11. What are the requisites of a valid waiver? The following are the requisites of a valid waiver:

  1. Full capacity to make the waiver;
  2. Waiver must be unequivocal;
  3. Right must exist at the time of the waiver;
  4. It must not be contrary to law, public policy, morals or good customs;
  5. It must be prejudicial to a third person with a right recognized by law; and
  6. When formalities are required, the same must be complied with.

#12. ​What is a repeal of a law?
It is the legislative act of abrogating through a subsequent law the effects of a previous statute or portions

thereof.
#13. What are the types of repeal? Define each.

1. Express Repeal – One which is literally declared by a new law, either in specific terms, as where particular laws and provisions are named, identified, and declared to be repealed, or in general terms.

2. Implied Repeal – It takes place when a new law contains provisions contrary to or inconsistent with those of a former law without expressly repealing them.

#14. What are the requisites of an implied repeal? The following are the requisites of an implied repeal:

  1. The laws cover the same subject matter; and
  2. The latter is repugnant to the other.

#15. ​What is private international law?

It is a part of municipal law of a state which directs its courts and administrative agencies when confronted with a legal problem involving foreign element, whether or not they should apply the foreign law.

#16. What is conflict of laws?

It is the inconsistency or difference between the laws of different states or countries, arising in the case of persons who have acquired rights, incurred obligations, injuries or damages, or made contracts, within the territory of two or more jurisdictions.

#17. What are the elements of conflicts of laws? The following are the elements of conflict of laws:

  1. Legal problem or case involving foreign element; and
  2. Foreign element – factual situation cutting across territorial lines, affected by diverse laws of two or more states.

Primary function is to determine whether the law or judgments of other state/s will govern and if so the extent if its recognition or application in the forum

#18. What are the different conflict-of-law rules found in the New Civil Code and the Family Code which sanction the operation of either Philippine laws upon Filipinos residing or sojourning abroad and foreign laws upon foreigners residing or sojourning in the Philippines?

They are the following:

  1. With respect to penal laws and laws of public security – Although penal laws are obligatory upon who live or sojourn in Philippine territory, nevertheless, this rule is subject to the principles of public international law and to treaty stipulations.
  2. With respect to laws relating to Family Rights and Duties or to the Status, Condition and Legal Capacity of Persons – As a general rule, nationality rule applies regardless of their place of residence.However, if a divorce is validly obtained abroad by alien spouse capacitating him or her to remarry, the Fiipino spouse shall have the capacity to remarry under Philippine law.
  3. With respect to Laws on Real and Personal Property – The doctrine of Lex Rei Sitae shall govern which provides that the law of the country where the property is situated shall govern property transactions.

The following are its exceptions:

  1. Capacity to succeed;
  2. Intrinsic Validity of testamentary provisions;
  3. Amount of successional rights; and
  4. Order of succession.

4. With respect to Laws on Forms and Solemnities – The doctrine of Lex Loci Celebrationis shall govern which provides that forms and solemnities of contracts, wills and other public instruments (pertaining to extrinsic validity) shall be governed by the laws of the country in which they are executed.

The following are its exceptions:

  1. Marriage between Filipinos validly solemnized abroad shall be void when under Philippine laws, such marriage is void; and
  2. Intrinsic Validity of Contracts which shall be determined by the following rules:
    1. The law stipulated by the parties shall be applied;
    2. In default thereof, and the parties are of the same nationality, their national law shall be applied;
    3. If the parties are not of the same nationalities, the law of the place of the perfection of the obligation shall govern its fulfillment; or
    4. If the above places are not specified and they cannot be deduced from the nature and circumstances of the obligation, then the law of the passive subject shall apply.

#19. What are the rules on personal law? Distinguished.

  1. Domiciliary Rule where the basis of determining personal law of an individual is his domicile; and
  2. Nationality Rule where the basis of determining personal law is his citizenship.

#20. What are the rules to follow when the court is confronted with a case involving a foreign element? If the court is faced with a case involving a foreign element, it should first determine:

  1. Whether it has jurisdiction over the case
  2. If it has no jurisdiction, it should be dismissed on that ground;
  3. If it has jurisdiction, the court will determine whether it should assume jurisdiction, or it should dismiss the case on the ground of forum non-convenience;
  4. Once the court has determined it has jurisdiction over the case, it will next determine whether to apply the internal law of the forum or apply the proper foreign law.

#21. What is Forum Non Conveniens?
It is the refusal to assume jurisdiction because it would prove inconvenience for the forum. #22. When can internal or domestic law be applied?

Internal or domestic law can be applied when:

  1. Law of the forum expressly so provides in its conflicts rule;
  2. Proper foreign law has not been properly pleaded and proved;
  3. Case involves any of the exceptions to the application of the foreign law.

#23. What is the Doctrine of Processual Presumption of law?

When the proper foreign law has not been properly proved, the court of the forum may presume that said foreign law is the same as the law of the forum that said court can now apply.

It applies when the foreign law is not alleged or if alleged, it is not proved. #24. What is renvoi doctrine?

It literally means referring back. It occurs when a citizen of another country dies as a domiciliary of another country.

Where the conflict rules of the forum refer to a foreign law, and the latter refers it back to the internal law, the law of the forum shall apply.

#25. What will the Courts do, if it is confronted with a case with a “Renvoi” problem? The Court has the following options:

  1. Reject the renvoi – If the conflict rules of the forum refer later the case to the law of another state, it is deemed to mean only the internal law of that state.Thus, the court will apply the foreign law.
  2. Accept the renvoi – If the conflict rules of the forum refer the case to the law of another state, it is deemed to include the totality of the foreign law (internal law and conflict of law rules).Thus the court will recognize the referral back and apply the local law.
  3. Follow the Theory of Desisment – also referred to as Mutual Disclaimer of Jurisdiction Theory.The forum court upon reference to another state’s law sees that such law is limited in application to its own nationals domiciled in its territory and has no provision for application to nationals domiciled outside of the territory.Hence the local court will apply the local law.

NOTE: This has the same result as the acceptance of the renvoi doctrine but the process used by the forum court is to desist applying the foreign law.

D. Make use of the Foreign Court Theory – Forum acourt assumes the same position that the foreign court would take if the case is litigated in the foreign state.

#26. What is transmission theory?
It provides that if the foreign law refers it to a third country, the said country’s law shall govern.

#27.​ What is the principle of abuse of rights?
The principle of abuse of rights departs from the classical theory that “he who uses a right injures no one.”

The modern tendency is to depart from the classical and traditional theory, and to grant indemnity for damages in cases where there is an abuse of rights, even when the act is not illicit.

#28. Is abuse of rights actionable? Explain. Yes, abuse of rights is actionable.

This is clear from the provision of Art. 19 of the NCC, which declares that “every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith,” and from the provision of Art. 20, which declares that “every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.”

#29. What elements of an abuse of right must be present in order that it will be actionable? The following elements must concur:

  1. There is a legal right or duty;
  2. Which is exercised in bad faith; and
  3. For the sole intent of prejudicing or injuring another.

#30. What is the doctrine of Volenti Non Fit Injuria?

It refers to self-inflicted injuries or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so.

#31. What is the doctrine of Damnum Absque Injuria?

It means damage without injury. One who merely exercises one’s rights does no actionable injury and cannot be held liable for damages.

#32. What is the difference between injury and damage?

Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered.

There can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone.

#33. What is the principle of Contra Bonus Mores?

Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

#34. What are the elements of an action under the principle of Contra Bonus Mores? The following are the elements:

A. There is an act which is legal;

  1. Such act is contrary to morals, good customs, public order or policy;
  2. It is done with intent to injure.

#35. What is Accion In Rem Verso?
It is the remedy for unjust enrichment.
It is an action for recovery of what has been paid or delivered without just cause or legal ground.

If a person acquires or comes into possession of something at the expense of another without just or legal ground through an act or of performance by another or any other means has the obligation to return the same.

#36. What are the elements in order to enforce an Accion In Rem Verso? The following are the requisites:

  1. The defendant has been enriched;
  2. The plaintiff has suffered a loss;
  3. The enrichment of the defendant is without just or legal ground; and
  4. The plaintiff has no other action based on contract, quasi-contract, crime or quasi-delict.

#37.​ What is a prejudicial question?
A prejudicial question is a question which arises in a case, the resolution of which is a logical antecedent

of the issue involved in said case, and the cognizance of which pertains to another tribunal. #38. What are the elements of a prejudicial question?

They are: first, that it must be determinative of the guilt or innocence of the accused in the criminal case; and second, jurisdiction to try said question must be lodged in another tribunal.

#39. What is its effect upon a criminal action?
Its effect upon a criminal case is to suspend it if one has already been commenced. (Art. 36, NCC.) This is, of course, the reverse of the ordinary rule of procedure.

The reason for this is that the resolution of the question is determinative of the guilt or innocence of the accused in the criminal case.

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Audiobook BAR FAQs Political Law Q&A

BAR Exams Reviewer Political Law Part 2

Philippine Bar Exams Reviewer for Political Law Part 2
The Constitution – General Considerations

#1. National Territory

The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.

#2. Archipelagic Doctrine

A body of water studded with islands, or the islands surrounded with water, is viewed as a unity of islands and waters together forming one integrated unit. [N.B. Embodied in Art. II.]

#3. Straight Baseline Method

Consists of drawing straight lines connecting appropriate points on the coast without departing to any appreciable extent from the general direction of the coast, in order to delineate the internal waters from the territorial waters of an archipelago

#4. State

A community of persons, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of the inhabitants render habitual obedience. [Collector of Internal Revenue v. Campos Rueda (1971)]

  1. #5.  Basis of State Immunity from Suit
    1. Constitutional Basis: “The State may not be sued without its consent.” [Const., Art. XVI, Sec. 13].
    2. InternationalLawBasis:“Parinparemimperiumnonhabet”i.e.“Anequalhasnopower over an equal”
    3. Positivist Theory: There can be no legal right as against the authority that makes the laws. Also called the doctrine of Royal Prerogative of Dishonesty. [Kawananakoa v. Polyblank (1907)]
    4. Sociological Theory: If the State were suable, all its time would be spent defending itself and this would prevent it from its other functions. [Republic vs. Villasor (1973)]
  2. #6.  Suit Against the State

A suit is against the State regardless of who is named the defendant if:

  1. It produces adverse consequences to the public treasury in terms of disbursement of public funds and loss of government property.
  2. CannotprosperunlesstheStatehasgivenitsconsent.

#7. Suit Not Against the State
A suit is not against the State when

  1. Whenintendedtocompelperformanceofaministerialduty.[Begosov.PVA(1970)]
  2. Whenapublicofficersuedinhisprivatecapacity
  3. When the action is not in personam with the government as the named defendant, but an action in rem that does not name the government in particular.

#8. Express Consent of the State

The express consent of the state is effected only by the will of the legislature through the medium of a duly enacted statute; may be embodied either in a general law or a special law.

#9. Express consent through General Law

The express consent through general law authorizes any person who meets the conditions stated in the law to sue the government in accordance with the procedure in the law (e.g. Act No. 3083; Civil Code, art. 2180(6), 2189)

As to the vicarious liability under CC, Art. 2180(6): The Government is only liable for the acts of its agents, officers, and employees when they act as special agents, i.e. receive a definite and fixed order or commission, foreign to the exercise of the duties of his office. [Merritt v. Gov’t of the Philippine Islands, (1916)]

#10. Express consent Special Law

Express consent in special law may come in the form of a private bill authorizing a named individual to bring suit on a special claim.

#11. Implied Consent of the State

There is implied consent of the state when:

(1) When the State enters into a private contract that is not incidental to a government function

(2) The State acts in a proprietary function

(3) When the government files a complaint, e.g. defendant may file a counterclaim against it.

(4) When it would be inequitable for the State to invoke its immunity.

(5) In instances of Eminent Domain when the State takes private property for public use or purpose.

#10. Separation Powers

Separation of Powers is a fundamental principle in our system of government. It is obtained not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. [Angara v. Electoral Commission (1936)].

Separation of powers is founded on the belief that, by establishing equilibrium among the three power holders, harmony will result, power will not be concentrated and thus tyranny will be avoided [Bernas].

#11. Checks and Balances

The Constitution did not intend the three powers to be absolutely unrestrained and independent of each other. It has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. [Angara, supra]

#12. Delegation of Powers

As a general rule, “Delegata potestas non potest delegari” – what has been delegated can no longer be delegated.

#13. Non-Delegation of Legislative Powers
As a general rule, only Congress (as a body) may exercise, with the following exemptions: (1) Delegated legislative power to local governments [See Art. IX, Sec. 9]

(2) Constitutionally-grafted exceptions through (1) Emergency power delegated to the Executive during State of War or National Emergency [Art. VI, Sec.23(2)]; and (2) Certain taxing powers of President [Art. VI, sec.28(2)].

#14. The Two tests of Valid Delegations

A. Completeness test – the law sets forth the policy to be executed, carried out, or implemented by the delegate (Abakada, infra), such that there is nothing left for the delegate to do but to enforce the law [Pelaez v.Auditor General (1965)]

B. Sufficient standard test – the standard test is sufficient if it defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. [Edu v. Ericta (1970)]

#15. Government

A corporate governmental entity through which the functions of government are exercised throughout the Philippines [Rev. Admin. Code]

#16. De jure government
(1) Has rightful title; but
(2) No power or control [In re Letter of Justice Puno (1992)]

#17. De facto government

Government of fact, that is, it actually exercises power or control without legal title. [Co Kim Cham v. Valdes, (1945)]

Categories
Audiobook BAR FAQs Criminal Law Q&A

BAR Frequently Asked in Criminal Law Part 4

BAR Exams Frequently Asked Q&A Cases & Jurisprudence – Criminal Law – Audiobook Review Part 4

BAR FREQUENTLY ASKED IN CRIMINAL LAW

PART 4
Concepts and Jurisprudence

#1. TREACHERY

As a rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack was coolly and deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat.

The rule does not apply, however, where the attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of the provocative act of the victim.

This is more so, where the assault upon the victim was preceded by a heated exchange of words between him and the accused.

In the case at bench, the assault came in the course of an altercation and after appellant had sharpened his bolo in full view of the victim.

Appellant’s act of sharpening his bolo can be interpreted as an attempt to frighten the victim so the latter would leave him alone. It was simply foolhardy for the victim to continue walking to and fro near appellant in a taunting manner while the latter was sharpening his bolo.

The suddenness of the attack does not, by itself, suffice to support a finding of alevosia where the decision to attack was made peremptorily and the victim’s helpless position was incidental. (PEOPLE vs. REAL, G.R. No. 93436. March 24, 1995)

#2. COMPLEX CRIME

Where the appellant inflicted a stab wound on each of the two (2) victims who were separated from each other by a distance of three (3) meters, the acts of the appellant may not be characterized as a delito compuesto.

There were, in other words two (2) distinct acts, directed at two (2) different victims successively, separated from each other by a brief but discernible interval of time and space.

A delito compuesto, in contrast, arises from a single physical act resulting in simultaneous injury to two (2) or more victims. (PEOPLE vs. MISION. G.R. No. 63480. February 26,1991)

#3. AMNESTY

A person released by amnesty stands before the law as though he had committed no offense.

Amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged. Amnesty is a public act of which the court should take judicial notice.

Thus, the right to the benefits of amnesty, once established by the evidence presented either by the complainant or prosecution or by the offense, can not be waived, because it is of public interest that a person who is regarded by the Amnesty Proclamation, which has force of the law, not only as innocent, for he stands in the eyes of the law as if he had never committed any punishable offense because of the amnesty, but as a patriot or hero, and not to be punished as a criminal. (PEOPLE vs. VERA, G.R. No. 26539. February 28, 1990)

#4. PARDON

Pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for appointment to that office.

The pardon granted to petitioner resulted in removing her disqualification from holding public employment, but to regain her former post, she must reapply and undergo the usual procedure required for a new appointment.

The Court cannot oblige her Civil liability arising from crime. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence.

Petitioner’s civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss the thing due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation. (MONSANTO vs. FACTORAN, G.R. No. 78239. February 9, 1989)

#5. MALVERSATION

It is settled that good faith is a valid defense in the prosecution of malversation for it would negate criminal intent on the part of the accused.

To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent.

The maxim is 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. (TABUENA vs. SANDIGANBAYAN. G.R. Nos. 103501-03. February 17,1997)

#6. ESTAFA THROUGH FALSIFICATION

Acts of endorsing of checks by way of identification of the signatures of the payees entitled to said checks and their proceeds constitute the crime of estafa through falsification of mercantile document by reckless imprudence because such endorsement constituted a written representation that the payees participated in the indorsement and cashing of the checks, when in truth and in fact the true payees had no direct intervention in the proceedings.

In the crime of falsification by imprudence of public or mercantile documents the element of intent to cause damage is not required because what the law seeks to repress is the prejudice to the public confidence in these documents. (SAMSON vs. CA, et al. Nos. L-10364 and L-10376. March 31.1958)

#7. RAPE

There is no such crime as frustrated rape.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and from that moment also all the essential elements of the offense have been accomplished.

Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated.

The uniform rule is that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or the lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. (PEOPLE vs. QUIÑANOLA, G.R. No. 126148, May 5, 1999)

Absence of injuries does not negate the commission of rape. It is true that, although complainant testified that appellant boxed her on the stomach, the medical report did not indicate any abrasion, hematoma or bruise on that part of her anatomy.

This is of no consequence. Medical authorities agree that when force is applied on the stomach, no marks may be detected. Injuries may have been caused in the internal organs, but external signs are not always visible.

The absence of injuries, however, does not negate the commission of rape. (PEOPLE vs. JOYA, G.R. No. 79090. October 1, 1993)

It should be underscored that the presence or absence of spermatozoa in the vagina is not determinative of the commission of rape because a sperm test is not a sine qua non condition for the successful prosecution of a rape case.

Thus, the lack of spermatozoa in the victim’s body does not negate the crime of rape. The important element in rape is penetration of the pudenda and not emission of seminal fluid. (PEOPLE vs. BONDOY, G.R. No. 79089. May 18, 1993)

#8. ROBBERY

When robbery is committed by three (3) persons in conspiracy and not by a band, that is more than three (3) armed malefactors taking part in the commission of the crime, only the offender committing rape shall be liable for the special complex crime of robbery with rape. (PEOPLE vs. MORENO, G.R. No. 92049, March 22, 1993)

It should be noted that there is no law providing that the additional rape/s or homicide/s should be considered as aggravating circumstances.

The enumeration of aggravating circumstances under Art. 14 of the Revised Penal Code is exclusive as opposed to the enumeration in Art. 13 of the same code regarding mitigating circumstances where there is a specific paragraph (par 10) providing for analogous circumstances.

It is true that the additional rapes (or killings in the case of multiple homicide on the occasion of robbery) would result in an analogous situation where from the standpoint of the gravity of the offense, robbery with one rape would be on the same level as robbery with multiple rapes. However, the remedy lies with the legislature.

A penal law is liberally construed in favor of the offender and no person should be brought within its terms if he is not clearly made so by the statute. In view of the foregoing, the additional rape committed by herein accused-appellant should not be considered as aggravating.

The proper penalty of reclusion perpetua imposed by the trial court is proper. (PEOPLE vs. REGALA, G.R. No. 130508. April 5, 2000)

In robbery with homicide cases, the prosecution need only to prove these elements:

(a) the taking of personal property with violence or intimidation against persons; (b) that the property taken belongs to another;

(c) the taking be done with animus lucrandi; and

(d) on the occasion of the robbery or by reason thereof, homicide (used in its generic sense) was committed.

These elements were present when accused-appellants, acting in unison, demanded money from her mother, forcibly took the same against her will and then hacked her to death. (PEOPLE vs. CABILES, G.R. No.113785. September 14, 1995)

It has been repeatedly held that when direct and intimate connection exists between the robbery and the killing, regardless of which the two precedes the other, or whether they are committed at the same time, the crime committed is the special complex crime of robbery with homicide.

It is a settled doctrine that when death supervenes by reason or on occasion of the robbery, it is immaterial that the occurrence of death was by mere accident.

What is important and decisive is that death results by reason or on occasion of the robbery.

The death of a robbery victim by accident can, however, be considered as a mitigating circumstance.

If the circumstances would indicate no intention to kill, as in the instant case where evidently, the intention is to prevent the deceased from making an outcry, and so a “pandesal” was stuffed into her mouth, the mitigating circumstance of not having intended to commit so grave may be appreciated.

The stuffing of the “pandesal” in the mouth would not have produced asphyxiation had it not slid into the neckline, “caused by the victim’s own movements.” (PEOPLE vs. OPERO, No. L- 48796. June 11, 1981)

#9. KIDNAPPING WITH SERIOUS ILLEGAL DETENTION

The essence of kidnapping or serious illegal detention is the actual confinement or restraint of the victim or the deprivation of his liberty. There is no kidnapping with murder, but only murder where a 3-year old child was gagged, hidden in a box where it he and ransom asked.

The demand for ransom did not convert the offense in to kidnapping with murder. The defendant was well aware that the child would be suffocated to death in a few moments after she left.

The demand for ransom is only a part of the diabolic scheme of the defendant to murder the child, to conceal his body and then demand money before the discovery of the cadaver. (PEOPLE vs. LORA, G.R. No.49430. March 30, 1982)

#10. DEATH UNDER EXCEPTIONAL CIRCUMSTANCES

There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of a passionate outburst.

Article 247 prescribes the following elements:

(1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and

(2) that he kills any of them or both of them in the act or immediately thereafter.

These elements are present in the case.

Though about one hour had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused- appellant.

The RPC, in requiring that the accused “shall kill any of them or both of them… immediately” after surprising his spouse in the act of sexual intercourse, does not say that he should commit the killing instantly thereafter.

It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity.

But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors.

The killing must be the direct by-product of the accused’s rage. (PEOPLE vs. ABARCA. L-74433. September 14,1987).

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Audiobook BAR FAQs Criminal Law Q&A

BAR Frequently Asked in Criminal Law Part 3

BAR Exams Frequently Asked Q&A Cases & Jurisprudence – Criminal Law – Audiobook Review Part 3

BAR FREQUENTLY ASKED IN CRIMINAL LAW

PART 3
Concepts and Jurisprudence

#1. CONSPIRACY

When accused-appellant Pugay poured gasoline on the victim’s body and thereafter his co- accused Samson set the victim on fire, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose and intention between the two accused-appellants immediately before the commission of the crime.

There was no animosity between the deceased and Pugay or Samson.

Their meeting at the scene of the incident was accidental. It is also clear that the accused and his group merely wanted to make fun of the deceased.

Hence, the respective criminal responsibility of Pugay and Samson arising from different acts directed against the deceased is individual and not collective, each of them is liable only for the act committed by him.

Pugay is liable for Homicide through Reckless Imprudence, while Samson is liable for Homicide.

Pugay failed to exercise all the diligence necessary to avoid every undesirable consequence arising from his act.

Samson knew very well that the liquid poured on the body of the deceased was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise.

Giving him the benefit of the doubt, it can be conceded that as of their fun-making he merely intended to set the deceased’s clothes on fire.

Article 4 of the Revised Penal Code provides, inter alia, that criminal liability shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended. (PEOPLE vs. PUGAY, No. L-74324. November 17, 1988)

#2. FRUSTRATED FELONY

When the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

Where the offender treacherously inflicted a wound upon the victim which was sufficient to have caused death, but the victim survives by reason of prompt medical attention, the offender is liable for frustrated murder. (PEOPLE vs. MISION. G.R. No. 63480. February 26,1991)

#3. SELF-DEFENSE

Self-defense is man’s inborn right. In a physical assault, retaliation becomes unlawful after the attack has ceased, because there would be no further harm to repel.

But that is not the case when it is aimed at a person’s good name.

Once the aspersion is cast its sting clings and the one thus defamed may avail himself of all the necessary means to shake it off.

He may hit back with another libel which, if adequate, will be justified. (PEOPLE vs. HIONG. No. 10413-R. October 20, 1954)

If there is no unlawful aggression, there is nothing to prevent or to repel and the second requisite of self-defense would have no basis.

Even if we allow appellant’s contention that Tuquero was the initial unlawful aggressor, we still cannot sustain his plea of self-defense.

After appellant successfully wrested the knife from Tuquero, the unlawful aggression had ceased.

After the unlawful aggression has ceased, the one making the defense has no more right to kill or even wound the former aggressor.

The presence of large number of wounds on the part of the victim, their nature and location disprove self-defense and instead indicate a determined effort to kill the victim. (PEOPLE vs. SO, G.R. No.104664. August 28, 1995)

Plainly, the accused-appellant could no longer retreat from the continuing assault by the victim who, as inexorably shown by his relentless advance towards the accused-appellant, was poised to kill the latter.
The danger to the accused-appellant’s life was clearly imminent.

It would not then be proper nor reasonable to claim that he should have fled or selected a less deadly weapon, because in the emergency in which, without any reason whatever, he was placed, there was nothing more natural than to use the weapon he had to defend himself.

In the natural order of the things, following the instinct of self-preservation, he was compelled to resort to a proper defense.

It is settled that reasonable necessity of the means employed does not imply material commensurability between the means of attack and defense.

What the law requires is rational equivalence, in the consideration of which will enter the principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct more than the reason, that moves or impels the defense, and the proportionateness thereof does not depend upon the harm done, but rests upon the imminent danger of such injury. (PEOPLE vs. GUTUAL. G.R. No. 115233. February 22,1996).

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have resulted in the further chiseling of the walls of appellant’s house as well as the closure of the access to and from his house and his rice mill—which were not only imminent but were actually in progress.

There is no question, therefore, that there was aggression on the part of the victims: Fleischer was ordering, and Rubia was actually participating in the fencing.

This was indeed an aggression, not on the person of appellant, but on his property rights.

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or defense of one’s rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack.

Appellant who was sleeping when the victims chiselled his house and fenced off his estate and who asked them to stop doing so is not guilty of sufficient provocation when he shot the victims who ignored his plea. (PEOPLE vs. NARVAEZ. Nos. L-33466-67. April 20,1983.)

Unlawful aggression presupposes an actual, sudden, unexpected attack or imminent danger thereof, not merely a threatening or intimidating attitude and the accused must present proof of positively strong act of aggression.

Even if we give credence to accused-appellant’s version of the events, specifically that the deceased hurled invectives at him and moved as if to draw something from his waist, the Court are unable to establish a finding of unlawful aggression on the victim’s part.

Unlawful aggression presupposes an actual, sudden, unexpected attack or imminent danger thereof, not merely a threatening or intimidating attitude and the accused must present proof of positively strong act of real aggression. (PEOPLE vs. ARIZALA, G.R. No. 130708. October 22, 1999)

#4. OBEDIENCE TO ORDER OF A SUPERIOR OFFICER

The subordinate who, in following an order of the superior, failed to observe all auditing procedures of disbursement, cannot escape responsibility for such omission; but where he acted in good faith, his liability should only be administrative or civil in nature, not criminal. (TABUENA vs. SANDIGANBAYAN. G.R. Nos. 103501-03. February 17,1997)

#5. INSANITY AS EXEMPTING CIRCUMSTANCE

Accuse-appellant must thus prove that he was completely deprived of reason when he killed his father in order to be exempt for parricide.

There is nothing either in the report of Dr. Gerona or his testimony which indubitably show that accused-appellant was completely without reason when he killed his father because the latter wanted him to leave the house.

The defense of insanity is in the nature of confession and avoidance and, like the justifying circumstance of self- defense, the burden is on the defense to prove beyond reasonable doubt that the accused was insane immediately before the commission of the crime or at the very moment of its execution.

Although schizophrenia is not exempting if it does not completely deprive the offender of the consciousness of his acts, it may nevertheless be considered mitigating under Art 13 (9) if it diminishes the exercise of his will power. (PEOPLE vs. BANEZ, G.R. No. 125849, January 20, 1999)

#6. EXEMPTING CIRCUMSTANCE OF MINORITY

With respect to accused-appellant Rene Estepano, the records show that he was only thirteen (13) years of age at the time of the commission of the offense.

Under Art.12, par. (3), of the RPC, a person over nine (9) years of age and under fifteen (15) years is exempt from criminal liability unless it is shown that he acted with discernment.

The minor referred to here is presumed to have acted without discernment. Thus, it is incumbent upon the prosecution to prove that such minor acted otherwise.

Even if he was indeed a co-conspirator, he would still be exempt from criminal liability as the prosecution failed to rebut the presumption of non-discernment on his part by virtue of his age. (PEOPLE vs. ESTEPANO. G.R. No. 126283. May 23,1999)

#7. ACCIDENT AS AN EXEMPTING CIRCUMSTANCE

At all events, accidents to be exempting, presupposes that the act done is lawful.

Here, however, the act of the accused-appellant of drawing a weapon in the course of a quarrel, the same not being in self-defense, is unlawful—it at least constitutes light threats (Art. 285,par. 1 of RPC). There is thus no room for the invocation of accident as ground for exemption.

The fact that the victim is not shot in the head, or in any vital part of her body does not negate intent to kill.

The extent of the physical injury inflicted on the victim, as above proved, manifests intention to extinguish life. Moreover, it was likewise declared that the bullet injured a vital organ of the victim. (PEOPLE vs. NEPOMUCENO, JR.. G.R. No.127818. November 11, 1998)

#8. VINDICATION OF A GRAVE OFFENSE AS MITIGATING CIRCUMSTANCE

The presence of the 5th mitigating circumstance, that is, immediate vindication of a grave offense to said accused, may be taken into consideration in favor of the two accused.

There was no interruption from the time the offense was committed to the vindication thereof.

The herein accused belong to a family of old customs to whom the elopement of a daughter with a man constitutes a grave offense to their honor and causes disturbance of the peace and tranquility of the home and at the same time spreads uneasiness and anxiety in the minds of the members thereof. ( PEOPLE vs. DIOKNO, No. 45100 . October 26, 1936)

#9. REITERACION

Reiteracion requires that if there is only one prior offense, that offense must be punishable by an equal or greater penalty than the one for which the accused has been convicted.

There is no reiteracion because that circumstance requires that the previous offenses should not be embraced in the same title of the Code.

While grave threats fall in a title, different from homicide, still reiteracion cannot be appreciated because such aggravating circumstance requires that if there is only one prior offense, that offense must be punishable by an equal or greater penalty that the one for which the accused has been convicted.

Likewise, the prosecution has to prove that the offender has been punished for the previous offense. There is no evidence presented by the prosecution to that effect. (PEOPLE vs. REAL, G.R. No. 93436. March 24, 1995)

#10. EVIDENT PREMEDITATION

In the absence of other notorious acts evincing his determination to murder the victim, known premeditation in the instant case cannot be deduced from the mere fact that six (6) hours before he stabbed the victim to death, the accused-appellant took the hunting knife of the victim.

There is nothing in the records to show that there was an enmity between the two and it is not for the Court to conjecture that there was. Indeed, it is foolhardy for the Court to draw from this single act a cold-blooded intention to take the life of another.

The killing was simply committed as a-spur-of-the-moment, induced by that degree of intoxication which then triggered the bellicosity in the accused-appellant who, incidentally, is known in the community as an ex-convict and a killer. (PEOPLE vs. CALIJAN, G.R. No. 94592. September 28, 1993)

Categories
Audiobook BAR FAQs Political Law Q&A

BAR Exams Reviewer Political Law Part 1

Philippine Bar Exams Reviewer for Political Law Part 1
The Constitution – Concepts and Definitions

POLITICAL LAW REVIEW CONSTITUTIONAL LAW 1

PART I – THE CONSTITUTION
#1. WHAT IS POLITICAL LAW?

Political Law deals with organization and operations of governmental organs and defines the relations of the State with the inhabitants of its territory. [People v. Perfecto (1922)]

#2. WHAT IS CONSTITUTIONAL LAW

Constitutional Law is the law embodied in the Constitution and the legal principles growing out of the interpretation and application of its provisions by the courts in specific cases.

#3. DEFINE CONSTITUTION

The Constitution is a document which serves as the fundamental law of the state; that written instrument enacted by the direct action of the people by which the fundamental powers of the government are established, limited and defined. [Malcolm, Phil. Const. Law]

#4. WHAT ARE THE CLASSIFICATION OF CONSTITUTIONS?

(1) Written v. unwritten
(2) Enacted (conventional) v. evolved (cumulative) (3) Rigid v. flexible

The Philippine Constitution is written, enacted and rigid.
#5. WHAT IS THE DATE OF EFFECTIVITY OF THE 1987 CONSTITUTION?.

February 2, 1987, the date of the plebiscite, and not on the date its ratification was proclaimed. [De Leon v. Esguerra (1987)]

#6. WHAT ARE THE BASIC PRINCIPLES OF CONSTITUTIONAL INTERPRETATION?

(1) Verba legis (give words their ordinary meaning) (2) Ratio legis est anima (intent of the framers)
(3) Ut magis valeat quam pereat (interpret as a whole)

#7. WHAT ARE THE PARTS OF THE CONSTITUTION?

(1) Constitution of Government –e.g. Art. VI, VII, VIII, IX (2) Constitution of Sovereignty–i.n.Art.XVII
(3) Constitution of Liberty–e.g.Art.III

#8. DEFINE AMENDMENT

An addition or change within the lines of the original constitution; adds, reduces or deletes without altering the basic principles involved; affects only the specific provision being amended. [Lambino v. COMELEC (2006)]

#9. DEFINE REVISION

A change that alters a basic principle in the constitution; alters the substantial entirety of the constitution. [Id.] The 1987 Constitution allows people’s initiative only for the purpose of amending, not revising, the Constitution.[Id.]

#10. DISTINGUISH THE TWO-PART TEST? To determine whether amendment or revision:

(1) Quantitative test: Examines only number of provisions affected, not the degree of the change.

(2) Qualitative test: Inquires into the qualitative effects of the proposed change in the constitution, i.e. whether the change will “accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.” [Id.]

#11. WHAT ARE THE STEPS IN THE AMENDATORY PROCESS?

Step 1. Proposal – The adoption of the suggested change in the Constitution.
(a) Congress (as a Constituent Assembly) – a vote of 3⁄4 of ALL its members.
(b) Constitutional Convention – Called into existence by (i) 2/3 of all members of Congress OR (ii) the electorate, in a referendum called for by a majority of all members of Congress [CONST., art. XVII, sec. 3]
(c) People (through a People’s Initiative)- petition of at least 12% of the total number of registered voters; every legislative district must be represented by at least 3% of the registered voters therein.

○ (i) Limitation on Initiative: No amendment in this manner shall be authorized (1) within 5 years following the ratification of the 1987 Const. nor (2) more often than

once every 5 years thereafter.
(ii) Enabling Law: Constitutional provision on amendments via People’s Initiative not self- executory [Defensor-Santiago v. COMELEC, 270 SCRA 170 (1997)]

Syep 2. Ratification – the proposed amendment shall be submitted to the people and shall be deemed ratified by the majority of the votes cast in a plebiscite, held not earlier than 60 days nor later than 90 days:

(a) After approval of the proposal by Congress or ConCon;
(b) After certification by the COMELEC of sufficiency of petition of the people.

#12. WHAT IS THE DOCTRINE OF PROPER SUBMISSION?

A plebiscite may be held on the same day as a regular election [Gonzales v. COMELEC (1967)]. The entire Constitution must be submitted for ratification at one plebiscite only. The people must have a proper “frame of reference”. [Tolentino v. COMELEC (1971)]. No “piecemeal submission,” e.g. submission of age amendment ahead of other proposed amendments. [Id.]

#13. WHAT IS JUDICIAL REVIEW OF AMENDMENTS?

The validity of the process of amendment is not a political question because the Court must review if constitutional processes were followed; the issue is manner not wisdom. [See Lambino]

#14. WHAT ARE THE STEPS IN THE REVISION PROCESS?

Same as amendments in all respects except that it cannot be proposed via a People’s Initiative. [See Lambino, supra]

#15. WHAT ARE SELF-EXECUTING PROVISIONS?

Provisions which are complete in themselves and do not need enabling legislation for their operation; judicially enforceable per se.[Manila Prince Hotel v. GSIS (1997)].

General Presumption: All provisions of the constitution are self-executing. [Id.]

Exception: Statements of general principles, such as those in Art. II, are usually not self- executing.

#16. WHAT ARE NON-SELF EXECUTING PROVISIONS?
Provisions which merely “la[y] down a general principle.” [Manila Prince, supra]

Note: A provision may be self-executing in one part, and non-self-executing in another. [Manila Prince, supra]

Categories
Audiobook BAR FAQs Criminal Law Q&A

BAR Frequently Asked in Criminal Law Part 2

BAR Exams Frequently Asked Questions Q&A – Criminal Law – Audiobook Review Part 2

BAR FREQUENTLY ASKED QUESTIONS
CRIMINAL LAW
PART 2 Concepts

QUESTION: What is the ​doctrine of implied conspiracy​? (1998; 2003)

ANSWER: The ​doctrine of implied conspiracy holds two or more persons participating in the commission of a crime collectively responsible and liable as co-conspirators although absent any agreement to that effect, when they act in concert, demonstrating unity of criminal intent and a common purpose or objective. The existence of a conspiracy shall be inferred or deduced from their criminal participation in pursuing the crime and thus the act of one shall be the act of all.

QUESTION: Are ​reclusion perpetua and ​life imprisonment the same? Can they be imposed interchangeably? (1991; 1994; 2001)

ANSWER: NO. ​Reclusion perpetua i​s a penalty prescribed by the RPC, with a fixed duration of imprisonment from 20 years and 1 day to 40 years, and carries with it accessory penalties.

Life imprisonment,​ on the other hand, is a penalty prescribed by special laws, with no fixed duration of imprisonment and without any accessory penalty.

QUESTION: What is a ​memorandum check​? Is a person who issues a memorandum check without sufficient funds guilty of violating B.P Blg. 22? (1994;1995)

ANSWER: A ​memorandum check ​is an ordinary check with the word “Memorandum,” “Memo,” or “Mem” written across the check, signifying that the maker or drawer engages to pay its holder absolutely, thus partaking the nature of a promissory note. It is drawn on a bank and is a bill of exchange within the purview of Sec. 185 of the Negotiable Instruments Law.

A person who issued a memorandum check without sufficient funds is guilty of violating B.P. Blg. 22 as said law covers all checks whether it is an evidence of indebtedness, or in payment of a pre-existing obligation, or as deposit or guarantee.

QUESTION: Distinguish clearly but briefly between ​rebellion and ​coup d’etat based on their constitutive elements as criminal offenses.

ANSWER: ​Rebellion is committed by a public uprising and taking arms against the government while coup d’ etat is committed by means of swift attack accompanied by violence, intimidation, threat, strategy, and stealth.

The purpose of ​rebellion is either to remove from the allegiance to the Philippine Government or its laws the territory of the Philippines or any part thereof or any body of land, naval or other armed forces; or to deprive the Chief Executive or Congress wholly or partially of any of their powers or prerogatives.

On the other hand, the purpose of a coup d’ etat is to seize or diminish state power from the duly constituted authorities of the government or any military camp or the installation communication networks, public utilities and other facilities needed for the exercise of continued possession of powers.

Rebellion may be committed by any group of persons while coup d ‘etat is committed by a person or persons belonging to the military or police, or holding any public office or employment. Rebellion is committed by more than 1 person as it involves a public uprising, while coup d ‘etat may be committed by only one person.

QUESTION: Distinguish clearly but briefly between ​compound and ​complex crimes as concepts in the Penal Code.

ANSWER: ​Compound crime is when a single act constitutes two or more grave or less grave felonies while a ​complex crime​ is when an offense is a necessary means for committing the other.

QUESTION: Distinguish clearly but briefly between ​justifying and ​exempting circumstances in criminal law.

ANSWER: ​Justifying circumstances are those when the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability.

On the other hand, ​exempting circumstances ​are those grounds for exemption from punishment because there is wanting in the agent of the crime any of the conditions which makes the act voluntary or negligent.

QUESTION: Distinguish clearly but briefly between ​intent​ and ​motive​ in the commission of an offense.

ANSWER: ​Intent is the purpose to use a particular means to effect a definite result while ​motive is the moving power which impels one to action for such result.

QUESTION: Distinguish clearly but briefly between​ oral defamation​ and ​criminal conversation.

ANSWER: ​Oral defamation, known as slander, is a malicious imputation of any act, omission or circumstance against a person, done orally in public, tending to cause dishonor, discredit, contempt, embarrassment or ridicule to the latter. This is a crime against honor penalized in Art. 358 of the Revised Penal Code.

Criminal conversation is a term used in making a polite reference to sexual intercourse as in certain crimes, like rape, seduction and adultery. It has no definite concept as a crime.

Categories
BAR FAQs Audiobook Criminal Law Q&A

BAR Frequently Asked in Criminal Law Part 1

BAR Exams Frequently Asked Questions Q&A – Criminal Law – Audiobook Review Part 1

See complete list of episodes here.

Philippine Bar Exams
Frequently Asked Questions
Criminal Law Part 1

(1) Distinguish motive from intent. (1996; 1999)

ANSWER:

Motive ​is the reason which impels one to commit an act for a definite result, while ​intent ​is the purpose to use a particular means to effect such result. ​Intent ​is an element of the crime (except in unintentional felonies), whereas ​motive ​is not.

( 2 ) W h a t d o y o u u n d e r s t a n d b y a b e r r a t i o i c t u s , ​​e r r o r i n p e r s o n a e  a​ n d p r a e t e r i n t e n t i o n e m ? Do they alter the criminal liability of the accused? (1989; 1993; 1994; 1999)

ANSWER:

Aberratio ictus o​ r mistake in the blow occurs when the offender delivered the blow at his intended victim but missed, and instead such blow landed on an unintended victim. The situation generally brings about complex crimes where from a single act, two or more grave or less grave felonies resulted, namely the attempt against the intended victim and the consequences on the unintended victim. As complex crimes, the penalty for the more serious crime shall be the one imposed and in the maximum period. It is only when the resulting felonies are only light that complex crimes do not result and the penalties are to be imposed distinctly for each resulting crime.

Error in personae ​or mistake in identity occurs when the offender actually hit the person to whom the blow was directed but turned out to be different from and not the victim intended. The criminal liability of the offender is not affected, unless the mistake in identity resulted to a crime different from what the offender intended to commit, in which case the lesser penalty between the crime intended and the crime committed shall be imposed but in the maximum period (Art. 49, RPC).

Praeter intentionem o​ r where the consequence went beyond that intended or expected. This is a mitigating circumstance (Art. 13, par. 3, RPC) when there is a notorious disparity between the act or means employed by the offender and the resulting felony, i.e., the resulting felony could not be reasonably anticipated or foreseen by the offender from the act or means employed by him.

(3) Distinguish mala in se from mala prohibita. (1988; 1997; 1998; 2001; 2003)

ANSWER:

Mala in se ​is wrong from its very nature, as most of those punished in the RPC. Hence, in its commission, intent is an element and good faith is a defense. The test to determine whether an offense is mala in se is not the law punishing it but the very nature of the act itself.

On the other hand, an act ​mala prohibita i​ s wrong because it is prohibited by law. Without the law punishing the act, it cannot be considered a wrong. Hence, the mere commission of that act is what constitutes the offense punished and criminal intent will be immaterial for reason of public policy.

(4) What are heinous crimes? Name ten specific heinous crimes. (1994; 1995; 1997)

ANSWER:

Heinous crimes are those grievous, odious, and hateful offenses and which by reason of their inherent or manifest wickedness, viciousness, atrocity, and perversity, are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. They are punishable by ​reclusion perpetua ​to death. ​(WHEREAS CLAUSE, R.A. 7659)

The ten specific heinous crimes are:

  1. Treason
  2. Qualified Piracy
  3. Qualified Bribery
  4. Parricide
  5. Murder
  6. Kidnapping and Serious Illegal Detention
  7. Robbery with Homicide
  8. Destructive Arson
  9. Rape committed by two or more persons, or with a deadly weapon or with homicide
  10. Plunder

(5) What are the instances when the death penalty could not be imposed, although it should otherwise be meted out? (1997; 1998)

ANSWER:

Under Art. 47 of the RPC, the death penalty shall not be imposed when:

1. The guilty person is below 18 years of age at the time of the commission of the crime, oR

2. Is more than 70 years of age, or

3. When upon appeal of the case by the SC, the required majority vote is not obtained for the imposition of the death penalty.

(6) When is the benefit of the Indeterminate Sentence Law not applicable? (1999; 2003)

ANSWER:

The Indeterminate Sentence Law does not apply to:
1. Persons convicted of offenses punishable with death penalty or life imprisonment;

2. Those convicted of treason, conspiracy or proposal to commit treason;
3. Those convicted of misprision of treason, rebellion, sedition or espionage;
4. Those convicted of piracy;
5. Those who are habitual delinquents;
6. Those who shall have escaped from confinement or evaded sentence;
7. Those who violated the terms of conditional pardon granted to them by the Chief Executive;
8. Those whose maximum term of imprisonment does not exceed one year;
9. Those who, upon the approval of the law (December 5, 1933), had been sentenced by final judgment; 10. Those sentenced to the penalty of ​destierro ​or suspension.

(7) What is an impossible crime? (1993; 2003)

ANSWER:

It is an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment, or on account of the employment of inadequate or ineffectual means. (Art. 4, par. 2)

But where the acts performed which would have resulted in an impossible crime also 1) constitute an offense under the RPC, or

(2) would subject the accused to criminal liability although of a different category, the penalty to be imposed should be that for the latter and not that for an impossible crime.

(8) Distinguish instigation from entrapment. (1990; 1995; 2003)

ANSWER:

Instigation ​takes place when a peace officer induces a person to commit a crime. Without the inducement, the crime would not be committed. Hence, it is exempting by reason of public policy. Otherwise, the peace officer would be a co-principal.

On the other hand, ​entrapment ​signifies the ways and means devised by a peace officer to entrap or apprehend a person who has committed a crime. With or without the entrapment, the crime has been committed already. Hence, entrapment is not mitigating.

(9) What is the purpose of the Probation Law? (1986; 1989)

ANSWER:

The purposes of the Probation Law are:

  • To promote the correction and rehabilitation of an offender by providing him with individualized treatment;
  • To provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and
  • To prevent the commission of offenses.
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(10) What is the doctrine of implied conspiracy?(1998; 2003)

ANSWER:

The doctrine of implied conspiracy holds two or more persons participating in the commission of a crime collectively responsible and liable as co-conspirators although absent any agreement to that effect, when they act in concert, demonstrating unity of criminal intent and a common purpose or objective. The existence of a conspiracy shall be inferred or deduced from their criminal participation in pursuing the crime and thus the act of one shall be the act of all.