Sunday, March 8, 2015
Nonpayment of a note secured by mortgage,
"x x x.
For nonpayment of a note secured by mortgage, the creditor has a single cause of action against the debtor. This single cause of action consists in the recovery of the credit with execution of the security. In other words, the creditor in his action may make two demands, the payment of the debt and the foreclosure of his mortgage. But both demands arise from the same cause, the nonpayment of the debt, and, for that reason, they constitute a single cause of action. Though the debt and the mortgage constitute separate agreements, the latter is subsidiary to the former, and both refer to one and the same obligation. Consequently, there exists only one cause of action for a single breach of that obligation. [The creditor] then, by applying the rule above stated, cannot split up his single cause of action by filing a complaint for payment of the debt, and thereafter another complaint for foreclosure of the mortgage. If he does so, the filing of the first complaint will bar the subsequent complaint. By allowing the creditor to file two separate complaints simultaneously or successively, one to recover his credit and another to foreclose his mortgage, we will, in effect, be authorizing him plural redress for a single breach of contract at so much cost to the courts and with so much vexation and oppression to the debtor. (Bachrach Motor Co., Inc. v. Icarangal, 68 Phil. 287, 293-294 [1939]).
x x x."
Civil liability arising from a crime; reservation needed. - G.R. No. 122150
See - G.R. No. 122150
"x x x.
"x x x.
Petitioner filed the complaint for damages on June 6, 1989. Hence, Section 1, Rule 111 of the 1985 Rules on Criminal Procedure, as amended in 1988,14 is the prevailing and governing law in this case, viz.:
SECTION 1. Institution of criminal and civil actions. – When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.
Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Article 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.
. . .
Under the foregoing rule, civil actions to recover liability arising from crime (ex delicto) and under Articles 32, 33, 34 and 2176 of the Civil Code (quasi-delict) are deemed impliedly instituted with the criminal action unless waived, reserved or previously instituted.
Thus, in Maniago v. Court of Appeals,15 the Court ruled that the right to bring an action for damages under the Civil Code must be reserved, as required by Section 1, Rule 111, otherwise it should be dismissed;16 and that the reservation requirement does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure.17
In the Maniago case, petitioner Ruben Maniago was the owner of the bus driven by Herminio Andaya that figured in a vehicular accident with the jeepney owned by respondent Alfredo Boado. The petitioner therein initially sought for the suspension of the civil case for damages filed against him in view of the pendency of the criminal case for reckless imprudence resulting in damage to property and multiple physical injuries filed against his driver. The respondent, in the criminal case, did not reserve the right to bring the separate civil action against the petitioner or his driver. The criminal case was later dismissed for the failure of the prosecution to prosecute its case. On appeal, the Court identified the issues as (1) whether the respondent can file a civil action for damages despite the absence of reservation; (2) whether the dismissal of the criminal case brought with it the dismissal of the civil action; and (3) whether the reservation requirement is substantive in character and beyond the rule-making power of the Court.18
The Court expounded:
. . . §1quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will de deemed to have been instituted with the criminal case. … In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from crimes (ex delicto) or from quasi-delict under Art. 2176 of the Civil Code must be reserved otherwise they will de deemed instituted with the criminal action.
. . .
Contrary to private respondent’s contention, the requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned the rule that such action must be reserved before it may be brought separately.19
While the Abellana case ruled that a reservation is not necessary, the 1988 amendment of the rule explicitly requires reservation of the civil action.
x x x Prior reservation is a condition sine qua non before any of these independent civil actions can be instituted and thereafter have a continuous determination apart from or simultaneous with the criminal action.
. . . Far from altering substantive rights, the primary purpose of the reservation is, to borrow the words of the Court in "Caños v. Peralta":
‘. . . to avoid multiplicity of suits, to guard against oppression and abuse, to prevent delays, to clear congested dockets, to simplify the work of the trial court; in short, the attainment of justice with the least expense and vexation to the parties-litigants.’20
Thus, herein petitioner Hambon should have reserved his right to separately institute the civil action for damages in Criminal Case No. 2049. Having failed to do so, Civil Case No. 1761-R for damages subsequently filed by him without prior reservation should be dismissed. With the dismissal of Criminal Case No. 2049, whatever civil action for the recovery of civil liability that was impliedly instituted therein was likewise dismissed.
x x x."
Illegal recruitment committed in large scale - G.R. No. 195668
See - G.R. No. 195668
"x x x.
"x x x.
The essential elements of illegal recruitment committed in large scale are: (1) that the accused engaged in acts of recruitment and placement of workers as defined under Article 13(b) of the Labor Code, or in any prohibited activities under Article 34 of the same Code; (2) that the accused had not complied with the guidelines issued by the Secretary of Labor and Employment with respect to the requirement to secure a license or authority to recruit and deploy workers; and (3) that the accused committed the unlawful acts against 3 or more persons. In simplest terms, illegal recruitment is committed by persons who, without authority from the government, give the impression that they have the power to send workers abroad for employment purposes. In Our view, despite Inovero’s protestations that she did not commit illegal recruitment, the following circumstances contrarily convince Us that she was into illegal recruitment.
First, private complainants Baful and Brizuela commonly testified that Inovero was the one who conducted orientations/briefings on them; informed them, among others, on how much their salary would be as caregivers in Japan; and what to wear when they finally will be deployed. Second, when Diala introduced her (Inovero) to private complainant Amoyo as one of the owners of HARVEL, Inovero did not bother to correct said representation. Inovero’s silence is clearly an implied acquiescence to said representation.
Third, Inovero, while conducting orientation on private complainant Brizuela, represented herself as the one expediting the release of applicants’ working visa for Japan.
Fourth, in a Certification issued and attested to by POEA’s Versoza – Inovero had no license nor authority to recruit for overseas employment.
Based on the foregoing, there is therefore no doubt that the RTC correctly found that Inovero committed illegal recruitment in large scale by giving private complainants the impression that she can send them abroad for employment purposes, despite the fact that she had no license or authority to do so.12
x x x."
Judgment of conviction - G.R. No. 195668
See - G.R. No. 195668
"x x x.
"x x x.
It is not amiss to stress that both the RTC and the CA disregarded their express mandate under Section 2, Rule 120 of the Rules of Court to have the judgment, if it was of conviction, state: "(1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived." Their disregard compels us to act as we now do lest the Court be unreasonably seen as tolerant of their omission. That the Spouses Cogtas did not themselves seek the correction of the omission by an appeal is no hindrance to this action because the Court, as the final reviewing tribunal, has not only the authority but also the duty to correct at any time a matter of law and justice.
We also pointedly remind all trial and appellate courts to avoid omitting reliefs that the parties are properly entitled to by law or in equity under the established facts. Their judgments will not be worthy of the name unless they thereby fully determine the rights and obligations of the litigants. It cannot be otherwise, for only by a full determination of such rights and obligations would they be true to the judicial office of administering justice and equity for all. Courts should then be alert and cautious in their rendition of judgments of conviction in criminal cases. They should prescribe the legal penalties, which is what the Constitution and the law require and expect them to do. Their prescription of the wrong penalties will be invalid and ineffectual for being done without jurisdiction or in manifest grave abuse of discretion amounting to lack of jurisdiction. They should also determine and set the civil liability ex delicto of the accused, in order to do justice to the complaining victims who are always entitled to them. The Rules of Court mandates them to do so unless the enforcement of the civil liability by separate actions has been reserved or waived.20
x x x."
Denial as a defense - G.R. No. 195668
See - G.R. No. 195668
"x x x.
Denial, essentially a negation of a fact, does not prevail over an affirmative assertion of the fact. Thus, courts – both trial and appellate – have generally viewed the defense of denial in criminal cases with considerable caution, if not with outright rejection. Such judicial attitude comes from the recognition that denial is inherently weak and unreliable by virtue of its being an excuse too easy and too convenient for the guilty to make. To be worthy of consideration at all, denial should be substantiated by clear and convincing evidence. The accused cannot solely rely on her negative and self-serving negations, for denial carries no weight in law and has no greater evidentiary value than the testimony of credible witnesses who testify on affirmative matters.13 It is no different here.
x x x."
"x x x.
Denial, essentially a negation of a fact, does not prevail over an affirmative assertion of the fact. Thus, courts – both trial and appellate – have generally viewed the defense of denial in criminal cases with considerable caution, if not with outright rejection. Such judicial attitude comes from the recognition that denial is inherently weak and unreliable by virtue of its being an excuse too easy and too convenient for the guilty to make. To be worthy of consideration at all, denial should be substantiated by clear and convincing evidence. The accused cannot solely rely on her negative and self-serving negations, for denial carries no weight in law and has no greater evidentiary value than the testimony of credible witnesses who testify on affirmative matters.13 It is no different here.
x x x."
Saturday, March 7, 2015
Tax on homeowners associations/condo unit owners association
"...Revenue Memorandum Circular (RMC) 65-2012 clarifies the taxability of Association Dues, Membership fees and other Assessments/Charges collected by condominium orporations.Since
condomiinium corporation furnishes its members and tenants with benefits and priveleges, dues or fees collected from them are subject to Value Added Tax (VAT).Section 105 of the Tax Code states that:
SEC. 105. Persons Liable. - Any person who, in the course of trade or business, sells barters, exchanges, leases goods or properties, renders services, and any person who imports goods shall be subject to the valueadded tax (VAT) imposed in Sections 106 to 108 of this Code.The value-added tax is an indirect tax and the amount of tax may be shifted or passed on to the buyer, transferee or lessee of the goods, properties or services. This rule shall likewise apply to existing contracts of sale or lease of goods, properties or services at the time of the effectivity of Republic Act No. 7716.The phrase 'in the course of trade or business' means the regular conduct or pursuit of a commercial or an economic activity, including transactions incidental thereto, by any person regardless of whether or not the person engaged therein is a nonstock, nonprofit private organization (irrespective of the disposition of its net income and whether or not it sells exclusively to members or their guests), or government entity.In addition,
SEC. 4.108-2. Meaning of Sale or Exchange of Services.The term sale or exchange of services means the performance of all kind of services in the Philippines for 10 others for a fee, remuneration or consideration, whether in kind or in cash, including those performed or rendered by the following: (1) construction and service contractors;(2) stock, real estate, commercial, customs and immigration brokers;
Moreover, based on the above section, a value-added tax is not to imposed on another tax.
For other inquiries, you may visit www.bir.gov.ph or call us at 981-8888. We appreciate your continued support.
Contact:
The BIR Contact Center Team
E-mail: contact_us@cctr.bir.gov.ph."
SIMILAR ACTS AS EVIDENCE: | MVP Law | Philippines
See - SIMILAR ACTS AS EVIDENCE: | MVP Law | Philippines
"x x x.
"x x x.
The general evidentiary rule is that evidence that one did or did not do a certain thing at one time is not admissible to prove that one did or did not do the same or a similar thing at another time. However, evidence of similar acts may be received to prove a specific intent or knowledge, identity, plan system, scheme, habit, custom or usage and the like. “The rule is founded upon reason, public policy, justice and judicial convenience. The fact that a person has committed the same or similar acts at some prior time affords, as a general rule, no logical guaranty that he committed the act in question. This is so because, subjectively, a man's mind and even his modes of life may change; and, objectively, the conditions under which he may find himself at a given time may likewise change and thus induce him to act in a different way. Besides, if evidence of similar acts are to be invariably admitted, they will give rise to a multiplicity of collateral issues and will subject the defendant to surprise as well as confuse the court and prolong the trial. Evidence of similar acts may frequently become relevant, especially to actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into such person's motive or intent; it uncovers a scheme, design or plan, or it reveals a mistake.
x x x."
Wednesday, March 4, 2015
Notice of sale in a foreclosure of mortgage
See - 174581.pdf
"x x x.
Caubang never made an effort to inquire as to whether the Oriental
Daily Examiner was indeed a newspaper of general circulation, as required
by law. It was shown that the Oriental Daily Examiner is not even on the
list of newspapers accredited to publish legal notices, as recorded in the
Davao RTC’s Office of the Clerk of Court. It also has no paying subscribers
and it would only publish whenever there are customers. Since there was no
proper publication of the notice of sale, the Spouses Crisologo, as well as the
rest of the general public, were never informed that the mortgaged property
was about to be foreclosed and auctioned. As a result, PDCP Bank became
the sole bidder. This allowed the bank to bid for a very low price
(P1,331,460.00) and go after the spouses for a bigger amount as deficiency.
The principal object of a notice of sale in a foreclosure of mortgage is
not so much to notify the mortgagor as to inform the public generally of the
nature and condition of the property to be sold, and of the time, place, and
terms of the sale. Notices are given to secure bidders and prevent a sacrifice
of the property. Therefore, statutory provisions governing publication of
notice of mortgage foreclosure sales must be strictly complied with and
slight deviations therefrom will invalidate the notice and render the sale, at
the very least, voidable. Certainly, the statutory requirements of posting and
publication are mandated and imbued with public policy considerations.
Failure to advertise a mortgage foreclosure sale in compliance with the
statutory requirements constitutes a jurisdictional defect, and any substantial
error in a notice of sale will render the notice insufficient and will
consequently vitiate the sale. 8
Since it was Caubang who caused the improper publication of the
notices which, in turn, compelled the Spouses Crisologo to litigate and incur
expenses involving the declaration of nullity of the auction sale for the
protection of their interest on the property, the CA aptly held that Caubang
shall be the one liable for the spouses' claim for litigation expenses and
attorney's fees.
x x x."
"x x x.
Caubang never made an effort to inquire as to whether the Oriental
Daily Examiner was indeed a newspaper of general circulation, as required
by law. It was shown that the Oriental Daily Examiner is not even on the
list of newspapers accredited to publish legal notices, as recorded in the
Davao RTC’s Office of the Clerk of Court. It also has no paying subscribers
and it would only publish whenever there are customers. Since there was no
proper publication of the notice of sale, the Spouses Crisologo, as well as the
rest of the general public, were never informed that the mortgaged property
was about to be foreclosed and auctioned. As a result, PDCP Bank became
the sole bidder. This allowed the bank to bid for a very low price
(P1,331,460.00) and go after the spouses for a bigger amount as deficiency.
The principal object of a notice of sale in a foreclosure of mortgage is
not so much to notify the mortgagor as to inform the public generally of the
nature and condition of the property to be sold, and of the time, place, and
terms of the sale. Notices are given to secure bidders and prevent a sacrifice
of the property. Therefore, statutory provisions governing publication of
notice of mortgage foreclosure sales must be strictly complied with and
slight deviations therefrom will invalidate the notice and render the sale, at
the very least, voidable. Certainly, the statutory requirements of posting and
publication are mandated and imbued with public policy considerations.
Failure to advertise a mortgage foreclosure sale in compliance with the
statutory requirements constitutes a jurisdictional defect, and any substantial
error in a notice of sale will render the notice insufficient and will
consequently vitiate the sale. 8
Since it was Caubang who caused the improper publication of the
notices which, in turn, compelled the Spouses Crisologo to litigate and incur
expenses involving the declaration of nullity of the auction sale for the
protection of their interest on the property, the CA aptly held that Caubang
shall be the one liable for the spouses' claim for litigation expenses and
attorney's fees.
x x x."
Chain of custody of the illegal drugs.
See - 192785.pdf
"x x x.
As a final note, it does not escape the Court’s attention that there was also no testimony from the police officers that they conducted a physical inventory and took photographs of the sachets of shabu confiscated from appellant pursuant to Section 21(1)27 of Article II of RA 9165. Their sworn statements did not mention any inventory-taking or photographing of the same. They also did not bother to offer any justification for this omission.28
At this point, it is apt to restate the Court's pronouncement in People v. ,Pepino-Consulta:29
[T]he Court cannot emphasize enough that zealousness on the part of law enforcement agencies in the pursuit of drug peddlers is indeed laudable. However, it is of paramount importance that the procedures laid down by law be complied with, especially those that involve the chain of custody of the illegal drugs. It is is necessary in order to dispel even the most infinitesimal of doubts on the outcome of arrests any buy-bust operations, so as not to render naught the efforts and the resources put forth in the apprehension and prosecution of violators of our drug laws.30
x x x."
"x x x.
As a final note, it does not escape the Court’s attention that there was also no testimony from the police officers that they conducted a physical inventory and took photographs of the sachets of shabu confiscated from appellant pursuant to Section 21(1)27 of Article II of RA 9165. Their sworn statements did not mention any inventory-taking or photographing of the same. They also did not bother to offer any justification for this omission.28
At this point, it is apt to restate the Court's pronouncement in People v. ,Pepino-Consulta:29
[T]he Court cannot emphasize enough that zealousness on the part of law enforcement agencies in the pursuit of drug peddlers is indeed laudable. However, it is of paramount importance that the procedures laid down by law be complied with, especially those that involve the chain of custody of the illegal drugs. It is is necessary in order to dispel even the most infinitesimal of doubts on the outcome of arrests any buy-bust operations, so as not to render naught the efforts and the resources put forth in the apprehension and prosecution of violators of our drug laws.30
x x x."
If the pleadings or the evidence on record show that the claim is barred by prescription, the court is mandated to dismiss the claim even if prescription is not raised as a defense.
See - 172509.pdf
"x x x.
We deny the right of the BIR to collect the assessed DST on the ground of prescription. Section 1, Rule 9 of the Rules of Court expressly provides that:
Section 1. Defenses and objections not pleaded. -
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by prior judgment or by the statute of limitations, the court shall dismiss the claim. If the pleadings or the evidence on record show that the claim is barred by prescription, the court is mandated to dismiss the claim even if prescription is not raised as a defense.
In Heirs of Valientes v. Ramas, we ruled that the CA may motu proprio dismiss the case on the
ground of prescription despite failure to raise this ground on appeal. The court is imbued with sufficient discretion to review matters, not otherwise assigned as errors on appeal, if it finds that their consideration is necessary in arriving at a complete and just resolution of the case. More so, when the provisions on prescription were enacted to benefit and protect taxpayers from investigation after a reasonable period of time.
x x x."
"x x x.
We deny the right of the BIR to collect the assessed DST on the ground of prescription. Section 1, Rule 9 of the Rules of Court expressly provides that:
Section 1. Defenses and objections not pleaded. -
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by prior judgment or by the statute of limitations, the court shall dismiss the claim. If the pleadings or the evidence on record show that the claim is barred by prescription, the court is mandated to dismiss the claim even if prescription is not raised as a defense.
In Heirs of Valientes v. Ramas, we ruled that the CA may motu proprio dismiss the case on the
ground of prescription despite failure to raise this ground on appeal. The court is imbued with sufficient discretion to review matters, not otherwise assigned as errors on appeal, if it finds that their consideration is necessary in arriving at a complete and just resolution of the case. More so, when the provisions on prescription were enacted to benefit and protect taxpayers from investigation after a reasonable period of time.
x x x."
Disbarment is the appropriate penalty for conviction by final judgment for a crime involving moral turpitude
See - 7973.pdf
"x x x.
Section 27, Rule 138 of the Rules of Court states that a member of the bar may be disbarred or suspended as attorney by this Court by reason of his conviction of a crime involving moral turpitude. This Court has ruled that disbarment is the appropriate penalty for conviction by final judgment for a
crime involving moral turpitude.4
Moral turpitude is an act of baseness, vileness, or depravity in the private duties which a man owes to his fellow men or to society in general, contrary to justice, honesty, modesty, or good morals.5
The question of whether conviction for homicide involves moral turpitude was discussed by this Court in International Rice Research Institute v. NLRC6 where it ruled:
This is not to say that all convictions of the crime of homicide do not involve moral turpitude. Homicide may or may not involve moral turpitude depending on the degree of the crime. Moral turpitude is not involved in every criminal act and is not shown by every known and intentional violation of statute, but whether any particular conviction involves moral turpitude may be a question of fact and frequently depends on all the surrounding circumstances.
While x x x generally but not always, crimes mala in se involve moral turpitude, while crimes mala
prohibita do not, it cannot always be ascertained whether moral turpitude does or does not exist by classifying a crime as malum in se or as malum prohibitum, since there are crimes which are mala in se and yet rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. It follows therefore, that moral turpitude is somewhat a vague and indefinite term, the meaning of which must be left to the process of judicial inclusion or exclusion as the cases
are reached.7
x x x."
"x x x.
Section 27, Rule 138 of the Rules of Court states that a member of the bar may be disbarred or suspended as attorney by this Court by reason of his conviction of a crime involving moral turpitude. This Court has ruled that disbarment is the appropriate penalty for conviction by final judgment for a
crime involving moral turpitude.4
Moral turpitude is an act of baseness, vileness, or depravity in the private duties which a man owes to his fellow men or to society in general, contrary to justice, honesty, modesty, or good morals.5
The question of whether conviction for homicide involves moral turpitude was discussed by this Court in International Rice Research Institute v. NLRC6 where it ruled:
This is not to say that all convictions of the crime of homicide do not involve moral turpitude. Homicide may or may not involve moral turpitude depending on the degree of the crime. Moral turpitude is not involved in every criminal act and is not shown by every known and intentional violation of statute, but whether any particular conviction involves moral turpitude may be a question of fact and frequently depends on all the surrounding circumstances.
While x x x generally but not always, crimes mala in se involve moral turpitude, while crimes mala
prohibita do not, it cannot always be ascertained whether moral turpitude does or does not exist by classifying a crime as malum in se or as malum prohibitum, since there are crimes which are mala in se and yet rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. It follows therefore, that moral turpitude is somewhat a vague and indefinite term, the meaning of which must be left to the process of judicial inclusion or exclusion as the cases
are reached.7
x x x."
Foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum.
See - 193707.pdf
"x x x.
Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting up of a single cause of action.
x x x.
Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. To give justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of Laws.48
Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable in the Philippines because it would be of great injustice to the child to be denied of financial support when the latter is entitled thereto.
x x x."
"x x x.
Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting up of a single cause of action.
x x x.
Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. To give justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of Laws.48
Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable in the Philippines because it would be of great injustice to the child to be denied of financial support when the latter is entitled thereto.
x x x."
Doctrine of processual presumption
See - 193707.pdf
"x x x.
It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under Article 195 of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This does not, however, mean that respondent is not obliged to support petitioner’s son altogether.
In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law.40 In the present case, respondent hastily concludes that being a national of the Netherlands, he is governed by such laws on the matter of provision of and capacity to support.41 While respondent pleaded the laws of the Netherlands in advancing his position that he is not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not impose upon the parents the obligation to support their child (either before, during or after the issuance of a divorce decree), because Llorente v. Court of Appeals,42 has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.43
In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine of processual presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law.44
Thus, since the law of the Netherlands as regards the obligation to support has not been properly
pleaded and proved in the instant case, it is presumed to be the same with Philippine law, which enforces the obligation of parents to support their children and penalizing the non-compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera, 45 the Court held that a divorce obtained in a foreign land as well as its legal effects may be recognized in the Philippines in view of the nationality principle on the matter of status of persons, the Divorce Covenant presented by respondent does not completely show that he is not liable to give support to his son after the divorce decree was issued.
Emphasis is placed on petitioner’s allegation that under the second page of the aforesaid covenant, respondent’s obligation to support his child is specifically stated,46 which was not disputed by respondent.
We likewise agree with petitioner that notwithstanding that the national law of respondent states that parents have no obligation to support their children or that such obligation is not punishable by law, said law would still not find applicability, in light of the ruling in Bank of America, NT and SA v. American Realty Corporation,47 to wit:
In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign law, judgment or order shall not be applied. Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting up of a single cause of action. Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent —
If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. To give justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of Laws.48
Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable in the Philippines because it would be of great injustice to the child to be denied of financial support when the latter is entitled thereto.
x x x."
"x x x.
It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under Article 195 of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This does not, however, mean that respondent is not obliged to support petitioner’s son altogether.
In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law.40 In the present case, respondent hastily concludes that being a national of the Netherlands, he is governed by such laws on the matter of provision of and capacity to support.41 While respondent pleaded the laws of the Netherlands in advancing his position that he is not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not impose upon the parents the obligation to support their child (either before, during or after the issuance of a divorce decree), because Llorente v. Court of Appeals,42 has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.43
In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine of processual presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law.44
Thus, since the law of the Netherlands as regards the obligation to support has not been properly
pleaded and proved in the instant case, it is presumed to be the same with Philippine law, which enforces the obligation of parents to support their children and penalizing the non-compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera, 45 the Court held that a divorce obtained in a foreign land as well as its legal effects may be recognized in the Philippines in view of the nationality principle on the matter of status of persons, the Divorce Covenant presented by respondent does not completely show that he is not liable to give support to his son after the divorce decree was issued.
Emphasis is placed on petitioner’s allegation that under the second page of the aforesaid covenant, respondent’s obligation to support his child is specifically stated,46 which was not disputed by respondent.
We likewise agree with petitioner that notwithstanding that the national law of respondent states that parents have no obligation to support their children or that such obligation is not punishable by law, said law would still not find applicability, in light of the ruling in Bank of America, NT and SA v. American Realty Corporation,47 to wit:
In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign law, judgment or order shall not be applied. Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting up of a single cause of action. Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent —
If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. To give justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental principles of Conflict of Laws.48
Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable in the Philippines because it would be of great injustice to the child to be denied of financial support when the latter is entitled thereto.
x x x."
Article 15 of the New Civil Code stresses the principle of nationality
See - 193707.pdf
"x x x.
To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that the legal obligation to support exists. Petitioner invokes Article 19530 of the Family Code, which provides the parent’s obligation to support his child. Petitioner contends that notwithstanding the existence of a divorce decree issued in relation to Article 26 of the Family Code,31 respondent is not excused from complying with his obligation to support his minor child with petitioner.
On the other hand, respondent contends that there is no sufficient and clear basis presented by petitioner that she, as well as her minor son, are entitled to financial support.32
Respondent also added that by reason of the Divorce Decree, he is not obligated to petitioner for any financial support.33 On this point, we agree with respondent that petitioner cannot rely on Article 195 of the New Civil Code in demanding support from respondent, who is a foreign citizen, since Article 15 of the New Civil Code stresses the principle of nationality. In other words, insofar as Philippine laws are concerned, specifically the provisions of the Family Code on support, the same only applies to Filipino citizens.
By analogy, the same principle applies to foreigners such that they are governed by their national law with respect to family rights and duties.36 The obligation to give support to a child is a matter that falls under family rights and duties. Since the respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject to the laws of his country, not to Philippine law, as to whether he is obliged to give support to his child, as well as the consequences of his failure to do so.37
In the case of Vivo v. Cloribel, 38 the Court held that –
Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of the Philippines, for that Code cleaves to the principle that family rights and duties are governed by their personal law, i.e., the laws of the nation to which they belong even when staying in a foreign country (cf. Civil Code, Article 15).39
x x x."
"x x x.
To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that the legal obligation to support exists. Petitioner invokes Article 19530 of the Family Code, which provides the parent’s obligation to support his child. Petitioner contends that notwithstanding the existence of a divorce decree issued in relation to Article 26 of the Family Code,31 respondent is not excused from complying with his obligation to support his minor child with petitioner.
On the other hand, respondent contends that there is no sufficient and clear basis presented by petitioner that she, as well as her minor son, are entitled to financial support.32
Respondent also added that by reason of the Divorce Decree, he is not obligated to petitioner for any financial support.33 On this point, we agree with respondent that petitioner cannot rely on Article 195 of the New Civil Code in demanding support from respondent, who is a foreign citizen, since Article 15 of the New Civil Code stresses the principle of nationality. In other words, insofar as Philippine laws are concerned, specifically the provisions of the Family Code on support, the same only applies to Filipino citizens.
By analogy, the same principle applies to foreigners such that they are governed by their national law with respect to family rights and duties.36 The obligation to give support to a child is a matter that falls under family rights and duties. Since the respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject to the laws of his country, not to Philippine law, as to whether he is obliged to give support to his child, as well as the consequences of his failure to do so.37
In the case of Vivo v. Cloribel, 38 the Court held that –
Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of the Philippines, for that Code cleaves to the principle that family rights and duties are governed by their personal law, i.e., the laws of the nation to which they belong even when staying in a foreign country (cf. Civil Code, Article 15).39
x x x."
Instances when a ruling of the trial court may be brought on appeal directly to the Supreme Court without violating the doctrine of hierarchy of courts
See - 193707.pdf
"x x x.
At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the fact that the same was directly lodged with the Supreme Court, consistent with the ruling in Republic v. Sunvar Realty Development Corporation, 28 which lays down the instances when a ruling of
the trial court may be brought on appeal directly to the Supreme Court without violating the doctrine of hierarchy of courts, to wit:
x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this Court, in case only questions of law are raised or involved. This latter situation was one that petitioners found themselves in when they filed the instant Petition to raise only questions of law.
In Republic v. Malabanan, the Court clarified the three modes of appeal from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a petition for review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under Rule 45. “The first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed questions of fact and law. The second mode of appeal is brought to the CA on questions of fact, of law, or mixed questions of fact and law. The third mode of appeal is elevated to the Supreme Court only on questions of law.” (Emphasis supplied)
There is a question of law when the issue does not call for an examination of the probative value of the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the correct application of law and jurisprudence on the matter. The resolution of the issue must rest solely on what the law provides on the given set of circumstances.29
Indeed, the issues submitted to us for resolution involve questions of law – the response thereto concerns the correct application of law and jurisprudence on a given set of facts, i.e., whether or not a foreign national has an obligation to support his minor child under Philippine law; and whether or not he can be held criminally liable under R.A. No. 9262 for his unjustified failure to do so.
It cannot be negated, moreover, that the instant petition highlights a novel question of law concerning the liability of a foreign national who allegedly commits acts and omissions punishable under special criminal laws, specifically in relation to family rights and duties. The inimitability of the factual milieu of the present case, therefore, deserves a definitive ruling by this Court, which will eventually serve as a guidepost for future cases. Furthermore, dismissing the instant petition and remanding the same to the CA would only waste the time, effort and resources of the courts. Thus, in the present case, considerations of efficiency and economy in the administration of justice should prevail over the observance of the hierarchy of courts.
x x x."
"x x x.
At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the fact that the same was directly lodged with the Supreme Court, consistent with the ruling in Republic v. Sunvar Realty Development Corporation, 28 which lays down the instances when a ruling of
the trial court may be brought on appeal directly to the Supreme Court without violating the doctrine of hierarchy of courts, to wit:
x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this Court, in case only questions of law are raised or involved. This latter situation was one that petitioners found themselves in when they filed the instant Petition to raise only questions of law.
In Republic v. Malabanan, the Court clarified the three modes of appeal from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a petition for review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under Rule 45. “The first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed questions of fact and law. The second mode of appeal is brought to the CA on questions of fact, of law, or mixed questions of fact and law. The third mode of appeal is elevated to the Supreme Court only on questions of law.” (Emphasis supplied)
There is a question of law when the issue does not call for an examination of the probative value of the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the correct application of law and jurisprudence on the matter. The resolution of the issue must rest solely on what the law provides on the given set of circumstances.29
Indeed, the issues submitted to us for resolution involve questions of law – the response thereto concerns the correct application of law and jurisprudence on a given set of facts, i.e., whether or not a foreign national has an obligation to support his minor child under Philippine law; and whether or not he can be held criminally liable under R.A. No. 9262 for his unjustified failure to do so.
It cannot be negated, moreover, that the instant petition highlights a novel question of law concerning the liability of a foreign national who allegedly commits acts and omissions punishable under special criminal laws, specifically in relation to family rights and duties. The inimitability of the factual milieu of the present case, therefore, deserves a definitive ruling by this Court, which will eventually serve as a guidepost for future cases. Furthermore, dismissing the instant petition and remanding the same to the CA would only waste the time, effort and resources of the courts. Thus, in the present case, considerations of efficiency and economy in the administration of justice should prevail over the observance of the hierarchy of courts.
x x x."
Duty of alien to support his Filipino child
See - Presumed to be similar | Opinion, News, The Philippine Star | philstar.com
"x x x.
Read more: http://www.philstar.com/opinion/2015/03/04/1429850/presumed-be-similar#ixzz3TOfVNKUV
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"x x x.
So Delia already filed a complaint affidavit before the Cebu Provincial Prosecutor against Andersen for violation of Section 5 (e) (2) of R.A. 9262 otherwise known as “Anti Violence against Women and their Children Act” which considers “depriving or threatening to deprive the woman or her children of financial support due her or her family” as an act of violence against women and their children.
After preliminary investigation the Prosecutor charged Andersen before the Regional Trial Court (RTC) of “willfully, unlawfully and deliberately depriving, refusing and still continue to deprive his son of financial support legally due him.” Upon motion of Delia, after due notice and hearing, the RTC issued a Hold Departure Order against Andersen. Consequently, he was arrested and subsequently posted bail.
But subsequently on motion of Andersen, the RTC dismissed the criminal case since he is a foreign national and therefore not subject to our national law particularly the Family Code (FC, Article 195) in regard to a parent’s duty to give support to his child. Consequently, the RTC said he cannot be charged of violating R.A. 9262 for his alleged failure to support Rodger. Was the RTC correct?
According to the Supreme Court where the case was appealed via a petition for certiorari of Delia on purely a question of law, the RTC is correct in ruling that Andersen is subject to the laws of his country, not to Philippine Law (Art.195 FC) as to whether he is obliged to support his child as well as the consequences of his failure to do so.
This does not mean however that Andersen is not obliged to support Rodger altogether. Since he wanted to apply the national law of Netherlands in advancing his position he should have properly pleaded and proven said law. But in this case he never proved the same. And since the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic internal law which enforces the obligation of parents to support their children and penalizes non-compliance therewith. Besides, in the second page of the Divorce Covenant presented by Andersen himself, his obligation to support his child is specifically stated.
Furthermore, even if the national law of Netherlands states that parents have no obligation to support their children or that such obligation is not punishable by law, said law shall not be applied here because it is contrary to the sound and well established public policy of the Philippines as it would work great injustice to the child to be denied of financial support. So Andersen may be held liable under Section 5 (e) and (i) R.A. 9262 for unjustly refusing to give support to Delia’s son (Del Socorro etc. vs. Van Wilsem, G.R. 193707, December 10, 2014)
* * *
E-mail: attyjosesison@gmail.com.
x x x."
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SC orders gov't to return P5-B tax for PEACe bonds | Inquirer Business
See - SC orders gov't to return P5-B tax for PEACe bonds | Inquirer Business
"x x x.
x x x."
Read more: http://business.inquirer.net/187745/sc-orders-govt-to-return-p5-b-tax-for-peace-bonds#ixzz3TOaxZBkU
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"x x x.
MANILA, Philippines—The Supreme Court ordered the government to pay the P5-billion tax to holders of the Poverty Eradication and Alleviation Certificates (PEACe) bonds after it nullified the Bureau of Internal Revenue (BIR) rulings imposing a 20% final withholding tax on the government-issued bonds.
In a 45-page decision, the high court en banc said BIR Rulings No. 370-2011 and No. 378-2011 are unconstitutional and contrary to law.
“Respondent Bureau of Treasury (BTr) is hereby ordered to immediately release and pay to the bondholders the amount corresponding to the 20 percent final withholding tax that it withheld on October 18, 2011,” the high court said.
The PEACe bonds were originally issued by the BTr to Rizal Commercial Banking Corporation (RCBC) Capital, in behalf of the Caucus of Development NGO Networks (CODE-NGO), and subsequently sold to the secondary markets, including the eight petitioner banks–Banco de Oro, Bank of Commerce, China Banking Corp., Metropolitan Bank and Trust Co., Philippine Bank of Communications, Philippine National Bank, Philippine Veterans Bank and Planters Development Bank. Net proceeds from the sale will be used to endow a permanent fund to finance accredited non-government organizations throughout the country.
A few months before the bonds matured, the BIR issued the assailed rulings imposing said tax “not only on RCBC/CODE NGO but also on all subsequent holders of the bonds.”
The petitioners and petitioner-intervenors sought recourse from the Supreme Court, which then issued a temporary restraining order (TRO) against implementation by the BTr of the BIR rulings. However, the government agency failed to comply with said order.
The high court said the BIR erroneously ruled that “all treasury bonds, regardless of the number of purchasers/lenders at the time of issuance are considered deposit substitutes.”
This interpretation, according to the high court, “completely disregarded the 20 or more lender rule added by Congress in the 1997 Tax Code. It also created a distinction for government debt instruments as against those issued by private corporations when there was none in the tax law.”
Under the National Internal Revenue Code (NIRC), monetary benefits from deposit substitutes are subject to a 20% final withholding tax. The Code also defines “deposit substitutes as an alternative form of obtaining funds from the public…other than deposits, through the issuance, endorsement or acceptance of debt instruments for the borrower’s own accounts…”
“Congress specifically defined ‘public’ to mean twenty (20) or more individual or corporate leaders at any one time. Hence, the number of lenders is determinative of whether a debt instrument should be considered a deposit substitute and consequently subject to 20% final withholding tax,” the decision said.
The high court said “at the time of original issuance, the PEACe bonds are not deemed deposit substitutes within the meaning of Section 22 (Y) of the 1997 Tax Code, since there is only one lender – RCBC on behalf of CODE – NGO – to whom the bonds were issued.”
“It may be granted that the interpretation of the Commissioner of Internal Revenue in charge of executing the Tax Code is an authoritative construction of great weight, but the principle is not absolute and may be overcome by strong reasons to the contrary,” he said. “[T]he error must be corrected when the true construction is ascertained.”
However, the decision also clarified that a subsequent sale and distribution of the PEACe bonds to 20 or more lenders/investors, would oblige RCBC Capital and Code NGO to withhold the 20% final on the interest/discount from the bond.
The high court said should PEACe Bonds be found to be within the coverage of the deposit substitutes, the proper procedure was for the BTr to pay the face value of the PEACe bonds to the bondholders and for the BIR to collect the unpaid final withholding tax directly from RCBC Capital/ CODE-NGO, or any lender or investor.
“Thus, should it be found that RCBC Capital/CODE-NGO sold the PEACe bonds to 20 or more lenders/investors, the BIR may still collect the unpaid tax from RCBC Capital/CODE-NGO within 10 years after the discovery of the omission,” the high court said.
x x x."
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Tuesday, March 3, 2015
Inter-country adoption
"x x x.
Republic Act No. 8043
An act establishing the rules to govern inter-country
adoption of Filipino children, and for other purposes
Article III
Procedure
Sec. 7. Inter-Country
Adoption as the Last Resort.- The Board shall ensure that all
possibilities for adoption of the child under the Family Code have been
exhausted and that inter-country adoption is in the best interest of the child.
Towards this end, the Board shall set up the guidelines to ensure that steps
will be taken to place the child in the Philippines before the child is placed
for inter-country adoption: Provided,
however, That the maximum number that may be allowed for foreign adoption
shall not exceed six hundred (600) a year for the first five (5) years.
Sec. 8. Who May be
Adopted.- Only a legally free child may be the subject of inter-country
adoption. In order that such child may be considered for placement, the
following documents must be submitted to the Board:
a) Child study;
b) Birth certificate/founding certificate;
c) Deed of voluntary commitment/decree of
abandonment/death certificate of parents;
d) Medical evaluation/history;
e) Psychological evaluation, as necessary; and
f)
Recent photo of the child.
Sec. 9. Who May Adopt.-
Any alien or a Filipino citizen permanently residing abroad may file an
application for inter-country adoption of a Filipino child if he/she;
a) is at least
twenty-seven (27) years of age and at least sixteen (16) years older than the
child to be adopted, at the time of application unless the adaptor is the
parent by nature of the child to be adopted or the spouse of such parent;
b) if married, his/her
spouse must jointly file for the adoption;
c) has the capacity to
act and assume all rights and responsibilities of parental authority under his
national laws, and has undergone the appropriate counselling from an accredited
counsellor in his/her country;
d) has not been convicted
of a crime involving moral turpitude;
e) is eligible to adopt
under his/her nation law;
f) is in a position to
provide the proper care and support and to give the necessary moral values and
example to all his children, including the child to be adopted;
g) agrees to uphold the
basic rights of the child as embodied under Philippine laws, the U.N.
Convention on the Rights of the Child, and to abide by the rules and
regulations issued to implement the provisions of this Act;
h) comes from a country
with whom the Philippines has diplomatic relations and whose government
maintains a similarly authorized and accredited agency and that adoption is
allowed under his/her national laws; and
i) possesses all the
qualifications and none of the disqualifications provided herein and in other
applicable Philippine laws.
Sec. 10. Where to File
Application.- An application to adopt a Filipino child shall be field
either with the Philippine Regional Trial Court having jurisdiction over the
child, or with the Board, through an intermediate agency, whether governmental
or an authorized and accredited agency, in the country of the prospective
adoptive parents, which application shall be in accordance with the
requirements as set forth in the implementing rules and regulations to be
promulgated by the Board.
The application shall be supported by the following documents
written and officially translated in English:
a) Birth certificate of
applicant(s);
b) Marriage contract, if
married, and divorce decree, if applicable;
c) Written consent of
their biological or adopted children above ten (10) years of age, in the form
of sworn statement;
d) Physical, medical and
psychological evaluation by a duly licensed physician and psychologist;
e) Income tax returns or
any document showing the financial capability of the applicant(s);
f) Police clearance of
applicant(s);
g) Character reference
from the local church/minister, the applicant's employer and a member of the
immediate community who have known the applicant(s) for at least five (5)
years; and
h) Recent postcard-size
pictures of the applicant(s) and his immediate family;
The Rules of Court shall apply in case of adoption by judicial
proceedings.
Sec. 11. Family
Selection/Matching.- No child shall be matched to a foreign adoptive
family unless it is satisfactorily shown that the child cannot be adopted
locally. The clearance, as issued by the Board, with the copy of the minutes of
the meetings, shall form part of the records of the child to be adopted. When
the Board is ready to transmit the Placement Authority to the authorized and
accredited inter-country adoption agency and all the travel documents of the
child are ready, the adoptive parents, or any one of them, shall personally
fetch the child in the Philippines.
Sec. 12. Pre-adoptive
Placement Costs.- The applicant(s) shall bear the following costs
incidental to the placement of the child;
a) The cost of bringing
the child from the Philippines to the residence of the applicant(s) abroad,
including all travel expenses within the Philippines and abroad: and
b) The cost of passport,
visa, medical examination and psychological evaluation required, and other
related expenses.
Sec. 13. Fees, Charges
and Assessments.- Fees, charges, and assessments collected by the Board
in the exercise of its functions shall be used solely to process applications
for inter-country adoption and to support the activities of the Board.
Sec. 14. Supervision of
Trial Custody.- The governmental agency or the authorized and accredited
agency in the country of the adoptive parents which filed the application for
inter-country adoption shall be responsible for the trial custody and the care
of the child. It shall also provide family counselling and other related
services. The trial custody shall be for a period of six (6) months from the
time of placement. Only after the lapse of the period of trial custody shall a
decree of adoption be issued in the said country, a copy of which shall be sent
to the Board to form part of the records of the child.
During the trial custody, the adopting parent(s) shall submit to
the governmental agency or the authorized and accredited agency, which shall in
turn transmit a copy to the Board, a progress report of the child's adjustment.
The progress report shall be taken into consideration in deciding whether or
not to issue the decree of adoption.
The department of Foreign Affairs shall set-up a system by which
Filipino children sent abroad for trial custody are monitored and checked as
reported by the authorized and accredited inter-country adoption agency as well
as the repatriation to the Philippines of a Filipino child whose adoption has
not been approved.
Sec. 15. Executive
Agreements.- The Department of Foreign Affairs, upon representation of
the Board, shall cause the preparation of Executive Agreements with countries
of the foreign adoption agencies to
ensure the legitimate concurrence of said countries in upholding the safeguards
provided by this Act.
x x x."
Abandoned, surrendered, or neglected child.
Republic Act No. 9523 March 12, 2009
AN ACT REQUIRING CERTIFICATION OF THE DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT (DSWD) TO DECLARE A "CHILD LEGALLY AVAILABLE FOR ADOPTION" AS A PREREQUISITE FOR ADOPTION PROCEEDINGS, AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS OF REPUBLIC ACT NO. 8552, OTHERWISE KNOWN AS THE DOMESTIC ADOPTION ACT OF 1998, REPUBLIC ACT NO. 8043, OTHERWISE KNOWN AS THE INTER-COUNTRY ADOPTION ACT OF 1995, PRESIDENTIAL DECREE NO. 603, OTHERWISE KNOWN AS THE CHILD AND YOUTH WELFARE CODE, AND FOR OTHER PURPOSES
Section 3. Petition. – The petition shall be in the form of an affidavit, subscribed and sworn to before any person authorized by law to administer oaths. It shall contain facts necessary to establish the merits of the petition and shall state the circumstances surrounding the abandonment or neglect of the child.
The petition shall be supported by the following documents:
(1) Social Case Study Report made by the DSWD, local government unit, licensed or accredited child-caring or child-placing agency or institution charged with the custody of the child;
(2) Proof that efforts were made to locate the parent(s) or any known relatives of the child. The following shall be considered sufficient:
(a) Written certification from a local or national radio or television station that the case was aired on three (3) different occasions;
(b) Publication in one (1) newspaper of general circulation;
(c) Police report or barangay certification from the locality where the child was found or a certified copy of a tracing report issued by the Philippine National Red Cross (PNRC), National Headquarters (NHQ), Social Service Division, which states that despite due diligence, the child's parents could not be found; and
(d) Returned registered mail to the last known address of the parent(s) or known relatives, if any.
(3) Birth certificate, if available; and
(4) Recent photograph of the child and photograph of the child upon abandonment or admission to the agency or institution.
Section 4. Procedure for the Filing of the Petition. – The petition shall be filed in the regional office of the DSWD where the child was found or abandoned.
The Regional Director shall examine the petition and its supporting documents, if sufficient in form and substance and shall authorize the posting of the notice of the petition conspicuous place for five (5) consecutive days in the locality where the child was found.
The Regional Director shall act on the same and shall render a recommendation not later than five (5) working days after the completion of its posting. He/she shall transmit a copy of his/her recommendation and records to the Office of the Secretary within forty-eight (48) hours from the date of the recommendation.
Section 5. Declaration of Availability for Adoption. – Upon finding merit in the petition, the Secretary shall issue a certification declaring the child legally available for adoption within seven (7) working days from receipt of the recommendation.
Said certification, by itself shall be the sole basis for the immediate issuance by the local civil registrar of a foundling certificate. Within seven (7) working days, the local civil registrar shall transmit the founding certificate to the National Statistic Office (NSO).
Section 6. Appeal. – The decision of the Secretary shall be appealable to the Court of Appeals within five (5) days from receipt of the decision by the petitioner, otherwise the same shall be final and executory.
Section 7. Declaration of Availability for Adoption of Involuntarily Committed Child and Voluntarily Committed Child. – The certificate declaring a child legally available for adoption in case of an involuntarily committed child under Article 141, paragraph 4(a) and Article 142 of Presidential Decree No. 603 shall be issued by the DSWD within three (3) months following such involuntary commitment.
In case of voluntary commitment as contemplated in Article 154 of Presidential Decree No. 603, the certification declaring the child legally available for adoption shall be issued by the Secretary within three (3) months following the filing of the Deed of Voluntary Commitment, as signed by the parent(s) with the DSWD.
Upon petition filed with the DSWD, the parent(s) or legal guardian who voluntarily committed a child may recover legal custody and parental authority over him/her from the agency or institution to which such child was voluntarily committed when it is shown to the satisfaction of the DSWD that the parent(s) or legal guardian is in a position to adequately provide for the needs of the child: Provided, That, the petition for restoration is filed within (3) months after the signing of the Deed of Voluntary Commitment.
Section 8. Certification. – The certification that a child is legally available for adoption shall be issued by the DSWD in lieu of a judicial order, thus making the entire process administrative in nature.
The certification, shall be, for all intents and purposes, the primary evidence that the child is legally available in a domestic adoption proceeding, as provided in Republic Act No. 8552 and in an inter-country adoption proceeding, as provided in Republic Act No. 8043.
x x x."
Adoption law; penalties for criminal acts.
REPUBLIC ACT NO. 8552
"Domestic Adoption Act of 1998."
Penalties:
"x x x.
ARTICLE VII
Violations and Penalties
SEC. 21. Violations and Penalties.-
a) The penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and/or a fine of not less than Fifty thousand pesos (P50,000.00), but not more than Two hundred thousand pesos (P200,000.00) at the discretion of the court shall be imposed on any person who shall commit any of the following acts:
i) obtaining consent for an adoption through coercion, undue influence, fraud, improper material inducement, or other similar acts;
ii) noncompliance with the procedures and safeguards provided by the law for adoption; or
iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation.
b) Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth, and shall be punished by prison mayor in its medium period and a fine not exceeding Fifty thousand pesos (P50,000.00).
Any physician or nurse or hospital personnel who, in violation of his/her oath of office, shall cooperate in the execution of the above mentioned crime shall suffer the penalties herein prescribed and also the penalty of permanent disqualification.
Any person who shall violate established regulations relating to the confidentiality and integrity of records, documents, and communications of adoption applications, cases, and processes shall suffer the penalty of imprisonment ranging from one (1) year and one (1) day to two (2) years and/or a fine of not less than Five thousand pesos (P5,000.00) but not more than Ten thousand pesos (P10,000.00) at the discretion of the court.
A penalty lower by two (2) degrees than that prescribed for the consummated offense under this Article shall be imposed upon the principals of the attempt to commit any of the acts herein enumerated.
Acts punishable under this Article, when committed by a syndicate or when it involves two (2) or more children shall be considered as an offense constituting child trafficking and shall merit the penalty of reclusion pepetua.
Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any of the unlawful acts defined under this Article. Penalties as are herein provided, shall be in addition to any other penalties which may be imposed for the same acts punishable under other laws, ordinances, executive orders, and proclamations.
When the offender is an alien, he/she shall be deported immediately after service of sentence and perpetually excluded from entry to the country.
Any government official, employee or functionary who shall be found guilty of violating any of the provisions on this Act, or who shall conspire with private individuals shall, in addition to the above-prescribed penalties, be penalized in accordance with existing civil service laws, rules and regulations: Provided, That upon filing of a case, either administrative or criminal, said government official, employee, or functionary concerned shall automatically suffer suspension until the resolution of the case.
SEC. 22. Rectification of Simulated Births.- A person who has, prior to the effectivity of this Act, simulated the birth of a child shall not be punished for such act: Provided, That the simulation of birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter: Provided, further, That the application for correction of the birth registration and petition for adoption shall be filed within five (5) years from the effectivity of this Act and completed thereafter: Provided, finally, That such person complies with the procedure as specified in Article IV of this Act and other requirements as determined by the Department.
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"Domestic Adoption Act of 1998."
Penalties:
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ARTICLE VII
Violations and Penalties
SEC. 21. Violations and Penalties.-
a) The penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and/or a fine of not less than Fifty thousand pesos (P50,000.00), but not more than Two hundred thousand pesos (P200,000.00) at the discretion of the court shall be imposed on any person who shall commit any of the following acts:
i) obtaining consent for an adoption through coercion, undue influence, fraud, improper material inducement, or other similar acts;
ii) noncompliance with the procedures and safeguards provided by the law for adoption; or
iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation.
b) Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth, and shall be punished by prison mayor in its medium period and a fine not exceeding Fifty thousand pesos (P50,000.00).
Any physician or nurse or hospital personnel who, in violation of his/her oath of office, shall cooperate in the execution of the above mentioned crime shall suffer the penalties herein prescribed and also the penalty of permanent disqualification.
Any person who shall violate established regulations relating to the confidentiality and integrity of records, documents, and communications of adoption applications, cases, and processes shall suffer the penalty of imprisonment ranging from one (1) year and one (1) day to two (2) years and/or a fine of not less than Five thousand pesos (P5,000.00) but not more than Ten thousand pesos (P10,000.00) at the discretion of the court.
A penalty lower by two (2) degrees than that prescribed for the consummated offense under this Article shall be imposed upon the principals of the attempt to commit any of the acts herein enumerated.
Acts punishable under this Article, when committed by a syndicate or when it involves two (2) or more children shall be considered as an offense constituting child trafficking and shall merit the penalty of reclusion pepetua.
Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any of the unlawful acts defined under this Article. Penalties as are herein provided, shall be in addition to any other penalties which may be imposed for the same acts punishable under other laws, ordinances, executive orders, and proclamations.
When the offender is an alien, he/she shall be deported immediately after service of sentence and perpetually excluded from entry to the country.
Any government official, employee or functionary who shall be found guilty of violating any of the provisions on this Act, or who shall conspire with private individuals shall, in addition to the above-prescribed penalties, be penalized in accordance with existing civil service laws, rules and regulations: Provided, That upon filing of a case, either administrative or criminal, said government official, employee, or functionary concerned shall automatically suffer suspension until the resolution of the case.
SEC. 22. Rectification of Simulated Births.- A person who has, prior to the effectivity of this Act, simulated the birth of a child shall not be punished for such act: Provided, That the simulation of birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter: Provided, further, That the application for correction of the birth registration and petition for adoption shall be filed within five (5) years from the effectivity of this Act and completed thereafter: Provided, finally, That such person complies with the procedure as specified in Article IV of this Act and other requirements as determined by the Department.
x x x."
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