Adoption of minor child

IN RE: PETITIONS FOR ADOPTION OF MICHELLE P. LIM, and MICHAEL JUDE P. LIM, MONINA P. LIM, G.R. Nos. 168992-93 May 21, 2009. 

“x x x.

It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial court’s decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:

SEC. 7. Who May Adopt. – The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the alien’s qualification to adopt in his/her country may be waived for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or

(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied)

The use of the word “shall” in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt.

Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopter’s country as the latter’s adopted child. None of these qualifications were shown and proved during the trial.

These requirements on residency and certification of the alien’s qualification to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of petitioner.”

x x x

“Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other. Therefore, even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled such as support and successional rights.

X x x.”

Demurrer to evidence

PEOPLE OF THE PHILIPPINES VS. JOSE C. GO, AIDA C. DELA ROSA, AND FELECITAS D. NECOMEDES, G.R. No. 191015, August 06, 2014.



“x x x.

Demurrer to the evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a verdict of guilt. x x x Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally justify the judicial or official action demanded according to the circumstances. To be considered sufficient therefore, the evidence must prove: (a) the commission of the crime, and (b) the precise degree of participation therein by the accused. Thus, when the accused files a demurrer, the court must evaluate whether the prosecution evidence is sufficient enough to warrant the conviction of the accused beyond reasonable doubt.

The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court, and its ruling on the matter shall not be disturbed in the absence of a grave abuse of such discretion.[43] As to effect, the grant of a demurrer to evidence amounts to an acquittal and cannot be appealed because it would place the accused in double jeopardy. The order is reviewable only by certiorari if it was issued with grave abuse of discretion amounting to lack or excess of jurisdiction. When grave abuse of discretion is present, an order granting a demurrer becomes null and void.

As a general rule, an order granting the accused’s demurrer to evidence amounts to an acquittal. There are certain exceptions, however, as when the grant thereof would not violate the constitutional proscription on double jeopardy. For instance, this Court ruled that when there is a finding that there was grave abuse of discretion on the part of the trial court in dismissing a criminal case by granting the accused’s demurrer to evidence, its judgment is considered void, as this Court ruled in People v. Laguio, Jr.:

By this time, it is settled that the appellate court may review dismissal orders of trial courts granting an accused’s demurrer to evidence. This may be done via the special civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction. Such dismissal order, being considered void judgment, does not result in jeopardy. Thus, when the order of dismissal is annulled or set aside by an appellate court in an original special civil action via certiorari, the right of the accused against double jeopardy is not violated.

X x x.

Grave abuse of discretion is defined as “that capricious or whimsical exercise of judgment which is tantamount to lack of jurisdiction. ‘The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.’ The party questioning the acquittal of an accused should be able to clearly establish that the trial court blatantly abused its discretion such that it was deprived of its authority to dispense justice.”

Finally, it must be borne in mind that [t]he granting of a demurrer to evidence should x x x be exercised with caution, taking into consideration not only the rights of the accused, but also the right of the private offended party to be vindicated of the wrongdoing done against him, for if it is granted, the accused is acquitted and the private complainant is generally left with no more remedy. In such instances, although the decision of the court may be wrong, the accused can invoke his right against double jeopardy. Thus, judges are reminded to be more diligent and circumspect in the performance of their duties as members of the Bench x x x.

X x x.”

Agency; Articles 1884, 1887, Civil Code

BANK OF THE PHILIPPINE ISLANDS AND FGU INSURANCE CORPORATION (PRESENTLY KNOWN AS BPI/MS INSURANCE CORPORATION) VS. YOLANDA LAINGO, G.R. No. 205206, March 16, 2016.

“x x x.

Under the law, an agent is one who binds himself to render some service or to do something in representation of another.⁠1 In Doles v. Angeles,⁠2 we held that the basis of an agency is representation. The question of whether an agency has been created is ordinarily a question which may be established in the same way as any other fact, either by direct or circumstantial evidence. The question is ultimately one of intention. Agency may even be implied from the words and conduct of the parties and the circumstances of the particular case. For an agency to arise, it is not necessary that the principal personally encounter the third person with whom the agent interacts. The law in fact contemplates impersonal dealings where the principal need not personally know or meet the third person with whom the agent transacts: precisely, the purpose of agency is to extend the personality of the principal through the facility of the agent.

X x x.

In Eurotech Industrial Technologies, Inc. v. Cuizon,⁠3 we held that when an agency relationship is established, the agent acts for the principal insofar as the world is concerned. Consequently, the acts of the agent on behalf of the principal within the scope of the delegated authority have the same legal effect and consequence as though the principal had been the one so acting in the given situation.

X x x.

Articles 1884 and 1887 of the Civil Code state:

Art. 1884. The agent is bound by his acceptance to carry out the agency and is liable for the damages which, through his non-performance, the principal may suffer.

He must also finish the business already begun on the death of the principal, should delay entail any danger.

Art. 1887. In the execution of the agency, the agent shall act in accordance with the instructions of the principal.

In default, thereof, he shall do all that a good father of a family would do, as required by the nature of the business.

The provision is clear that an agent is bound to carry out the agency. The relationship existing between principal and agent is a fiduciary one, demanding conditions of trust and confidence. It is the duty of the agent to act in good faith for the advancement of the interests of the principal. In this case, BPI had the obligation to carry out the agency by informing the beneficiary, who appeared before BPI to withdraw funds of the insured who was BPI’s depositor, not only of the existence of the insurance contract but also the accompanying terms and conditions of the insurance policy in order for the beneficiary to be able to properly and timely claim the benefit.

Upon Rheozel’s death, which was properly communicated to BPI by his mother Laingo, BPI, in turn, should have fulfilled its duty, as agent of FGU Insurance, of advising Laingo that there was an added benefit of insurance coverage in Rheozel’s savings account. An insurance company has the duty to communicate with the beneficiary upon receipt of notice of the death of the insured. This notification is how a good father of a family should have acted within the scope of its business dealings with its clients. BPI is expected not only to provide utmost customer satisfaction in terms of its own products and services but also to give assurance that its business concerns with its partner entities are implemented accordingly.

There is a rationale in the contract of agency, which flows from the “doctrine of representation,” that notice to the agent is notice to the principal,⁠4 Here, BPI had been informed of Rheozel’s death by the latter’s family. Since BPI is the agent of FGU Insurance, then such notice of death to BPI is considered as notice to FGU Insurance as well. FGU Insurance cannot now justify the denial of a beneficiary’s insurance claim for being filed out of time when notice of death had been communicated to its agent within a few days after the death of the depositor-insured. In short, there was timely notice of Rheozel’s death given to FGU Insurance within three months from Rheozel’s death as required by the insurance company.

The records show that BPI had ample opportunity to inform Laingo, whether verbally or in writing, regarding the existence of the insurance policy attached to the deposit account. First, Rheozel’s death was headlined in a daily major newspaper a day after his death. Second, not only was Laingo, through her representative, able to inquire about Rheozel’s deposit account with BPI two days after his death but she was also allowed by BPI’s Claveria, Davao City branch to withdraw from the funds in order to help defray Rheozel’s funeral and burial expenses. Lastly, an employee of BPI visited Rheozel’s wake and submitted documents for Laingo to sign in order to process the withdrawal request. These circumstances show that despite being given many opportunities to communicate with Laingo regarding the existence of the insurance contract, BPI neglected to carry out its duty.

Since BPI, as agent of FGU Insurance, fell short in notifying Laingo of the existence of the insurance policy, Laingo had no means to ascertain that she was entitled to the insurance claim. It would be unfair for Laingo to shoulder the burden of loss when BPI was remiss in its duty to properly notify her that she was a beneficiary.

Thus, as correctly decided by the appellate court, BPI and FGU Insurance shall bear the loss and must compensate Laingo for the actual damages suffered by her family plus attorney’s fees. Likewise, FGU Insurance has the obligation to pay the insurance proceeds of Rheozel’s personal accident insurance coverage to Laingo, as Rheozel’s named beneficiary.

X x x.”

The violent genes of Duterte - Law student Duterte shot frat brod on campus in ’72 | Inquirer News

See - Law student Duterte shot frat brod on campus in ’72 | Inquirer News

A Fraternity is an institution of unity, mutual support/protection, service, and academic excellence. 

Not so in the case of Duterte as a law student. 

He admits that in 1972 he shot a frat brod. 

Both belonged to the Lex Talionis fraternity, San Beda College of Law,Manila. 

The injured brod was Octavio Goco. 

Duterte's violent pattern of behavior has been very consistent since his youth. 

Now, at age 70, the violent genes continue to flow in his old and sickly veins.

If and when he wields the power of the presidency (God forbid!), who will control him? 

Duterte himself cannot control his own violent mind.

Neither can his own children (who inherited his violent genes), his common-law wife, and his ex-wife.

Violence and hate rule his mind, heart and consciousness.

A violent president will produce a violent military and police.

He will mold a violent citizenry.

He will produce a violent country.

He will render meaningless our freedom, democracy and republicanism.

He will institutionalize a culture of impunity, indoctrination, regimentation, and totalitarianism.

But Duterte is in error if he thinks such an abnormal state will last forever.

When the sufferings of the people cannot anymore be contained, things will naturally explode.

His violent presidency will end in shame and pain.

As in the case of The Dictator Marcos, his idol.

Read more: http://newsinfo.inquirer.net/…/law-student-duterte-shot-fra…

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Employee Benefits under Philippine Laws | Nicolas & De Vegas Law Offices

See - Employee Benefits under Philippine Laws | Nicolas & De Vegas Law Offices

"x x x.

Listed below is a summary of the mandatory benefits and provisions for employees in the Philippines under the Labor Code and special laws:

1. Minimum wage = P481.00 per day (in NCR)

2. 13th month pay (after 1 month of service) = 1/12 of the total basic salary earned by an employee within a calendar year

3. Overtime pay= 25% premium on hourly rate

4. Night shift differential if work between 10:00 PM to 6:00 AM = 10% premium on hourly rate

5. Special Non-Working day = 30% premium if worked

6. Regular holiday pay= 100% premium if worked, paid if unworked

7. Service Incentive Leave = 5 days paid leave for every year of service

8. Maternity Leave = daily maternity benefit equivalent to one hundred percent (100%) of her average salary credit for sixty (60) days or seventy-eight (78) days

9. Paternity leave = 7 days leave with pay (married only)

10. Parental leave for solo parents= 7 days leave with pay for every year of service

11. Leave for victims of Republic Act 9262 or Anti-Violence Against Women Law = 10 days leave with pay

12. Special Leave for Women= Two months leave with pay for women who underwent surgery due to gynecological disorders

13. Social Security System contribution (based on salary)

14. Pag-ibig contribution (based on salary)

15. Philhealth contribution (based on salary)

For more information on labor and employee legal matters, visit our website www.ndvlaw.com or call us at +632 4016392 or e-mail us at info@ndvlaw.com.

Nicolas & De Vega Law Offices is a full-service law firm located at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, Pasig City, Metro Manila, Philippines.

x x x."

I have chosen Mar Roxas and Leni Robredo

The final presidential debate has ended.

I have chosen the leaders who my age and experience tell me will best serve my country for the next six years.

Mar Roxas for president.

Leni Robredo for vice president.

They will continue and enhance the socio-economic gains that the Aquino government has achieved for the past six years.

They will preserve the respect that the whole world has accorded the Philippines as the rising star of Asia.

They will defend Philippine sovereignty and national interest against expansionist and aggressive China with respect to our lawful maritime entitlements in the West Philippine Sea under the United Nations Convention on the Law of the Sea (UNCLOS).

They will maintain peace and order in the country without undermining the Constitution, Human Rights, the Rule of Law, and the Justice System and without promoting murderous vigilantism, black death squads, inhuman tortures, extrajudicial killings, and forced disappearances.

They will protect the national coffers from raids of graft and corruption by political dynasties whose religion is greed and power.

They will resume urgent legislative work for the speedy adoption of a special Mindanao peace law to restore sanity and progress in that beautiful island.

Good luck to the other candidates.

May they observe decency, non-violence and the law in their campaigns.

Good luck to the Commission on Elections (Comelec).

May it effectively manage the election in such a way as to maintain the trust and confidence of the electorate in the system.

Good luck to the mass media.

May they watch the election with vigilance and objectivity.

Good luck to the religious sector.

May its spiritual leaders patiently guide their flocks by educating their consciences on ethics, morality, natural law, and stewardship.

Good luck to the youth and the millennials.

May they exercise their right of suffrage with discernment and wisdom for the sake of the future generations.

Atty. Manuel J. Laserna Jr.

Las Pinas City, Phillippines

Resignation; burden of proof - when an employer interposes the defense of resignation, on him necessarily rests the burden to prove that the employee indeed voluntarily resigned.

SILVERTEX WEAVING CORP., ET. AL. VS. CAMPO, G.R. NO. 211411, MARCH 16, 2016.

“x x x.

Resignation – the formal pronouncement or relinquishment of a position or office – is the voluntary act of an employee who is in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and he has then no other choice but to disassociate himself from employment. The intent to relinquish must concur with the overt act of relinquishment; hence, the acts of the employee before and after the alleged resignation must be considered in determining whether he in fact intended to terminate his employment. In illegal dismissal cases, fundamental is the rule that when an employer interposes the defense of resignation, on him necessarily rests the burden to prove that the employee indeed voluntarily resigned. x x x.23(Citations omitted and emphasis ours).

X x x.

Waiver, Release and Quitclaims; how interpreted in labor cases.

SILVERTEX WEAVING CORP., ET. AL. VS. CAMPO, G.R. NO. 211411, MARCH 16, 2016.

“x x x.

The authenticity and due execution of the undated Waiver, Release and Quitclaims Statement purportedly signed by the respondent was also not sufficiently established. The QDR was not conclusive on the issue of its genuineness. Even granting that such document was actually executed by the respondent, its execution was not fatal to the respondent's case for illegal dismissal. The finding of illegal dismissal could still stand, as jurisprudence provides that "[a ]n employee's execution of a final settlement and receipt of amounts agreed upon do not foreclose his right to pursue a claim for illegal dismissal. "2

X x x.

Reinstatement without backwages; when allowed.

UNIVERSAL ROBINA SUGAR MILLING CORP. VS. ABLAY, ET. AL., G.R. NO. 218172, MARCH 16, 2016.

“X x x.

Clearly, respondents committed some form of misconduct when they assisted Sheriff Calinawan in effecting the levy on the forklift and depositing the same to the municipal hall for safekeeping as they operated the forklift and took it out of company premises, all without the authority and consent from petitioner or any of its officers. However, as correctly pointed out by the CA, respondents did not perform the said acts with intent to gain or with wrongful intent. Rather, they were impelled by their belief -albeit misplaced -that they were merely facilitating the enforcement of a favorable decision in a labor standards case in order to finally collect what is due them as a matter of right, which is the balance of their unpaid benefits. In light of the foregoing, the Court upholds the right of petitioner to take the appropriate disciplinary action against respondents, but nevertheless, holds that respondents should not have been dismissed from service as a less punitive sanction, i.e., suspension, would have sufficed. In Philippine Long Distance Company v. Teves,41 the Court stressed that while it is the prerogative of the management to discipline its employees, it should not be indiscriminate in imposing the ultimate penalty of dismissal as it not only affect the employee concerned, but also those who depend on his livelihood, viz.:

While management has the prerogative to discipline its employees and to impose appropriate penalties on erring workers, pursuant to company rules and regulations, however, such management prerogatives must be exercised in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws and valid agreements. The Court is wont to reiterate that while an employer has its own interest to protect, and pursuant thereto, it may terminate an employee for a just cause, such prerogative to dismiss or lay off an employee must be exercised without abuse of discretion. Its implementation should be tempered with compassion and understanding. The employer should bear in mind that, in the execution of said prerogative, what is at stake is not only the employee's position, but his very livelihood, his very breadbasket. Dismissal is the ultimate penalty that can be meted to an employee. Even where a worker has committed an infraction, a penalty less punitive may suffice, whatever missteps maybe committed by labor ought not to be visited with a consequence so severe. This is not only the laws concern for the workingman. There is, in addition, his or her family to consider. Unemployment brings untold hardships and 42 sorrows upon those dependent on the wage-earner. (Emphases and underscoring supplied)

Further, considering the fact that respondents were mere equipment operators, technicians, and electricians, and thus, not occupying managerial nor confidential positions, and that the incident concerning the forklift was only their first offense in their 14-15 years of service, the Court agrees with the CA that they should have only been meted a penalty that is less severe than dismissal, i.e., suspension. Hence, respondents could not be validly dismissed by petitioner.43

As a general rule, an illegally dismissed employee is entitled to reinstatement (or separation pay, if reinstatement is not viable) and payment of full backwages. In certain cases, however, the Court has carved out an exception to the foregoing rule and thereby ordered the reinstatement of the employee without backwages on account of the following: (a) the fact that the dismissal of the employee would be too harsh a penalty; and ( b) that the employer was in good faith in terminating the employee. 44 

The application of such exception was thoroughly discussed in the case of Pepsi-Cola Products Philippines, Inc. v. Molon,45 to wit: 

An illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages. In certain cases, however, the Court has ordered the reinstatement of the employee without backwages considering the fact that (1) the dismissal of the employee would be too harsh a penalty; and (2) the employer was in good faith in terminating the employee. 

For instance, in the case of Cruz v. Minister of Labor and Employment the Court ruled as follows: 

The Court is convinced that petitioner's guilt was substantially established. Nevertheless, we agree with respondent Minister's order of reinstating petitioner without backwages instead of dismissal which may be too drastic. Denial of backwages would sufficiently penalize her for her infractions. The bank officials acted in good faith. They should be exempt from the burden of paying backwages. The good faith of the employer, when clear under the circumstances, may preclude or diminish recovery of backwages. Only employees discriminately dismissed are entitled to backpay. x x x Likewise, in the case of Jtogon-Suyoc Mines, Inc. v. National Labor Relations Commission, the Court pronounced that "[t)he ends of social and compassionate justice would therefore be served if private respondent is reinstated but without backwages in view of petitioner's good faith." 46 (Emphasis and underscoring supplied) 

To reiterate, respondents were indeed guilty of some form of misconduct and, as such, petitioner was justified in exercising disciplinary action against them. Absent any evidence to the contrary, petitioner's resort to disciplinary proceedings should be presumed to have been done in good faith. 47 Thus, perceiving that petitioner had ample ground to proceed with its disciplinary action against respondents, and that the disciplinary proceedings appear to have been conducted in good faith, the Court finds it proper to apply the exception to the rule on backwages, and consequently, direct the deletion of backwages in favor of respondents.48

X x x.”

Separation pay in lieu of reinstatement; when allowed.

UNIVERSAL ROBINA SUGAR MILLING CORP. VS. ABLAY, ET. AL., G.R. NO. 218172, MARCH 16, 2016.

“x x x.

Finally, the CA correctly observed that Ablay's conviction as an accomplice to the murder of petitioner's former assistant manager had strained the relationship between Ablay and petitioner. Hence, Ablay should not be reinstated in the company and, instead, be paid separation pay, as reinstatement would only create an atmosphere of antipathy and antagonism would be generated as to adversely affect his efficiency and productivity.49 In this relation, it should be clarified that said strained relation should not affect the grant of benefits in his favor prior to his conviction, as the latter pertains to an offense entirely separate and distinct from the acts constituting petitioner's charges against him in the case at bar, i.e., taking of the company equipment without authority. Petitioner's payment of separation pay to Ablay in lieu of his reinstatement is therefore warranted.

X x x.”

Probable cause does not require an inquiry whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act complained of constitutes the offense charged. Thus, in determining the elements of the crime charged for purposes of arriving at a finding of probable cause, only facts sufficient to support a prima facie case against the (accused] are required, not absolute certainty.

REYES VS. OMBUDSMAN, G.R. NO. 212593-94, March 15, 2016; with accompanying cases G.R. Nos. 213163-78, 213540-41, 215880-94, 213475-76.

“x x x.

At the outset, it must be stressed that the Court has consistently refrained from interfering with the discretion of the Ombudsman to determine the existence of probable cause and to decide whether or not an Information should be filed. Nonetheless, this Court is not precluded from reviewing the Ombudsman's action when there is a charge of grave abuse of discretion. Grave abuse of discretion implies a capricious and whimsical exercise of judgment tantamount to lack of jurisdiction. The Ombudsman's exercise of power must have been done in an arbitrary or despotic manner which must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform the duty enjoined or '1 to act at all in contemplation of law.145 In Ciron v. Gutierrez, 146 it was held that: 

This Court’s consistent policy has been to maintain non-interference in the determination of the Ombudsman of the existence of probable cause, provided there is no grave abuse in the exercise of such discretion. This observed policy is based not only on respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality .as well. Otherwise, the functions of the Court will be seriously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped with cases if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.147 (Emphasis and underscoring supplied).

In assessing if the Ombudsman had committed grave abuse of discretion, attention must be drawn to the context of its ruling -that. is: preliminary investigation is merely an inquisitorial mode of discovering whether or not there is reasonable basis to believe that a crime has been committed and that the person charged should be held responsible for it. 148 Being merely based on opinion and belief, "a finding of probable cause does not require an inquiry as to whether there is sufficient evidence to secure a conviction."149 

In Fenequito v. Vergara, Jr.,150 "[p]robable cause, for the purpose of filing a criminal information, has been defined as such facts as are sufficient to engender a well-founded belief that a crime has been committed and that respondent is probably guilty thereof. The term does not mean 'actual or positive cause' nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not require an inquiry xx x whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act complained of constitutes the offense charged."151 ' Thus, in determining the elements of the crime charged for purposes of arriving at a finding of probable cause, "only facts sufficient to support a prima facie case against the (accused] are required, not absolute certainty."152 

X x x.”

Presumptive death; requisites; strict interpretation of "well-founded belief" - 214243.pdf

See - 214243.pdf

REPUBLIC VS. TAMPUS, G.R. NO. 214243, MARCH 16, 2016.

“x x x.

Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior spouse had been absent for four consecutive years and the present spouse had a well-founded belief that the prior spouse was already dead. Under Article 4119 of the Family Code of the Philippines (Family Code), there are four (4) essential requisites for the declaration of presumptive death: 

(1) that the absent spouse has been missing for four ( 4) consecutive years, or two (2) consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the Civil Code; 

(2) that the present spouse wishes to remarry; 

(3) that the present spouse has a well-founded belief that the absentee is dead; and 

( 4) that the present spouse files a summary proceeding for the declaration of presumptive death of the absentee. 20 

The burden of proof rests on the present spouse to show that all the foregoing requisites under Article 41 of the Family Code exist. Since it is the present spouse who, for purposes of declaration of presumptive death, substantially asserts the affirmative of the issue, it stands to reason that the burden of proof lies with him/her. He who alleges a fact has the burden of proving it and mere allegation is not evidence.21

The "well-founded belief' in the absentee's death requires the present spouse to prove that his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already dead. It necessitates exertion of active effort, not a passive one. As such, the mere absence of the spouse for such periods prescribed under the law, lack of any news that such absentee spouse is still alive, failure to communicate, or general presumption of absence under the Civil Code would not suffice.22 The premise is that Article 41 of the Family Code places upon the present spouse the burden of complying with the stringent requirement of "well-founded belief' which can only be discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse's whereabouts, but more importantly, whether the latter is still alive or is already dead. 23

In this case, Nilda testified that after Dante's disappearance, she tried to locate him by making inquiries with his parents, relatives, and neighbors as to his whereabouts, but unfortunately, they also did not know where to find him. Other than making said inquiries, however, Nilda made no further efforts to find her husband. She could have called or proceeded to the AFP headquarters to request information about her husband, but failed to do so. She did not even seek the help of the authorities or the AFP itself in finding him. Considering her own pronouncement that Dante was sent by the AFP on a combat mission to Jolo, Sulu at the time of his disappearance, she could have inquired from the AFP on the status of the said mission, or from the members of the AFP who were assigned thereto. To the Court's mind, therefore, Nilda failed to actively look for her missing husband, and her purported earnest efforts to find him by asking Dante's parents, relatives, and friends did not satisfy the strict standard and degree of diligence required to create a "well-founded belief' of his death.

Furthermore, Nilda did not present Dante's family, relatives, or neighbors as witnesses who could have corroborated her asseverations that she earnestly looked for Dante. These resource persons were not even named. In Republic v. Nolasco,24 it was held that the present spouse's bare assertion that he inquired from his friends about his absent spouse's whereabouts was found insufficient as the names of said friends were not identified in the testimony nor presented as witnesses.25 

Finally, other than Nilda's bare testimony, no other corroborative evidence had been offered to support her allegation that she exerted efforts to find him but was unsuccessful. What appears from the facts as. established in this case was that Nilda simply allowed the passage of time without actively and diligently searching for her husband, which the Court cannot accept as constituting a "well-founded belief' that her husband is dead. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent of the inquiries made by the present spouse.26 

x x x.”

Republic Act No. 10766 - EXTENDING THE LIFE OF THE HUMAN RIGHTS VICTIMS CLAIMS BOARD, AMENDING FOR THIS PURPOSE SECTION 29 OF REPUBLIC ACT NO. 10368

See - Republic Act No. 10766 | Official Gazette of the Republic of the Philippines

[REPUBLIC ACT NO. 10766]

AN ACT EXTENDING THE LIFE OF THE HUMAN RIGHTS VICTIMS CLAIMS BOARD, AMENDING FOR THIS PURPOSE SECTION 29 OF REPUBLIC ACT NO. 10368 ENTITLED, “AN ACT PROVIDING FOR REPARATION AND RECOGNITION OF VICTIMS OF HUMAN RIGHTS VIOLATIONS DURING THE MARCOS REGIME, DOCUMENTATION OF SAID VIOLATIONS, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES”

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Section 29 of Republic Act No. 10368 is hereby amended to read as follows:

“SEC. 29. Work Period; Sunset Clause. – The Board shall complete its work within four (4) years from May 12, 2014. After such period, it shall become functus officio.”

SEC. 2. Repealing Clause. – All laws, presidents decrees, executive orders, resolutions, rules or regulations, or any part thereof which are inconsistent with any of the provisions of this Act, are hereby repealed or modified accordingly.

SEC. 3. Effectivity. – This Act shall take effect upon its complete publication in a newspaper of general circulation.

BusinessWorld | Taxability of service fees received by non-resident foreign online advertising companies from the Philippines

See - BusinessWorld | Taxability of service fees received by non-resident foreign online advertising companies from the Philippines

"x x x.

By:

Aila May S. Alvarez 

Associate

Angara Abello Concepcion 

Regala & Cruz Law Offices 

[ACCRALAW].

In 2013, the BIR issued Revenue Memorandum Circular No. 55-2013 (RMC 55-13) which provides for the definition of, and the tax obligations of persons involved in, various online business transactions. As regards Internet or online advertising, the BIR defined the same as “a form of promotion that uses the Internet to deliver marketing messages to attract customers.” Among others, RMC 55-13 provides for the obligation of: 1) the advertising company to issue official receipt; and 2) the advertiser to withhold and remit to the BIR 2% tax. However, while RMC 55-13 gave fairly detailed rules on the obligations of online advertising companies and advertisers, it failed to consider that most online advertising companies are foreign corporations located abroad.

Generally, whenever a transaction involves foreign corporations, the situs of taxation of the income or transaction becomes an issue. As in the case of Internet or online advertising, the usual questions are: if all the services of the foreign advertising companies are performed, and all the facilities used for such services (i.e., computers, servers, among others) are located, outside the Philippines, are the service fees taxable in the Philippines? Does the fact that the online advertisements are viewable and accessible in the Philippines by the intended market/customer make the service taxable in the country?

Recently, other countries have taken steps in taxing online advertising transactions.

Japan, for example, imposed consumption tax to recipients located in Japan of cross-border digital services performed by offshore providers (i.e., reverse charge mechanism). India, likewise, intends to impose six percent (6%) equalization levy to non-resident online advertising companies which do not have permanent establishments in the country.

At present, no Philippine law categorically imposes tax on online advertising services rendered by non-resident foreign corporations. Admittedly, however, the provisions of the National Internal Revenue Code (Tax Code), a number of BIR rulings and the existing jurisprudence may provide for bases to either exempt or subject such transactions to Philippine taxes.

Possible bases to exempt from Philippine taxes -- Under Section 42 (C)(3) of the Tax Code, payments for services performed outside the country are considered income from sources outside the Philippines. In ITAD Ruling No. 014-01 (16 February 2001), the BIR ruled that if the editing, programming, designing and dissemination of the advertisement are done using the facilities located abroad, the situs of the income is abroad.

It may be argued that views or access within the Philippines do not make advertising service taxable in the country. In BIR Ruling No. 009-05 (2 August 2005), services rendered abroad through the Internet (i.e., registration and maintenance of domain names), even if the same are for clients located in the Philippines (i.e., domain name holders in the Philippines), are considered rendered outside the country. The BIR used the Supreme Court’s decision in CIR v. British Overseas Airways Corporation (G.R. No. 65773-74, 30 April 1987) where it was held that the situs should be where the activity which produced the income happened -- in case of service, where the services are performed. Further, in CIR v. American Express International, Inc. (G.R. No. 152609, 29 June 2005), the Supreme Court held that, for value-added tax (VAT) purposes, the service is different from the product or output that arises from the performance of the service. What determines jurisdiction is the place where the service is rendered, not the place where the output of the service will be ultimately used.

Possible bases to subject to Philippine taxes -- The Supreme Court’s decision in CIR v. British Overseas Airways Corporation, may likewise be used to argue that the display and/or viewing of the advertisements in the Philippines may be considered as the activity which produces the income. Considering that advertising companies are paid for the promotion of products in the Philippine market, it is the visibility of the advertisement in the country which makes the transaction taxable in the Philippines. Moreover, consumption, in the context of a service, means the performance or completion of a contractual duty, releasing the performer from future liability. If the advertising company will not be paid unless advertisements are viewable or accessible in the Philippines, then consumption, arguably, happens in the Philippines.

In addition, the local companies have to consider whether or not the advertising companies are residents of countries with existing tax treaties with the Philippines; if not, whether they, for other reasons, may be considered as doing business in the Philippines. These considerations are important, at least, for income tax purposes.

Unless a new law is passed or a Supreme Court decision covering the above issues is promulgated, the taxability of the service fees received by non-resident foreign online advertising companies from the Philippines will remain unsettled. As such, local companies availing of these services are constantly exposed to the risk of being pursued by the BIR. In case the BIR will take the strict position, the exposure may include the assessment of: a) deficiency 30% final withholding income tax; b) 12% final withholding VAT; c) 30% income tax on the disallowed advertising expenses due to failure to withhold taxes; d) 20% per annum interest for late payment; and e) 25% surcharge for non-filing of return and non-payment of taxes.

The views and opinions expressed in this article are those of the author. This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion.

x x x."

The Liberal Party is the Party of the People... - Vicky Garchitorena

See - (1) The Liberal Party is the Party of the People... - Vicky Garchitorena

"x x x.

Under the auspices of the Liberal Party, Daang Matuwid has delivered directly to millions of Filipinos unprecedented benefits that have put food on their tables, sent their young to school and ensured their health.

1. 4Ps - 4.4 million beneficiary families have grown from 786,523 in 2010. As a result, more than 7.7 million Filipinos have been lifted out of poverty; more than 300,000 of their children have graduated from high school; more than 7,000 from college. 

2. Education - the PNoy administration has ended the 2010 backlog of 66,800 classrooms, 145,827 teachers, 61.7 million textbooks. By the end of 2016, about 185,000 classrooms would have been built or programmed for construction.

3. Jobs - The economy has grown in a robust and sustained manner, generating more than 5 million jobs since 2010.

4. Health - 93.4 million Filipinos are already members of PhilHealth , from 47 million in 2010. For the poorest 40 percent of the population, treatment in public hospitals is free.

5. Electrification - 32,688 far flung sitios have been electrified, giving households more productive hours and encouraging businesses to thrive.

6. Infrastructure -The current budget for infrastructure stands at more than P759.6 billion, more than 4 times the budget in 2010. The national roads laid out, fixed, widened, or constructed run a total of 18,547 kilometers across the country. 

7. Peace and Order - The crime rate in Metro Manila was reduced by more than 15% in 2015.

8. Modernized our Armed Forces – by providing P58 billion in much-needed upgrade projects, more than the P31 billion provided in the past 3 administrations combined

As the leader of Daang Matuwid, PNoy holds the highest political and socioeconomic capital of all past administrations—Presidential Trust and Approval ratings steady at 50 percent; an economy with a GDP growth rate steady at 6.5 to 7 percent; and a current National Budget that stands at more than P3 Trillion. 

x x x."

It is not sound judicial policy to await the final resolution of a criminal case before a complaint against a lawyer may be acted upon

OFFICE OF THE COURT ADMINISTRATOR, COMPLAINANT, VS. PRESIDING JUDGE JOSEPH CEDRICK O. RUIZ, REGIONAL TRIAL COURT, BRANCH 61, MAKATI CITY, RESPONDENT

“x x x.

In Bengco v. Bernardo,⁠26 we ruled that it is not sound judicial policy to await the final resolution of a criminal case before a complaint against a lawyer may be acted upon; otherwise, this Court will be rendered helpless to apply the rules on admission to, and continuing membership in the legal profession during the whole period that the criminal case is pending final disposition, when the objectives of the two proceedings are vastly disparate. Disciplinary proceedings involve no private interest and afford no redress for private grievance. They are undertaken and prosecuted solely for the public welfare and to save courts of justice from persons unfit to practice law. The attorney is called to answer to the court for his conduct as an officer of the court.

X x x.”

Section 27, Rule 138 of the Rules of Court, on the other hand, provides that a lawyer may be removed or suspended from the practice of law, among others, for conviction of a crime involving moral turpitude

OFFICE OF THE COURT ADMINISTRATOR, COMPLAINANT, VS. PRESIDING JUDGE JOSEPH CEDRICK O. RUIZ, REGIONAL TRIAL COURT, BRANCH 61, MAKATI CITY, RESPONDENT

“x x x.

Administrative Matter No. 02-9-02-SC (which took effect on October 1, 2002) provides that an administrative case against a judge of a regular court based on grounds which are also grounds for the disciplinary action against members of the Bar, shall be considered as disciplinary proceedings against such judge as a member of the Bar. It also states that judgment in both respects may be incorporated in one decision or resolution.

Section 27, Rule 138 of the Rules of Court, on the other hand, provides that a lawyer may be removed or suspended from the practice of law, among others, for conviction of a crime involving moral turpitude:

Sec. 27. Attorneys removed or suspended by the Supreme Court on what grounds. — A member of the bar may be removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before the admission to practice, or for a wilfull disobedience of any lawful order of a superior court, or for corruptly or willful appearing as an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice.

X x x.”

A magistrate is judged, not only by his official acts, but also by his private morality and actions.

OFFICE OF THE COURT ADMINISTRATOR, COMPLAINANT, VS. PRESIDING JUDGE JOSEPH CEDRICK O. RUIZ, REGIONAL TRIAL COURT, BRANCH 61, MAKATI CITY, RESPONDENT

“x x x.

We emphasize that judges should be the embodiment of competence, integrity, and independence, and their conduct should be above reproach. They must adhere to exacting standards of morality, decency, and probity. A magistrate is judged, not only by his official acts, but also by his private morality and actions. Our people can only look up to him as an upright man worthy of judging his fellow citizens’ acts if he is both qualified and proficient in law, and equipped with the morality that qualifies him for that higher plane that standing as a judge entails.

In Conrado Abe Lopez v. Judge Rogelio S. Lucmayon,⁠24 we ruled that:

The Code of Judicial Ethics mandates that the conduct of a judge must be free of a whiff of impropriety not only with respect to his performance of his judicial duties, but also to his behavior outside his sala as a private individual. There is no dichotomy of morality: a public official is also judged by his private morals. The Code dictates that a judge, in order to promote public confidence in the integrity and impartiality of the judiciary, must behave with propriety at all times. As we have recently explained, a judge’s official life cannot simply be detached or separated from his personal existence. (emphasis ours)

The conduct of judges, official or otherwise, must always be beyond reproach and must be free from any suspicion tainting him, his exalted office, and the Judiciary. A conduct, act,- or-omission repugnant to the standards of public accountability and which tends to diminish the people’s faith and confidence in the Judiciary, must invariably be handled with the required resolve through the imposition of the appropriate sanctions imposed by law⁠25 and by the standards and penalties applicable to the legal profession.

X x x.”

Serious charge

OFFICE OF THE COURT ADMINISTRATOR, COMPLAINANT, VS. PRESIDING JUDGE JOSEPH CEDRICK O. RUIZ, REGIONAL TRIAL COURT, BRANCH 61, MAKATI CITY, RESPONDENT

“x x x.

Section 11 of Rule 140, as amended, states that [i]f the respondent is guilty of a serious charge, any of the following sanctions may be imposed: (a) dismissal from the service, forfeiture of all or part of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public office, including government-owned or -controlled corporations; (b) suspension from office without salary and other benefits for more than three but not exceeding six months; or (c) a fine of more than P20,000.00 but not exceeding P40,000.00.

Considering the nature and extent of the respondent’s transgressions, we find the imposition of the supreme administrative penalty of dismissal to be appropriate. The people’s confidence in the judicial system is founded not only on the competence and diligence of the members of the bench, but also on their integrity and moral uprightness.⁠23 We would violate this standard and unduly tarnish the image of the Judiciary if we allow the respondent’s continued presence in the bench. We would likewise insult the legal profession if we allow him to remain within the ranks of legal professionals.

X x x.”

Substantial evidence

OFFICE OF THE COURT ADMINISTRATOR, COMPLAINANT, VS. PRESIDING JUDGE JOSEPH CEDRICK O. RUIZ, REGIONAL TRIAL COURT, BRANCH 61, MAKATI CITY, RESPONDENT

“x x x.

We reiterate that only substantial evidence is required to support our conclusions in administrative proceedings.⁠16 Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. The standard of substantial is satisfied when there is reasonable ground to believethat the respondent is responsible for the misconduct complained of, even if such might not be overwhelming or even preponderant.⁠17 That the respondent committed acts constituting malversation or violations of the Anti-Graft and Corrupt Practices Act should be adjudged in the same manner that other acts classified as serious charges under Rule 140 (such as bribery, immorality, gross misconduct, dishonesty, and partisan political activities) should be weighed — through substantial evidence.⁠18 Expressed from the point of view of criminal law, evidence to support a conviction in a criminal case is not necessary in an administrative proceeding like the present case.

The Sandiganbayan, in considering the respondent’s guilt in the criminal case before it, gave full probative value to the testimonies of Fatima Ruda (OlC-City Budget Officer), Jose R. Torres (OlC-City Treasurer), Glendora Deloria (City Accountant), and Pepe Nortal (Police Inspector of the Dapitan City Police). These conclusions and approach do not mean that we shall not examine, on our own in the present proceedings, the evidence on record before us.

X x x.”