LEGAL TIDBITS: FAMILY LAW

Marriage is something more than a mere contract. It is a new relation, the rights, duties, and obligations of which rest not upon the agreement of the parties but upon the general law which defines and prescribes those rights, duties, and obligations. Marriage is an institution, in the maintenance of which in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other. When the legal existence of the parties is merged into one by marriage, the new relation is regulated and controlled by the state or government upon principles of public policy for the benefit of society as well as the parties. (Eloisa Goitia vs. Jose Campos Rueda,G.R. No. 11263, November 2, 1916)

Refusal of a husband to make love to his wife on their wedding night and for 10 months thereafter constitutes psychological incapacity, the ground for annulment of marriage. Love is useless unless it is shared with another. (Chi Ming Tsoi vs. Court of Appeals, et al., G.R. No. 119190, January 16, 1997)

Homosexuality per se is only a ground for legal separation. It is its concealment that serves as a valid ground to annul a marriage. (Manuel G. Almelor vs. RTC of Las Piñas City, et al., G.R. No. 179620, August 26, 2008)

Irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility, and the like, do not by themselves amount to psychological incapacity, the ground for annulment of marriage. (Ricardo P. Toring vs. Teresita M. Toring, et al., G.R. No. 165321, August 3, 2010)

An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled to keep the child in her company. (Joey D. Briones vs. Maricel P. Miguel, et al., G.R. No. 156343, October 18, 2004)

An illegitimate child who is not recognized by the father bears only a given name and his mother's surname, and does not have a middle name. (Republic v. Capote, G.R. No. 157043, February 2, 2007)

There is no law regulating the use of a middle name. Even the Family Code is silent as to what middle name a child may use. (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005)

A man who underwent sex reassignment surgery cannot have his gender in his birth certificate changed from “male” to “female”. (Rommel Jacinto Dantes Silverio vs. Republic of the Phil., G.R. No. 174689, October 19, 2007)

A girl who biologically develops male characteristics in adolescence may have entries in her birth certificate changed -- from “Jennifer” to “Jeff” and from “female” to “male”. (Republic of the Phil. vs. Jennifer B. Cagandahan, G.R. No. 166676, September 12, 2008)

EXECUTION OF JUDGMENT: IS NOTICE OF HEARING REQUIRED?

In a motion for the issuance of a writ of execution relative a decision which has already become final and executory by reason of the non-filing of appeal within the prescribed period, must there be notice served on the adverse party and a hearing conducted first before such decision can be executed?

          Instructive on this matter is the case of

INFRINGEMENT OF TRADEMARK

The elements of the offense of trademark infringement under the Intellectual Property Code are the following:

1. The trademark being infringed is registered in the Intellectual Property Office;

 2. The trademark is reproduced, counterfeited, copied, or colorably imitated by the infringer;

 3. The infringing mark is used in connection with the sale, offering for sale, or advertising of any goods, business or services; or the infringing mark is applied to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon or in connection with such goods, business or services;

 4. The use or application of the infringing mark is likely to cause confusion or mistake or to deceive purchasers or others as to the goods or services themselves or as to the source or origin of such goods or services or the identity of such business; and

 5. The use or application of the infringing mark is without the consent of the trademark owner or the assignee thereof.

 As can be seen, the likelihood of confusion is the gravamen of the offense of trademark infringement. There are two tests to determine likelihood of confusion, namely: the dominancy test, and the holistic test.

A DOSE OF LEGAL QUOTES

It is the peculiar quality of a fool to perceive the fault of others and to forget his own. (Phil. Savings Bank vs. Chowking Food Corp.,G.R. No. 177526, July 4, 2008)

The silence often of pure innocence persuades when speaking fails. (People of the Phil. vs. Romy L. Fallones, G.R. No. 190341, March 16, 

2011)

One's wealth is not measured solely by his occupation. Being a mere supervisor of a motor shop does not prove that such employee does not own any vehicle for sale. (Gregorio Amante, et al. vs. BibianoSerwelas, G.R. No. 143572, September 30, 2005)

A man's reputation is the estimate in which others hold him, not the good opinion which he has of himself. (Phil. Journalists, Inc., et al.vs. Francis Thoenen, G.R. No. 143372, December 13, 2005)

Every man has a right to build, keep and be favored with a good name. This right is protected by law with the recognition of slander and libel as actionable wrongs, whether as criminal offenses or tortious conduct. (RobertoBrillante vs. Court of Appeals, GR 118757 & 121571, October 19, 2004)

A suicide attempt is a form of "escapism" equivalent to flight, which is an indication of guilt. (People of the Phil. vs.G.R. No. 148710, January 15, 2004)

 “Can a man scoop fire into his lap without his clothes being burned? Can a man walk on hot coals without his feet being scorched?” So goes an early admonition against immorality from the Holy Book that is as valuable today as it was thousands of years ago. In the judiciary, “moral integrity is more than a virtue; it is a necessity”. A court employee who has fallen short of the exacting standards of morality and decency has to face the consequences, even after the embers have died and the scars have faded. (Evelina C. Banaag v. Olivia C. Espeleta,A.M. No. P-11-3011, December 16, 2011)

If a man is called to be a street sweeper, he should sweep streets even as Michelangelo painted, or Beethoven composed music, or Shakespeare wrote poetry. He should sweep streets so well that all the hosts of Heaven and Earth will pause to say, here lived a great street sweeper who did his job well. — Martin Luther King, Jr.(People of the Phil. vs. Evangeline S.Siton, et al., G.R. No. 169364, September 18, 2009)

Similar post:
LOVE QUOTES

CAN ONE CABINET MEMBER ASSUME CONCURRENTLY AS DOJ SECRETARY AND SOLICITOR GENERAL?

May one be validly appointed and assume as DOJ Secretary and concurrently as Solicitor General? Does it matter if either or both appointments are merely temporary or in acting capacity?

The answers to both are in the negative. Pursuant to Sec. 13, Article VII of the Constitution, “the President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure”.

To claim exception from this prohibition on double or multiple holding of offices involving the executive officials mentioned, one needs to establish that the concurrent designations and assumptions are expressly allowed by the Constitution itself. The only two exceptions against the holding of multiple offices are: (1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice President to become a member of the Cabinet; and (2) posts occupied by Executive officials specified in Section 13, Article VII without additional compensation in ex officio capacities as provided by law and as required by the primary functions of the officials’ offices.

However, none of these exceptions as embodied in the Constitution apply to justify the concurrent assumption of one as DOJ Secretary (DOJ) and Solicitor General (OSG). The appointment to the post of Solicitor General cannot not merely be by virtue of one’s office (ex-officio) as DOJ Secretary, and vice versa. Similarly, the concurrent designations cannot be justified by arguing that the powers and functions of the OSG are required by the primary functions or included by the powers of the DOJ, and vice versa. By law and by the nature of their powers and functions, these two offices are independent and distinct from each other. The OSG, while attached to the DOJ, is not a constituent unit of the latter, as, in fact, the Administrative Code of 1987 decrees that the OSG is independent and autonomous. With the enactment of Republic Act No. 9417, the Solicitor General is now vested with a cabinet rank, and has the same qualifications for appointment, rank, prerogatives, salaries, allowances, benefits and privileges as those of the Presiding Justice of the Court of Appeals.

The prohibition on double or multiple appointments applies regardless of whether either or both the appointments are merely temporary or in acting capacity. This is so because the constitution does not make a distinction as to the nature of appointment. Secondly, the purpose of the prohibition is to prevent the concentration of powers in the Executive Department officials, specifically the President, the Vice-President, the Members of the Cabinet and their deputies and assistants. To construe differently is to open the veritable floodgates of circumvention of an important constitutional disqualification of officials in the Executive Department and of limitations on the President’s power of appointment in the guise of temporary designations of Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of government agencies, instrumentalities, or government-owned or controlled corporations. (FUNA vs. ACTING SECRETARY OF JUSTICE ALBERTO AGRA, G.R. No. 191644, February 19, 2013)

 Related cases:

FUNA vs. ERMITA, G.R. No. 184740,February 11, 2010

CIVIL LIBERTIES UNION V.THE EXECUTIVE SECRETARY, G.R. No. 83896 February 22, 1991

PUBLICINTEREST CENTER, INC. V. ELMA, G. R. No. 138965, June 30, 2006

GENERAL MANAGER OF WATER DISTRICT IS A CONFIDENTIAL EMPLOYEE

Just recently, the Supreme Court en banc in CIVIL SERVICE COMMISSION vs. PILILLA WATER DISTRICT, G.R. No. 190147, March 5, 2013 has clarified that the position of General Manager of the local water districts remains to be one primarily confidential in nature. This ruling comes despite the amendment of Section 23 of P.D. 198 or the Provincial Water Utilities Act of 1973 introduced by Republic Act No. 9286.

PETITIONS AGAINST THE ANTI-CYBER CRIME LAW

Since its passage, Republic Act No. 10175 or otherwise known as the “Anti Cyber Crime Law”has been the subject of debates. The so-called “netizens” and other numerous advocacy groups have been very vocal against certain provisions of the new law which according to them are violative of the freedom of expression, right to privacy, right to due process, and such other rights enshrined in the Constitution.

As of this date, a number of petitions challenging the constitutionality of the law have been filed and pending before the Supreme Court. To have a glimpse of these petitions and the particular issues raised therein and to listen or download the audio recordings of the oral arguments held at the High Court, click here.

LIST OF OCTOBER 2012 BAR EXAM PASSERS

Out of the total 5,343 aspiring lawyers who took the October 2012 Bar exams, only 946 of them made it. This translates to a mere 17.76% passing rate. This is much lower than the 31.95% recorded last year. This is the second lowest passing rate since 2002 when it was only 19.68%. It is indeed a bloody result. To those who made it, thank God and cherish that gift by sharing your time and service particularly for those in need and unattended. To those who did not, it is not the end. Continue to believe, move, and hope.

TOP 10 PASSERS

1. INGLES, Ignatius Michael D., Ateneo de Manila University, 85.640%

2. KING KAY, Catherine Beatrice O., Ateneo de Manila University, 84.720%

3. LACSON, April Carmela B., University of the Philippines, 84.480%

4. ROMUALDO, Xavier Jesus D., Ateneo de Manila University, 84.100%

5. BASE, Maria Graciela D., University of the Philippines 83.990%

    MACHUCA, Jose Maria Angel P., Ateneo de Manila University 83.990%

6. SALAZAR, Patrick Henry D., University of the Philippines, 83.710%

7. BARCELONA, Ralph Karlo B., Aquinas University, 83.430%

8. LLAMAS, Marvyn S., Ateneo de Manila University, 83.290%

9. LI, Carlo Martin C., Ateneo de Manila University, 83.270%

10. TIOPIANCO, Francis Paolo P., University of the Philippines, 83.250%

Click here to see the complete list of the October 2012 Bar Exam passers. 

CAN A FOREIGNER OWN LAND IN THE PHILIPPINES?

          In particular, can a foreign national apply for registration of title over a parcel of land which he acquired by purchase while still a Filipino citizen?

CHURCH ON REPRODUCTIVE HEALTH LAW

The Diocese of Bacolod caused the posting on the front wall of the Bacolod Cathedral two sets of Tarpaulin, each sized 6x10 feet, with the message Conscience Vote (Team Buhay/Team Patay Tarpaulin). The tarpaulin contained the names of both Anti- and Pro-Reproductive Health Law senatorial candidates.

Is the subject tarpaulin an election propaganda subject to regulation by respondent COMELEC pursuant to its mandate under Section 4, Article IX-C of the 1987 Constitution?

BASIS OF QUORUM UNDER SEC. 52 OF THE CORPORATION CODE

For stock corporations, the “quorum” referred to in Section 52 of the Corporation Code is based on the number of outstanding voting stocks.

"BATAS KASAMBAHAY" OR "DOMESTIC WORKERS ACT"

Recently, Republic Act No. 10361 or otherwise known as the “Domestic Workers Act” or “Batas Kasambahay” was passed. This law defines the basic terms and conditions that must be afforded to the “house-helpers” or the “kasambahay.”

Among the salient provisions are: (1) the right of the “kasambahay” to have the opportunity to finish basic education even while working as such. For this purpose, the law requires the employer to adjust the work schedule of the domestic worker to allow such access to education or training without hampering the services required by the employer; (2) the execution of a written contract of employment in a language known to the domestic worker wherein all the basic terms and conditions of employment are to be embodied; (3) the prohibition against placing the domestic worker under debt bondage; (4) the required provision for daily and weekly rest periods; (5) non-assignment for non-household work unless the domestic worker is paid with the applicable minimum wage for the extra work assigned to him/her; (5) payment of minimum wage for domestic workers as may be determined from time to time [Initial minimum wages: P 2,500/month in NCR; P 2,000/month in chartered cities and first class municipalities; P 1,500 in all other municipalities]; (6) entitlement of domestic workers to 13^th month pay, leave benefits, mandatory SSS, Pag-ibig, Philhealth coverage; (7) prohibition against unjustified dismissal from employment; and (8) civil and criminal liabilities of the employer for violations of the law.

The new law is a welcome development for the lowly and marginalized household workers. There are also provisions that actually protect the legitimate interests of the employers. So, employers should not take the law against them. (Read the full text of Republic Act No, 10361 here!)

EFFECTIVITY OF CORPORATE MERGER OR CONSOLIDATION

When does merger or consolidation of corporations become effective? This was answered in one recent decision rendered by the High Court. The pertinent part of the decision illuminates as follows:

"Ordinarily, in the merger of two or more existing corporations, one of the corporations survives and continues the combined business, while the rest are dissolved and all their rights, properties, and liabilities are acquired by the surviving corporation. Although there is a dissolution of the absorbed or merged corporations, there is no winding up of their affairs or liquidation of their assets because the surviving corporation automatically acquires all their rights, privileges, and powers, as well as their liabilities.

The merger, however, does not become effective upon the mere agreement of the constituent corporations. Since a merger or consolidation involves fundamental changes in the corporation, as well as in the rights of stockholders and creditors, there must be an express provision of law authorizing them.

The steps necessary to accomplish a merger or consolidation, as provided for in Sections 76, 77, 78, and 79 of the Corporation Code, are:

(1) The board of each corporation draws up a plan of merger or consolidation. Such plan must include any amendment, if necessary, to the articles of incorporation of the surviving corporation, or in case of consolidation, all the statements required in the articles of incorporation of a corporation.

(2) Submission of plan to stockholders or members of each corporation for approval. A meeting must be called and at least two (2) weeks’ notice must be sent to all stockholders or members, personally or by registered mail. A summary of the plan must be attached to the notice. Vote of two-thirds of the members or of stockholders representing two-thirds of the outstanding capital stock will be needed. Appraisal rights, when proper, must be respected.

(3) Execution of the formal agreement, referred to as the articles of merger o[r] consolidation, by the corporate officers of each constituent corporation. These take the place of the articles of incorporation of the consolidated corporation, or amend the articles of incorporation of the surviving corporation.

(4) Submission of said articles of merger or consolidation to the SEC for approval.

(5) If necessary, the SEC shall set a hearing, notifying all corporations concerned at least two weeks before.

(6) Issuance of certificate of merger or consolidation.

Clearly, the merger shall only be effective upon the issuance of a certificate of merger by the SEC, subject to its prior determination that the merger is not inconsistent with the Corporation Code or existing laws. Where a party to the merger is a special corporation governed by its own charter, the Code particularly mandates that a favorable recommendation of the appropriate government agency should first be obtained.

          In this case, it is undisputed that the articles of merger between FISLAI and DSLAI were not registered with the SEC due to incomplete documentation. Consequently, the SEC did not issue the required certificate of merger. Even if it is true that the Monetary Board of the Central Bank of the Philippines recognized such merger, the fact remains that no certificate was issued by the SEC. Such merger is still incomplete without the  certification.

The issuance of the certificate of merger is crucial because not only does it bear out SEC’s approval but it also marks the moment when the consequences of a merger take place. By operation of law, upon the effectivity of the merger, the absorbed corporation ceases to exist but its rights and properties, as well as liabilities, shall be taken and deemed transferred to and vested in the surviving corporation.

 The same rule applies to consolidation which becomes effective not upon mere agreement of the members but only upon issuance of the certificate of consolidation by the SEC. When the SEC, upon processing and examining the articles of consolidation, is satisfied that the consolidation of the corporations is not inconsistent with the provisions of the Corporation Code and existing laws, it issues a certificate of consolidation which makes the reorganization official. The new consolidated corporation comes into existence and the constituent corporations are dissolved and cease to exist."(MINDANAO SAVINGS AND LOAN ASSOCIATION, INC., vs. EDWARD WILLKOM, G.R. No. 178618, October 11, 2010)

      It is thus clear from the decision that the effectivity and legal consequences of corporate mergers or consolidations are set into motion not by the mere execution of the articles of merger or consolidation, but by the approval thereof by the Securities and Exchange Commission and its issuance of the corresponding certificate of merger or consolidation.

         

2013 Bar exam results out on March 20, 2013

Bar exam results out on Mar. 20

God bless the examinees, especially my friends.
The complete list of the passers will be posted here! :)

COMELEC CANNOT UNILATERALLY CANCEL CERTIFICATE OF CANDIDACY!

May the COMELEC, on its own initiative, unilaterally cancel a Certificate of Candidacy on the basis that the candidate is not of the minimum age required for the position for which he is running?

This was answered in the negative by the Supreme Court, En Banc, in LUNA vs. COMELEC, G.R. No. 165983, April 24,2007. The material portion of the decision is quoted as follows:

The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in declaring that Hans Roger, being under age, could not be considered to have filed a valid certificate of candidacy and, thus, could not be validly substituted by Luna. The COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a certificate of candidacy filed in due form. In Sanchez v. Del Rosario, the Court ruled that the question of eligibility or ineligibility of a candidate for non-age is beyond the usual and proper cognizance of the COMELEC.

Section 7413 of the Election Code provides that the certificate of candidacy shall state, among others, the date of birth of the person filing the certificate. Section 7814 of the Election Code provides that in case a person filing a certificate of candidacy has committed false material representation, a verified petition to deny due course to or cancel the certificate of candidacy of said person may be filed at any time not later than 25 days from the time of filing of the certificate of candidacy.

If Hans Roger made a material misrepresentation as to his date of birth or age in his certificate of candidacy, his eligibility may only be impugned through a verified petition to deny due course to or cancel such certificate of candidacy under Section 78 of the Election Code.

In this case, there was no petition to deny due course to or cancel the certificate of candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a valid certificate of candidacy and, thus, was not a valid candidate in the petition to deny due course to or cancel Luna’s certificate of candidacy. In effect, the COMELEC, without the proper proceedings, cancelled Hans Roger’s certificate of candidacy and declared the substitution by Luna invalid.

It would have been different if there was a petition to deny due course to or cancel Hans Roger’s certificate of candidacy. For if the COMELEC cancelled Hans Roger’s certificate of candidacy after the proper proceedings, then he is no candidate at all and there can be no substitution of a person whose certificate of candidacy has been cancelled and denied due course. However, Hans Roger’s certificate of candidacy was never cancelled or denied due course by the COMELEC.

Moreover, Hans Roger already withdrew his certificate of candidacy before the COMELEC declared that he was not a valid candidate. Therefore, unless Hans Roger’s certificate of candidacy was denied due course or cancelled in accordance with Section 78 of the Election Code, Hans Roger’s certificate of candidacy was valid and he may be validly substituted by Luna.

PRIMARY JURISDICTION OVER PUBLIC LAND OWNERSHIP BELONGS TO DENR, NOT TO REGULAR COURTS.

In BAGUNU VS. SPS. AGGABAO, G.R. NO. 186487, AUGUST 15, 2011, the question as to who between the DENR and the regular courts has primary jurisdiction over matters of land ownership was clarified. Primary jurisdiction over matters of public land ownership belongs to the Director of Lands, subject to review by the DENR Secretary. On the other hand, jurisdiction over matters of private land ownership is exclusively vested with the regular courts.

            The pertinent portions of the pronouncement are quoted as follows:

       The petitioner insists that under the law actions incapable of pecuniary estimation, to which a suit for reformation of contracts belong, and those involving ownership of real property fall within the exclusive jurisdiction of the Regional Trial Court. Since these actions are already pending before the RTC, the DENR Secretary overstepped his authority in excluding Lot 322 from the petitioner’s free patent application and ordering the respondents to apply for a free patent over the same lot.

     In an action for reformation of contract, the court determines whether the parties’ written agreement reflects their true intention. In the present case, this intention refers to the identity of the land covered by the second and third sale. On the other hand, in a reivindicatory action, the court resolves the issue of ownership of real property and the plaintiff’s entitlement to recover its full possession. In this action, the plaintiff is required to prove not only his ownership, but also the identity of the real property he seeks to recover.

    While these actions ordinarily fall within the exclusive jurisdiction of the RTC, the court’s jurisdiction to resolve controversies involving ownership of real property extends only to private lands. In the present case, neither party has asserted private ownership over Lot 322. The respondents acknowledged the public character of Lot 322 by mainly relying on the administrative findings of the DENR in their complaint-in-intervention, instead of asserting their own private ownership of the property. For his part, the petitioner’s act of applying for a free patent with the Bureau of Lands is an acknowledgment that the land covered by his application is a public land whose management and disposition belong to the DENR Secretary, with the assistance of the Bureau of Lands.

Xxxx

            The resolution of conflicting claims of ownership over real property is within the regular courts’ area of competence and, concededly, this issue is judicial in character. However, regular courts would have no power to conclusively resolve this issue of ownership given the public character of the land, since under C.A. No. 141, in relation to Executive Order No. 192, the disposition and management of public lands fall within the exclusive jurisdiction of the Director of Lands, subject to review by the DENR Secretary.

Xxxx

            With this clarification, it should now be clear that jurisdiction on questions of land ownership is determined by the nature of the land involved. If the land is still a public land, then the DENR has primary jurisdiction. If the subject land is already a private land, the authority to adjudicate matters of ownership belongs with the regular courts.