CIVIL LAW
POINTERS FOR PRELIM
By: Lam
Sigfred Rodriguez Maquinano
1. RA 9048
a. What is that all about?
b. Who will file?
c. Where to file?
Republic Act 9048
AN ACT AUTHORIZING THE CITY OR MUNICIPAL
CIVIL REGISTRAR OR THE CONSUL GENERAL
TO CORRECT A CLERICAL OR TYPOGRAPHICAL
ERROR IN AN ENTRY AND/OR CHANGE OF FIRST
NAME OR NICKNAME IN THE CIVIL REGISTER
WITHOUT NEED OF A JUDICIAL ORDER AMENDING
FOR THIS PURPOSE ARTICLES 376 AND 412
OF THE CIVIL CODE OF
THE PHILIPPINES.
SECTION 1.Authority to Correct Clerical
or Typographical
Error and Change of First Name or
Nickname. — No
entry in a civil register shall be changed
or corrected without
a judicial order, except for clerical or
typographical errors and
change of first name or nickname which can
be corrected or changed by the concerned city or municipal civil registrar or
consul general in accordance with the
provisions of this Act
and its implementing
rules and regulations.
Who May File the Petition and Where. — Any
person having direct and personal interest
in the correction of
a clerical or typographical error in an
entry and/or change of
first name or nickname in the civil
register may fi le, in person, a verified petition with the local civil
registry office of the city
or municipality where the record being
sought to be corrected
or changed is kept. In case the petitioner
has already migrated to another place in the country and it would not be
practical for such party, in terms of transportation expenses, time and effort
to appear in person before the local civil registrar keeping the documents to
be corrected or changed, the petition may be fi led, in person, with the local
civil registrar of the place where the interested
party is presently residing or domiciled.
The two (2) local civil registrars concerned will then communicate to
facilitate the processing of the petition.
Citizens of the Philippines who are
presently residing or domiciled in foreign countries may fi le their petition,
in person, with the nearest Philippine Consulates.
The petitions fi led with the city or municipal
civil registrar
or the consul general shall be processed
in accordance with this Act and its implementing rules and regulations.
All petitions for the correction of
clerical or typographical
errors and/or change of fi rst names or
nicknames may be
availed for only once.
2. Purpose of Civil Registry
The Civil
Register (or Registry) has for its object the recordingof acts, events, and
judicial decrees concerning CIVIL STATUS.
3. Contents of Civil Registry
Art. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations;
(5) annulment of marriages; (6) judgments declaring
marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss; or (12) recovery of citizenship; (13)
civil interdiction; (14) judicial determination of fi liation; (15)
voluntary emancipation
of a minor; and (16) changes of name.
4. Probative value of the entries in the civil
registry
Art. 410. The books making up the civil register and alldocuments
relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained.
5. What is the civil liability of the civil
registrar?
Art. 411. Every civil registrar shall be civilly responsiblefor any
unauthorized alteration made in any civil register,to any person suffering
damage thereby. However, the civil
registrar may exempt himself from such liability if he provesthat he has
taken every reasonable precaution to prevent theunlawful alteration.
6. Difference between summary proceedings and
adversarial proceedings
The errors which can be corrected in mere
summary
proceedings are clerical or typographical
errors, not those on
such important things as legitimacy or nationality
or other controversial matters. (Chomi v. Registrar, 99 Phil. 1004; Brownv.
Republic, 99 Phil. 818; Ansaldo v. Republic, 102 Phil. 1046;Chua Tian Sang v.
Republic, L-15101, Sept. 30, 1960; Castro v. Republic, L-17431, Apr. 30, 1963;
Lui Lim v. Republic, L-18213, Dec. 24, 1963; Reyes, et al. v. Republic,
L-17642, Nov. 27, 1964; Ceferina V. David v. Republic, L-21316, Nov. 29, 1965).
Similarly, the changing of an allegedly erroneous name registered is
a SUBSTANTIAL change because the identity of a parent is affected. The proper
step would be an appropriateproceeding, not a summary one. Be it noted
therefore that ifthe error is a substantial or material one, same
can still be corrected by a court judgment — provided that the action is not summary
in nature. More detailed and appropriate proceedingsare required. (See
Matias v. Republic, L-26982, May 8, 1969).A harmless change in a name that
has been clearly misspelled may however be allowed under Art. 312. (Barillo
v. Republic, L-14823, Dec. 28, 1961). Where the name appearing in
the Civil Registry is not incorrect but
merely incomplete, such incompleteness is not sufficient to authorize
correction thereof, especially if the purpose is to secure authority to use an
alias. (Ong, et al. v. Republic, L-14359, Jan. 29, 1960).However, where
no controversial issue exists, and the correction has for its purpose to have
the records state a fact already established by competent authority, the
same should be granted. (Lim v.
Republic, L-8932, May 31, 1957). A petition should also be
granted when in matters of paternity, the
registrar had NO right to record the name of the alleged father, when it was
only the mother who appeared at the office of the Civil Registrar and she had no
authority to reveal the name of the said father. (Rocesv. Local Civil
Registrar, 102 Phil. 1050). However, ordinarily, so long as the entry could
properly be made by the Registrar, “one’s fi liation or parentage appearing in
a public record where the law requires it to be entered, may not be changed
except
in a proper proceeding where the person
concerned is given an appropriate time to be heard.” (Beduya v. Republic,
L-17639, May 29, 1964).
When a Proceeding Is Deemed An ‘Adversary’
or ‘Appropriate’
Proceeding
Three (3) instances are present before a
proceeding is
deemed adversary or appropriate,
to wit: (1) As long as the relevant facts have been fully and properly
developed; (2) Where the opposing counsel is given the opportunity to demolish
the opposite party’s case; and (3) Evidence is thoroughly weighed and
considered. (Republic v. CFI, L-36773, May 31, 1988).
7. Different grounds for change of 1st
name or nickname
SEC. 4.Grounds for Change of First Name
or Nickname.
— The petition for change of fi rst name or nickname may
be allowed in any of the following cases: (1) The petitioner fi nds the fi rst
name or nickname to be ridiculous, tainted with dishonor or extremely diffi
cult to
write or pronounce; (2) The new fi rst
name or nickname has been habitually and continuously used by the petitioner
and he has been publicly known by that fi rst names or nicknames in the
community; or (3) The change will avoid confusion.
8. No Mandamus will lie
Mandamus will not lie to compel the local civil
registrar to register the certificate of live birth of
an illegitimate child using the father’s surname, even with the consent of the
latter. Mandamus does not lie to compel the performance of
an act prohibited by
law.
Case:
MossesgeldVs. CA (cross check the spelling nalang)
9. Presumption of death (Arts. 390, 391, 392)
Art. 390. After an absence of seven years, it being
unknown whether or not the absentee still lives, he shall be presumed dead for
all purposes, except for those of succession. The absentee shall not be
presumed dead for the purpose of opening his succession till after an absence
of ten years. If he disappeared after the age of seventy-fi ve years, an
absence of fi ve years shall be sufficient in order that his succession may be
opened.
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among
the
heirs: (1) A person on board a vessel lost during a
sea voyage, or an aeroplane which is missing, who has not been heard of for four
years since the loss of the vessel or aeroplane; (2) A person in the armed
forces who has taken part in war, and has been missing for four years; (3) A
person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
Art. 392. If the absentee appears, or without
appearing
his existence is proved, he shall recover his property
in the condition in which it may be found, and the price of any property that
may have been alienated or the property acquired therewith; but he cannot claim
either fruits or rents.
10. Declaration of provisional measures in case of
absence (Art. 381)
a. Who may represent in all that may be
necessary?
Art. 381. When a person disappears from his domicile,
his whereabouts being unknown, and without leaving an agent to administer his
property, the judge, at the instance of an interested party, a relative, or a
friend, may appoint a person to represent him in all that may be necessary.
This same rule shall be observed when under similar circumstances the power
conferred by the absentee has expired.
Art. 382. The appointment referred to in the preceding
article having been made, the judge shall take the
necessary measures to safeguard the rights and interests of the absentee and
shall specify the powers, obligations and remuneration of his representative,
regulating them, according to the circumstances, by the rules concerning
guardians.
Art. 383. In the appointment of a representative, the
spouse present shall be preferred when there is no legal
separation. If the absentee left no spouse, or if the
spouse present is a minor, any competent person may be appointed by the court.
11. Art. 384
Art. 384. Two
years having elapsed without any newsabout the absentee or since the receipt of
the last news, and five years in case the absentee has left a person in charge
of the administration of his property, his absence may be declared
12. Who can ask for declaration of absence?
Art. 385. The following may ask for the declaration of
absence: (1) The spouse present; (2) The heirs
instituted in a will, who may present an
authentic copy of the same; (3) The relatives who may
succeed by the law of intestacy; (4) Those who may have over the property of
the absentee some right subordinated to the condition of his death.
13. Who will make arrangements for burial?
Art. 305. The duty and the right to make arrangements
for the funeral of a relative shall be in accordance
with the order established for support, under Article 294 (now Article 199 of
the Family Code). In case of descendants of the same degree, or of brothers and
sisters, the oldest shall be preferred. In case of ascendants, the paternal
shall have a better right.
14. Order of preference in forms of burial?
The cost of burial of a dead person shall be borne by
the nearest kin in the following order:
a) The spouse;
b) The descendants in the nearest degree;
c) The ascendant in the nearest degree; and
d) The brothers and sisters.
15. What name will the spouse use incase of
annulment
Art. 371. In case of annulment of
marriage, and the wifeis the guilty party, she shall resume her maiden name and
surname. If she is the innocent spouse, she may resume her maiden name and
surname. However, she may choose to continue employing her former husband’s
surname, unless:(1) The court decrees otherwise, or
(2) She or the former husband is married
again to anotherperson.
16. Ways a married woman use surname
(1) Her maiden fi rst name and surname and add her
husband’s surname, or (2) Her maiden fi rst name and
her husband’s surname, (3) Her husband’s full name, but prefixing a word
indicating that she is his wife, such as “Mrs.’’
17. Burial be made according to social position
Art. 306. Every funeral shall be in keeping with the
social position of the deceased.
The higher the social standing of the deceased in
life,
the more dignified and expensive should his funeral
be, as a
general rule. The Revised Penal Code, however,
prohibits the pompous and elaborate funeral of a criminal who has been given
the death penalty. This is for the purpose of not giving undue publicity to the
notoriety in life of the criminal. In this connection, it is worthwhile to note
the provisions of Art. 2165: “When funeral expenses are borne by a third
person, without the knowledge of those relatives who were obliged to give
support to the deceased, said relatives shall reimburse the third person should
the latter claim reimbursement.’’
18. Rules of survivorship
Art. 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to
which
of them died fi rst, whoever alleges the death of one
prior to the other, shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there shall be no transmission of
rights from one to the other.
Presumptions on Survivorship under the Revised Rules
of Court
Under the Revised Rules of Court, Art. 43 is COPIED
and
is referred to as Rule 131, Sec. 5(kk). Immediately
preceding it is Rule 131, Sec. 5(jj), which reads as follows:
When two persons perish in the same calamity, such as
a wreck, battle, or conflagration, and it is not shown
who died first, and there are no particular circumstances from which it can be
inferred, the survivorship is presumed from the probabilities resulting from
the strength and age of the sexes, according to the following rules: (a) If
both were under the age of fi fifteen years, the older is presumed to have
survived; (b) If both were above the age of sixty, the younger is presumed to
have survived; (c) If one be under fi fifteen and the other above sixty, the
former is presumed to have survived; (d) If both be over fi fifteen and under
sixty, and the sexes be different, the male is presumed to have survived; if
the sexes be the same, then the older;(e) If one be under fi fifteen or over
sixty, and the other between those ages, the latter is presumed to have
survived.
19. When is a foetus considered born (art. 41)
Art. 41. For civil purposes, the foetus is considered
born
if it is alive at the time it is completely delivered
from the
mother’s womb. However, if the foetus had an
intra-uterine life of less than seven months, it is not deemed born if it dies
within twenty-four hours after its complete delivery from the maternal womb.
20. Doctrine of presumptive personality
Art. 40. Birth determines personality; but the
conceived
child shall be considered born for all purposes that
are favorableto it, provided it be born later with the conditions specified in
the following article. (29a)
COMMENT:
(1) Beginning of Personality
Personality does not begin at birth; it begins at
conception.
This personality at conception is called presumptive
personality. It is, of course, essential that birth should occur later,
otherwise the foetus will be considered as never having possessed legal
personality. From, of course, another viewpoint, we may say that personality (actual
personality) really commences at birth, for conception may in certain
cases, be already considered birth.(See wording of Art. 41).
21. Limjuco v. Estate of
Pedro Fragante
In a questionable decision of the Supreme Court, it
has
held that the “estate’’ of a deceased is a person that
may continue the personality of the deceased even after death — for the purpose
of settling debts.
22. Civil Personality is extinguished (art. 42)
Art. 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of
the deceased is determined by law, by contract and by will.
How Civil Personality is Extinguished
Civil personality is extinguished by death (physical
death).
Civil interdiction (civil death) merely restricts, not
extinguishes,
capacity to act.
23. Enumeration of limitation of the capacity to
succeed (art. 38,39)
Art. 38. Minority, insanity or imbecility, the state
of
being a deaf-mute, prodigality and civil interdiction
are
mere restrictions on capacity to act, and do not
exempt the incapacitated person from certain obligations, as when the latter
arise from his acts or from property relations, such as easements.
a. Civil Interdiction
Civil interdiction (the deprivation by the court of a
person’s
right):
1) To have parental or marital authority.
2) To be the guardian of the person and property of a
ward.
3) To dispose of his property by an act inter vivos(he
cannot donate, for this is an act inter vivos;
but
he can make a will, for this is a disposition mortis
causa).
4) To manage his own
property.
24. Different Human Relations (Art. 19, 20, 21)
Art. 19. Every person must, in the exercise of his rights
and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, willfully
or
negligently causes damage to another, shall indemnify
the latter for the same.
Art. 21. Any person who willfully causes loss or
injury
to another in a manner that is contrary to morals,
good
customs or public policy shall compensate the latter
for the damage.
25. Rule of territoriality and exterritoriality
Art. 17. The forms and solemnities of contracts,
wills,and other public instruments shall be governed by the lawsof the country
in which they are executed.When the acts referred to are executed before the diplomatic
or consular officials of the Republic of the Philippinesin a foreign country,
the solemnities established by the Philippinelaws shall be observed in their
execution.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.
Rule of Exterritoriality
Even if the act be done abroad, still if executed
before
Philippine diplomatic and consular officials, the
solemnities of Philippine laws shall be observed. The theory is that the
act is being done within an extension of Philippine territory (the principle of
exterritoriality).
26. Principle of Nationality
Art. 15. Laws relating to family rights and duties or
to the status, condition and legal capacity of persons
are
binding upon citizens of the Philippines, even though
living abroad.
Art. 15 which is a rule of private international law
(or
aconflicts rule, containing as it does a reference to
a foreign
element, such as a foreign country) stresses the
principle of
nationality; some other countries, like Great Britain and the
United States, stress the principle of domicile.
Does Art. 15 apply to Filipinos merely?
ANSWER:
(a) Yes — insofar as Philippine laws are concerned. (Gibbs
v. Gov’t., 49 Phil. 293).(Thus, a Filipino husband is still
a husband, under our law, wherever he may be or may
go). (Yañez v. Fuston, 29 Phil. 606). (b) No —
in the sense that nationals of other countries arealso considered by us as
being governed in matters ofstatus, etc., by their own national law. Thus,
we may say that Filipinos are governed by Philippinelaws; foreigners, by their
own national law. (In Gibbs v. Gov’t., 49 Phil. 293, the Supreme Court
made the observation that “we should resort to the law of California, the
nationality and domicile of Mr. and Mrs. Gibbs, to ascertain the norm which
would be applied here as law were there any question as to their status.”) (See
Babcock Templeton v. Rider Babcock, 52 Phil. 130; In re: Estate of Johnson, 39
Phil. 156). As a matter of fact, our Supreme Court has categorically stated
that where the spouses are citizens of the United States, their marital and
personal status, and the dissolution of such status are governed by the laws of
the United States, which laws sanction divorce. This is pursuant to Art. 15 of
the Civil Code.(Recto v. Harden, L-6897, Nov. 29, 1956).
27. LexReiSitae (Art. 16)
Art. 16. Real property as well as personal property is
subject to the law of the country where it is
situated.
However, intestate and testamentary successions, both
with respect to the order of succession and to the
amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property
and regardless of the country wherein said property may be found.
Property, whether real or personal, is
as a rule governed
by the lexreisitae(law of the place where the
property is situated).
(Art. 16, par. 1).
It is inevitable that the rule should be thus for real
property,
for after all, real property is attached to
the land, and a
contrary rule may render a judgment on the land ineffective
or
incapable of enforcement.
Upon the other hand, the rule enunciated under the new
Civil Code for personal property changes the old rule
on the
matter. Under the old Civil Code (Art. 10, old
Civil Code),
personal property was subjected to the law of the
nation of the
owner; i.e., personal property followed the
national or domiciliary law of the owner, under the doctrine of mobiliasequunturpersonam.
The old rule grew up in the Middle Ages when movable property could easily be
carried from place to place. (Pullman’s Palace Car Co. v. Comm. of
Pennsylvania, 141 U.S. 18-22). However, now that there has been a great
increase inthe amount and variety of personal property not immediatelyconnected
with the person of the owner (Wharton, Conflicts of Laws, Secs. 297-311), it
was deemed advisable by the Congress of the Philippines to adopt the doctrine
of lexreisitaealso to movables. (Report of Senator Lorenzo Tañada,
Chairman, Special Committee on the new Civil Code).
28. Renvoi Doctrine
Renvoiliterally means a referring back; the problem
arises when there is a doubt as to whether a reference
in our
law (such as Art. 16, par. 2 of the Civil Code) to a foreign
law (such as the national law of the deceased) —
(a) is a reference to the INTERNAL law of said foreign
law;
or
(b) is a reference to the WHOLE of the foreign law,
including its CONFLICTS RULES. In the latter case, if one state involved
follows the nationality theory, and the other, the domiciliary theory,
there is a
possibility that the problem may be referred back to
the law of the first state.
29. How are laws repealed (Art. 7)
Art. 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused
by
disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with
the Constitution, the former shall be void and the
latter shall govern. Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or the Constitution.
Rule for General and Special Laws
In case of conflict between a general and a special
law,
which should prevail?
a) If the general law was enacted prior to the special
law,
the latter is considered the exception to the general
law.
Therefore, the general law, in general remains good law,
and there is no repeal (Lichauco v. Apostol, 44
Phil. 138), except insofar as the exception or special law is
concerned.
b) If the general law was enacted after the
special law, the
special law remains unless:
(1) There is an express declaration to the contrary.
(2) Or there is a clear, necessary and unreconcilable
conflict. (Cia General v. Coll. of Customs, 46
Phil. 8).
(3) Or unless the subsequent general law covers the
whole subject and is clearly intended to replace the
special law on the matter. (In re: Guzman, 73 Phil.
51; Joaquin v. Navarro, 81 Phil. 373).].
30. Judicial decisions form part of the legal
system of the Philippines
Art. 8. Judicial decisions applying or interpreting
the
laws or the Constitution shall form a part of the
legal system of the Philippines.
While it is true that decisions which apply or
interpret
the Constitution or the laws are part of the legal
system of the Philippines (Art. 8, Civil Code) still they are NOT
laws, if this were so, the courts would be allowed to legislate contrary to the
principle of separation of powers. Indeed, the courts exist in order to state
what the law is, not for giving it. (Jus dicere,non jus dare). There
have been instances, however, when the Supreme Court has made use of “judicial
statesmanship,” i.e., it has rendered decisions not based on law or
custom.
Decisions Referred to in Art. 8
The decisions referred to are those enunciated by the
Supreme Court, which is the court of last resort.
Thus, the
Supreme Tribunal in Miranda, et al. v. Imperial, et
al. (77
Phil. 1066), categorically stated that “only the decisions of this
Honorable Court establish jurisprudence or doctrines in this jurisdiction.”
Thus, decisions of subordinate courts are only per suasive in nature, and can
have no mandatory effect. However, this rule does not militate against the fact
that a conclusion or pronouncement of the Court of Appeals which covers a point
of law still undecided in the Philippines may still serve as a judicial
guide to the inferior Courts. It is even possible that such conclusion or
pronouncement can be raised to the status of a doctrine, if after it has been
subjected to test in the crucible of analysis and revision, the Supreme Court
should fi nd that it has merits and qualities sufficient for its consecration
as a rule of jurisprudence. (77 Phil. 1066; see also Gaw Sin Gee v.Market
Master of the Divisoria Market, et al., C.A., 46 O.G.2617).
31. Principle of Stare Decisis
Doctrine of Stare Decisis
In the Philippines, we adhere to the doctrine of stare
decisis(let it stand, et non quietamovere) for reasons of stability
in the law. The doctrine, which is really “adherence
to
precedents,” states that once a case has been decided
one way, then another case, involving exactly the same point at issue, should
be decided in the same manner. Of course, when a case has been decided erroneously,
such
an error must not be perpetuated by blind obedience to
the
doctrine of stare decisis. No matter how sound
a doctrine may be, and no matter how long it has been followed thru the years,
still if found to be contrary to law, it must be abandoned. The principle of stare
decisisdoes not and should not apply when there is a conflict between the precedent
and the law. (TanChong v. Sec. of Labor, 79 Phil. 249).
32. Ignorance of the law excuses no one.
Art. 3. Ignorance of the law excuses no one from
compliance therewith.
Latin Maxim on Ignorance of the Law
A familiar legal maxim is found in the Latin Ignorantialegis
non excusatmeaning Ignorance of the law excuses no one. It would
seem that this maxim is a bit unfair today: before the compliance is required,
there must be due promulgation of the law; now then, the present method of
promulgation — publication in the Official Gazette is clearly inadequate
— fi rstly, the Official Gazette generally comes out several
years late; secondly, how many of our citizens can get hold of a copy
thereof, much less, read the same? Moreover, in a very real sense, law was made
for evil men. The good hardly need law when they do good acts, this is not
because they are deliberately complying with the law, but because they are
simply good men. Upon the other hand, without the maxim, the corrupt will make
social existence unbearable, abuses will increase, and ignorance will be
rewarded.
33. Rule when the repealing law is itself repealed
(see No. 29)
34. Prospectivity of Laws
Art. 4. Laws shall have no retroactive effect, unless
the contrary is provided.
In general, laws are prospective, not retroactive.
While
the judge looks backward, the legislator must look
forward. If the rule was that laws were retroactive, grave injustice
wouldoccur, for these laws would punish individuals for violationsof laws not
yet enacted. While ignorance of the law does not serve as an excuse, such
ignorance refers only to laws that have already been enacted.
a. What are the exceptions?
Exceptions to the Prospective Effects of Laws
While in general, laws are prospective, they are
retroactive
in the following cases:
(a) If the laws themselves provide for retroactivity (Art.
4,
Civil Code), but in no case must an ex post facto law be
passed. [It should be noted that generally, the
Philippine
Constitution does not prohibit retroactive laws. (Camacho
v. Court of Industrial Relations, 80 Phil. 848).].
[NOTE: An example of an ex post facto law is one
that makes criminal and punishable an act done before
the passing of the law and which was innocent when
done.
(Boston v. Cummins, 6 Ga. 102; People v. Bao, L-11324,
Mar. 29, 1958).]
[NOTE: The War Profits Tax Law, which imposed
certain taxes on profits made during the Japanese
Occupation
or World War II, while retroactive in application
(since the law was enacted AFTER World War II) is not
unconstitutional since, it is NOT ex post facto.
The prohibition
against ex post facto laws applies only to criminal
matters, and not to civil matters (People v. Taguba,
GR
95207-17, Jan. 10, 1994, 47 SCAD 172) such as the
imposition
of taxes. (Testate Estate of Fernandez, L-9141, Sept.
25, 1956).Indeed, tax statutes can expressly be allowed
retroactive operation. Such a phenomenon is indeed
incidental
to social existence. (Lorenzo v. Posadas, 64 Phil.
353). Of course, failure to pay under the War Profits Tax
Law is criminally punishable, but this refers only to
failure
to pay AFTER (not before) the effectivity of the law
— the taxes imposed on profits earned during the war.].
[NOTE: Art. 256 of the Family Code provides:
“This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights
in
accordance with the Civil Code or other laws.”].
(b) If the laws are remedial in nature.
[REASON — There are no vested rights in rules
of procedure. (Aguillon v. Dir. of Lands, 17 Phil.
507).
Therefore, new rules of court on procedure can apply
to
pending actions. (People v. Sumilang, 77 Phil. 764;
Art.
2258 of the Civil Code provides that procedural
statutes
apply to the enforcement of rights vested under the
old law.
See also Guevarra v. Laico, 64 Phil. 144; Laurel v.
Misa,
76 Phil. 372).The Arbitration Law (RA 876) which took
effect on December 19, 1953, is procedural in
character
and may be applied retroactively to an agreement to
submit
to arbitration entered into prior to said date. (Testate
Estate of JacoboFajardo, L-9324, Aug. 30, 1957).].
(c) If the statute is penal in nature, provided:
1) It is favorable to the accused or to the convict;
2) And provided further that the accused or convict
is not a habitual delinquent as the term is
defined under the Revised Penal Code. (Art. 22, Rev. Penal
Code).
[EXAMPLE: Statutes which lighten the penalty or
completely extinguish the liability. (U.S. v. Cuna,
12 Phil.
241; U.S. v. Soliman, 36 Phil. 5).
Note that where the law imposes the payment of
interest for delay in the payment of taxes, the
interest
cannotbe considered a penalty, and the same cannot be
applied retroactively to a tax delinquency incurred
prior
to the passage of the law. The reason is that interest
is
merely considered as just compensation to the
state for
the delay in paying the tax; and for the concommitant
use by the taxpayer of funds that rightfully should be
in
the government’s hands, especially if the interest
charged
is made proportionate to the period of delay. (Maria
B.
Castro v. Collector, L-12174, Dec. 28, 1962).].
(d) If the laws are of an emergency nature and are
authorized
by the police power of the government. (Santos v.
Alvarez, 44 O.G. 4259). Laws enacted in the exercise of
police power, to which Rep. Act No. 1199 belongs, may
constitutionally
affect tenancy relations created even before
the enactment or effectivity thereof. (Viuda de
Ongsiako
v. Gamboa, 47 O.G. 5613; Valencia, et al. v. Surtido,
et
al., L-17277, May 31, 1961).
(e) If the law is curative (this is necessarily
retroactive for
the precise purpose is to cure errors or
irregularities).
However, this kind of law, to be valid, must not
impair
vested rights nor affect fi nal judgments. (See
Aetna Insurance
Co. v. O’Malley, 118 SW 3). (Frivaldo v. COMELEC
and Lee, GR 120295, June 28, 1996, 71 SCAD 413).
(f) If a substantive right be declared for the fi rst
time, unless
vested rights are impaired. (See Art. 2253, par. 2;
also
Uson v. Del Rosario, L-4963, Jan. 29, 1953; Belen v.
Belen,
49 O.G. 997; People v. Alejaga, GR L-49, O.G. 2833).
[NOTE: What constitutes a vested or acquired right
will be determined by the Courts as each particular
issue
is submitted to them. The Supreme Court has defined a
vested right as some right or interest in property
that has become fi xed and established that it is no longer open to
controversy. (Balbao v. Farrales, 51 Phil. 498). It
may also
bedefined as such right the deprivation of which would
amount to a deprivation of property without due
process of
law. A right is also vested when it has so far been
perfected
that nothing remains to be done by the party asserting
it.
(Dones v. Director, et al., L-9302, May 14, 1956).].
[NOTE: A spurious (say, adulterous) child, whose
filiation has been either judicially declared or
voluntarily
admitted by the parent, was not entitled to any
legitime
under the old Civil Code, but is now entitled thereto
under
the new Civil Code, provided that the parent dies after
the new Civil Code became effective. This is an
example
of a new right granted for the fi rst time. Be it
noted,
however, that to get his rights, the spurious child
must
as already stated have been recognized voluntarily or
by
judicial decree. (See Republic v. Workmen’s
Compensation
Commission, L-19946, Feb. 26, 1965).
But if the parent died under the old Code, the
spurious
child cannot get any legitime, since this would now
impair the vested right of the other heirs. This is so
even
if the inheritance has not yet been distributed,
because
succession accrues from the moment of death and not
from
the moment of distribution of the inheritance. (Art.
777,
Civil Code).Indeed, the law distinctly provides that successional
rights are vested upon the death of the decedent.
(Art. 2263, Civil Code).].
35. Rights are waivable
Art. 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.
a. Requisites of a valid waiver
Rules for the Waiver of Rights
General rule — Rights may be waived
Exceptions:
(a) When the waiver is contrary to law, public order,
public
policy, morals, or good customs.
(b) When the waiver is prejudicial to a third person
with a
right recognized by law. (Art. 6, Civil Code). (Unless,
of
course, such waiver has been made with the consent of
such third persons).
[NOTE: Art. 6 deals with the waiver of rights,
not
the waiver of obligations or duties. Waiver of
obligations
or duties would be possible only if the person being
possessed
of certain rights, and resultant obligations or
duties
waives the said rights; or if the law itself
authorizes
such waiver (e.g., if a person who has a right
renounces
the same, in a sense he is exempting himself from the
obligations that may have ensued from the exercise of
the
right)
36. Principle in computing the period
Art. 13. When the laws speak of years, months, days or
nights, it shall be understood that years are of three
hundred sixty-fi ve days each; months, of thirty days; days, of
twentyfourhours; and nights from sunset to sunrise. If months are designated by
their name, they shall be computed by the number of days which they
respectively have. In computing a period, the fi rst day shall be excluded, and
the last day included.
(1) Examples of How Periods Are Computed
(a) 10 months = 300 days
Thus, a debt payable in 10 months must be paid at
the end of 300 days, and not on the same date of
a month,
ten months later.
(b) 1 year = 365 days
This does not, however, apply in computing the age
of a person. Thus, a person becomes 21 years old on
his
21st birthday anniversary, and not on the date arrived
at by multiplying 21 by 365 days. However, in case the
law speaks of years (as in prescriptive periods for
crimes),
it is believed that the number of years involved
should
be multiplied by 365. Thus, if a crime that is
committed
today prescribes in 10 years, the end of said period
would
be 365 x 10 or, 3,650 days from today. In effect,
therefore,
the period will be shorter than when the calendar
reckoning
is used because certain years are LEAP YEARS. (See
NAMARCO v. Tecson, L-29131, Aug. 27, 1969).
[NOTE: Any year, except a century year, is a
leap
year if it is exactly divisible by FOUR. In the case of
a
century year the same must be exactly divisible by
400(four hundred) to be a LEAP YEAR (Example: the year
1,600 was a leap year).].
(c) March = 31 days
This is because the month is specifically designated
by name. (Art. 13, par. 2, Civil Code).Thus, if
in a contract
it is stipulated that performance should be done,
say in the month of “March,” the act can still be
validly
performed on March 31.
(d) One week = seven successive days. (Derby and
Co. v.
City of Modesto, 38 Pac. 901). But a week of labor, in the
absence of any agreement, is understood to comprehend
only six labor days. (Lee Tay & Lee Chay, Inc.
v. Kaisahan
Ng MgaManggagawa, L-7791, Apr. 19, 1955).
(2) Civil or Solar Month
The civil or solar or calendar month is that which
agrees
with the Gregorian calendar, and those months in said
calendar
are known by the names of January, February, March,
etc.
They are composed of unequal portions of time. (Bouvier’s
Law
Dictionary, cited in Gutierrez v. Carpio, 53 Phil.
334).
The general rule is that when months are not
designated
by name, a month is understood to be only 30 days;
thus, Art.
90 of the Revised Penal Code refers to a “30-day’’
month, and
not to the solar or civil month. (People v. Del
Rosario, L-7234,
May 21, 1955).
(3) Meaning of ‘Day’ Applied to the Filing of
Pleadings
If the last day for submitting a pleading is today,
and at
11:40 p.m. (after office hours) today it is fi led,
the Supreme
Court has held that it is properly fi led on time
because a day
consists of 24 hours. (See De Chavez v. Ocampo and
Buenafe, 66
Phil. 76).This presupposes that the pleading was duly received
by a person authorized to do so.
[NOTE: The question has been asked: When is
mailed petition considered fi led, from the date of
mailing
or from the time of actual receipt by the Court? The
Supreme
Court, in the case of Caltex (Phil., Inc. v.
KatipunanLabor Union, L-7496, Jan. 31, 1956), held that the petition
is considered fi led from the time of mailing. This is
because the practice in our courts is to consider the
mail
as an agent of the government, so that the date
of mailing
has always been considered as the date of the fi ling
of any
petition, motion or paper. In Gonzalo P. Nava v.
Commissioner
of Internal Revenue, L-19470, Jan. 30, 1965, the
Court held that while there is a presumption that a
letter
duly directed and mailed was received in the regular
course of mail, still there are two facts that must fi
rst be
proved before the presumption can be availed of: (a)
the
letter must have been properly addressed with postage
prepaid, and (b) the letter must have been mailed.].
(4) Computation of Periods
In computing a period, the fi rst day shall be
excluded, and
the last day included. (Art. 13, last par., Civil
Code).Thus, 12
days after July 4, 2006 is July 16, 2006. In other
words, we
just add 12 to the fi rst-mentioned date.
(5) Rule if the Last Day is a Sunday or a Legal
Holiday
If the last day is a Sunday or a legal holiday, is the
act
due that day or the following day?
It depends.
(a) In an ordinary contract, the general rule
is that an act is
due even if the last day be a Sunday or a legal
holiday.
Thus, a debt due on a Sunday must, in the absence of
an agreement, be paid on that Sunday. [This is
because
obligations arising from contracts have the force of
law
between the contracting parties. (Art. 1159, Civil
Code).].
There are, of course, some exceptions, among them the
maturity date of a negotiable instrument.
(b) When the time refers to a period prescribed or
allowed by
theRules of Court, by an order of the court,
or by any other
applicable statute, if the last day is a Sunday or a legal
holiday, it is understood that the last day should
really
bethe next day, provided said day is neither a
Sunday
nor a legal holiday.
37. Doctrine of processual presumption
If the foreign law is not properly alleged and proved,
Thepresumption is that it is the same as our law. (Estate
of
Suntay, 50 O.G. 5321). This presumption has been referred
to by the famed author Wharton as a “processual
presumption.” (Coll. of Int. Rev. v. Fisher, et al., L-11622 and
L-11668,Jan. 28, 1961).Thus, a marriage in China celebrated before a village
leader therein cannot be recognized as valid in the Philippines, unless
there is proof that indeed in China and according to Chinese law such a
marriage is regarded as valid. Without such proof, we will assume that the law
on marriage in China is the same as the law in the Philippines, and in our
country, it is well-known that a village leader cannot perform a
marriage, whether before or after the effectivity date of the new Civil Code. (Wong
Woo Yiu v. Vivo, et al., L-21076, Mar. 31, 1965).
38. When does laws take effect?
Art. 2. Laws shall take effect after fi fteen days following
the completion of their publication in the Official
Gazetteor in a
newspaper of general circulation., unless it is otherwise provided.
This Code shall take effect one year after such publication.
a. When is publication needed?
Unless otherwise provided, laws shall take effect after
15 days following the completion of the publication in the Official Gazette
(Art. 2, Civil Code) or in a newspaper of generalcirculation.
Tañada v. Tuvera
GR 63915, Dec. 29, 1986
The publication must be in full or it is no
publication at
all, since its purpose is to inform the public of the
contents
of the laws. It must be made in the Official
Gazette, and not
elsewhere, as a requirement for their effectivity
after 15 daysfrom such publication or after a different period provided by the
legislature. [NOTE: When an ordinary law or presidential decree is
therefore completely published in an issue of the OfficialGazette dated
say, Sep. 12, 2002, it becomes effective, unless otherwise provided, on Sep.
28, 2002 — the 16th day after its publication. (Note that the laws say “after
15 days following,”
meaning on the 16th day following publication, not
on the 15thday following: just as “after Wednesday” means
Thursday, and not Wednesday.)]
[NOTE: The provision in the Administrative Code
relating
toeffectivity “at the beginning of the fi fteenth
day after the
completion of the publication’’ has, therefore, been repealed.]
When No Publication Is Needed
Where a law provides for its own effectivity, such as,
for
example July 4, 2002; or “upon approval’’ (i.e., by
the President
or by Congress over the veto of the President),
publication in the Official Gazette is not necessary so long as it is not
punitivein character. This was the rule enunciated by the Supreme Court in Askay
v. Casalan (46 Phil. 179) and in Balbuna v.Sec. of Education (L-14283,
Nov. 29, 1960).
If a law is signed on the last hour of June 16,
and the law
itself says it becomes effective upon approval, was it
already
effective even during the fi rsthour of June
16? In Republic of the Phil. v. Encarnacion (L-3936, Dec. 29, 1950), it
was heldthat the answer should be in the affirmative, otherwise wewould be
confronted with a situation where the fi xing of the date of effectivity would
depend on the unreliable memory of man.
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