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RULE 104VOLUNTARY DISSOLUTION OF CORPORATIONS

( The Dissolution of Corporations should now be filed with the SEC, and iscovered by Secs. 117 to 122 of the Corporation Code of the Philippines (BP 68)

which took effect on May 1, 1980.

Dissolution - when the corporation ceases to be a juridical person.

117. Methods of Dissolution. A corporation formed or organized underthe provisions of this Code may be dissolved voluntarily or involuntarily.

NOTES:

Q: How many ways are there to dissolve a corporation?A: Two ways--voluntary & involuntary.

Q: How many ways of dissolving voluntarily?A: Three:

Voluntary dissolution where no creditors are affected (Sec. 118)

Voluntary dissolution where creditors are affected (Sec. 119)

Dissolution by shortening corporate term(Sec. 120)

118. Voluntary dissolution where no creditors are affected.In case dissolution of a corporation does NOT prejudice the rights of any

creditor having a claim against such corporation, then such dissolution may beeffected

by majority vote of the BOD or trustees, and

by a resolution duly adopted by the affirmative vote of thestockholders owning at least 2/3 of the outstanding capital stock or of atleast 2/3 of the members

at a meeting to be held upon call of the dirs. or trustees

after publication of the notice

of the time, place and object of the meeting

for 3 consecutive weeks

in a newspaper published in the place where the principal office of

said corporation is located; and if no newspaper is published in suchplace, then in a newspaper of General circulation in the Philippines, (aftersending such notice to each stockholder or member either by registeredmail or personal delivery at least 30 days prior to said meeting.

A copy of the resolution authorizing the dissolution shall be

certified by a majority of the BOD or trustees

and counter-signed by the secretary of the corporation.

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The SEC shall thereupon issue the certificate of dissolution.

NOTES:

Q: How do directors and stockholders vote?

A: Both issue their respective resolutions duly adopted by affirmative votes ofthe required no. (BOD-majority; SH-2/3 OCS)

Q: Publication for 3 consecutive weeks?A: Actually, once a week for three consecutive weeks. This is the commonreqt in procedure. (Maybe an oversight or already considered understood.)

Q: What is the Presidents role here?A: The President signs the Resolution.

119. Voluntary dissolution where creditors are affected.Where the dissolution of a corporation may prejudice the rights of any

creditor, a petition for dissolution shall be filed with the SEC.

The petition shall be

signed by a majority of its BOD or trustees or other officers having themanagement of its affairs,

verified by its president or secretary or one of its directors, or trustees, and

shall set forth all claims and demands against it, and that its dissolution was resolved upon the affirmative vote of the

stockholders representing at least 2/3 of the outstanding capital stock or by

at least 2/3 of the members, at a meeting of itsstockholders or members called for that purpose.

If the petition is sufficient in form and substance, the Commission shall, byan ORDER reciting the purpose of the petition,

fix a date on or before which objections thereto may be filed by any person,

which date shall not be less than 30 days nor more than 60 days after theentry of the order.

Before such date, a copy of the order shall be published

at least once a week for 3 consecutive weeks in a newspaper of General circulation ( published in the

municipality or city where the principal office of the corporation issituated, or if there be no such newspaper, then in a newspaper ofGeneral circulation in the Phils.,

and a similar copy shall be posted

for 3 consecutive weeks

in 3 public places

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in such municipality or city.

Upon 5 days notice, Given AFTER the date on which the right to fileobjections as fixed in the order has expired, the Commission shall proceed to

hear the petition and

try any issue made by the objections filed;and IF

no such objection is sufficient, AND

the material allegations of the petition are true,it (Commission) shall

render judgment dissolving the corporation and directing such disposition of its assets as justice requires, and may appoint a receiver to collect such assets and pay the

debts of the corporation.

NOTES:

Just note that the date fixed is a deadline, on or before which objections to thepetition may be filed.

120. Dissolution by shortening of corporate term. A voluntarydissolution may be effected by amending the AOI to shorten the corporate termpursuant to the provisions of this Code.

A copy of the amended AOI shall be submitted to the SEC in accordancewith this Code.

Upon approval of the amended AOI or the expiration of the shortened term, as the case may be,

the corporation shall be deemed dissolved without any furtherproceedings, subject to the provisions of this Code on liquidation.

NOTES:

Q: When is the corporation deemed dissolved?A: Two instances:

1. Upon approval of the Amended AOI, OR2. the expiration of the shortened term

Actually, the ff. are the rules:

If expiration date is before approval by SEC corpo dissolves upon approval If expiration date is after approval by SEC corpo dissolves on the date of

expiration of term If the SEC does not act on petition within 6 mos. from the date of filing (Sec.

16, Corpo Code) corpo dissolves either on the day after the 6-mo. pd. (if date of expiration was within the6-mo. pd.) or on the date of expiration of term (if date is after the 6-mo. pd.).

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e.g.:Date filed petition: Jan. 1, 1998Expiration of Shortened Term: May 1, 19986 mos. ends on: July 1, 19981) If approved by SEC on April 1

Dissolution on May 1 (exp. Of shortened term)2) If approved on May 15

Dissolution on May 15 (date of approval)3) Not acted upon within 6 mos.

Dissolution on July 2 (day after the 6 mo. pd)

( Note that failure of the SEC to act on the petition within 6 months, ascontemplated by above rules, must not be due to the fault of corporation.

122. Corporate Liquidation.

Every corporation whose charter expires by its own limitation or is annulledby forfeiture or otherwise, or whose corporate existence for other purposes isterminated in any other manner, shall nevertheless be continued as a bodycorporate for 3 years after the time when it would have been so dissolved,

for the purpose of prosecuting and defending suits by or against it enabling it to settle and close its affairs, to dispose of and convey its property and to distribute its assets,

BUT NOT for the purpose of continuing the business for which it was

established.At any time during said 3 years, said corporation is authorized andempowered to convey all of its property to trustees for the benefit of

stockholders,

members,

creditors, and

other persons in interest.From and after any such conveyance by the corporation of its property in

trust for the benefit of its stockholders, members, creditors, and others ininterest,

all interest which the corporation had in the property terminates,

the legal interest vests in the trustees, and the beneficial interest in the stockholders, members, creditors, and

other persons in interest.

Upon the WINDING UP of the corporate affairs, any asset distributable toany creditor or stockholder or member who is unknown or cannot be foundshall be escheated to the city or municipality where such assets are located.

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Except by decrease of capital stock and as otherwise allowed by thisCode, no corporation shall distribute any of its assets or property except

upon lawful dissolution and

after payment of all its debts and liabilities.

NOTES:

Q: For what purpose is the continuation as a body corporate?A: For purpose of winding up.

121. Involuntary dissolution. A corporation may be dissolved by theSEC upon filing of a verified complaint and after proper notice and hearing onGrounds provided by existing laws, rules and regulations.

RULE 105JUDICIAL APPROVAL

OF VOLUNTARY RECOGNITIONOF MINOR NATURAL CHILDREN

Sec. 1. Venue.-- Where judicial approval of a voluntary recognition of aminor natural child is required, such child or his parents shall obtain the sameby filing a petition to that effect with the RTC in which the child resides.

1. MEANING OF VOLUNTARY RECOGNITION

VOLUNTARY RECOGNITION is an admission of the fact of paternity or maternityby the presumed parent, expressed in the form prescribed by the NCC.

Its essence lies in the avowal of the parent that the child is his; the formality isadded to make the admission incontestable, in view of its consequences.

The FORM is prescribed by Art. 278 of the NCC:RECOGNITION shall be made in the

record of birth

a will

a statement before a court of record

or in any authentic writing.

Judicial approval is needful if the recognition of the minor is effected, notthrough a record of birth or in a will but thorough a statement in a court ofrecord or an authentic document. In any case, the individual recognized canimpugn the recognition within 4 years following the attainment of majority.

Art. 281 (2) of the NCC provides:When the recognition of a minor DOES NOT take place

in a RECORD of BIRTH or

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in a WILL,Judicial Approval is Necessary.

The action must be brought within the same period specified in Art. 173, FC,except when the action is based on the second paragraph of Art. 172, in which

case the action may be brought during the lifetime of the alleged parent.

Art. 173, FC. The action to claim legitimacy may be brought by the childduring his or her lifetime and shall be transmitted to the heirs should the child

die during minority or

in a state of insanity.In these cases, the heirs shall have a period of 5 years within which

to institute the action.The action already commenced by the child shall survive

notwithstanding the death of either or both of the parties.

Art. 172. The filiation of legitimate (or illegitimate) children is established byany of the following:

(1) The Record of Birth appearing in the Civil register or a final judgment;or

(2) An admission of legitimate filiation in a public document or a privatehandwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall beproved by:

(1) The Open and Continuous possession of the status of a legitimatechild, or

(2) Any other means allowed by the Rules of Court and special laws.

2. HOW VOLUNTARY RECOGNITIONIS EXPRESSED

AUTHENTIC WRITING means any Genuine and indubitable writing sufficient forcompulsory recognition.

The status of a person as a voluntary acknowledged natural child could beestablished by the ordinary means of evidence without any limitations as to

time. (Larena vs. Hubio) [See lecture notes below.]

NOTES:

Q: When can the child file action?A: See Art. 173 above which provides when a child may bring an action;moreover, the following NCC provision which, although already repealed bythe Family Code, may still be applicable for lack of substitute provisions on thematter.

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Art 285, NCC. The ACTION for the recognition of natural children may bebrought ONLY during the lifetime of the presumed parents,

EXCEPT:(1) If the Father/Mother DIED DURING the MINORITY of the

CHILD, in w/c case the latter may FILE ACTION BEFORE the expiration of4 YRS. from the attainment of his majority age.(2) If AFTER the DEATH of the Father/Mother a DOCUMENT should appear

of which NOTHING had been HEARD andin w/c either/ both parents recognize the child.

In this case, the ACTION must be commenced w/in 4 YRS. from theFINDING of the document.

Pls. take note of the following NCC provisions which, although already repealedby the FC, may still be applicable for lack of substitute provisions on the

matter. [Classmates, these are the provisions na medyo magulo WON stillapplicable. Maam A said that Art. 285 cited above is still applicable.Commentaries and a 1989 case apply Arts. 278 and 281. Herrera cited Art.283 (1), but mentioned Art. 449 of RPC, not NCC. So ano ba talaga kuya?Maam A said these are confusing. Anyway, she took note of said provisions, atpalagay ko, kakalampagin nya ang Congress tungkol dito. By the way, shesaid the FC was really minadali, so I think that explains everything. Ask nalang your Persons teacher.)

NCC--Recognition Of Natural Children

276. A NATURAL CHILD may be recognized by the father and the motherJOINTLY, or

by ONLY ONE of them.

277. In case the recognition is made by ONLY ONE of the parents, it shallbe PRESUMED that the child is NATURAL, IF the parent recognizing ithad LEGAL CAPACITY to contract marriage at the time of conception.

278. RECOGNITION shall be made in the

record of birth

a will a statement before a court of record

or in any authentic writing.

279. A minor who may not contract marriage w/o parental consent (18-21)CANNOT acknowledge a natural child

UNLESS

parent/Guardian APPROVES the acknowledgment

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recoGnition is made in a WILL

280. When the FATHER or the MOTHER makes the recognition SEPARATELY,

HE/SHE shall NOT REVEAL the name of the person with whomhe/she has the child;

neither shall he/she STATE any CIRCUMSTANCE whereby theother parent may be identified.

281. A child who is OF AGE CANNOT BE RECOGNIZED without hisCONSENT.

When the recognition of a minor DOES NOT take place

in a RECORD of BIRTH or

in a WILL,JUDICIAL APPROVAL IS NECESSARY.

A minor can in any case IMPUGN the recognition within 4 YRS. ff. theattainment of his majority.

282. A RECOGNIZED natural child has the right:(1) To BEAR THE SURNAME of the recognizing parent(2) To receive SUPPORT from such parent (291)(3) To receive in a proper case the hereditary portion w/c is determined by thiscode.

INVOLUNTARY RECOGNITION:

283. In any of the ff. cases,the FATHER is OBLIGED to recognize the child as his natural child:

(1) In cases of RAPE/ABDUCTION/SEDUCTION, when the period of the offensecoincides more or less with that of conception;

(2) When the child is in CONTINUOUS POSSESSION of the STATUS of a CHILD ofthe alleged father by the

DIRECT ACTS of the latter or

of his FAMILY

(3) When the child was CONCEIVED during the time when the motherCOHABITED with the SUPPOSED father.

(4) When the child HAS in his favor ANY EVIDENCE or PROOF thedefendant is his father.

284. The MOTHER is OBLIGED to recognize her natural child:

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(1) In any of the cases in the preceding article, as between the child & themother.

(2) When the BIRTH and the IDENTITY of the child are CLEARLY PROVEN.

286. The recognition made in favor of a child who does not possess all the conditions in Art. 269, or

in w/c the requirements of the law have not been fulfilledmay be IMPUGNED by those who are PREJUDICED by such recognition.

Sec. 2. Contents of petition.-- The petition for judicial approval of avoluntary recognition of a minor natural child shall contain the followingallegations:

(a) The jurisdictional facts;(b) The names & residences of the parents who acknowledged the child,

or either of them, and their compulsory heirs, and the

person or persons with whom the child lives;(c) The fact that the recognition made by the parent or parents took

place

in a statement before a court of record or

in an authentic writing,

copy of the statement or writing being attached to the petition.

Sec. 3. Order for Hearing.-- Upon the filing of the petition, the court, byan order reciting the purpose of the same, shall

fix the date and place for the hearing thereof, which date shall not be morethan 6 months after the entry of the order, and shall, moreover,

cause a copy of the order to be

served personally or by mail upon the interested parties, and

published once a week for 3 consecutive weeks, in a newspaper ornewspapers of general circulation in the province.

Sec. 4. Opposition.-- Any interested party must, within 15 days

from service, or

from the last date of publication of the order referred to in the next

preceding section,file his opposition to the petition, stating the grounds or reasons therefor.

Sec. 5. Judgment.-- If, from the evidence presented during the hearing,the court is satisfied that the recognition of the minor natural child was

willingly and voluntarily made by the parent or parents concerned, and

is for the best interest of the child,

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it shall render judgment granting judicial approval of such recognition.

INVOLUNTARY RECOGNITION of a natural child may be made:

(a)by an incontrovertible paper written by the parent expressly recognizing hispaternity;

(b)by giving such child the status of a natural child of the father, justified bythe direct act of the father or his family [Art. 283(2)];

(c)by criminal action for rape, seduction or abduction (par. 2, Art. 449, RPC)

Note: Maybe we can improve this enumeration of Herrera by just applying Art.283, NCC quoted above. Maam A said above enumeration does not makesense.

NOTES: IMPT:

Q: What if the presumed parents recognized the minor natural child eithervoluntarily or involuntarily without judicial approval and afterwards died, shouldthe child, after reaching majority age, ask for judicial approval of suchrecognition?

(The book makes distinctions between voluntary and involuntary recognitionand their effects; but the same are irrelevant (aside from being confusing)because of the ruling of the SC in Gapusan Chua vs. CA.)

A: NO. Requirement of judicial approval is for the BENEFIT OF THE MINOR.Lack of said JA cannot impede the effectivity of the judgment made.

The judicial approval is for the protection of the minor against anyacknowledgment made to his prejudice. Therefore, the lack or insufficiency ofsuch approval is NOT a defect available to the recognizing parent but onewhich the minor may raise or waive. If after reaching the age of majority theminor consents to the acknowledgment, the lack of judicial approval shouldmake no difference.

Sec. 6. Service of judgment upon civil registrar.-- A copy of thejudgment rendered in accordance with the preceding section shall be servedupon the civil registrar whose duty it shall be to enter the same in theregister.

RULE 106CONSTITUTION OF FAMILY HOME

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Rule 106 is deemed repealed by the provisions of the Family Code.

FAMILY CODE

ART 152. The family home, constituted jointly by the husband and the

wife or by an unmarried head of a family, is the dwelling house where theyand their family reside, and the land on which it is situated.

ART. 153. The family home is deemed constituted on a house and lotfrom the time it is occupied as a family residence. From the time of itsconstitution and so long as any of the beneficiaries actually resides therein,the family continues to be such and is exempt from execution, forced sale orattachment except as hereinafter provided and to the extent of the valueallowed by law.

There is no need to file verified petition for constitution of family homeunder FC.

ART. 154. The beneficiaries of a family home are:The husband and the wife, or an unmarried person who is the head of a

family; andTheir parents, ascendants, descendants, brothers and sisters, whether the

relationship be legitimate or illegitimate, who are living in the family homeand who depend upon the head of the family for legal support.

ART. 155. The family home shall be exempt from execution, forced saleor attachment except:1)For nonpayment of taxes;

2)For debts incurred prior to the constitution of the family home;3)For debts secured by mortgages on the premises before or after such

constitution; and4)For debts due to laborers, mechanics, architects, builders, materialmen and

others who have rendered service or furnished material for theconstruction of the building.

Modequillo vs. Salinas

The debt or liability which was the basis of the judgment arose or wasincurred at the time of the vehicular accident on 16 March 1976 and the money

judgment arising therefrom was rendered by the appellate court on 29 January1988. Both preceded the effectivity of the FC on August 4, 1988 (not August 31988 being a leap year).

The contention that it should be considered a family home from the timeit was occupied by petitioner and his family in 1969 is not well-taken. UnderArt. 162 of the FC, The provisionsshall govern existing family residencesinsofar as said provisions are applicable. It does not mean that ARTS. 152 and153 have retroactive effect such that all existing family residences are deemed

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to have been constituted as family homes at the time of their occupation priorto the effectivity of the FC and are exempt from execution for the payment ofobligations incurred before the effectivity of the FC. Art. 162 simply meansthat all existing family residences at the time of the effectivity of the FC areconsidered family homes and are prospectively entitled to the benefits

accorded to a family home.

ART. 157. The actual value of the family home shall not exceed, at thetime of its constitution, the amount of three hundred thousand pesos in urbanareas, and two hundred thousand pesos in rural areas, or such amounts as mayhereafter be fixed by law.

In any event, if the value of the currency changes after the adoption ofthis Code, the value most favorable for the constitution of a family home shallbe the basis of evaluation.

For purposes of this Art., urban areas are deemed to include charteredcities and municipalities whose annual income at least equals that legallyrequired for chartered cities. All others are deemed to be rural areas.

ART. 160. When a creditor whose claim is not among those mentioned inArt. 155 obtains a judgment in his favor and he has reasonable grounds tobelieve that the family home is actually worth more than the maximum amountfixed in Art. 157, he may apply to the court which rendered the judgment for anorder directing the sale of the property under execution. The court shall soorder if it finds that the actual value of the family home exceeds the maximumamount fixed by law as of the time of its constitution. If the increased actualvalue exceeds the max. amount and results from subsequent voluntaryimprovements introduced by the person/s constituting the family home, by theowner/s of the property, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family shall beconsidered. The proceeds shall be applied first to the amanita mentioned in157 and to the liabilities under the judgment and the costs. The excess, if any,shall be delivered to the judgment creditor.

RULE 107ABSENTEES

Sec. 1. Appointment of representative. When a person disappearsfrom his domicile, his whereabouts being unknown, and without having left an

agent to administer his property, or the power conferred upon the agent hasexpired, any interested party, relative or friend, may petition the RTC of theplace where absentee resided before his disappearance, for the appointmentof a person to represent him provisionally in all that may be necessary. [Inthe City of Manila, the petition shall be filed in the Juvenile and DomesticRelations Court.]

This rule is based on:

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ART. 381 CC. When a person disappears from his domicile, hiswhereabouts being unknown, and without leaving an agent to administer hisproperty, the judge, at the instance of an interest 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 thepower conferred by the absentee has expired.

ART. 382. The appointment referred to in 381 having been made, thejudge shall take the necessary measures to safeguard the rights and interestsof the absentee and shall specify the powers, obligations and remuneration ofhis representative, regulating them, according to the circumstances, by therules concerning guardians.

Sec. 2 Declaration of absence; who may petition. After the lapse of2 years from his disappearance and without any news about the absentee orsince the receipts of the last news, or 5 years in case the absentee has left aperson in charge of the administration of his property, the declaration of his

absence and the appointment of a trustee or administrator may be applied forby any of the ff:

(a) The spouse present;(b) The heirs instituted in a will, who may present an authentic copy of the

same;(c) The relatives who would succeed by the law of intestacy; and(d) Those who have over the property of the absentee some right

subordinated to the condition of his death.

This rule is based on the ff:

ART. 384 CC. Two years having elapsed without any news about theabsentee or since the receipt of the last news, and five years in case theabsentee has left a person in charge of the admin of his property, his absencemay be declared.

ART. 385. The ff 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 law of intestacy;

4. Those who may have over the property of the absentee some rightsubordinated to the condition of his death.

It is not necessary that a declaration of absence be made in a proceedingseparate from and prior to a petition for admin. (Reyes vs. Alejandro)

The petition to declare the husband an absentee and the petition to placethe mgt of the conjugal properties in the hands of the wife could be combinedand adjudicated in the same proceeding. (Daya Maaria Tol-Noguera v. Villamor)

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Sec. 3. Contents of petition. - The petition for the appointment of arepresentative, or for the declaration of absence and the appt of a trustee oran admin, must show the ff:

(a) The jurisdictional facts;(b) The names, ages and residences of the heirs instituted in the will, a copyof which shall be presented, and of the relatives who would succeed bythe law of intestacy;

(c) The names and residences of creditors and others who may have anyadverse interest over the property of the absentee;

(d) The probable value, location and character of the property belonging tothe absentee.

Sec. 4. Time of hearing; notice and publication thereof. When apetition for the appt of a representative, or for the declaration of absence andthe appt of a trustee or admin is file, the court shall fix a date and place forthe hearing thereof where all concerned may appear to contest the petition.

Copies of the notice of the time and place fixed for the hearing shall beserved upon the known heirs, legatees, devisees, creditors and otherinterested persons, at least 10 days before the day of the hearing, and shallbe published once a week for 3 consecutive weeks prior to the timedesignated for the hearing, in a newspaper of general circulation in theprovince or city where the absentee resides, as the court shall deem best.

Sec. 5. Opposition. Anyone appearing to contest the petition shall statein writing his grounds therefor, and serve a copy thereof on the petitioner and

other interested parties on or before the date designated for the hearing.

Sec. 6. Proof at hearing; order. - At the hearing, compliance with theprovisions of section 4 of the rule must first be shown, upon satisfactory proofof the allegations in the petition, the court shall issue an order granting thesame and appointing the prep, trustee or admin for the absentee. The judgeshall take the necessary measures to safeguard the rights and interests of theabsentee and shall specify the powers, obli and remuneration of his rep,trustee or admin, regulating them by the rules concerning guardians.

In case of declaration of absence, the same shall not take effect until 6months after its publication in a newspaper of general circulation designatedby the court AND in the Official Gazette.

Sec. 7. Who may be appointed. In the appointment of a rep, thespouse present shall be preferred when there is no legal separation, if theabsentee left no spouse, or if the spouse present is a minor or otherwiseincompetent, any competent person may be appointed by the court.

In case of declaration of absence, the trustee or admin of the absenteesproperty shall be appointed in accordance with the preceding par.

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This is based on Art. 383 of CC. Basically, it says the same thing. Dapatlang, kaya nga based doon. He! He!

Sec. 8. Termination of administration. The trusteeship or admin ofthe property of the absentee shall cease upon order of the court in any of theff cases:

(a) When the absentee appears personally or by means of an agent;(b) When the death of the absentee is proved and his testate or intestate

heirs appear;(c) When a third person appears, showing by a proper document that he has

acquired the absentees property by purchase or other title.

In these cases the trustee or admin shall cease the performance of hisoffice, and the property shall be placed at the disposal of those who may havea right thereto.

This is based on Art. 389 of the CC.

Declaration of Absence is Unnecessary where there are no propertiesThe need to have a person judicially declared an absentee is when

he has properties which have to be taken care of or administered by a repappointed by the Court

his wife is asking the court that the admin of all classes of property in themarriage be transferred to her

the spouse of the absentee is asking for separation of property.

The petition to declare the husband an absentee and the petition to place themanagement of the conjugal properties in the hands of the wife may becombined and adjudicated in the same proceedings.

No independent action for Declaration of Presumption of DeathThe disputable presumption established by the rule of evidence that a personnot heard from in seven years is dead may arise and be invoked either in anaction or in a special proceeding, which is tried or heard by, and submitted fordecision to, a competent court. Independently of such an axn or proc, the

presumption of death cannot be invoked nor can it be made the subject of anaction or spec proc. (In re Nicolai Szatrow)

Prof. Avena: This is a rebuttable presumption established by the rules ofevidence so you dont have to go to court and file an action or spec proc simplyfor the purpose of securing itperse.

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To illustrate: If you are a beneficiary of an insurance policy and the insured hasbeen absent for at least 7 years (plus no news of his whereabouts), you can filean action for the collection of the proceeds. In so doing, you have in your favorthe disputable presumption of the insureds death. You need not go (andbesides you cannot do this) to court to file an independent action for the

declaration of the insureds death. (Sana naintindihan niyo iyongpagkakaintindi ko sa sinabi ni Maam Fritz)

EXCEPTION: The need for declaration of presumptive death for purposes ofremarriage. This is based on Art. 41 of the FC. Otherwise, the subsequentmarriage shall be null and void.

REQUISITES:

The prior spouse had been absent for four consecutive years and

the spouse present had a well-founded belief that the absent spouse wasalready dead.

In case of disappearance where there is danger of death under Art. 391 CC,an absence of only two ears shall be sufficient.

This provision is intended to protect the present spouse for a criminalprosecution for bigamy because with such judicial declaration, good faith of thepresent spouse is established.

ABSENT SPOUSEThis means that the other spouse has been missing for at least four

years, it being unknown whether or not he or she is still alive, and the presentspouse having a well-founded belief that the missing spouse is already dead.

The period of 4 years is reduced to 2 under the ff circumstances (Art. 391CC)

(a)The missing person was on board a vessel lost during a sea voyage, or anaeroplane which is missing;

(b)The missing person was in the armed forces and had taken part in war; or(c)The missing person was in danger of death under other circumstances.

In the above case, the 2-yr period is computed from the occurrence of theevent from which death is presumed.

Vessel all kinds of watercraft Aeroplane all kinds of aircraft Taking part in war includes all military operations or undertaking involving

armed fighting and does not only apply to soldiers but also to thoseemployed in the armed forces like nurses and doctors, reporters andcameramen.

In danger of death events as earthquakes, fires, explosions, etc.

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Presumption of Death must yield to preponderance of evidenceThere are certain circumstances where a person was already considered

dead without waiting for the period to expire. (Eastern Shipping Lines v.Lucero)

***Caveat: Im typing this from memory dahil nagkataong this was included inmy part sa evidence.

In this case, the ship where the person presumed dead was on boardsunk due to storm. In fact, nakita pa nga nila sa may coast iyong wreckedparts ng ship. So sabi ng SC, no need to wait for the expiration of the 4-yrperiod (this was not for subsequent marriage) dahil by preponderance ofevidence, the circumstances sufficiently show that the person may beconsidered dead.

SUMMARY OF JUDICIAL PROCEEDINGS IN THE FAMILY LAW

Art. 238. Until modified by the SC, the procedural rules in this title shallapply in all cases provided for in this Code requiring summary court proc. Suchcases shall be decided in an expedition manner without regard to technicalrules.

Characteristics of Summary Proceedings in the FC

(1) The pet shall be verified, to assure its truthfulness.

(2) Notice of the filing of the pet be sent to resp at his last known address, as

part of due process.

(3) No periods set; it is up to the judge to det the period within which the respshld answer the petition and the hearing thereof, which shld be very short,considering na summary nga.

(4) There is a preliminary conference wherein lawyers are excluded.

(5) The appearance of the trial fiscal of the court is not required. (Baka absentor unprepared pa.)

(6) The prelim confab should be conducted personally by the judge in thenature of an inquisitorial hearing. (Q & A)

(7) The proceedings can be decided on the basis of affidavits or otherdocumentary evidence. Oral testimonies will be required only whennecessary and at the discretion of the court.

(8) Case shall be decided in the most expeditious manner, without regard totechnical rules.

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(9) Judgment shall be immediately final and executory.

APPLICABILITY OF PROCEDURAL RULES

The rules of summary procedure shall apply to the ff:

(1) Art. 100 par (2) separation in fact between H and W under the regime ofACP and where the consent of one spouse to any transaction of the other isrequired by law.

(2) Art. 127 (2) same as Art. 100 but under the regime of CPG.

(3) Art. 41 action for declaration of the presumptive death of an absentspouse believed to be dead.

(4) Art. 51 delivery of presumptive legitimes by means of a mutualagreement requiring judl approval;

(5) Art.69 disagreement in the fixing of family domicile;

(6) Art.73 objection by one spouse to the exercise by the other spouse ofany legit prof, occupation, bus or activity;

(7) Art.96 disagreement in the joint admin and enjoyment of the communityprop;

(8) Art. 124 disagreement in the joint admin and enjoyment of ACP;

(9) Art. 217 entrusting of parental authority over foundlings, abandoned,neglected or abused children and other children similarly situated to headsof childrens homes, orphanages and similar institutions duly accredited bythe govt;

(10) Art.225 fixing of the bond of the parents.

SEPARATION IN FACT BETWEEN HUSBAND AND WIFEPls. See 239-253 of the FC

Unless Congress would decide to re-create the former Juvenile and DomesticRelations Courts or family courts which were abolished by BP 129, all proc to befiled under the FC would be cognizable by the branches of the RTC designatedby the SC to handle exclusively juvenile and domestic relations cases, and inplaces where no designation is made, by the RTC of the proper venue of thecase. Venue shall be the place of residence of either spouse.

Claims for Damages not covered by Summary Procedure

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Claims for damages cannot be litigated in the same proceedings bec.Such claims will necessarily entail delay. Independent or separate cases shalltherefore be necessary for establishing and enforcing claims for damages.

Due Process to Be Observed

Def. spouse shall be duly notified and furnished a copy of the pet at hislast known address and shall be given the opportunity to answer the same or toshow cause why the pet should not be granted. Otherwise, void for lack of DP.

Prelim Conference; No Lawyers

Shall be conducted by the judge personally and not thru Clerk of Court or aCommissioner. Counsel shall not assist the parties at this stage.

Non-appearing party shall be compelled to appear; Failure to appear despiteefforts-Ex-parte proc authorized

The court shall require attendance if possible. If despite such efforts, theparty still does not appearex-parte proceedings. The court shall renderdecision on the basis of affidavits, documentary evidence or oral testimonies.

Judgment Immediately Final and Executory

Not appealable just like a decision based on a compromise agreement. Thedecision can be questioned in the ff cases:

(1) By a special civil action for certiorari on grounds of grave abuse ofdiscretion, excess of juris or lack of juris committed by the court;

(2) By annulment of decision based on lack of juris or extrinsic fraud.

RULE 108CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

Sec. 1 Who may file petition. Any person interested in any act, even,order or decree concerning the civil status of persons which has been

recorded in the civil register, may file a verified petition for the cancellation orcorrection of an entry relating thereto, with the RTC of the province where thecorresponding civil registry is located.

Role of the Court

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The crts role in hearing the petition to correct certain entries in the civilregistry is to ascertain the truth about the facts recorded therein. Reason:Truth is best ascertained or approximated by trial conducted under theadversary system.

Proceedings for the correction of erroneous entry should not beconsidered as establishing ones status in a legal manner conclusively beyonddispute. Art. 410 CC provides, ..the books making up the civil register and alldocuments relating theretoshall be prima facie evidence of the facts thereincontained.

The correction shld not imply a change of status but a mere rectificationof error to make the matter corrected speak for the truth. There is therefore noincrease or diminution of substantive right, as is the basis for holding that R108would be unconsti if held to allow correction of more than mere harmlessclerical errors.

Distinction bet. R103 and R108

R103 R108change of nameonly

all cancellation orcorrection ofentries

the entry iscorrect but youwant to change it

there is amistakewhich you want

to correctCivil Registrarnot a party

Civil Registrar isan Indispensableparty. Otherwise,null and Void.REASON:interested partyin Protectingintegrity Of publicdocuments

**If both reliefs are to be sought in the same proceedings all the requirementsof R103 and 108 must be complied with.

Proceeding when error is clerical or substantive

Clerical the procedure is summary.

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Substantive the procedure is adversary.

Sec. 2 Entries subject to cancellation or correction. Upon good andvalid grounds, the ff. entries in the civil register may be cancelled orcorrected:

(a) births;(b) marriages;(c) deaths;(d) legal separation;(e) judgments of annulments of marriage;(f) judgments declaring marriages void from the beginning;(g) legitimations;(h) adoptions;(i) acknowledgments of natural children;(j) naturalization;(k) election, loss or recovery of citizenship;

(l) civil interdiction;(m) judicial determination of filiation;(n) voluntary emancipation of a minor; and(o) changes of name.

R108 covers:1) Correction of innocuous or clerical errors apparent on the facts of the record

and capable of being corrected by mere reference to it, e.g., misspellings.2) Correction of substantial errors provided proceedings is adversary, e.g.

citizenship.

Appropriate Adversary ProceedingsOne having opposing parties; contested, as distinguished from an ex

parte application, one which the party seeking relief has given legal warning tothe other party, and afforded the latter an opportunity to contest it.

Persons who must be made parties1) Civil Registrar;2) All persons who have or claim any interest which would be affected thereby.

These are also the persons entitled to oppose the petition.

Upon the filing of the petition, it becomes the duty of the court to:

1) issue an order fixing the time and place for the hearing of the petition, and2) cause the order for hearing to be published once a week for 3 consecutive

weeks in a newspaper of gen circulation in the province.

Sec. 3. Parties. When cancellation or correction of an entry in the civilregister is sought, the civil registrar and all persons who have or claim anyinterest which would be affected thereby shall be made parties to theproceeding.

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Sec. 4. Notice and Publication. Upon the filing of the petition, thecourt shall, by an order, fix the time and place for the hearing of the same,and cause reasonable notice thereof to be given to the persons named in thepetition. The court shall also cause the order to be published once a week for3 consecutive weeks in a newspapers of gen circulation in the province.

Sec. 5. Opposition. The civil registrar and any person having orclaiming any interest under the entry whose cancellation or correction issought may, within 15 dys from notice of the petition, or from the last date ofpublication of such notice, file his opposition thereto.

ADVERSARY PROCEEDINGS1) When the petition is filed either by the civil registrar or any person having a

claimand the opposition is actively prosecuted.2) When all relevant facts have been fully and properly developed, where

opposing counsel have been given opportunity to demolish the opposite

partys case, and where the evidence has been thoroughly weighed andconsidered.3) When the opposition is filed either by the civil registrar or any person having

or claiming any interest

Sec. 6. Expeditious proceedings. The court in which the proceedingis brought may make orders expediting the proceedings, and may also grantprelim injunction for the preservation of the rights of the parties pending suchproc.

Sec. 7 Order. After hearing, the court may either dismiss the petition or

issue an order granting the cancellation or correction prayed for. In eithercase, a certified copy of the judgment shall be served upon the civil registrarconcerned who shall annotate the same in his record.

RULE 109APPEALS IN SPECIAL PROCEEDINGS

Section 1. Orders or judgments from which appeals may be taken.An interested person may appeal in special proceedings from an order orjudgment rendered by a RTC or a Juvenile and Domestic Relations Court,where such order or judgment:(a) Allows or disallows a will;(b) Determines who are the lawful heirs of a deceased person, or the

distributive share of the estate to which such person is entitled;(c) Allows or disallows, in whole or in part, any claim against the estate of a

decease person, or any claim presented on behalf of the estate in offsetto a claim against it;

(d) Settles the account of an executor, admin, trustee or guardian;(e) Constitutes, in proceedings relating to the settlement of the estate of a

decease person, or the admin of a trustee or guardian, a final

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determination in the lower court of the rights of the party appealing,except that no appeal shall be allowed from the appointment of aspecial admin; and

(f) Is the final order or judgment rendered in the case, and affects thesubstantial rights of the person appealing, UNLESS it be an ordergranting or denying a motion for a new trial or for recon.

Prof. Avena:Sec. 1 (f). The unless clause here simply means that in these two instances,you go on appeal immediately.

Enumeration is not exclusive, e.g., approval of bond, declaration ofincompetency for purposes of guardianship.

Mode of AppealSpec Pro- The period of appeals is 30 days, a record on appeal being

required.Exc: Habeas corpus cases 48 hours.

Appeals in Liquidation Proceedings against Insolvent Corp is by Record onAppeal

Since liquidation proc against an insolvent corp is a spec pro, the appealis by record on appeal. REASON: several claims are actually separate onesand a decision or final order with respect to any claim can be appealed.Necessarily the orig rec on appeal must remain in the TC where other claimsmay still be pending.

Who May Appeal -- Interest Person

A stranger having neither material nor direct interest in a testate orintestate has no rt to appeal from any order issued herein.

May appeal only when the order, decree, judgment constitutes a finaldetermination of the rights of the appellants and the appeal shall affect everyorder, decree or judgment appealed from, and not merely the interest whichthe appellants may have therein.

*Prof. Avena: May sometimes be interlocutory in nature if we were to considerit under civpro but it is final in the sense that it disposes of rights and obli ofparties, e.g. declaration of incompetency You can appeal na although ifviewed under civpro, hindi pa ito final dahil wala pang na-aapoint na guardian.In other words, hindi pa tapos iyong guardianship proc. (Siyempre, hindi ganitoiyung pagkakasabi-Fritz)

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The fact that the admin did not prosecute the appeal does not bar thelawful heirs of the deceased from doing so. REASON: Lawful heirs areconsidered interest party.

The validity of a judgment or order of a court entered in a spec pro

cannot be assailed collaterally unless the ground for the attack is lack of jurisor fraud by the party sought to be charged with it in its procurement.

If the nullity of the judgment or order assailed is for failure to comply withthe statutory req. which must be followed before such J/O may be entered, theremedy is to appeal from such, or if final, to apply for relief under R38.

In a specpro, appeals may be taken at various stages of the proceedingsso song as the order, decree or judgment constitutes a final determination ofthe rights of the parties so appealing.

A probate decree finally and definitively settles all questions concerningcapacity of the testator and the proper execution and witnessing of his last willand testament, irrespective of whether its provisions are valid. Appealableunder Sec. 1 (a).

Certiorari and Mandamus not A Substitute for Appeal

If an interested party lost his remedy by appeal due to his own neglect, hecannot now seek redress by certiorari and mandamus, it not appearing that thelower court has acted without juris.

GENERAL PRINCIPLE: In the absence of statutory provisions directingotherwise, any order, judgment or decree of the probate court capable of beingenforced, or taking effect without further order, may be appealed from; andthat no action of the probate court can be appealed from which requires asubsequent order or judgment to give it effect. e.g., An order directing one toappear and submit to an examination touching any property in his possessionbelonging to an intestate, otherwise, he shall be committed to prison, isAPPEALABLE.

In this case, said person is legally interested in the order, thus entitled toappeal. He need not be legally interested in the intestate proceedings proper.

OTHER INSTANCES WHERE APPEAL IS AVAILABLE

1. Appeal by SuretyWhen a surety of an exec/admin of the estate of a deceased person is

admitted as a party to an acctg made by such exec/admin under R. 85 Sec. 11,he may be allowed to appeal from any order of the court approving ordisapproving such acctg.

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2 Appeal by Heir from Money Claim1) An heir, legatee or devisee who under R86 S11 has been served with notice

as to a money claim against the estate may be allowed to appeal from anorder of the ct. approving such claim.

2) A creditor who under R87 S10 is allowed by the ct to bring an action for

recovery of property may be allowed to appeal.3) A spec admin may be allowed to appeal from an order disallowing a will.

3. Order for License to SellAn order for license to sell real estate in admin proc is appealable.

4. Order Against BondAppealable. REASON: Such order constitutes a definite pronouncement

as relates to his bond and to his movable property of which he will be deprived.Thus, he can appeal.

5. Order to contract ObligationAppealable. REASON: It affects substantial rights of the parties and may

unnecessarily prolong the admin of the intestate estate to the detriment of theheirs.

6. Order Appointing AdminAppealable. This is a final determination of the rts of the parties

thereunder.

7. Order Annulling Appointment of GuardianAppealable. An order refusing to permit a person to intervene in a

probate proceeding where he claims to have acquired the interest of one of theheirs of the deceased is likewise appealable.

8. Order Removing a GuardianAppealable. Constitutes a final determination of his rights. An order

declaring a guardian incompetent is likewise appealable.

9. Inventories and Claims against the EstateRe: inventories, claims against the estate and sale of the property of the

decedent are appealable.

10. Person declared incompetentAn order declaring one a spend thrift and mentally and physically

incompetent is appealable.

11. Order refusing to permit a party to intervene

Appealable if the party seeking to intervene is one who claims to haveacquired the interest of one of the heirs of the estate.

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Orders that are not appealable

1. Order directing admin to take action to recover amount due to the estate;interlocutory.

This is purely interlocutory and cannot be the basis of an appeal. Why?Ewan ko. But I think its probably because of the application of the genprinciple.

1. Order made in admin proc relating to inclusion or exclusion of items ofproperty in the inventory of exec/admin, interlocutory

This is purely discretionary, provisional and interlocutory. Subject tomodification or change at any time during the course of admin proc. Notconclusive of the rts of any one, and the order is not final.

2. Order Appointing Special Admin/ReceiverMerely incidental to judicial proceedings. The ct making the appt retains

control over it and that it may modify, rescind, or revoke the same on sufficientgrounds at any time before final judgment.

Sec. 2. Advance Distribution in spec pro. Notwithstanding a pendingcontroversy or appeal in proceedings to settle the estate of a decedent, the ctmay, in its discretion and upon such terms as it may deem proper and just,permit that such part of the estate as may not be affected by the controversyor appeal be distributed among the heirs or legatees upon compliance withthe conditions set forth in R. 90 of these rules.

Fritz, sana naman ay hindi na nasayang ang pagod mo. GOOD LUCK, 3-A!!! Aileen, Minnie & Ella

Appendix to Minnies Habeas Corpus OpusBy: The Regressing Whimsyland Kids Lourie, Karreen & Jig + Party Pooper Ella

Habeas Corpus # 9

Moncupa v. Enrile

Facts: Moncupa et al were arrested & detained. He was alleged to be aNational Democratic Font staff member. A Presidential Commitment Order(PCO) was issued vs. them. After 2 separate investigations, it was ascertainedthat Moncupa was not a member of any subversive organization. Bothinvestigators recommended his prosecution only for illegal possession offirearms & subversive documents. The petitioners motions for bail weredeined. Respondents claim that the privilege of the writ of HC had beensuspended as to Moncupa & filed a MTD stating Since the pet. is free & no

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longer under the custody of the resps., the present petition for HC may bedeemed moot & academic as in similar cases.

Held: Moncupa may have been released fr. his detention cell, but therestraints attached to his temporary release preclude freedom of action &under the Villavicencio v. Lukban rule warrant the Courts relieving him of such

restraints as may be illegal. It is not physical restraint alone w/c is inquired intoby the writ of habeas corpus.

The principle is clear. A release that renders a pet. for a WHC moot &academic must be one w/c is free fr. involuntary restraints. Where a personcontinues to be unlawfully denied one or more of his constitutional freedoms,where there is present a denial of due process, where the restraints are notmerely involuntary but appear to be unnecessary, & where a deprivation offreedom originally valid has, in the light of subsequent devts., becomearbitrary, the person concerned or those applying in his behalf may still availthemselves of the privilege of the writ.

Toyoto, et al. V. Ramos

Facts: Petitioners temporarily released fr. detention. So, does writ lie?

Held: Ordinarily, a pet. for HC becomes mute & epidemic (he he) when therestraint on the liberty of the pets. Is lifted either temporarily or permanently.But the instant case presents a diff. situation. The Q to be resolved is whetherthe State can reserve the power to re-arrest a person for an offense after acourt of competent jurisdiction has absolved him of the offense. Such areservation is repugnant to the government of laws & not of men principle.Under this principle the moment a person is acquitted on a crim charge he canno longer be detained or re-arrested for the same offense.

Alimpoos v. CA

Facts: Reynaldo Mosquito has been accused of Robbery w/ less SeriousPhysical Injuries. He was detained by virtue of a warrant of arrest which wasissued without the observance of the legal requirements for the issuancethereof. Mosquito filed a petition for Habeas Corpus before the Trial Court.Mosquito named as defendants in the case the Prov. Fiscal and the privateoffended parties. he also filed a claim for damages premised on Arts. 32 (4)and other applicable provisions of the Civil Code.

Issues:

1. WON the writ of Habeas Corpus if the proper remedy for Mosquito?2. WON damages may be awarded in a Habeas Corpus case?3. WON private offended party may take part in the case?

Held:

1. The WHC is not the proper remedy. When a warrant of arrest is beingassailed for improper preliminary investigation, the remedy is a petition toquash the warrant of arrest or petition for reinvestigation of the case. It is the

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gen. rule that a HC shld. not be resorted to when there is another remedyavailable.

2. No. Damages cannot be awarded. The sole function of the writ is to relievefr. unlawful imprisonment and ordinarily it cannot be properly used for anotherpurpose.

3. While the issuance of the writ connotes the commencement of a civilaction, the proceedings for HC is technically not yet a suit bet. private parties.The proper party is the Chief of Police or the person having the accused indetention and not the private offended party. It is also only the fiscal who mayappeal the order granting the writ as mandated by Sec. 19 RULE 41 of theROC.

Salvana v. Saliendra

Facts: Salvana and Saliendra are the parents of 15 year old FelicisimaSalvana. The minor is presently in the custody of a justice of peace. The

parents filed a petition for WHC to regain parental authority over the minor.The pet. was denied on the ground that the parents are guilty of abusing theirchild by forcing her to marry another against the her wishes.

Issue: WON WHC should issue?

Held:It should issue. A WHC is the proper legal remedy to enable parents toregain the custody of a minor daughter even though the child is in custody of a3rd person of her OWN FREE WILL. Neither the fact that the parents sought tocompel her to marry against her wishes a legal ground for depriving parentstheir parental authority over the child as to deny them the right.

SUAREZ VS. CA

Facts: Respondent Manese filed a petition for writ of HC vs. petitionerRenato Suarez, his mother & sister. She filed a motion to dismiss withoutprejudice to her right to file another action for custody of minor, contendingthat the issue as to who has rightful custody of the child could be fullyadjudicated in another action and not in the present action for HC. TC grantedmotion but with prejudice.

Issue: WON order of dismissal with prejudice is res judicata to presentaction for custody of minor & support

Held:The order of dismissal cannot be considered as a valid adjudication onthe merits which would serve as a bar to the second action for custody ofminor. TC dismissed the case without stating the reasons or the basistherefore, contrary to the constitutional mandate that decisions rendered bythe court must clearly & distinctly state the law & facts on which it is based. Itis worthy to note though that the ground upon which the motion to dismiss wasfiled was erroneous since the question as to who shall have custody of the childcan be sufficiently resolved in the petition for writ of HC pursuant to Rule 102,ROC.

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The controversy in the instant case involves a litigation initiated by thenatural mother over the welfare & custody of her child, in which the State has aparamount interest. The fundamental policy in the Constitution promoting &protecting the welfare of children should not be disregarded by a meretechnicality in resolving disputes which involve the family & youth.

GALVEZ VS. CA

Facts: Three separate information (1 homicide, 2 frustrated homicide)were filed vs. Galvez (incumbent mayor of one of the towns in Bulacan ... Peter,dont follow his footsteps, OK?) for the alleged shooting of the Vinculados. Saidinfos. were later withdrawn in a Motion by the prosecutor, but on the same day,filed four separate information (same three plus illegal possession of firearms).Judge ordered the arrest of the petitioners since no bail was recommended.

Issue: WON petition for HC was properly filed together with the presentpetition for certiorari and mandamus

Held:Writ of HC and certiorari may be ancillary to each other where necessaryto give effect to the supervisory powers of the higher courts. The writ reachesthe body & jurisdictional matters while certiorari reaches the record. But HCdoes not lie where pet. has the remedy of appeal or certiorari because it willnot be permitted to perform the functions of a writ of error or appeal for thepurpose of reviewing mere errors or irregularities in the proceedings of a courthaving jurisdiction over the person & subject matter.

Writ cannot be granted in the case at bar since petitioners failed toadduce any justification or exceptional circumstances which would warrant thegrant of such writ. HC is not ordinarily available in advance of trial todetermine jurisdictional questions that may arise. In the absence ofexceptional circumstances, the orderly course of trial should be pursued & the

usual remedies exhausted before the writ may be invoked. Petition for HC isnot the appropriate vehicle for asserting a right to bail or vindicating its denial.

PEOPLE VS. FIGUEROA

FACTS: The accused were found by the Philippine Navy off the province ofPalawan with untaxed blue-seal cigarettes in their possession. They werebrought to Manila and investigated. During this preliminary investigation, eachof the accused executed affidavits and waived their rights under Art. 125 of theRPC (arbitrary detention). On recommendation of the Manila fiscal, the accusedwere brought back to Palawan and another preliminary investigation was held,allegedly for the purpose of affirm(ing) the truth of the sworn statements.This time, however, the accused declined counsel and readily affirmed their

previous affidavits. Their counsel filed a MTQ, claiming that the information wasfiled without a preliminary investigation and, if there was, it was held in Manilaand not Palawan where the alleged crime was committed. The lower courtgranted the MTQ, holding that the preliminary investigation was conductedhurriedly.

ISSUE: WON the trial court correctly dismissed the information based on thelack of preliminary investigation.

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HELD: NO. Assuming that the trial court felt that the accused should havebeen given more ample chance and opportunity to be heard in the preliminaryinvestigation, what it should have properly done was not to dismiss theinformation but to hold the case in abeyance and conduct its own investigationor require the fiscal to hold a reinvestigation. The absence of such investigationdid not impair the validity of the information or otherwise render it defective.

Much less did it affect the jurisdiction of the lower court over the case.

ENRILE VS. SALAZAR

FACTS: Juan Ponce Enrile, Gregorio Honasan, and the Panlilio spouses werearrested by PNP agents on a warrant of arrest issued by Judge Salazar. Theywere denied bail, none being recommended in the information which chargedthem with the crime of rebellion with murder and multiple frustrated murderallegedly committed during the failed coup attempt of Dec. 1990. Enrile andthe Panlilios filed this petition for habeas corpus, invoking denial of theconstitutional right to bail.

ISSUE:WON a petition for habeas corpus is the appropriate vehicle for asserting

a right to bail or vindicating its denial.HELD:

NO. The criminal case before Judge Salazar was the normal venue forinvoking the petitioners right to have provisional liberty pending trial andjudgment. The correct course was for petitioner to invoke that jurisdiction byfiling a petition to be admitted to bail, claiming a right to bail per se by reasonof the weakness of the evidence against him. Only after that remedy wasdenied by the trial court should the review jurisdiction of the Supreme Courthave been invoked, and even then, not without first applying to the Court ofAppeals if appropriate relief was also available there. The Court will no longercountenance pleas like the present that clearly short-circuit the judicial processand burden it with the resolution of issues properly within the originalcompetence of the lower courts.

PAREDES VS. SANDIGANBAYAN

FACTS: A criminal complaint was filed against Governor Paredes for violationof the Anti-Graft and Corrupt Practices Act. A preliminary investigation was heldbut the summons for Paredes to appear therein did not reach him. Aninformation was subsequently filed and a warrant of arrest issued againstParedes. He now petitions for habeas corpus on the ground that the preliminaryinvestigation was invalid and that the offense has prescribed.

ISSUE: WON the circumstances constitute valid grounds for the issuance of awrit of habeas corpus.

HELD: NO. The absence of a preliminary investigation does not affect thecourts jurisdiction over the case nor impair the validity of the information orotherwise render it defective. The remedy of the accused in such a case is tocall the attention of the court to the lack of a preliminary investigation anddemand, as a matter of right, that one be conducted. The court, instead ofdismissing the information, should merely suspend the trial and order the fiscalto conduct a preliminary investigation.

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The defense of prescription of the offense should be pleaded in thecriminal action, otherwise it would be deemed waived. It is a proper ground fora motion to quash which should be filed before the arraignment of the accusedfor whether the crime may still be prosecuted and penalized should bedetermined in the criminal case not in a special proceeding of habeas corpus.All questions which may arise in the orderly course of a criminal prosecution

are to be determined by the court to whose jurisdiction the defendant has beensubjected by the law, and the fact that a defendant has a good and sufficientdefense to a criminal charge on which he is held will not entitle him to hisdischarge on habeas corpus.

ILAGAN V. ENRILE(When we went to Davao, Judge Quitain, the Daddy of Mamay, introduced as toAtty. Ilagan who was then pres. of Integrated Bar of the Phils. Davao Chapter.

May picture pa kami w/ him.)

Facts: Atty. Ilagan was arrested in Davao City & detained on the basis of amission order allegedly issued by the Ministry of Natl. Defense. He was visitedby 15 lawyers fr. IBP Davao Chapter. One of the visitors was also arrested &

detinaed on the basis of an unsigned MO. After several days, another IBPmember was arrested. Petitioners argue that the arrests were illegal &violative of the Consti, since arrests cannot be made on the basis of missionorders. Resps. Answered that the Writ was suspended as to them by virtue ofProc. #2045-A.

Held: IF the detained attys. Question their detention bec. of improper arrest,or that no prelim inv has been conducted, the remedy is not a pet. for a writ ofHC but a Motion for the TC to quash the Warrant of Arrest, &/or the info ongrounds provided by the rules or to ask for an investigation/ reinvestigation ofthe case.

This pet. is now mood & academic bec. of criminal charges for rebellionfiled vs. the lawyers.

Luna v. Plaza

Facts: Supporting the complaint for murder were sworn statements ofprosecution witness in the form of Q & A taken by the PC investigator, &subscribed & sworn to before the resp. Judge at the time of filing comp. Judgeread to the proecution witnesses the Q & A. This was how he examined them.The latter declared that their answers were true, freely & voluntarily made, &that they fully understood the Q & A & were willing to sign their respectiveaffidavits. Judge issued warrant of arrest. Pet. filed writ for certiorari on theground that he was deprived of liberty w/o due process since the imprisonment& detention was the result of a WOA issued by resp. judge in violation of law

since the exam was not reduced to in writing in the form ofsearching Q & A.Judge claims substantial compliance.

Held: There was substantial compliance. The existence of probable causedepends to a large degree upon the finding or opinion of the judge conductingthe exam. RA 3828 does not prohibit the Mun Judge fr. adopting the questionsasked by the previous investigator.

The term searching Q & A means only taking into consideration thepurpose of the prelim exam, w/c is to determine whether there is a reasonable

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ground to believe that an offense has been committed & the accused isprobably guilty thereof so that a warrant of arrest may be issued & the accusedbe held for trial, such Qs having tendency to show the commission of the crime& the perpetrator.

UP Specpro

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