SPECPRO CRIMPRO EVIDENCE.doc

7/30/2019 SPECPRO CRIMPRO EVIDENCE.doc

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NOTES IN REMEDIAL LAW SAN SEBASTIAN COLLEGE-INSTITUTE OF LAW [email protected]

SPECIAL PROCEEDINGS

It is a remedy by which a party seeks to establish a status, a rightor a particular fact.

Settlement of Estate of Deceased Persons

If a person is born, he is susceptible of possessing civil rights andobligations.

If a person dies, his civil personality ceases and can no longer bethe subject of civil rights and obligations.

civil rights and obligationswill still function

Birth Death Spec Pro

Property:

Real, personal Difficult to Gives riseMoney claims distribute to an estate

Estate

It is a fictional character that takes over the personality of thedeceased until the fulfillment of all his obligations. It is an artificial being createdby fiction of law for the purpose of collating the assets of the deceased andsettling all claims against him and all his liabilities. It is the personality createdafter a person dies.

Venue of Settlement of Estate

If the decedent is a resident of the Philippines at the time of death,whether citizen or alien, his will shall be proved or letter of administration grantedand his estate settled in the RTC of the province where he resides at the time ofhis death.

If the decedent is a resident of a foreign country, his will shall beproved or letter of administration granted and his estate settled in the RTC of anyprovince where he has property.


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Note: The court first taking cognizance of the settlement of the estate of thedecedent shall exercise jurisdiction to the exclusion of all other courts.

Probate Jurisdiction

Within Metro Manila Outside Metro Manila

MTC < P 400,000.00 < RTC MTC < P 200,000.00 < RTC

Under R.A. No. 7691, the law expanding the jurisdiction of the trialcourts, the MTC shall exercise exclusive jurisdiction over settlement of estate,testate or intestate, where the value of the estate does not exceed P 200,000.00,

outside Metro Manila, P 400,000.00, within Metro Manila. Thus, the RTC shallhave jurisdiction where the value of the estate exceeds P 400,000.00 withinMetro Manila or where the value of the estate exceeds P 200,000.00 outsideMetro Manila. Note, however, that this jurisdictional amount shall be increasedbeginning April 16, 2004.

Estate

Claims by the Claims by Claims ofgovernment third parties heirs

Compulsory Voluntary-those who heirsinherit by designated

provision of law by thedeceased

How Heirs are Instituted

By Law By Designation

-rule on intestacy -testate succession-compulsory heirs are -a will is the only wayentitled to their legitime to designate a voluntary heir


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Will

Probate

Probate

Note: The requirement on the number of witnesses is mandatory and is neededfor probate.

A will is an act whereby a person is permitted, with the formalitiesprescribed by law, to control to a certain degree the disposition of his estate thattakes effect after his death.

Notarial

-will other than holographic

-must comply with the rules on

notarial will

-formalities must be observed

-if requirements are not compliedwith, will is invalid

Holographic

-written, dated, and signed by the

testator

-testator must, in the will,:

1. Identify the heirs (subject to the

rules on preterition). Therefore, hecannot omit compulsory heirs.

2. Identify assets subject to

distribution (after claims of govt

and third persons has been

satisfied): a) assets in general

terms, b) assets specifically

identified.3. Identity of heirs to be disinherited

provided that the conditions are

met (if not identified, then the lawon intestacy will apply).

Contested

-all

subscribing

witnesses and

the notary, if

present andnot insane,

must testify

-their absence

and insanity

must

satisfactorily

be proved

Uncontested

-only one

witness who

subscribed to it

may testify to

the effect thatthe will was

properly

executed as

required by lawContested

-at least 3 witnesses

who know the handwriting and signature

of the testator must

testify-expert testimony

may be resorted to

Uncontested

-only one witness

who knows thehandwriting and

signature of the

testator maytestify


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A will is the basis of distribution of assets. In the absence thereof,the law on intestacy shall ensue. If there is preterition whereby a will omitted oneor some compulsory heirs intestacy shall also ensue.

Types of Wills

A. Ordinary or Notarial WillRequisites:1. It must be in writing.2. It must be written in a language or dialect known to the testator.3. It must be subscribed at the end thereof by the testator himself or by the

testators name written by some other person in his presence and by hisexpress direction.

4. It must be attested and subscribed by three or more subscribing witnessesin the presence of the testator and one another.

5. The testator or the person requested by him to write his name and theinstrumental witnesses of the will shall also sign each and every page

thereof, except the last page on the left margin.6. All the pages must be numbered correlatively in letters placed on theupper part of each page.

7. The will must contain an attestation clause.8. The will must be acknowledged before a notary public by the testator and

the subscribing witnesses.

B. Holographic WillRequisites:1. The will must be entirely written by the hand of the testator.2. The hand of the testator himself must date the will.3. The testator must sign the will.4. The will must be executed in a language or dialect known to the testator.

Will

Those that can be implemented Those that cannot be implemented

1. Has complied with the formalities of execution 1. Does not comply with the requirements2. Successional rights of the compulsory heirs 2. Can only be implemented through

are not impaired agreement3. Probated

Probate

Allows the will Disallows the will


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Probated Rules on Intestacy applies

Probate

It is a special proceeding to establish the validity and due execution

of a will. More specifically, it is a special proceeding for the purpose of provingbefore a competent court vested with authority for that purpose that theinstrument being offered for probate is the last will and testament of thedeceased. Secondly, that it has been executed in accordance with the formalitiesprescribed by law. And lastly, that the testator has the testamentary capacity atthe time of the execution of the will.

Jurisdiction of Probate Courts

An estate /probate court has a very limited jurisdiction and it is:1. to pay off money claims2. to approve appointments of administrators and executors3. to approve inventories4. to approve partitions of the net estate

It has no power to entertain, in the same proceeding to settleestate, suits for recovery of specific personal and/or real property and is in noposition to adjudicate questions of ownership.

This rule is intended to make sure that an estate court will not be

stamped or flooded with all kinds of issues and questions. Questions ofownership over specific real and personal property can be adjudicated beforeother courts. In such a case, the estate court will authorize the administrator orexecutor to file the proper case before the other court. On the other hand,property claims against the estate may be filed by third party claimants before theother courts. However, the estate will be represented by the administrator orexecutor, as the case may be.

In case where the ownership over real or personal property iscontested, the estate will reserve the distribution or partition of the contestedproperty until after the issue on ownership is finally resolved. The estate court will

thereafter award the contested property to whoever is finally declared as theowner thereof. Until and unless the estate court issues the final order of partition,no heir is allowed to disturb the status quo.


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Grounds for Denial of Probate

1. 1. the formalities required by law has not been complied with

2. the testator was insane or otherwise mentally incapable of making a will at thetime of its execution3. the will was executed through force or under duress or the influence of fear or

threat4. the will was procured by undue and improper pressure and influence on the

part of the beneficiary or some other person5. the signature of the testator was procured by fraud6. the testator acted by mistake or did not intend that the instrument he signed

should be his will at the time of affixing his signature thereto.

Intrinsic vis--vis Extrinsic Aspect of a Will

Under our law, there are only three possible questions that can bedetermined by the probate court. They are a) identity, b) due execution, and c)testamentary capacity.

These aspects pertain to the extrinsic validity of the will and theprobate court is limited to pass upon the three aspects of the will. Consequently,the probate court cannot inquire into the intrinsic validity of the will.Note: In the case of Nuguid vs Nuguid, it was held that if the will contains a grave

error apparent on its face, the court may for practical reasons pass uponthe intrinsic validity of the will for the purpose of determining the validity ofthe will. This is intended to prevent the probate court from uselesslyapproving a will that it cannot later on implement.

If a will is not probated due to intrinsic reason, like preterition, anyother disposition in the will pertaining to legacy or devise will remain valid.However, if the will is not approved for probate due to extrinsic reasons,dispositions as to devises and legacies are likewise not valid for the reason thatthe will is apparently spurious.


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Probate of Wills

Local Foreign

Notarial Holographic -the will must have beenprorperly probated abroad-the foreign court sends aletter rogatory to a localcourt requesting assistance-petition to admit foreign willis filed in a local court

How can Foreign Wills be implemented

Sent to

Disallowed

Allowed

In the case of foreign wills, they must be properly probated abroadand that there be a letter rogatory from a foreign court to a local court requestingassistance from a local probate court.

A copy of the will and the order or decree of the allowance thereof,both duly authenticated, should be filed with a petition for its allowance in thePhilippines by executor or any person interested in the court having jurisdiction.

The court will then fix a time and place for the hearing and causenotices thereof to be given as in the case of an original will presented forallowance.

Foreign will

executed

abroad

Probated in the

country where it

was executed

Letter

Rogatory

Local

Court

Noticeof

HearingCertificate of

allowance

Letter testamentary/ of

administration

Letter returned toforeign country


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If it appears at the hearing, that the will should be allowed in thePhilippines, the court shall so allow it. Then a certificate of its allowance, signedby the judge and attested by the clerk of court to which shall be attached a copyof the will, shall be filed and recorded by the clerk. Thereafter, the will shall have

the same effect as if originally allowed in such court.

When the will is thus allowed, the court shall grant letterstestamentary or letters of administration with the will annexed. Such letters shallextend to all of the estate of the testator in the Philippines. Such estate after thepayment of just debts and expenses of administration, shall be disposed ofaccording to such will, so far as such will may operate upon it. The residence, ifany, shall be disposed of as provided by Philippine Law in cases of estate in thePhilippines belonging to persons who are residents of another country.

A local court may opt to refrain from accepting the probate of a

foreign will, even if it has jurisdiction over it. Such refusal of jurisdiction may bebased on the principle of forum non-conveniens, meaning, if the case at handwould involve too many foreign elements, local courts will be inconvenienced andextremely prejudiced if it will adjudicate the same.

Estate

Must be represented

Administrator Executor

Letters of Administration Letters Testamentary

Letters testamentary is the appointment issued by a probate courtafter the will has been admitted for probate to the executor named in the will toadminister the estate of the deceased-testator provided the executor named inthe will is competent, accepts the trust and posts a bond.

Letters administration is the appointment issued by a court to acompetent person to administer the estate of a deceased who died without a will,provided such person accepts the trust and posts a bond.

When there is a delay in granting letters testamentary or ofadministration by any cause including an appeal from the allowance ordisallowance of a will, the court may appoint a special administrator to take


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possession and charge of the estate until the questions causing the delay aredecided and an executor or administrator be appointed. A special administratormay also be appointed if an executor or administrator so appointed fails to qualifyor refuses the trust. An order appointing a special administrator by the court ismerely interlocutory.

Administrator

The person appointed by the court, in accordance with law, toadminister and settle the intestate estate and such testate estate, where nocompetent executor was designated by the testator.

Executor

The person nominated by the testator to carry out the testatorsdirections and requests in his will and to dispose of his properties according tohis testamentary dispositions after his death.

Qualifications of an Administrator and an Executor

1. They must be of age.2. They must be residents of the Philippines.3. They must not be incompetent to execute the duties of the trust by reason of

drunkenness, improvidence, want of understanding or integrity, and

conviction of an offense involving moral turpitude.

General Powers of Administrators

1. Administration

He is required to handle and marshal all assets of the deceasedand manage the estate wisely and economically and in a business-like manner. For this purpose, he may bring such actions he maydeem necessary.

2. Liquidation

He is required not only to pay the debts of the deceased but also todetermine and collate his assets and property.


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3. Distribution

He is required, after all expenses have been paid, to distribute thenet estate among the known heirs, devisees, legatees, and all other

persons interested.Note: Administrators have the clear power to administer the affairs of the estate.However, they are not allowed to make acts of disposition and alienation ofthe assets of the estate without court approval that is properly secured by aprevious motion.

Preference of Appointment of Administrator

1. surviving spouse or next of kin or their recommendee2. in default of the above, any principal debtor

3. in default of the above, such other person as the court may select

The same preference is also applicable in the case of an executor.However, it is the testator who appoints his executor so that as long as theexecutor named in the will is competent, accepts the trust and qualifies byposting a bond. The probate court shall issue to him his commission to the officeknown as letters testamentary.

If no executor is named in the will or the executor/s areincompetent, refuse the trust or fail to give bond or when the person dies

intestate, the above preference mentioned shall be applied.

Purpose of the Bond

The bond requirement of the administrator will answer for thefollowing duties:1. for an administrator to make an inventory within three months2. to administer the assets and pay all debts3. to render an accounting of the estate within one year and from time to time4. to perform all the orders of the courtNote: In the event that the estate will be prejudiced, the court may forfeit the

bond in favor of the estate. If the bond is not sufficient, appointment ofadministrator is not void. Remedy is to secure an order to file sufficientbond.


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Grounds for Removal of an Administrator

1. if he neglects to render his account and settle the estate according to law2. if he neglects to perform an order or judgement of the court

3. if he neglects a duty expressly provided by the Rules of Court4. if he absconds, becomes insane or otherwise incapable or unsuitable todischarge the trust

Note: The grounds are not exclusive since the removal is dependent upon thesound discretion of the court. He may be removed on the ground ofunfitness or unsuitability.

Inventory

The inventory shall list all the assets and liabilities of the deceased,including:1. potential assets and liabilities2. inchoate assets and liabilities3. contingent assets and liabilities

But excludes the following:1. wearing apparel of the surviving spouse and children2. marriage bed and bedding3. such provisions as will be consumed in the subsistence of the family

Settlement of Estate

Judicial Extra-judicial

Testate Intestate With no debts Small value

Requisites:

1. Public instrument which could bean affidavit of self adjudication orby an action for partition

2. Publication once a week for threeconsecutive weeks

3. Heirs Bond to cover value ofpersonal property (to answerto all potential claimsNote: Only property susceptible of

consumption


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Extra-Judicial Settlement

By agreement No debts-action for partition -heirs-decision of the court -owned in common

By Agreement

The court will not approve a compromise agreement between theheirs executed during the pendency of an estate proceeding, and if approved, itis a reversible error. Such compromise agreements are not allowed because theywill prejudice third party claimants against the estate.

However, if there is an early compromise agreement, the court mayproperly defer approval of the agreement until such time that the net estate isabout to be distributed. At that point, the compromise agreement can take theplace of a plan of distribution that the administrator of the estate is required tosubmit.

Notice of the agreement should be by publication in a newspaper ofgeneral circulation in the province once a week for three consecutive weeks.

Estate of Small Value

The value of the estate must have a gross value of less than P10,000.00. Notice and publication of its settlement to interested person is to bedirected by the court.

A B

C D

No

Claims


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Judicial Settlement

Who may petition for the allowance of a will?

1. the executor2. the devisee named in the will3. the legatee named in the will4. any person interested in the estate5. testator himself during his lifetime

The petition for the probate of the will is not subject to bar by thestatute of limitations and does not prescribe. The petition may be filed at any timeand is required by public policy.

The probate of a will is a proceeding in rem and the publicationprovided for is a jurisdictional requirement.

Publication is generally required, except, where the petitioner is thetestator himself. In any event, notice of time and place for proving the will must

be published three weeks successively before the date of hearing in anewspaper of general circulation.

Where the testator himself petitions for the probate of his will in hislifetime, no publication is required and notice is required only for his compulsoryheirs.

Petition is

filed in

court

Probate of

will

Appointment of

administrator or

executor

Inventory of

assets and

liabilities

Notice to

third party

claimants

Liabilities are

paid

Net estate is

distributed

End of

process


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During the lifetime of the testator, a limited proceeding may becommenced to probate his will. Once his will is admitted to probate, theproceedings are terminated. The court probating the will in that instance shalllose jurisdiction to continue adjudicating the estate of the testator.

Proof of an Uncontested Will

Will

Notarial Holographic

requirement: requirements:ex-parte presentation of evidence 1. one witness

2. expert witness3. testator during his lifetimeproof:

affirm the handwriting and

signature of the testator

Proof of a Contested Will

Will

Notarial Holographic

requirement: requirements:1. all the available 1. expert witnessattesting witnesses

2. notary public (indispensable) 2. Other witness (not mandatory)

Note: A will allowed to probate in a foreign country must be re-probated in thePhilippines.

Claims Against Estate

Claims

Actual (existing) Contingent


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Time to File Money Claims

After the court has appointed an administrator or executor for theestate, the court shall issue a notice to the public requiring the filing of moneyclaims for not more than 12 months or less than 6 months after the first date ofthe publication of such notice.

Before final distribution or partition of the net estate, a money claim,however, may still be allowed to be filed within a time of not exceeding onemonth before such distribution.

A money claim is filed in the same manner as any ordinary

complaint. The estate, if it chooses to contest the claim, will file an answer. Thecontested claim is thereafter tried and if there is a favorable judgement for theclaimant which has become final and executory, such claim shall be in the list ofclaims that will be settled by the estate. Thus, the court will then issue an order oras many partial orders to pay all the final and executory claims.

When a court renders a judgement approving a claim, the sameestate court may order payment after such order has become final andexecutory.

12 months6 months Statute of

Non-claims

Appointment Notice to Date of Distributionof claimants publication of the estate

administrator

Claims that may be Filed Against the Estate

1. all claims for money against the decedent arising from contract, express orimplied, whether the same be due or not

2. all claims for funeral expenses3. expenses for last illness4. judgement for sum of money against the decedent5. liability for a tortious act, if expressed as damages


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Statute of Non-claims

The period of the statute of non-claims means that the filing ofmoney claims should be during a period of six months starting from the sixthmonth after the date of the first publication of the notice down to the twelfthmonth.

Within the range of said period, the probate court is permitted to setthe period for filing of claims and the period, once fixed by the court, ismandatory.

However, for good cause shown, the court may grant a one-month

period for a creditor to file a claim that he failed to file during the original periodgranted for the filing of claims. Such motion for leave to file a claim beyond theoriginal period may be filed at any time during the administration proceedings,provided, no order of distribution has yet been entered.

Claims not filed within the period for the filing of claims are barred,but if the claimant is sued by the administrator or executor, either within theperiod of filing of claims or thereafter, such claim may be availed of by thedefendant as a counterclaim. And if he proves the same, he may recover thereonagainst the estate.

Contingent Claims

It is one arising from a valid obligation but at the time of death ofthe deceased, the condition or requirement for such claim to become due anddemandable has not yet occurred.

12 months 2 years6 months Statute of

Non-claims

Date of Publication Contingent Claims Contingent Claimsmust be absolute are barred

With respect to contingent claims, the estate court is required toretain a portion of the estate for payment of contingent claims. However, thecontingent claim must be absolute within two years from the time that othercreditors are required to present their claims. Otherwise, the estate court mayorder the distribution of that portion of the estate set aside for the contingentclaims.


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Note: 1. The Statute of Non-claims is superior to the period of prescription.2. For a creditor to be able to collect, it must be within the Statute of Non-

claims and at the same time within the period of prescription.

How property of the estate may be sold, mortgaged or encumbered?

1. The executor/administrator shall file a written manifestation or applicationsetting forth the debts due from the deceased, the expenses ofadministration, the legacies, the value of the personal estate to be sold,

Estate Court puts

on trial each and

every claim by

third parties

Estate Court

empowers the

administrator/

executor to

preserve theassets of the

estate

Estate Court

determines if

settlement is

possible

Estate Court

approves the

final partition

of the net

estate

Probate Court issues

several orders

approving or

disapproving third

party claimants.Notes:

1. if meritorious,

approve each

claim

2. each order can

be the subject ofan appeal

Probate Court

issues an order

authorizing the

administrator to

sue for and inbehalf of the estate.

Note:1. to sue and

recover claims,

the probate

court

authorizes theadministrator

to be

substituted forthe estate

2. consider the

economic

aspect

Probate Court

issues order for

partial settlement

Note:

1. it dependsupon the

trial of theclaims

2. by proper

motion or on

its own

Probate

Court issues

order

approving

partition ofthe estate

Claims of the estate

must be collected

Complication:

Questions as to the status of heirs, a

side issue which must first beresolved


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mortgaged or encumbered and such other facts as will show that the sale,mortgage or encumbrance is necessary or beneficial.

2. The court shall thereupon fix a time and place for hearing the application andcause notice thereof stating the nature, the reasons and the time and place ofhearing to be given personally or by mail to the persons interested and may

cause such further notice to be given by publication or otherwise, as it shalldeem proper.3. If the court requires it, the executor/administrator shall give an additional

bond, in such sum as the court directs, conditioned that suchexecutor/administrator will account the proceeds of the sale, mortgage orencumbrance.

4. If the preceding requirement have been complied with, the court, by orderstating such compliance, shall authorize the executor/administrator to sell,mortgage or encumbrance in proper cases such part as it deem necessary.In case of sale, the court may authorize it to be in public sale or private sale,as it deemed beneficial to all parties concerned. The executor/administrator

shall be furnished a certified copy of such order.5. If the estate is to be sold at auction, the provisions concerning notice ofexecution sale shall govern the mode of giving notice of the time and place ofthe sale.

6. There shall be recorded a certified copy of the order of the court together withthe deed of the executor/administrator for such real estate which shall be asvalid as if the deed has been executed by the deceased in his lifetime. It shallbe recorded in the Registry of Deeds of the province in which the real estatethus sold, mortgaged or encumbered is situated

Action By and Against Executor and Administrator

Administrator/Executormay be sued in his

Personal Capacity Representative Capacity

An action to recover real An action to recoveror personal property or damages for an injuryan interest therein or to to person or property,

enforce a lien thereon real or personal

An administrator/executor may be sued in his personal capacity forviolation of or non-compliance with the duties of his trust. However, if the actionwould result in a direct charge upon the estate, the executor or administrator is tobe sued in his representative capacity.


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For the recovery or protection of property or rights of the deceased,an executor/administrator may bring or defend, in the right of the deceased,actions for a cause that survives.

Distribution and Partition of the Estate

Money Claims

(pending case)

Property Claims(pending case)

Purely Personal

Action

Person dies

Person dies

Person dies

Old Rule:

The money claim is

dismissed and is re-filed inthe estate court.

New Rule:

The case continues but there

is substitution of the

deceased and the estate.

Case is dismissed

Estate

Pays all debts and

expenses:

1. funeral charges

2. administration

expenses

3. allowance towidow

4. estate taxes

Distributees give a

bond

Distribution/Partition

Issuance of certified copies of final orders

and judgement

Registry of Deeds

Motion for the approval

of a plan of partition

and/or distribution of the

net estate


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Partition/Distribution of Net Estate

1. After all the debts, funeral charges, expenses, etc. have been paid, theresidue shall be assigned to the persons entitled thereto.2. No distribution shall be allowed until the payment of the obligations above-

mentioned has been made unless the distributees or any of them gives abond in the sum fixed by the court conditioned for the payment of saidobligations within such time as the court directs.

3. Certified copies of the final orders and judgements relating to the real estateor the partition thereof shall be recorded in the registry of deeds.

Note: 1. The judicial orders of distribution vests title in the distributees and anyobjection thereto should be duly raised in a seasonable appeal;

otherwise, it will have binding effect like any other judgement in rem.2. The probate court loses jurisdiction of an estate under administrationonly after the payment of all debts and the delivery of the remainingestate to the heirs.


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Escheat

It is a proceeding whereby the real or personal property of aperson, who died intestate, leaving no heirs or persons, by law, entitled to his

estate, becomes the property of the State. It is, however, required that suchproperties are sustained in the Philippines.

It is also a proceeding for the reversion to the State of property(inalienable lands of the public domain) alienated in violation of the Constitutionor any statute.

Under the first instance, the proceeding shall be instituted in theRTC of the province where the decedent last resided. In the second instance, theproceeding shall be instituted in the RTC of the province where the land lies inwhole or in part.

Petitions for escheat may only be filed in the name of the Republicof the Philippines by the Solicitor General or his representative.

Even if the deceased died testate but his will was not allowed toprobate, it is as if he died intestate. If he has no known heirs and there are nopersons entitled to his property, the same can still be escheated.

Persons entitled to file a claim

can still claim possession

decedent died judgement of escheat five years after

Distinction between Reversion and Escheat

Actions for reversion are proper in illegal sale of land to disqualifiedaliens. Furthermore, action for reversion shall be filed in the province where theland lies in whole or in part.

Note: Publication at least once a week for six consecutive weeks in a newspaper

of general circulation of the order approving the escheat is necessary.

Guardianship

Guardians


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Guardian

He is a person appointed by the court or by provision of law to carethe person or property or both of another person who is incompetent to act forhimself.

The guardian has a fiduciary relationship with the ward.Accordingly, any property acquired by the guardian using assets of the ward areheld in trust for the benefit of the ward.

On the matter of guardianship proceedings, it must be noted thatthese are of limited scope and the courts jurisdiction is limited to appointing theguardian and overseeing the management of the wards estate. Any question asto ownership of any title to property, whether real or personal, should beadjudicated before the proper court in a separate proceeding.

The subject of a guardianship proceedings is either: a) a residentminor, or b) an incompetent, both of whom have no lawful guardian or parents.

Note: 1. Incompetence or the state of being incompetent is a product of judicialdeclaration in a guardianship proceeding. It cannot be inferred nor can itbe implied.

2. Notice of petition must be given to all relatives of the minor or theincompetent or those taking care of the subject, including theminor/incompetent if over 14 years of age. No publication is required.

The petition must contain:1. the jurisdictional facts2. the status of minority or incompetence3. names, ages, and residence of the relatives of the minor or the

incompetent and the person having custody of the minor or incompetent4. probable value of the estate of the ward5. name of the ward

Legal Guardians

-no appointment

needed

e.g. parents w/respectto property of the

minor not exceeding P

2,000.00

Guardian adLitem

-appointed by the

court for a particular

action or proceeding-must be competent

Judicial Guardian

-appointed by the court

over the person and/or

property of the ward-must be competent


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Once a petition is filed, the court shall serve notice to all therespondents for the hearing of the petition. Any interested party may file anopposition based upon the following grounds:1. alleged minor is of age2. the incompetent is in fact competent

3. guardian is not qualified

During the hearing of the petition, the petitioner must prove all hisallegations. Afterwards, the oppositor will also prove his oppositions. Thereafter,the court renders judgement on the question of minority and/or incompetence.The court may likewise issue order appointing the guardian if he is qualified.

The qualifications of a guardian are similar to that of theadministrator/executor. However, it is mandatory for the guardian to submit aguardians bond before he can be appointed as guardian.

Once the guardian is appointed, he will be required to take care ofthe ward and manage the wards estate. However, he can only dispose and/orencumber any property of the ward after prior approval by the court. In addition,the guardian is required to submit an accounting of the estate to the court. Allorders of the guardianship court are considered final and each of which may be asubject of an appeal.

A guardian may be removed for the following grounds:a) if he becomes insane

b) if he becomes incapable of discharging his functionsc) if he is considered unsuitabled) if he has wasted or mismanage the estatee) if he has failed for 30 days to submit the required accounting

Trustees

Trust is a confidence reposed in one person called trustee relating

to a property or right over such property held by the trustee for the benefit of abeneficiary known as cutui que trust.

A petition for the appointment of a trustee may be filed in the:1. Regional Trial Court where the will was allowed in the Philippines2. Otherwise, the Regional Trial Court of the province where the property or

some portion thereof, affected by the trust is situated


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An execution will not be exempted from posting a bond, even ifsuch exemption is provided in the will but a trustee appointed in the will may beexempted from such bond when so directed in the will.

Accounts of trustees must be under oath and shall be filed

annually. Lastly, it is the duty of the trustee to deliver the trust property to thecutui que trust, free from liens and encumbrances.

Adoption and Custody of Minor

The custody of the child to the mother is not automatic under Sec.6, Rule 99 of the Rules of Court. The court may award the care, custody and

control of the child as will be for its best, permitting the child to choose whichparent it prefers to live with if he be over 10 years of age.

The custody of the child by the mother is automatic only when thechild is under 7 years of age unless the court finds compelling reasons to orderotherwise.

Under Sec. 6, Rule 99 of the Rules of Court, parents of any minorchild can be deprived of custody of their child by reason of:1. long absence or legal physical disability or have abandoned the child

2. cannot support the child because of vagrancy, negligence or misconduct3. neglects or refuses to support the child4. treats the child with excessive harshness5. gives the child corrupting orders6. counsels, examples, causes or allows the child to engage in begging or to

commit offense against the law

The proper court, upon petition by some reputable residents of theprovince, may issue an order taking such minor from the custody of his parentsand commit said minor to any suitable orphan asylum, childrens home orbenevolent society.

Adoption

It is a judicial act which creates between two persons a relationship(by fiction of law) similar to that which results from legitimate paternity andfiliation.


25/88


A petition for adoption shall be filed in the adopters place ofresidence. The law on adoption is governed by the Family Code and suppletorilyby PD 603, The Child and Youth Welfare Code.

The judicial decree of adoption, once entered in the civil registry

may not be altered except by a subsequent order.

Requirements:1. adopter must be of age2. adopter must be in possession of full civil and legal rights3. adopter must be in a position to support and care for his children by nature in

keeping with the means both material and otherwise4. adopter must be at least 16 years older than the person to be adopted unless

adopter is the parent by nature of the person to be adopted or is the spouseof the legitimate parent of the person to be adopted

5. adopter must not be prohibited by law to be adopted

6. the person to be adopted must not be prohibited by law to be adopted7. written amount of those who, according to law, shall be necessary must besecured

8. a judicial decree of adoption must be secured

Persons who must consent to the adoption:1. the person to be adopted if he be 10 years or older2. parents by nature of the child, the legal guardian or the proper government

agency3. legitimate and adopted children of the adopter who are 10 years or older4. illegitimate children 10 years of age or over of the adopting parent, if living

with said parent and the latters spouse if any5. the spouse, if any, of the person adopting or to be adopted

Rescission of Adoption

A minor or other incapacitated person may, through a guardian orguardian ad litem, petition for the rescission or revocation of his or her adoption

for the same causes that authorize the deprivation of parental authority.

If the adopted is at least 18 years of age, he may petition forrescission of the adoption of the same grounds prescribed for disinheriting anascendant.

The adopter likewise may petition the court for the rescission orrevocation of the adoption in any of the following cases:


26/88


1. the adopted has abandoned the home of the adopter2. the adopted has attempted against the life of the adopter3. when by other acts, the adopted has repudiated the adoption

The venue for the petition for the revocation of adoption is the place

of residence of the petitioner. The RTC in which the petition is filed shall issue anorder requiring the adverse party to answer the petition within 15 days fromreceipt of a copy thereof. The order and copy of the petition shall be served onthe adverse party in such manner as the court may direct.

A minor or other incapacitated person must file the petition forrescission of adoption within 5 years following his attaining of majority age orrecovery from such incompetency. In the case of the adopter, within 5 yearsfrom the time the cause of action arises.

Hospitalization of the Insane

Insanity

a. insane under the McNaughten Rule (Howling Mad Standard)

A person is classified as insane if he is schizophrenic, with very fewlucid intervals. Such a person is a danger to himself and to others. He issusceptible of violent acts.

b. insane under the Modern Concept of Insanity (Right-Wrong Contest)

A person is considered insane if most of the time he is unable todiscern what is right or wrong. Such a person is susceptible of losing his assetsand/or property to deceptive third parties. (Helpless Baby Standard)

Process

No

Petition for the

Hospitalization of

Insane Person

Person in custodyor having charge

of the insane

Director of

Health or

deputized agent

Court hears

the petitionInsane

Dismiss

Court issues order:

1. allowing

commitment2. custody of

propertyOpposition to the

Directors Petition


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Yes

The petition for the hospitalization of insane persons may be filed

by the person in custody or having charge of said insane person. If he refuses,the Director of Health or the deputized agent shall file the petition.

The petition must state that the subject is insane and has beendetermined to be a danger to himself and that his confinement is for publicwelfare. The same must be filed in the Regional Trial Court where the personalleged to be insane is found.

The court during the hearing of the petition should clearly establishthat the subject is in fact insane. And if in his opinion, the subject is really insane,

the court will issue the following order:1. the allowance for the commitment2. the custody of the property of the insane until a guardian is appointed

If in the opinion of the Director of Health, that the subject is alreadytemporarily or permanently cured and that he is no longer a danger may file apetition to discharge the subject and once the court grants the petition, thesubject is discharged.Notes:1. An order of commitment never becomes final and executory. However, it is

subject to review.2. In the event that the commitment of the insane was without basis, a petition

for habeas corpus may be filed before a high court.3. There is no res judicata in hospitalization proceedings. A person may be

recommitted if he becomes insane again.

Writ of Habeas Corpus


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It is a writ directed to the person detaining another, commandinghim to produce the body of the prisoner at a designated place and at a certaintime. Such person is required to explain before the court the reason why thesubject is under detention and why the subject is under the custody of suchperson.

It is a proceeding that is intended to address the followingproblems:1. deprivation of liberty of a person2. deprivation of the rightful custody of a particular person

Process

Note:

1. the respondent is directed upon receipt to bring the subject of the petition tocourt at a time and place specified in the writ and explain the reason fordetention

2. if sufficient, there is basis for detention; if not, an order of discharge isdirected to the respondent

Requirements

1. that the person in whose behalf the writ is sought is imprisoned or restrainedof his liberty

2. that the officer or name of the person by whom he is so imprisoned or

restrained, or if both, are unknown or uncertain, such officer or person may bedescribed by an assured appellation and the person who is served with thewrit shall be deemed the person intended

3. the place where the person in whose behalf the writ is sought is imprisoned orrestrained, if known

4. a copy of the commitment order or cause of detention of such person, if it canbe procured without impairing the efficiency of the remedy, or if theimprisonment or restraint is without any legal authority, such fact shall appear

Petition

for theissuance

of a Writ

of Habeas

Corpus

Court

determinesthe

sufficiency

of the

petition

Court

immediatelyissues an

order (within

48 hours)

Clerk of

courtprepares

the writ

on the

basis of

the order

Writ addressed to

the respondentordering:

1. to b ring thebody

2. to explain

basis of

detention


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The Supreme Court or any member thereof in the instancesprovided by law may grant the writ. If so granted, it shall be enforceableanywhere in the Philippines and may be made returnable before the court or anymember thereof or before the RTC or any judge thereof and then render decision

on the merits. It may also be granted by the RTC or any judge thereof at any dayand time, returnable before himself and enforceable only within the judicial regionof the RTC.Note: MTC does not have jurisdiction to entertain petitions for the issuance of this

writ.

Change of Name

Civil Registry

It is the entity that is tasked with the recording of all birth, death and

marriages. The record of the civil registry can not be altered except by judicialorder or decree. Moreover, the records of the registry are binding upon thepersons registered therein.

Changes in the records of the civil registry that affects the status ofa person, his name, etc., can only be done through an express judicial orderunder a special proceeding that is in rem in effect.

Entries in the civil registry may be corrected by filing a verifiedpetition for the cancellation or correction of any entry relating thereto with theRTC of the province where the corresponding civil registry is located.

The court shall, by an order, fix the time and place for the hearingof the same and cause reasonable notice thereof to be given to the personsnamed in the petition. The court shall also cause the order to be published oncea week for three consecutive weeks in a newspaper of general circulation in theprovince.

A hearing shall be held thereon and a certified copy of thejudgement shall be served upon the civil registrar concerned, who shall annotatethe same in his record.

Contents of the Petition

1. Bona fide resident for at least three years2. Reasons for change of name3. Name asked for

Opposition to a change of name may be brought for several reasons:


30/88


1. if the proposed name will create confusion prejudicial to a third party2. proposed name will be offensive to public morals and decency3. if it will enable petitioner to evade his liabilities

Grounds for change of name

1. when necessary to avoid confusion2. when the name is ridiculous, tainted with dishonor or is extremely difficult to

write or pronounce3. when the request for change of name is a consequence of a change in status4. having continuously known and used since childhood5. a sincere desire to adopt a Filipino name to erase signs of former alienage all

in good faith and without prejudicing anybody6. when surname causes embarrassment

Aliases

A petition for change of name can also be made if the name soughtto be registered is a long standing alias and the petitioner is popularly knownunder such alias.

Change of Status

In change of status, the law allows any third party or any interested

person to file a Petition for Cancellation or Correction. However, all interestedpersons should be notified in order for the court to acquire jurisdiction.

Constitution of Family Home

A family home, once constituted becomes immune from execution.However, to bind third parties, the constitution of a family home should beannotated in the Torrens Title. If it is not annotated, the property cannot beexempted from execution even if you raise the same before the judge.

Absentees

An absentee is a person whose whereabouts are unknown. He is aperson who disappears without leaving an agent to manage his property.


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A petition to declare a person as absentee may be filed by aninterested party, relative or friend before the RTC of the last place of residence ofthe person who disappeared. The petition is heard after notice and publication.

Publication is jurisdictional. Once the court is satisfied, it will issue

an order appointing a trustee to administer the property of the absentee. Apetition to declare an absentee is not required when the subject left no propertyfor that reason that there is no need.

JURISDICTION IN CRIMINAL CASES

SUPREME COURT

A. The Supreme Court has originalI. Exclusive Jurisdiction over

- Petitions for certiorari, prohibition and mandamus against the decisionsof the Court of Appeals and the Sandiganbayan

II. Concurrent Jurisdiction- With the Court of Appeals over petitions for certiorari, prohibition, and

mandamus against the decisions of the Regional Trial Court- With the Court of Appeals and the Regional Trial Court over petitionsfor certiorari, prohibition, and mandamus against the lower courts

- With the Sandiganbayan over petitions for certiorari, prohibition, andmandamus, habeas corpus, injunctions, and ancillary writs in aid of itsappellate jurisdiction and over petitions of similar nature, including quowarranto arising or that may arise in cases filed or which may be filedunder Executive Order Nos. 1, 2, 14, and 14-A


32/88


B. The Supreme Court has exclusive Appellate Jurisdiction overI. By Appeal

- From the decisions of the Regional Trial Courts in all criminal casesinvolving offenses for which the penalty is reclusion perpetua or life

imprisonment and those involving other offenses which, although notso punished, arose out of the same occurrence or which may havebeen committed by the accused on the same occasion

- Automatic review in criminal cases where the death penalty is imposed

II. By Petition for Review on Certiorari- From the decisions of the Court of Appeals- From the decisions of the Sandiganbayan- From the decisions of the Regional Trial Court where only error or

question of law is involved

COURT OF APPEALS

A. The Court of Appeals has OriginalI. Exclusive Jurisdiction over:

- Actions for Annulment of Judgements of the Regional Trial Courts

II. Concurrent Jurisdiction over- Petitions for certiorari, prohibition, and mandamus against the

decisions of the Regional Trial Courts with the Supreme Court- Petitions for certiorari, prohibitions and mandamus against the

decisions of the lower courts with the Supreme Court and the RegionalTrial Courts

B. The Court of Appeals has Exclusive Appellate JurisdictionI. By Appeal

- From the decisions of the Regional Trial Courts in cases commencedtherein, except those appellate to the Supreme Court or theSandiganbayan


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II. By Petition for Review- From the decisions of the Regional Trial Courts in cases appealed

thereto from the lower courts and not appealable to theSandiganbayan

SANDIGANBAYAN

A. The Sandiganbayan has OriginalI. Exclusive Jurisdiction over

- Violations of Republic Act No. 3019, as amended, otherwise known asthe Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, andChapter II, Section 2, Title VII, Book II of the Revised Penal Code,where one or more of the accused are officials occupying the following

positions in the government, whether in a permanent, acting or interimcapacity, at the time of the commission of the offense1. Officials of the executive branch occupying the positions of regional

director and higher, otherwise classified as Grade 27 and higher of theCompensation and Position Classification Act of 1989, speciallyincluding:(a) Provincial Governors, Vice-Governors, members of the

Sangguniang Panlalawigan, and Provincial Treasurers, Assessors,Engineers, and other Provincial Department Heads;

(b) City Mayors, Vice-Mayors, members of the SangguniangPanlungsod, City Treasurers, Assessors, Engineers, and other City

Department Heads;(c) Officials of the diplomatic service occupying the position of consuland higher;

(d) Philippine Army and Air Force Colonels, Naval Captains, and allofficials of higher ranks;

(e) Officers of the Philippine National Police while occupying thepositions of Provincial Director and those holding the rank of SeniorSuperintendent or higher;

(f) City and Provincial Prosecutors and their assistants and officialsand prosecutors in the Office of the Ombudsman and SpecialProsecutors;

(g) Presidents, Directors or Trustees or managers of government-owned or controlled corporations, state universities or educationalinstitutions or foundations.

2. Members of Congress and officials thereof classified as Grade 27 andup under the Compensation and Position Classification Act of 1989

3. Members of the judiciary without prejudice to the provisions of theConstitution


34/88


4. Chairmen and members of the Constitutional Commissions withoutprejudice to the provisions of the Constitution

5. All other national and local officials classified as Grade 27 and higherunder the Compensation and Position Classification Act of 1989

- Other offenses or felonies whether simple or complexed with other

crime committed in relation to their office by the public officials andemployees mentioned in Sec 4a, PD 1606, as amended by RepublicAct No. 7975

- Civil and criminal cases filed pursuant to and in connection withExecutive Order Nos. 1, 2, 14, and 14-A issued in 1986

II. Concurrent Jurisdiction over- Petitions for certiorari, prohibition, and mandamus, habeas corpus,

injunctions, and ancillary writs in aid of its appellate jurisdiction andover petitions of similar nature, including quo warranto arising or thatmay arise in cases filed or which may be filed under Executive Order

Nos. 1, 2, 14, and 14-A with the Supreme Court

B. The Sandiganbayan has Exclusive Appellate JurisdictionI. By Appeal

- From the decisions of the Regional Trial Courts in cases under PD1606, as amended by PD 1861, whether or not cases were decided bythem in the exercise of their original or appellate jurisdictions

REGIONAL TRIAL COURT

A. The Regional Trial Court has Exclusive Original Jurisdiction over- All criminal cases which are not within the exclusive jurisdiction of any

court, tribunal or body

B. The Regional Trial Court has Exclusive Appellate Jurisdiction over- All criminal cases decided by the lower courts in their respective

territorial jurisdictions

METROPOLITAN, MUNICIPAL AND MUNICIPAL CIRCUIT TRIAL COURT

A. The MTC has Exclusive Original Jurisdiction over- All violations of city or municipal ordinances committed within their

respective territorial jurisdictions- All offenses punishable with imprisonment of not more than 6 years

irrespective of the amount of fine and in all cases of damage to


35/88


property through criminal negligence, regardless of other penalties andthe civil liabilities arising therefrom

- All offenses committed by public officers and employees in relation totheir office, including those employed in government-owned orcontrolled corporations and by private individuals charged as co-

principals, accomplices or accessories punishable with imprisonmentof not more than 6 years or where none of the accused holds aposition having a salary grade 27 and higher

B. Summary Procedure- Traffic violations- Violations of the Rental Laws- Violations of the City or Municipal Ordinances- All other offenses where the penalty does not exceed 6 months

imprisonment and/or P 1,000.00 fine, irrespective of other penalties orcivil liability arising therefrom and in offenses involving damage to

property through criminal negligence where the imposable fine doesnot exceed P 10,000.00


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CRIMINAL PROCEDURE

NO YES

YESYES

YESNO

YES NO NO NO

Crime iscommitted Offender

If minor, apply:

1. Child Abuse Law

2. Child Witness Rule

Offender is arrested in

flagrante delicto (Valid

warrantless arrest)

Inquest

Proceedings

Regular investigation Where the

offense was

committed

Outside

Metro

Manila

Within Metro

Manila & other

chartered cities

Preliminary

Investigation

before the

CityProsecutor

Is there

probable

cause

Case

dismissed

Information is

filed in court

Will court

issue a

warrant?

Warrant of

arrest served

to offender

Bail

Arraignment

& Trial

Trial on the

Merits

Judgement Post-judgement

Remedies

Execution Is casecognizable

by the RTC

Direct filing

of the case to

the MTC

Preliminary

investigation

before the

MTC Judge

Is there

probable

cause to

issue

warrant

MTC Judge submits

recommendation to

provincial prosecutor

to file information

Agre

e to

file

Case is

dismissed

& warrantis lifted

Informationis filed


37/88



38/88

Institution of Criminal Action

For offenses falling under the jurisdiction of the MTC, a complaintor information is filed directly with the said courts or a complaint with theprosecutors office. However, in Metro Manila and other chartered cities, the

complaint may be filed only with the office of the prosecutor.

For offenses falling under the jurisdiction of the RTC, a complaint isfiled with the appropriate officer for the purpose of conducting the requisitepreliminary investigation.Note: A criminal action may be instituted by mere complaint if the offense is

within the jurisdiction of the MTC in the rural areas.

Crime is committed

Imposable Imprisonment

6 Years and Below More than 6 Years

MTC RTC

Prescriptive Period for Criminal Offenses

1. Crimes punishable by death, reclusion perpetua or reclusion temporal shallprescribe in 20 years.

2. Crimes punishable by other afflictive penalty shall prescribe in 15 years.

3. Crimes punishable by correctional penalty shall prescribe in 10 years with the

exception of those punishable be arresto mayor which shall prescribe in 5years.

4. The offense of oral defamation and slander by deed shall prescribe in 6months.

5. Light offenses shall prescribe in 3 months.


39/88


Complaint

It is the written statement executed by the complainant and theaffidavits of the complainant and his witnesses. The affidavits shall be swornbeforeany prosecutor or government official authorized to administer an oath or

in their absence before a notary public. The certification must state that theofficer personally examined the affiant and that the officer is satisfied that theaffiant voluntarily executed and understood his affidavit.

Illustration:

Officers authorized to conduct Preliminary Investigation

1. City Prosecutor and his assistants (within Metro Manila & other charteredcities)

2. National or regional State Prosecutors and their assistants (anywhere in thePhilippines)

3. Provincial Prosecutor and their assistants4. Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts5. Other officers as authorized by law

Crime iscommitted

Complaint

OffendedPart

Where offense wascommitted

OutsideMetro Manila

WithinMetro

Manila &

other

chartered

cities

City

Prosecutor

Offense

cognizable by

the RTC

Offense not

cognizable by

the RTC

MTC Judge Direct Filingwith MTC


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Inquest

It is a proceeding conducted to determine the legality or validity ofan arrest. It is intended to cover those where a valid warrantless arrest is made.

If the investigating prosecutor or judge believes that a crime wascommitted and there is probable cause, he shall immediately file the properinformation or complaint in court. In the absence of an inquest prosecutor, the

complaint may be filed directly in court by the offended party or a peace officeron the basis of the affidavit of the offended party/officer.

Under the present rule, inquest does not eliminate the right of theaccused to preliminary investigation. The accused may ask for preliminaryinvestigation within 5 days from the time the accused learns of the filing of aninformation.

Nevertheless, the accused may pre-empt the filing of theinformation by executing a waiver in writing of Art. 125 of the RPC in thepresence of his counsel.

A preliminary investigation that is requested by the accused mustbe terminated within 15 days from its inception. Under the new rules, theaccused is allowed to post bail even if there was a waiver of Art. 125 of theRevised Penal Code2.Note: Period of time between the commencement of the offense until the

offender was arrested is not significant.

2 Art. 125. Delay in the delivery of detained persons to the proper judicial authorities.

Crime is

committed

Offender is

arrested in

flagrante

delicto

Inquest Filing of the

information

or complaint

Warrantless

Arrest

Offender may pre-empt the

filing of the information by

executing a waiver of Art. 125

of the RPC

Preliminary

Investigation

is conducted

within 15

days

5 days from filing the

complaint, offender may

ask, as a matter of right,

for preliminary

investigation


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Prosecution of Civil Action

Preliminary Investigation

It is an inquiry or proceeding for the purpose of determiningwhether there is sufficient ground to engender a well-founded belief that a crime

When a criminal action is instituted

Related civil action is deemed

instituted with the criminal case

Reservation is made to file civil action

including independent civil actions

Judgement shall include a

finding on the civil liability

No separate civil action

may be instituted

Court tries only the criminal aspect

The reserved

independent civil

action continues to be

litigated. (Arts. 32, 33,

34, 2176 of the Civil

Code)

Reserved civil case is

suspended

Double Jeopardy is

prohibited

Where the civil

case was filed

ahead of the

criminal case

Civil case may be

consolidated with thecriminal action. The

plaintiffs witnesses shall

be subject to cross-

examination

Reservation is made by filing:

1. a civil action before the criminal

case is instituted

2. a notice of reservation before the

court trying the criminal case prior

to the presentation of evidence bythe prosecution

Reservation of the civil aspect is not

applicable to B.P.22 cases


42/88


cognizable by the Regional Trial Court was committed and that respondent isprobably guilty thereof and should be held for trial.

Information

It is an accusation in writing charging a person with an offense

subscribed by the fiscal and filed with the court.

Court has no jurisdiction Court has full jurisdiction

Time when informationis filed in court

Complaint

It is a sworn statement charging a person with an offensesubscribed by the offended party, any peace officer or other public officercharged with the enforcement of the law violated.

Prejudicial Questions

Majority of the Cases

Filing of the Criminal Case Suspends Civil Action

Except Independent Civil Action

Prejudicial Question

Criminal Case Suspends Filing of a Civil Action

It is a question that arises in a civil case, the resolution of which is alogical antecedent of the issue involved in a criminal action. In prejudicialquestion, there is an issue in the civil action that is intimately related to anddeterminative of the guilt of the accused in the criminal action.Note: The civil case should have been filed before the criminal case; otherwise,

the civil case is considered filed in bad faith, thus, no prejudicial question.


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Arrest with Warrant

DISAGREE

AGREE

YES

NO

NO YES

Complaint is filed Subpoena is issued against

respondent w/copy of the

complaint & affidavit

If respondent cannot be subpoenaed or

refuse to submit counter-affidavit, the

investigating officer can resolve the case

based on the complaint

Respondent submits his

counter-affidavit

Investigating officer may set

a 5-day hearing to clarify

facts

Investigating

officer determines

if there is sufficient

ground to hold

respondent for trial

Case is

dismissed

If prosecutor

If municipal

judge

Prepares certification & information

Resolution is

forwarded to the

Provincial or State

Prosecutor or

Ombudsman

Resolution is

reviewed

Case is

dismissed

Information is filed in court

A

Authorizedofficer studies

the complaint

Is there

ground to

continue

investigatio

n


44/88



45/88


NOYES

NO YES

Arrest

It is the taking of a person into custody in order that he may bebound to answer for the commission of an offense.

Note:1. The Municipal Judge, in cases where the offense was committed outside

Metro Manila or unchartered cities but cognizable by the RTC, may issue awarrant of arrest even before the completion of the information that is ifprobable cause exist. This is the only instance where a warrant of arrest isissued prior to the filing of the information.

2. In the event that the Provincial, City or State Prosecutor or the Ombudsmandisagrees with the findings of the Municipal Judge, the case is dismissed andany previously issued warrant of arrest is ordered lifted.

3. A warrant of arrest must be executed within 10 days. If not an alias warrantmay be applied for.

Warrantless Arrest (See diagram on Inquest Proceedings)

Since arrest involves the curtailment of a basic natural right, it isf f

A

Court Judge evaluates

information & resolution if

there is probable cause

Warrant of

Arrest is

issued

Case is

dismissed

Issues a

Warrant of

Arrest

Judge shall order

the presentation of

additional evidence

& evaluates ifprobable cause exist


46/88


a. in his presence, the person to be arrested has committed, is actuallycommitting, or is attempting to commit an offense;

b. has personal knowledge of facts, when an offense has in fact just beencommitted, indicating that the person to be arrested has committed it;

c. is arresting a prisoner who has escaped from a penal establishment or a

place where he is serving final judgement or temporary confinement while hiscase is pending or has escaped while being transferred from one confinementto another.

Remedies of a person who has been arrested on the basis of an invalid warrant:

1. file a petition for the issuance of a writ of habeas corpus2. post a bail (however, if bail is posted, any irregularity in the issuance of the

order of arrest is waived)Note:1. The length of time, for paragraph (a) above, between the commission of an

offense and the actual arrest must not be too long; otherwise, the defense ofwarrantless arrest could not be availed of.2. Lack of personal knowledge is not an absolute bar against warrantless arrest;

if the arresting officer has knowledge of the circumstances that the personarrested has committed it, then there would be a valid warrantless arrest.

3. Under the new rule, the arresting officer is required to observe the propermethod of arrest by informing the accused or the person to be arrested of thereason for the arrest. However, this rule accepts of some exceptions:a. if the person sought to be arrested is engaged in the commission of the

offenseb. if there is a hot pursuit

c. if the arrested person escapes or fleesd. when the giving of such information will imperil the arrest4. When there is a valid warrantless arrest, the peace officer may break into the

building or enclosure without need of a search warrant.5. During the course of a valid warrantless arrest, only evidence obtained in

plain view may be seized and used against the accused for his prosecution.Nevertheless, the peace officer may seize the contraband if found.

Plain View Rule

Under this rule, the evidence must be open to eye and hand andmust have been discovered by accident and not intentionally. It covers the act offrisking the accused that has been arrested. However, in the case of People vs.

Abe Valdez, the Supreme Court refined the doctrine of plain view. Thus,evidence obtained inadvertently on the occasion of a valid legal search shall beadmissible in evidence, provided that it is in plain view

BailIt is the security given for the release of a person in custody of the

law furnished by him or a bondsman conditioned upon his appearance before


47/88


Crime is

committed

Offender is

caught in

flagrante

delicto

Regular

investigation

Offender, beforeinformation is filed,

signs waiver of Art. 125

of the RPC

Information is

filed

Warrant ofArrest is

issued

Motion for

Bail

Bail

Bail

Petition for Bail

Within 5 days

must ask for

preliminary

investigation


48/88


To avail the right to bail, the accused may:

1. file a petition for bail, if a criminal case has not yet been filedNote: In the case of Teehankee vs. Rovira, it was held that a person need not

wait until a formal complaint or information is filed against him before hecould post bail. The law does not prohibit a person from posting bail inanticipation of a warrant of arrest that will be issued against him

2. file a motion for bail, if a criminal case has been filed

Bail Hearing

Purpose

In a proceeding for the application for bail, where bail has beendenied, the prosecution shall be required to present evidence of the offendersguilt and that such evidence must be considered strong.

In those instances where bail is discretionary in the RTC, a personmay be denied bail if he is a recidivist, quasi-recidivist, habitually delinquent or ifthe accused is guilty of reiteration. The accused may also be denied bail if he haspreviously escaped or there is probability of flight if he is released.

Under the present law, an accused applying for bail shall not barhim from assailing or attacking the legality of his detention or arrest, provided thatsuch a challenge is made before the accused enters his plea.

Statutory Rights of the Accused

1. To be presumed innocent until the contrary is proved beyond reasonabledoubt

2. To be informed of the nature and cause of the accusation against him3. To be present and defend himself in person and by counsel at every stage of

the proceedings from arraignment to the promulgation of judgement4. To testify in his behalf but subject to cross-examination on matters covered by

the direct examination; his silence shall not in any manner prejudice him

Informationis filed

Arraignment

Motion toallow accused

to post bail

Bail Hearing Court grantsbail

- to compel the prosecution to present evidence sufficient to

prove probability of guilt

- only the prosecution can present evidence which is

automatically adopted in the trial on the merits of the case

Matter of

Right

Not

Allowed

Discretionary-In the RTC, before

conviction, unless theoffense is punishable by

death, reclusion perpetua

or life imprisonment

-In the MTC, before and

after conviction

-In the RTC, before conviction,

where the offense committed ispunishable by capital punishment and

the evidence of guilt is strong

-After conviction, when the

judgement has become final and

executory

-In the MTC, after conviction, whenthe judgement has become final &

executory

After conviction in the

RTC for an offensepunishable by more than 6

years, subject to certain

conditions


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8. To have speedy, impartial and public trial9. To have the right of appeal in all cases allowed and in the manner prescribed

by law

General Custodial 1. Right against self-incriminationInvestigation Investigation 2. Right to counsel

3. Right to remain silent

Note: Any investigation that might lead to criminal prosecution without providingthe accused to exercise above-mentioned rights shall be inadmissible.

Custodial Investigation

There is custodial investigation whenever the focus of investigationshifts to the accused and he is already considered a suspect.Note:1. Policeman can only secure evidence if a waiver is given in the manner that:

a. accused was informed of his right to self-incrimination, the right to remainsilent and the right to counsel

b. accused waived his rights in writing and at the presence of a counsel2. The right to be present in all stages of the proceedings accepts of an

exception in cases of permissible trial in absentia. However, the followingmust be present:a. that the accused has been arraigned

b. that the accused had notice of the schedule of trialc. that the accused was absent without justifiable reason

3. In the case of Tatad vs. Sandiganbayan, the Supreme Court held that theright to a speedy, impartial and public trial involves not only trial but also in allstages of the prosecution of the case.

Bill of Particulars

Motion for Bill of Particulars

Criminal Cases Civil Cases- it may be oral it must be in writing- it is sought before arraignment it must be filed before the answer is filed

At the time or before the arraignment, the accused may move forbill of particulars to enable the accused to properly plead and prepare for trial.The motion must identify the portions of the information that are vague.

If the court grants the motion, the arraignment is deferred and the

prosecution is required to submit a bill of specification to be attached on theinformation.

Arraignment and Plea


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For there to be a valid arraignment, the following must be complied:a. That the accused must be present and assisted by a counselb. That the information or complaint must be read and explained to the accusedc. That the public prosecutor must be present at the time of arraignmentd. That the information must be valid, stating therein:

- place of the commission of the offense (venue)- acts constituting the offense- identity or name of the accused- date and when the offense was committed (if material)- authority of the person filing the information or complaint

Non-compliance of the requisites for arraignment shall amount tojurisdictional error because the court never acquired jurisdiction over the personof the accused. Any judgement rendered by the court in that instance is null andvoid.

However, the accused cannot invoke double jeopardy forsubsequent indictment because the court never acquired jurisdiction over hisperson.

Purposes of Arraignment1. To fix the identity of the accused2. To inform him why he was indicted3. To inform him of the charges and the penalty he has to face if convicted4. To obtain from him and enter his answer or plea to the accusation charged in

the information

Venue

Venue in criminal proceeding is jurisdictional because thewitnesses and evidence to the crime can be found at the place where the offensewas committed.

Transitory Offense

Transitory offenses are offenses committed by a person where theessential ingredients of the offense took place on different places; therefore,subjecting the person who committed the offense to the jurisdiction of the courts

where the said ingredients of the offense took place.

In transitory offenses, the transaction of the offense was a reasonnot because of the different acts of committing the offense but more because ofthe place where the offense is being committed which causes its transition.Note:1. Extra-territorial crimes which are actionable in the Philippines pursuant to

Article 2 of the Revised Penal Code, the prosecution has the option to file thecase in any court of competent jurisdiction.

2. When a crime was committed within a watercraft navigating in the Philippineswhether or not registered in the Philippines, the case is actionable by the

court of the first port of entry or of any municipality or territory where thevessel passed during such voyage.


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3. piracy4. libel5. exceptional circumstances6. offenses having a situs

Continuing Offenses

Continuing offenses are offenses which may be committed indifferent places but its transient was not because of the place but rather it is anelement of the crime necessary to consummate it.

How to determine the place where to institute the crime

1. If the offense is one of those recognized by the International Law then thatoffense could be prosecuted in the Philippines. As a rule, it shall be institutedin the court of the port of entry.

2. If the offense is one of those offenses under Article 2 of the Revised PenalCode, it shall be instituted and cognizable at the court where the action wasfirst filed.

The following are the extra-territorial crimes:1. Crimes against National Security (Art. 114 to Art. 123 of the RPC)2. Making and Importing and Uttering False Coins (Art. 163 of the RPC)3. Forging Treasury or Bank Notes or other document payable to bearer (Art.

166 of the RPC)4. Usurpation of Authority or Official Function (Art. 177 of the RPC)5. Bribery, Illegal Exaction, Malversation (Art. 210 to Art. 221 of the RPC)

The arraignment may be suspended or deferred if the accused:1. files a motion for bill of particulars and the same is granted2. raises a valid prejudicial question3. files a motion for the production or inspection of a material evidence in the

possession of the prosecution4. is suffering from a mental condition which renders him unable to understand

the charges against him5. files a petition for review under DOJ Circular 228 provided that such

investigation shall not exceed 60 daysNote:1. Under the present rule, the rule on plea-bargaining had been clarified. The

accused at the time of the arraignment may plead guilty to a lesser-includedoffense with the consent of the prosecutor and the offended party. However, ifthe offended party is absent at the time of the arraignment, it is enough thatthe public prosecutor gives his consent to the plea.

2. A failure to observe the rules on arraignment is a reversible error and ajudgement of conviction can not stand upon an invalid arraignment.

Warrant Bail Arraignment &Plea


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Motion to Quash

It is a special pleading that can be filed by the defendant beforeentering his plea. It is a pleading that hypothetically admits the truth of the factsspelled out in the complaint or information at the same time sets up a matter,

which if duly proved, would preclude further proceedings. It is formerly calleddemurrer.

Grounds for motion to quash1. the facts charged do not constitute an offense2. the court has no jurisdiction over the offense charged or the person of the

accused3. the officer who filed the information had no authority to do so4. the complaint or information does not conform substantially to the prescribed

form5. more than one offense is charged

6. the criminal liability or action has been extinguished7. the complaint or information contains averments which, i

Documents

SPECPRO CRIMPRO EVIDENCE.doc