UP Specpro

A M I S T A D: We live to serve!!!
(A 99)
Aileen, Beng, Dinah, Jo Leah, Lourie, Mamay.WPS, Marisa (soon to be Claudia?, Minnie, Peter, !i"a
With the special participation of the #biter Master Ella And the former slave-master turned into slave! --
FRITZI
RULE 104
VOLUNTARY DISSOLUTION OF
CORPORATIONS
( The Dissolution of Corporations should
now be fled with the SEC, and is covered by
Secs. 117 to 1 of the Corporation Code of
the !hilippines "#! $%& which too' e(ect on
)ay 1, 1*%+.
Dissolution , when the corporation ceases
to be a -uridical person.
!""#$ Methods of Dissolution. .
corporation for/ed or or0ani1ed under the
provisions of this Code /ay be dissolved
voluntarily or involuntarily.
NOTES :
%2 3ow /any ways are there to dissolve a
corporation4
A2 Two ways,,voluntary 5 involuntary.
%2 3ow /any ways of dissolvin0
voluntarily4
A2 Three2
6oluntary dissolution where no creditors
are a(ected "Sec. 11%&
6oluntary dissolution where creditors
are a(ected "Sec. 11*&
Dissolution by shortenin0 corporate
ter/
"Sec. 1+&
!""&$ Voluntary dissolution where no
creditors are afected$
7n case dissolution of a corporation does
89T pre-udice the ri0hts of any creditor havin0 a
clai/ a0ainst such corporation, then such
dissolution /ay be e(ected
by /a-ority vote of the #9D or trustees,
and
by a resolution duly adopted by the
a:r/ative vote of the stoc'holders
ownin0 at least ;< of the outstandin0
capital stoc' or of at least ;< of the
/e/bers
at a /eetin0 to be held upon call of the dirs. or
trustees
after publication of the notice
of the ti/e, place and ob-ect of the
/eetin0
for < consecutive wee's
in a newspaper published in the place
where the principal o:ce of said
corporation is located= and if no
newspaper is published in such place,
then in a newspaper of >eneral
circulation in the !hilippines, "after
sendin0 such notice to each stoc'holder
or /e/ber either by re0istered /ail or
personal delivery at least <+ days prior
to said /eetin0.
. copy of the resolution authori1in0 the
dissolution shall be
certifed by a /a-ority of the #9D or
trustees
and counter,si0ned by the secretary of
the corporation.
The SEC shall thereupon issue the certifcate
of dissolution.
NOTES:
%2 3ow do directors and stoc'holders vote4
A2 #oth issue their respective resolutions
duly adopted by a:r/ative votes of the
re?uired no. "#9D,/a-ority= S3,;< 9CS&
%2 !ublication for < consecutive wee's4
A2 .ctually, once a wee' for three
consecutive wee's. This is the co//on
re?@t in procedure. ")aybe an oversi0ht or
already considered understood.&
%2 What is the !resident@s role here4
A2 The !resident si0ns the Aesolution.
! ""'$ Voluntary dissolution where
creditors are afected.
Where the dissolution of a corporation
/ay pre-udice the ri0hts of any creditor, a
petition for dissolution shall be fled with the
SEC.
The petition shall be
si0ned by a /a-ority of its #9D or trustees or
other o:cers havin0 the /ana0e/ent of
its a(airs,
verifed by its president or secretary or one
of its directors, or trustees, and
shall set forth
all clai/s and de/ands a0ainst it, and
that its dissolution was resolved upon
the a:r/ative vote of the stoc'holders
representin0
at least ;< of the outstandin0
capital stoc' or by
at least ;< of the /e/bers, at a
/eetin0 of its stoc'holders or
/e/bers called for that purpose.
7f the petition is su:cient in for/ and
substance, the Co//ission shall, by an 9ADEA
recitin0 the purpose of the petition,
fB a date on or before which ob-ections
thereto /ay be fled by any person,
which date shall not be less than <+ days nor
/ore than $+ days after the entry of the
order.
#efore such date, a copy of the order shall
be published
'"
A M I S T A D: We live to serve!!! (A 99)
FRITZI
at least once a wee' for < consecutive
wee's
in a newspaper of >eneral circulation
" published in the /unicipality or
city where the principal o:ce of the
corporation is situated, or if there be no
such newspaper, then in a newspaper of
>eneral circulation in the !hils.,
and a si/ilar copy shall be posted
for < consecutive wee's
in < public places
in such /unicipality or city.
Cpon D days notice, >iven .ETEA the
date on which the ri0ht to fle ob-ections as fBed
in the order has eBpired, the Co//ission shall
proceed to
hear the petition and
try any issue /ade by the ob-ections
fled=
and 7E
no such ob-ection is su:cient, .8D
the /aterial alle0ations of the petition
are true,
it "Co//ission& shall
render -ud0/ent dissolvin0 the
corporation and
directin0 such disposition of its
assets as -ustice re?uires, and
/ay appoint a receiver to collect
such assets and pay the debts of the
corporation.
NOTES:
Fust note that the date fBed is a deadline,
on or before which ob-ections to the petition
/ay be fled.
! "()$ Dissolution by shortening of
corporate term. A voluntary dissolution
/ay be e(ected by a/endin0 the .97 to shorten
the corporate ter/ pursuant to the provisions of
this Code.
. copy of the a/ended .97 shall be
sub/itted to the SEC in accordance with this
Code.
Cpon approval of the a/ended .97 or
the eBpiration of the shortened ter/, as
the case /ay be,
the corporation shall be dee/ed
dissolved without any further
proceedin0s, sub-ect to the provisions of
this Code on li?uidation.
NOTES:
%2 When is the corporation dee/ed
dissolved4
A2 Two instances2
1. Cpon approval of the ./ended .97,
9A
. the eBpiration of the shortened ter/
.ctually, the (. are the rules2
7f eBpiration date is before approval by
SEC corpo dissolves upon approval
7f eBpiration date is after approval by
SEC corpo dissolves on the date of
eBpiration of ter/
7f the SEC does not act on petition within
$ /os. fro/ the date of flin0 "Sec. 1$,
Corpo Code& corpo dissolves either
on the day after the $,/o. pd.
"if date of eBpiration was within the
$,/o. pd.&
or on the date of eBpiration of
ter/ "if date is after the $,/o.
pd.&.

e.0.2
Date *led +etition2 Fan. 1, 1**%
,+iration of Shortened Term2 )ay 1,
1**%
- mos$ ends on2 Fuly 1, 1**%
1& 7f approved by SEC on .pril 1
Dissolution on )ay 1 "eBp. 9f
shortened ter/&
& 7f approved on )ay 1D
Dissolution on )ay 1D "date of
approval&
<& 8ot acted upon within $ /os.
Dissolution on Fuly "day after the $
/o. pd&
" 8ote that failure of the SEC to act on the
petition within $ /onths, as conte/plated
by above rules, /ust not be due to the fault
of corporation.
! "(($ .or+orate /i0uidation$
Every corporation whose charter eBpires by
its own li/itation or is annulled by forfeiture or
otherwise, or whose corporate eBistence for
other purposes is ter/inated in any other
/anner, shall nevertheless be continued as a
body corporate for < years after the ti/e when it
would have been so dissolved,
for the purpose of
prosecutin0 and defendin0 suits by or
a0ainst it
enablin0 it to settle and close its a(airs,
to dispose of and convey its property
and
to distribute its assets,
#CT 89T for the purpose of continuin0
the business for which it was established.
.t any ti/e durin0 said < years, said
corporation is authori1ed and e/powered to
convey all of its property to trustees for the
beneft of
stoc'holders,
/e/bers,
creditors, and
'(
FRITZI
other persons in interest.
Ero/ and after any such conveyance by
the corporation of its property in trust for the
beneft of its stoc'holders, /e/bers, creditors,
and others in interest,
all interest which the corporation had in
the property ter/inates,
the le0al interest vests in the trustees,
and
the benefcial interest in the
stoc'holders, /e/bers, creditors, and
other persons in interest.
Cpon the W78D78> C! of the corporate
a(airs, any asset distributable to any creditor or
stoc'holder or /e/ber who is un'nown or
cannot be found shall be escheated to the city or
/unicipality where such assets are located.
EBcept by decrease of capital stoc' and
as otherwise allowed by this Code, no
corporation shall distribute any of its assets or
property eBcept
upon lawful dissolution and
after pay/ent of all its debts and
liabilities.
NOTES:
%2 Eor what purpose is the continuation as
a body corporate4
A2 Eor purpose of windin0 up.
"("$ n!oluntary dissolution. .
corporation /ay be dissolved by the SEC upon
flin0 of a verifed co/plaint and after proper
notice and hearin0 on >rounds provided by
eBistin0 laws, rules and re0ulations.
RULE 105
JUDICIAL APPROVAL
OF VOLUNTARY RECOGNITION
OF MINOR NATURAL CHILDREN
Se1$ "$ Venue.$$ Where -udicial
approval of a voluntary reco0nition of a
/inor natural child is re?uired, such child or
his parents shall obtain the sa/e by flin0 a
petition to that e(ect with the ATC in which
the child resides.
1. MA2I23 4F 54/62TAR7
R.432ITI42
69GC8T.AH AEC9>87T798 is an ad/ission
of the fact of paternity or /aternity by the
presu/ed parent, eBpressed in the for/
prescribed by the 8CC.
7ts essence lies in the avowal of the parent
that the child is his= the for/ality is added
to /a'e the ad/ission incontestable, in
view of its conse?uences.
The E9A) is prescribed by .rt. 7% of the
8CC2
AEC9>87T798 shall be /ade in the
record of birth
a will
a state/ent before a court of
record
or in any authentic writin0.
Fudicial approval is needful if the reco0nition
of the /inor is e(ected, not throu0h a
record of birth or in a will but thorou0h a
state/ent in a court of record or an
authentic docu/ent. 7n any case, the
individual reco0ni1ed can i/pu0n the
reco0nition within I years followin0 the
attain/ent of /a-ority.
.rt. %1 "& of the 8CC provides2
When the reco0nition of a /inor D9ES
89T ta'e place
in a AEC9AD of #7AT3 or
in a W7GG,
Fudicial .pproval is 8ecessary.
The action /ust be brou0ht within the sa/e
period specifed in .rt. 17<, EC, eBcept
when the action is based on the second
para0raph of .rt. 17, in which case the
action /ay be brou0ht durin0 the lifeti/e of
the alle0ed parent.
Art. 173, FC. The action to claim legitimacy may be
brought by the child during his or her lifetime and
shall be trans/itted to the heirs should the
child
die durin0 /inority or
in a state of insanity.
7n these cases, the heirs shall
have a period of D years within which to
institute the action.
The action already
co//enced by the child shall survive
notwithstandin0 the death of either or both
of the parties.
.rt. 17. The fliation of le0iti/ate "or
ille0iti/ate& children is established by any
of the followin02
"1& The Aecord of #irth appearin0 in
the Civil re0ister or a fnal -ud0/ent= or
"& .n ad/ission of le0iti/ate
fliation in a public docu/ent or a private
handwritten instru/ent and si0ned by the
'8
FRITZI
parent concerned.
7n the absence of the fore0oin0
evidence, the le0iti/ate fliation shall be
proved by2
"1& The 9pen and Continuous
possession of the status of a le0iti/ate
child, or
"& .ny other /eans allowed by the
Aules of Court and special laws.
. 94W 54/62TAR7 R.432ITI42
IS :;RSSD
.CT3E8T7C WA7T78> /eans any >enuine
and indubitable writin0 su:cient for
co/pulsory reco0nition.
The status of a person as a voluntary
ac'nowled0ed natural child Jcould be
established by the ordinary /eans of
evidence without any li/itations as to
ti/e.K (Larena %s. &ubio LSee lecture
notes below.M
NOTES:
%2 When can the child fle action4
A2 See .rt. 17< above which provides when
a child /ay brin0 an action= /oreover, the
followin0 8CC provision which, althou0h
already repealed by the Ea/ily Code, /ay
still be applicable for lac' of substitute
provisions on the /atter.
.rt %D, 8CC. The .CT798 for the
reco0nition of natural children /ay be
brought ON! during the lifetime of the "resumed
"arents,
#$C#%T&
(1' (f the Father)*other +(#+ +,-(N. the
*(NO-(T! of the C/(+, in 0)c
case the latter may F(# .CT798 #EE9AE the
eBpiration of I HAS. fro/ the
attain/ent of his /a-ority a0e.
"& 7f .ETEA the DE.T3 of the
Eather;)other a D9CC)E8T should
appear
of which 89T378> had been 3E.AD
and
in w;c either; both parents reco0ni1e
the child.
7n this case, the .CT798 /ust be
co//enced w;in I HAS. fro/ the E78D78>
of the docu/ent.
!ls. ta'e note of the followin0 8CC
provisions which, althou0h already repealed
by the EC, /ay still be applicable for lac' of
substitute provisions on the /atter.
LClassmates, these are the 'ro%isions na
medyo magulo W98 still applicable. )a@a/
. said that .rt. %D cited above is still
applicable. Co//entaries and a 1*%* case
apply .rts. 7% and %1. 3errera cited .rt.
%< "1&, but /entioned .rt. II* of A!C, not
8CC. So ano ba talaga (uya? Ma)am A said
these are *on+using. Any,ay, she too( note
o+ said 'ro%isions, at 'alagay (o,
(a(alam'agin n)ya ang Congress tung(ol
dito. By the ,ay, she said the -C ,as
.really minadali/, so 0 thin( that e1'lains
e%erything. As( na lang your Persons
tea*her.&
2..--Re1o<nition 4f 2atural .hildren
7$. . 8.TCA.G C37GD /ay be reco0ni1ed
by the father and the /other
F978TGH, or
by 98GH 98E of the/.
77. 7n case the reco0nition is /ade by
98GH 98E of the parents, it shall
be !AESC)ED that the child is
8.TCA.G, 7E the parent reco0ni1in0 it
had GE>.G C.!.C7TH to contract
/arria0e at the ti/e of conception.
7%. AEC9>87T798 shall be /ade in the
record of birth
a will
a state/ent before a court of
record
or in any authentic writin0.
7*. . /inor who /ay not contract
/arria0e w;o parental consent "1%,1&
C.889T ac'nowled0e a natural
child
C8GESS
parent;>uardian .!!A96ES the
ac'nowled0/ent
reco>nition is /ade in a W7GG
%+. When the E.T3EA or the )9T3EA
/a'es the reco0nition SE!.A.TEGH,
3E;S3E shall 89T AE6E.G the
na/e of the person with who/
'=
FRITZI
he;she has the child=
neither shall he;she ST.TE any
C7ACC)ST.8CE whereby the
other parent /ay be
identifed.
%1. . child who is 9E .>E C.889T #E
AEC9>87NED without his C98SE8T.
When the reco0nition of a /inor
D9ES 89T ta'e place
in a AEC9AD of #7AT3 or
in a W7GG,
FCD7C7.G .!!A96.G 7S 8ECESS.AH.
. /inor can in any case 7)!C>8 the
reco0nition within I HAS. (. the attain/ent
of his /a-ority.
%. . AEC9>87NED natural child has the
ri0ht2
"1& To #E.A T3E SCA8.)E of the
reco0ni1in0 parent
"& To receive SC!!9AT fro/ such parent
"*1&
"<& To receive in a proper case the
hereditary portion w;c is deter/ined by this
code.
I254/62TAR7 R.432ITI422
%<. 7n any of the (. cases,
the E.T3EA is 9#G7>ED to reco0ni1e
the child as his natural child2
"1& 7n cases of
A.!E;.#DCCT798;SEDCCT798, when
the period of the o(ense coincides /ore
or less with that of conception=
"& When the child is in C98T78C9CS
!9SSESS798 of the ST.TCS of a C37GD of
the alle0ed father by the
D7AECT .CTS of the latter or
of his E.)7GH
"<& When the child was C98CE76ED durin0
the ti/e when the /other C93.#7TED
with the SC!!9SED father.
"I& When the child 3.S in his favor .8H
E67DE8CE or !A99E the defendant
is his father.
%I. The )9T3EA is 9#G7>ED to reco0ni1e
her natural child2
"1& 7n any of the cases in the precedin0
article, as between the child 5 the /other.
"& When the #7AT3 and the 7DE8T7TH of the
child are CGE.AGH !A96E8.
%$. The reco0nition /ade in favor of a
child who
does not possess all the conditions
in .rt. $*, or
in w;c the re?uire/ents of the law
have not been fulflled
/ay be 7)!C>8ED by those
who are !AEFCD7CED by such
reco0nition.
Se1$ ($ "ontents of petition.,, The
petition for -udicial approval of a voluntary
reco0nition of a /inor natural child shall
contain the followin0 alle0ations2
"a& The -urisdictional facts=
"b& The na/es 5 residences of the
parents who ac'nowled0ed the child, or
either of the/, and
their co/pulsory heirs, and the
person or persons with who/ the child
lives=
"c& The fact that the reco0nition
/ade by the parent or parents too' place
in a state/ent before a court of record
or
in an authentic writin0,
copy of the state/ent or writin0 bein0
attached to the petition.
Se1$ 8. #rder for $earing.,, Cpon the
flin0 of the petition, the court, by an order
recitin0 the purpose of the sa/e, shall
fB the date and place for the hearin0
thereof, which date shall not be
/ore than $ /onths after the entry
of the order, and shall, /oreover,
cause a copy of the order to be
served personally or by /ail upon the
interested parties, and
published once a wee' for < consecutive
wee's, in a newspaper or
newspapers of 0eneral circulation in
the province.
Se1$ =. #pposition.,, .ny
interested party /ust, within 1D days
fro/ service, or
fro/ the last date of publication of the
order referred to in the neBt
precedin0 section,
fle his opposition to the petition, statin0
the 0rounds or reasons therefor.
'>
FRITZI
Se1$ >$ %udgment.,, 7f, fro/ the
evidence presented durin0 the hearin0, the
court is satisfed that the reco0nition of the
/inor natural child was
willin0ly and voluntarily /ade by the
parent or parents concerned, and
is for the best interest of the child,
it shall render -ud0/ent 0rantin0 -udicial
approval of such reco0nition.
I254/62TAR7 R.432ITI42 of a natural
child /ay be /ade2
"a& by an incontrovertible paper written by
the parent eBpressly reco0ni1in0 his
paternity=
"b& by 0ivin0 such child the status of a
natural child of the father, -ustifed by
the direct act of the father or his fa/ily
L.rt. %<"&M=
"c& by cri/inal action for rape, seduction or
abduction "par. , .rt. II*, A!C&
&ote2 )aybe we can i/prove this
enu/eration of 3errera by -ust applyin0 .rt.
%<, 8CC ?uoted above. )a@a/ . said
above enu/eration does not /a'e sense.
NOTES: IMPT:
%2 What if the presu/ed parents
reco0ni1ed the /inor natural child either
voluntarily or involuntarily without -udicial
approval and afterwards died, should the
child, after reachin0 /a-ority a0e, as' for
-udicial approval of such reco0nition4
?The boo' /a'es distinctions between
voluntary and involuntary reco0nition and
their e(ects= but the sa/e are irrelevant
"aside fro/ bein0 confusin0& because of the
rulin0 of the SC in 2a'usan Chua %s. CA.&
A2 89. Ae?uire/ent of -udicial approval is
for the #E8EE7T 9E T3E )789A. Gac' of said
F. cannot i/pede the e(ectivity of the
-ud0/ent /ade.
The -udicial approval is for the
protection of the /inor a0ainst any
ac'nowled0/ent /ade to his pre-udice.
Therefore, the lac' or insu:ciency of such
approval is 89T a defect available to the
reco0ni1in0 parent but one which the /inor
/ay raise or waive. 7f after reachin0 the
a0e of /a-ority the /inor consents to the
ac'nowled0/ent, the lac' of -udicial
approval should /a'e no di(erence.
Se1$ -$ 'er!ice of (udgment upon
ci!il registrar.)) . copy of the -ud0/ent
rendered in accordance with the precedin0
section shall be served upon the civil
re0istrar whose duty it shall be to enter the
sa/e in the re0ister.
RULE 106
CONSTITUTION OF FAMILY HOME
Aule 1+$ is dee/ed repealed by the
provisions of the Ea/ily Code.
FAMILY CODE
ART ">( . The fa/ily ho/e, constituted
-ointly by the husband and the wife or by an
un/arried head of a fa/ily, is the dwellin0
house where they and their fa/ily reside, and
the land on which it is situated.
ART$ ">8. The fa/ily ho/e is dee/ed
constituted on a house and lot fro/ the ti/e it is
occupied as a fa/ily residence. Ero/ the ti/e of
its constitution and so lon0 as any of the
benefciaries actually resides therein, the fa/ily
continues to be such and is eBe/pt fro/
eBecution, forced sale or attach/ent eBcept as
hereinafter provided and to the eBtent of the
value allowed by law.
There is no need to fle verifed petition
for constitution of fa/ily ho/e under EC.
ART$ ">=. The benefciaries of a fa/ily
ho/e are2
The husband and the wife, or an un/arried
person who is the head of a fa/ily= and
Their parents, ascendants, descendants,
brothers and sisters, whether the relationship be
le0iti/ate or ille0iti/ate, who are livin0 in the
fa/ily ho/e and who depend upon the head of
the fa/ily for le0al support.
ART$ ">>. The fa/ily ho/e shall be eBe/pt
fro/ eBecution, forced sale or attach/ent
eBcept2
1& Eor nonpay/ent of taBes=
& Eor debts incurred prior to the constitution of
the fa/ily ho/e=
<& Eor debts secured by /ort0a0es on the
pre/ises before or after such constitution=
and
I& Eor debts due to laborers, /echanics,
architects, builders, /aterial/en and others
who have rendered service or furnished
/aterial for the construction of the buildin0.
Mode0uillo vs$ Salinas
'-
FRITZI
The debt or liability which was the basis
of the -ud0/ent arose or was incurred at
the ti/e of the vehicular accident on 1$
)arch 1*7$ and the /oney -ud0/ent
arisin0 therefro/ was rendered by the
appellate court on * Fanuary 1*%%. #oth
preceded the e(ectivity of the EC on .u0ust
I, 1*%% "not .u0ust < O1*%% bein0 a leap
year&.
The contention that it should be
considered a fa/ily ho/e fro/ the ti/e it
was occupied by petitioner and his fa/ily in
1*$* is not well,ta'en. Cnder .rt. 1$ of
the EC, JThe provisionsPshall 0overn
eBistin0 fa/ily residences insofar as said
provisions are applicable.K 7t does not
/ean that .ATS. 1D and 1D< have
retroactive e(ect such that all eBistin0
fa/ily residences are dee/ed to have been
constituted as fa/ily ho/es at the ti/e of
their occupation prior to the e(ectivity of
the EC and are eBe/pt fro/ eBecution for
the pay/ent of obli0ations incurred before
the e(ectivity of the EC. .rt. 1$ si/ply
/eans that all eBistin0 fa/ily residences at
the ti/e of the e(ectivity of the EC are
considered fa/ily ho/es and are
prospectively entitled to the benefts
accorded to a fa/ily ho/e.
ART$ ">#. The actual value of the fa/ily
ho/e shall not eBceed, at the ti/e of its
constitution, the a/ount of three hundred
thousand pesos in urban areas, and two hundred
thousand pesos in rural areas, or such a/ounts
as /ay hereafter be fBed by law.
7n any event, if the value of the currency
chan0es after the adoption of this Code, the
value /ost favorable for the constitution of a
fa/ily ho/e shall be the basis of evaluation.
Eor purposes of this .rt., urban areas are
dee/ed to include chartered cities and
/unicipalities whose annual inco/e at least
e?uals that le0ally re?uired for chartered cities.
.ll others are dee/ed to be rural areas.
ART$ "-)$ When a creditor whose clai/ is
not a/on0 those /entioned in .rt. 1DD obtains a
-ud0/ent in his favor and he has reasonable
0rounds to believe that the fa/ily ho/e is
actually worth /ore than the /aBi/u/ a/ount
fBed in .rt. 1D7, he /ay apply to the court
which rendered the -ud0/ent for an order
directin0 the sale of the property under
eBecution. The court shall so order if it fnds that
the actual value of the fa/ily ho/e eBceeds the
/aBi/u/ a/ount fBed by law as of the ti/e of
its constitution. 7f the increased actual value
eBceeds the /aB. a/ount and results fro/
subse?uent voluntary i/prove/ents introduced
by the person;s constitutin0 the fa/ily ho/e, by
the owner;s of the property, the sa/e rule and
procedure shall apply.
.t the eBecution sale, no bid below the
value allowed for a fa/ily shall be considered.
The proceeds shall be applied frst to the
a/anita /entioned in 1D7 and to the liabilities
under the -ud0/ent and the costs. The eBcess,
if any, shall be delivered to the -ud0/ent
creditor.
RULE 107
ABSENTEES
Se1$ "$ Appointment of
representati!e. O When a person
disappears fro/ his do/icile, his
whereabouts bein0 un'nown, and without
havin0 left an a0ent to ad/inister his
property, or the power conferred upon the
a0ent has eBpired, any interested party,
relative or friend, /ay petition the ATC of
the place where absentee resided before his
disappearance, for the appoint/ent of a
person to represent hi/ provisionally in all
that /ay be necessary. L7n the City of
)anila, the petition shall be fled in the
Fuvenile and Do/estic Aelations Court.M
This rule is based on2
ART$ 8&" .. . When a person disappears
fro/ his do/icile, his whereabouts bein0
un'nown, and without leavin0 an a0ent to
ad/inister his property, the -ud0e, at the
instance of an interest party, a relative, or a
friend, /ay appoint a person to represent hi/ in
all that /ay be necessary.
This sa/e rule shall be observed when
under si/ilar circu/stances the power conferred
by the absentee has eBpired.
ART$ 8&(. The appoint/ent referred to in
<%1 havin0 been /ade, the -ud0e shall ta'e the
necessary /easures to safe0uard the ri0hts and
interests of the absentee and shall specify the
powers, obli0ations and re/uneration of his
representative, re0ulatin0 the/, accordin0 to the
circu/stances, by the rules concernin0
<uardians.
Se1$ ( Declaration of absence* who
may petition. .fter the lapse of years
fro/ his disappearance and without any
news about the absentee or since the
receipts of the last news, or D years in case
the absentee has left a person in char0e of
the ad/inistration of his property, the
declaration of his absence and the
appoint/ent of a trustee or ad/inistrator
/ay be applied for by any of the (2
"a& The spouse present=
"b& The heirs instituted in a will, who /ay
present an authentic copy of the
sa/e=
"c& The relatives who would succeed by
the law of intestacy= and
'#
FRITZI
"d& Those who have over the property of
the absentee so/e ri0ht
subordinated to the condition of his
death.
This rule is based on the (2
ART$ 8&= .. . Two years havin0 elapsed
without any news about the absentee or since
the receipt of the last news, and fve years in
case the absentee has left a person in char0e of
the ad/in of his property, his absence /ay be
declared.
ART$ 8&>$ The ( /ay as' for the
declaration of absence2
1. The spouse present=
. The heirs instituted in a will, who /ay
present an authentic copy of the sa/e=
<. The relatives who /ay succeed by law of
intestacy=
I. Those who /ay have over the property of
the absentee so/e ri0ht subordinated to the
condition of his death.
7t is not necessary that a declaration of
absence be /ade in a proceedin0 separate
fro/ and prior to a petition for ad/in.
"!eyes %s. Ale3andro
The petition to declare the husband an
absentee and the petition to place the /0t
of the con-u0al properties in the hands of
the wife could be co/bined and ad-udicated
in the sa/e proceedin0. (Daya Maaria 4ol$
5oguera %. 6illamor
Se1$ 8$ "ontents of petition. $ The
petition for the appoint/ent of a
representative, or for the declaration of
absence and the appt of a trustee or an
ad/in, /ust show the (2
"a& The -urisdictional facts=
"b& The na/es, a0es and residences of
the heirs instituted in the will, a copy
of which shall be presented, and of
the relatives who would succeed by
the law of intestacy=
"c& The na/es and residences of creditors
and others who /ay have any
adverse interest over the property of
the absentee=
"d& The probable value, location and
character of the property belon0in0
to the absentee.
Se1$ =$ +ime of hearing* notice and
publication thereof. 7 When a petition for
the appt of a representative, or for the
declaration of absence and the appt of a
trustee or ad/in is fle, the court shall fB a
date and place for the hearin0 thereof
where all concerned /ay appear to contest
the petition.
Copies of the notice of the ti/e and
place fBed for the hearin0 shall be served
upon the 'nown heirs, le0atees, devisees,
creditors and other interested persons, at
least 1+ days before the day of the hearin0,
and shall be published once a wee' for <
consecutive wee's prior to the ti/e
desi0nated for the hearin0, in a newspaper
of 0eneral circulation in the province or city
where the absentee resides, as the court
shall dee/ best.
Se1$ >$ #pposition. .nyone appearin0
to contest the petition shall state in writin0
his 0rounds therefor, and serve a copy
thereof on the petitioner and other
interested parties on or before the date
desi0nated for the hearin0.
Se1$ -$ ,roof at hearing* order. , .t
the hearin0, co/pliance with the provisions
of section I of the rule /ust frst be shown,
upon satisfactory proof of the alle0ations in
the petition, the court shall issue an order
0rantin0 the sa/e and appointin0 the prep,
trustee or ad/in for the absentee. The
-ud0e shall ta'e the necessary /easures to
safe0uard the ri0hts and interests of the
absentee and shall specify the powers, obli
and re/uneration of his rep, trustee or
ad/in, re0ulatin0 the/ by the rules
concernin0 0uardians.
7n case of declaration of absence,
the sa/e shall not ta'e e(ect until $
/onths after its publication in a newspaper
of 0eneral circulation desi0nated by the
court .8D in the 9:cial >a1ette.
Se1$ #$ -ho may be appointed. O7n
the appoint/ent of a rep, the spouse
present shall be preferred when there is no
le0al separation, if the absentee left no
spouse, or if the spouse present is a /inor
or otherwise inco/petent, any co/petent
person /ay be appointed by the court.
7n case of declaration of absence,
the trustee or ad/in of the absentee@s
property shall be appointed in accordance
with the precedin0 par.
This is based on .rt. <%< of CC.
#asically, it says the sa/e thin0. Dapat
lan0, 'aya n0a based doon. 3eQ 3eQ
Se1$ &$ +ermination of
administration. O The trusteeship or
ad/in of the property of the absentee shall
cease upon order of the court in any of the
( cases2
'&
FRITZI
"a& When the absentee appears
personally or by /eans of an a0ent=
"b& When the death of the absentee is
proved and his testate or intestate
heirs appear=
"c& When a third person appears, showin0
by a proper docu/ent that he has
ac?uired the absentee@s property by
purchase or other title.
7n these cases the trustee or ad/in shall
cease the perfor/ance of his o:ce, and the
property shall be placed at the disposal of
those who /ay have a ri0ht thereto.
This is based on .rt. <%* of the CC.
Declaration of Absence is Unnecessary where there
are no properties
The need to have a person -udicially
declared an absentee is when
he has properties which have to be
ta'en care of or ad/inistered by a rep
appointed by the Court
his wife is as'in0 the court that the
ad/in of all classes of property in the
/arria0e be transferred to her
the spouse of the absentee is as'in0 for
separation of property.
The petition to declare the husband an
absentee and the petition to place the
/ana0e/ent of the con-u0al properties in
the hands of the wife /ay be co/bined and
ad-udicated in the sa/e proceedin0s.
No independent action for Declaration of
Presumption of Death
The disputable presu/ption established by
the rule of evidence that a person not heard
fro/ in seven years is dead /ay arise and
be invo'ed either in an action or in a special
proceedin0, which is tried or heard by, and
sub/itted for decision to, a co/petent
court. 7ndependently of such an aBn or
proc, the presu/ption of death cannot be
invo'ed nor can it be /ade the sub-ect of
an action or spec proc. "0n re 5i*olai
S"atro,
,rof. A!ena 2 This is a rebuttable
presu/ption established by the rules of
evidence so you don@t have to 0o to court
and fle an action or spec proc si/ply for
the purpose of securin0 it 'er
se.
4o illustrate2 7f you are a benefciary of an
insurance policy and the insured has been
absent for at least 7 years "plus no news of
his whereabouts&, you can fle an action for
the collection of the proceeds. 7n so doin0,
you have in your favor the disputable
presu/ption of the insured@s death. Hou
need not 0o "and besides you cannot do
this& to court to fle an independent action
for the declaration of the insured@s death.
"Sana naintindihan niyo iyong
'ag(a(aintindi (o sa sinabi ni Ma)am 7
-rit"
ERCE!T798: The need for declaration of
presu/ptive death for purposes of
re/arria0e. This is based on .rt. I1 of the
EC. 9therwise, the subse?uent /arria0e
shall be null and void.
AESC7S7TES2
The prior spouse had been absent for
four consecutive years and
the spouse present had a well,founded
belief that the absent spouse was
already dead.
7n case of disappearance where there is
dan0er of death under .rt. <*1 CC, an
absence of only two ears shall be
su:cient.
This provision is intended to protect the
present spouse for a cri/inal prosecution
for bi0a/y because with such -udicial
declaration, 0ood faith of the present
spouse is established.
.#SE8T S!9CSE
This /eans that the other spouse
has been /issin0 for at least four years, it
bein0 un'nown whether or not he or she is
still alive, and the present spouse havin0 a
well,founded belief that the /issin0 spouse
is already dead.
The period of I years is reduced to
under the ( circu/stances ".rt. <*1 CC&
"a& The /issin0 person was on board a
vessel lost durin0 a sea voya0e, or an
aeroplane which is /issin0=
"b& The /issin0 person was in the ar/ed
forces and had ta'en part in war= or
"c& The /issin0 person was in dan0er of
death under other circu/stances.
''
FRITZI
7n the above case, the ,yr period is
co/puted fro/ the occurrence of the event
fro/ which death is presu/ed.
6essel O all 'inds of watercraft
.eroplane O all 'inds of aircraft
Ta'in0 part in war O includes all /ilitary
operations or underta'in0 involvin0
ar/ed f0htin0 and does not only apply
to soldiers but also to those e/ployed in
the ar/ed forces li'e nurses and
doctors, reporters and ca/era/en.
7n dan0er of death O events as
earth?ua'es, fres, eBplosions, etc.
Presum'tion o+ Death must yield to
're'onderan*e o+ e%iden*e
There are certain circu/stances
where a person was already considered
dead without waitin0 for the period to
eBpire. (8astern Shi''ing Lines %. Lu*ero
999Ca%eat: 0)m ty'ing this +rom memory
dahil nag(ataong this ,as in*luded in my
'art sa e%iden*e.
7n this case, the ship where the
person presu/ed dead was on board sun'
due to stor/. 7n fact, na'ita pa n0a nila sa
/ay coast iyon0 wrec'ed parts n0 ship. So
sabi n0 SC, no need to wait for the
eBpiration of the I,yr period "this was not
for subse?uent /arria0e& dahil by
preponderance of evidence, the
circu/stances su:ciently show that the
person /ay be considered dead.
SUMMARY OF JUDICIAL PROCEEDINGS IN
THE FAMILY LAW
Art$ (8&$ Cntil /odifed by the SC, the
procedural rules in this title shall apply in all
cases provided for in this Code re?uirin0
su//ary court proc. Such cases shall be
decided in an eBpedition /anner without re0ard
to technical rules.
Characteristics of Su//ary !roceedin0s in
the EC
"1& The pet shall be verifed, to assure its
truthfulness.
"& 8otice of the flin0 of the pet be sent to
resp at his last 'nown address, as part
of due process.
"<& 8o periods set= it is up to the -ud0e to
det the period within which the resp
shld answer the petition and the
hearin0 thereof, which shld be very
short, considerin0 na su//ary n0a.
"I& There is a preli/inary conference
wherein lawyers are eBcluded.
"D& The appearance of the trial fscal of the
court is not re?uired. "#a'a absent or
unprepared pa.&
"$& The preli/ confab should be conducted
personally by the -ud0e in the nature of
an in?uisitorial hearin0. "S 5 .&
"7& The proceedin0s can be decided on the
basis of a:davits or other
docu/entary evidence. 9ral
testi/onies will be re?uired only when
necessary and at the discretion of the
court.
"%& Case shall be decided in the /ost
eBpeditious /anner, without re0ard to
technical rules.
"*& Fud0/ent shall be i//ediately fnal
and eBecutory.
.!!G7C.#7G7TH 9E !A9CEDCA.G ACGES
The rules of su//ary procedure shall apply
to the (2
"1& Art. ;<< 'ar (= O separation in fact
between 3 and W under the re0i/e of
.C! and where the consent of one
spouse to any transaction of the other
is re?uired by law.
"& Art. ;=> (= O sa/e as .rt. 1++ but
under the re0i/e of C!>.
"<& Art. ?; O action for declaration of the
presu/ptive death of an absent spouse
believed to be dead.
"I& Art. @; O delivery of presu/ptive
le0iti/es by /eans of a /utual
a0ree/ent re?uirin0 -ud@l approval=
"D& Art. AB O disa0ree/ent in the fBin0 of
fa/ily do/icile=
")
)
FRITZI
"$& Art. >C O ob-ection by one spouse to
the eBercise by the other spouse of any
le0it prof, occupation, bus or activity=
"7& Art. BA O disa0ree/ent in the -oint
ad/in and en-oy/ent of the
co//unity prop=
"%& Art. ;=? 7 disa0ree/ent in the -oint
ad/in and en-oy/ent of .C!=
"*& Art. =;> O entrustin0 of parental
authority over foundlin0s, abandoned,
ne0lected or abused children and other
children si/ilarly situated to heads of
children@s ho/es, orphana0es and
si/ilar institutions duly accredited by
the 0ov@t=
"1+& Art. ==@ O fBin0 of the bond of the
parents.
SE!.A.T798 78 E.CT #ETWEE8 3CS#.8D
.8D W7EE
!ls. See <*,D< of the EC
Cnless Con0ress would decide to re,
create the for/er Fuvenile and Do/estic
Aelations Courts or fa/ily courts which
were abolished by #! 1*, all proc to be
fled under the EC would be co0ni1able by
the branches of the ATC desi0nated by the
SC to handle eBclusively -uvenile and
do/estic relations cases, and in places
where no desi0nation is /ade, by the ATC
of the proper venue of the case. 6enue
shall be the place of residence of either
spouse.
Clai/s for Da/a0es not covered by
Su//ary !rocedure
Clai/s for da/a0es cannot be
liti0ated in the sa/e proceedin0s bec. Such
clai/s will necessarily entail delay.
7ndependent or separate cases shall
therefore be necessary for establishin0 and
enforcin0 clai/s for da/a0es.
Due !rocess to #e 9bserved
Def. spouse shall be duly notifed
and furnished a copy of the pet at his last
'nown address and shall be 0iven the
opportunity to answer the sa/e or to show
cause why the pet should not be 0ranted.
9therwise, void for lac' of D!.
!reli/ Conference= 8o Gawyers
Shall be conducted by the -ud0e
personally and not thru Cler' of Court or a
Co//issioner. Counsel shall not assist the
parties at this sta0e.
8on,appearin0 party shall be co/pelled to
appear= Eailure to appear despite e(orts,EB,
parte proc authori1ed
The court shall re?uire attendance if
possible. 7f despite such e(orts, the party
still does not appearTeB,parte proceedin0s.
The court shall render decision on the basis
of a:davits, docu/entary evidence or oral
testi/onies.
Fud0/ent 7//ediately Einal and EBecutory
8ot appealable -ust li'e a decision based
on a co/pro/ise a0ree/ent. The decision
can be ?uestioned in the ( cases2
"1& #y a special civil action for certiorari on
0rounds of 0rave abuse of discretion,
eBcess of -uris or lac' of -uris
co//itted by the court=
"& #y annul/ent of decision based on lac'
of -uris or eBtrinsic fraud.
RULE 108
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY
Se1$ " -ho may .le petition. .ny
person interested in any act, even, order or
decree concernin0 the civil status of
persons which has been recorded in the
civil re0ister, /ay fle a verifed petition for
the cancellation or correction of an entry
relatin0 thereto, with the ATC of the
province where the correspondin0 civil
re0istry is located.
Aole of the Court
The crt@s role in hearin0 the petition
to correct certain entries in the civil re0istry
is to ascertain the truth about the facts
recorded therein. Aeason2 Truth is best
")
"
FRITZI
ascertained or approBi/ated by trial
conducted under the adversary syste/.
!roceedin0s for the correction of
erroneous entry should not be considered
as establishin0 one@s status in a le0al
/anner conclusively beyond dispute. .rt.
I1+ CC provides, J..the boo's /a'in0 up
the civil re0ister and all docu/ents relatin0
theretoPshall be pri/a facie evidence of
the facts therein contained.K
The correction shld not i/ply a
chan0e of status but a /ere rectifcation of
error to /a'e the /atter corrected spea'
for the truth. There is therefore no increase
or di/inution of substantive ri0ht, as is the
basis for holdin0 that A1+% would be
unconsti if held to allow correction of /ore
than /ere har/less clerical errors.
Distinction bet. R103 and R108
R")8 R")&
chan0e of na/e only

all cancellation or
correction of entries
the entry is correct
but you want to
chan0e it
there is a /ista'e
which you
want to correct
Civil Ae0istrar not a
party
Civil Ae0istrar is an
7ndispensable party.
9therwise, null and
6oid. AE.S982
interested party in
!rotectin0 inte0rity
9f public docu/ents
UU7f both reliefs are to be sou0ht in the
sa/e proceedin0s all the re?uire/ents of
A1+< and 1+% /ust be co/plied with.
!roceedin0 when error is clerical or
substantive
Clerical O the procedure is su//ary.
Substantive O the procedure is
adversary.
Se1$ ( Entries sub(ect to
cancellation or correction. O Cpon 0ood
and valid 0rounds, the (. entries in the civil
re0ister /ay be cancelled or corrected2
"a& births=
"b& /arria0es=
"c& deaths=
"d& le0al separation=
"e& -ud0/ents of annul/ents of /arria0e=
"f& -ud0/ents declarin0 /arria0es void
fro/ the be0innin0=
"0& le0iti/ations=
"h& adoptions=
"i& ac'nowled0/ents of natural children=
"-& naturali1ation=
"'& election, loss or recovery of
citi1enship=
"l& civil interdiction=
"/& -udicial deter/ination of fliation=
"n& voluntary e/ancipation of a /inor=
and
"o& chan0es of na/e.
A1+% covers2
1& Correction of innocuous or clerical errors
apparent on the facts of the record and
capable of bein0 corrected by /ere
reference to it, e.0., /isspellin0s.
& Correction of substantial errors provided
proceedin0s is adversary, e.0.
citi1enship.
.ppropriate .dversary !roceedin0s
9ne havin0 opposin0 parties=
contested, as distin0uished fro/ an eB
parte application, one which the party
see'in0 relief has 0iven le0al warnin0 to the
other party, and a(orded the latter an
opportunity to contest it.
!ersons who /ust be /ade parties
1& Civil Ae0istrar=
& .ll persons who have or clai/ any
interest which would be a(ected
thereby.
These are also the persons entitled to
oppose the petition.
Cpon the flin0 of the petition, it beco/es
the duty of the court to2
1& issue an order fBin0 the ti/e and place
for the hearin0 of the petition, and
& cause the order for hearin0 to be
published once a wee' for < consecutive
wee's in a newspaper of 0en circulation
in the province.
Se1$ 8$ ,arties. When cancellation or
correction of an entry in the civil re0ister is
sou0ht, the civil re0istrar and all persons
who have or clai/ any interest which would
be a(ected thereby shall be /ade parties
to the proceedin0.
Se1$ =$ &otice and ,ublication.
Cpon the flin0 of the petition, the court
")
(
FRITZI
shall, by an order, fB the ti/e and place for
the hearin0 of the sa/e, and cause
reasonable notice thereof to be 0iven to the
persons na/ed in the petition. The court
shall also cause the order to be published
once a wee' for < consecutive wee's in a
newspapers of 0en circulation in the
province.
Se1$ >$ #pposition$ The civil re0istrar
and any person havin0 or clai/in0 any
interest under the entry whose cancellation
or correction is sou0ht /ay, within 1D dys
fro/ notice of the petition, or fro/ the last
date of publication of such notice, fle his
opposition thereto.
.D6EAS.AH !A9CEED78>S
1& When the petition is fled either by the
civil re0istrar or any person havin0 a
clai/Pand the opposition is actively
prosecuted.
& When all relevant facts have been fully
and properly developed, where opposin0
counsel have been 0iven opportunity to
de/olish the opposite party@s case, and
where the evidence has been thorou0hly
wei0hed and considered.
<& When the opposition is fled either by
the civil re0istrar or any person havin0
or clai/in0 any interestP
Se1$ -$ E/peditious proceedings.
The court in which the proceedin0 is
brou0ht /ay /a'e orders eBpeditin0 the
proceedin0s, and /ay also 0rant preli/
in-unction for the preservation of the ri0hts
of the parties pendin0 such proc.
Se1$ # #rder. .fter hearin0, the court
/ay either dis/iss the petition or issue an
order 0rantin0 the cancellation or correction
prayed for. 7n either case, a certifed copy
of the -ud0/ent shall be served upon the
civil re0istrar concerned who shall annotate
the sa/e in his record.
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Se1tion "$ #rders or (udgments
from which appeals may be ta0en. .n
interested person /ay appeal in special
proceedin0s fro/ an order or -ud0/ent
rendered by a ATC or a Fuvenile and
Do/estic Aelations Court, where such order
or -ud0/ent2
"a& .llows or disallows a will=
"b& Deter/ines who are the lawful heirs of
a deceased person, or the
distributive share of the estate to
which such person is entitled=
"c& .llows or disallows, in whole or in part,
any clai/ a0ainst the estate of a
decease person, or any clai/
presented on behalf of the estate in
o(set to a clai/ a0ainst it=
"d& Settles the account of an eBecutor,
ad/in, trustee or 0uardian=
"e& Constitutes, in proceedin0s relatin0 to
the settle/ent of the estate of a
decease person, or the ad/in of a
trustee or 0uardian, a fnal
deter/ination in the lower court of
the ri0hts of the party appealin0,
eBcept that no appeal shall be
allowed fro/ the appoint/ent of a
special ad/in= and
"f& 7s the fnal order or -ud0/ent rendered
in the case, and a(ects the
substantial ri0hts of the person
appealin0, C8GESS it be an order
0rantin0 or denyin0 a /otion for a
new trial or for recon.
!rof. .vena2
Sec. 1 "f&. The unless clause here si/ply
/eans that in these two instances, you 0o
on appeal i//ediately.
Enu/eration is not eBclusive, e.0.,
approval of bond, declaration of
inco/petency for purposes of
0uardianship.
)ode of .ppeal
Spec !ro, The period of appeals is
<+ days, a record on appeal bein0 re?uired.
EBc2 3abeas corpus cases O I%
hours.
.ppeals in Gi?uidation !roceedin0s a0ainst
7nsolvent Corp is by Aecord on .ppeal
Since li?uidation proc a0ainst an
insolvent corp is a spec pro, the appeal is
by record on appeal. AE.S982 several
clai/s are actually separate ones and a
decision or fnal order with respect to any
clai/ can be appealed. 8ecessarily the ori0
rec on appeal /ust re/ain in the TC where
other clai/s /ay still be pendin0.
Who )ay .ppeal ,, 7nterest !erson
. stran0er havin0 neither /aterial
nor direct interest in a testate or intestate
has no rt to appeal fro/ any order issued
herein.
")
8
FRITZI
)ay appeal only when the order,
decree, -ud0/ent constitutes a fnal
deter/ination of the ri0hts of the appellants
and the appeal shall a(ect every order,
decree or -ud0/ent appealed fro/, and not
/erely the interest which the appellants
/ay have therein.
U!rof. .vena2 )ay so/eti/es be
interlocutory in nature if we were to
consider it under civpro but it is fnal in the
sense that it disposes of ri0hts and obli of
parties, e.0. declaration of inco/petency O
Hou can appeal na althou0h if viewed under
civpro, hindi pa ito fnal dahil wala pan0 na,
aapoint na 0uardian. 7n other words, hindi
pa tapos iyon0 0uardianship proc.
"Siyem're, hindi ganito iyung 'ag(a(asabi$
-rit"
The fact that the ad/in did not
prosecute the appeal does not bar the
lawful heirs of the deceased fro/ doin0 so.
AE.S982 Gawful heirs are considered
interest party.
The validity of a -ud0/ent or order
of a court entered in a spec pro cannot be
assailed collaterally unless the 0round for
the attac' is lac' of -uris or fraud by the
party sou0ht to be char0ed with it in its
procure/ent.
7f the nullity of the -ud0/ent or order
assailed is for failure to co/ply with the
statutory re?. which /ust be followed
before such F;9 /ay be entered, the re/edy
is to appeal fro/ such, or if fnal, to apply
for relief under A<%.
7n a specpro, appeals /ay be ta'en
at various sta0es of the proceedin0s so
son0 as the order, decree or -ud0/ent
constitutes a fnal deter/ination of the
ri0hts of the parties so appealin0.
. probate decree fnally and
defnitively settles all ?uestions concernin0
capacity of the testator and the proper
eBecution and witnessin0 of his last will and
testa/ent, irrespective of whether its
provisions are valid. .ppealable under Sec.
1 "a&.
Certiorari and )anda/us not . Substitute
for .ppeal
7f an interested party lost his re/edy by
appeal due to his own ne0lect, he cannot
now see' redress by certiorari and
/anda/us, it not appearin0 that the lower
court has acted without -uris.
32RA/ ;RI2.I;/2 7n the absence of
statutory provisions directin0 otherwise,
any order, -ud0/ent or decree of the
probate court capable of bein0 enforced, or
ta'in0 e(ect without further order, /ay be
appealed fro/= and that no action of the
probate court can be appealed fro/ which
re?uires a subse?uent order or -ud0/ent to
0ive it e(ect. e.0., .n order directin0 one to
appear and sub/it to an eBa/ination
touchin0 any property in his possession
belon0in0 to an intestate, otherwise, he
shall be co//itted to prison, is
.!!E.G.#GE.
7n this case, said person is le0ally
interested in the order, thus entitled to
appeal. 3e need not be le0ally interested in
the intestate proceedin0s proper.
9T3EA 78ST.8CES W3EAE .!!E.G 7S
.6.7G.#GE
1. A''eal by Surety
When a surety of an eBec;ad/in of
the estate of a deceased person is ad/itted
as a party to an acct0 /ade by such
eBec;ad/in under A. %D Sec. 11, he /ay be
allowed to appeal fro/ any order of the
court approvin0 or disapprovin0 such acct0.
= A''eal by &eir +rom Money Claim
1& .n heir, le0atee or devisee who under
A%$ S11 has been served with notice as
to a /oney clai/ a0ainst the estate
/ay be allowed to appeal fro/ an order
of the ct. approvin0 such clai/.
& . creditor who under A%7 S1+ is allowed
by the ct to brin0 an action for recovery
of property /ay be allowed to appeal.
<& . spec ad/in /ay be allowed to appeal
fro/ an order disallowin0 a will.
C. #rder +or Li*ense to Sell
.n order for license to sell real
estate in ad/in proc is appealable.
?. #rder Against Bond
")
=
FRITZI
.ppealable. AE.S982 Such order
constitutes a defnite pronounce/ent as
relates to his bond and to his /ovable
property of which he will be deprived. Thus,
he can appeal.
@. #rder to *ontra*t #bligation
.ppealable. AE.S982 7t a(ects
substantial ri0hts of the parties and /ay
unnecessarily prolon0 the ad/in of the
intestate estate to the detri/ent of the
heirs.
A. #rder A''ointing Admin
.ppealable. This is a fnal
deter/ination of the rts of the parties
thereunder.
>. #rder Annulling A''ointment o+
2uardian
.ppealable. .n order refusin0 to
per/it a person to intervene in a probate
proceedin0 where he clai/s to have
ac?uired the interest of one of the heirs of
the deceased is li'ewise appealable.
D. #rder !emo%ing a 2uardian
.ppealable. Constitutes a fnal
deter/ination of his ri0hts. .n order
declarin0 a 0uardian inco/petent is
li'ewise appealable.
B. 0n%entories and Claims against the
8state
Ae2 inventories, clai/s a0ainst the
estate and sale of the property of the
decedent are appealable.
;<. Person de*lared in*om'etent
.n order declarin0 one a spend thrift
and /entally and physically inco/petent is
appealable.
;;. #rder re+using to 'ermit a 'arty to
inter%ene
.ppealable if the party see'in0 to
intervene is one who clai/s to have
ac?uired the interest of one of the heirs of
the estate.
9rders that are not appealable
;. #rder dire*ting admin to ta(e a*tion to
re*o%er amount due to the estateE
interlo*utory.
This is purely interlocutory and
cannot be the basis of an appeal. Why4
Ewan 'o. #ut 7 thin' it@s probably because
of the application of the 0en principle.
;. #rder made in admin 'ro* relating to
in*lusion or e1*lusion o+ items o+ 'ro'erty
in the in%entory o+ e1e*Fadmin,
interlo*utory
This is purely discretionary,
provisional and interlocutory. Sub-ect to
/odifcation or chan0e at any ti/e durin0
the course of ad/in proc. 8ot conclusive of
the rts of any one, and the order is not fnal.
=. #rder A''ointing S'e*ial
AdminF!e*ei%er
)erely incidental to -udicial proceedin0s.
The ct /a'in0 the appt retains control over
it and that it /ay /odify, rescind, or revo'e
the sa/e on su:cient 0rounds at any ti/e
before fnal -ud0/ent.
Se1$ ($ Ad!ance Distribution in
spec pro. 8otwithstandin0 a pendin0
controversy or appeal in proceedin0s to
settle the estate of a decedent, the ct /ay,
in its discretion and upon such ter/s as it
/ay dee/ proper and -ust, per/it that such
part of the estate as /ay not be a(ected by
the controversy or appeal be distributed
a/on0 the heirs or le0atees upon
co/pliance with the conditions set forth in
A. *+ of these rules.
1rit23 sana naman ay hindi na nasayang ang
'agod mo. 2##D LGCH, C$AIII Aileen, Minnie
J 8lla
A++endi, to Minnie@s $abeas "orpus #pus
By: 4he !egressing Whimsyland Hids Lourie,
Harreen J Jig K Party Poo'er 8lla
$abeas "orpus 4 9
Mon1u+a v$ nrile
Fa1ts: )oncupa et al were arrested 5 detained.
3e was alle0ed to be a 8ational De/ocratic Eont
sta( /e/ber. . !residential Co//it/ent 9rder
"!C9& was issued vs. the/. .fter separate
investi0ations, it was ascertained that )oncupa
was not a /e/ber of any subversive
or0ani1ation. #oth investi0ators reco//ended
his prosecution only for ille0al possession of
frear/s 5 subversive docu/ents. The
petitioners@ /otions for bail were deined.
Aespondents clai/ that the privile0e of the writ
of 3C had been suspended as to )oncupa 5 fled
a )TD statin0 JSince the pet. is free 5 no lon0er
under the custody of the resps., the present
petition for 3C /ay be dee/ed /oot 5
acade/ic as in si/ilar cases.K
")
>
FRITZI
9eld: )oncupa /ay have been released fr. his
detention cell, but the restraints attached to his
te/porary release preclude freedo/ of action 5
under the 6illavicencio v. Gu'ban rule warrant
the Court@s relievin0 hi/ of such restraints as
/ay be ille0al. 7t is not physical restraint alone
w;c is in?uired into by the writ of habeas corpus.
The principle is clear. . release that
renders a pet. for a W3C /oot 5 acade/ic /ust
be one w;c is free fr. involuntary restraints.
Where a person continues to be unlawfully
denied one or /ore of his constitutional
freedo/s, where there is present a denial of due
process, where the restraints are not /erely
involuntary but appear to be unnecessary, 5
where a deprivation of freedo/ ori0inally valid
has, in the li0ht of subse?uent dev@ts., beco/e
arbitrary, the person concerned or those
applyin0 in his behalf /ay still avail the/selves
of the privile0e of the writ.
ToAotoB et al$ 5$ Ramos
Fa1ts: !etitioners te/porarily released fr.
detention. So, does writ lie4
9eld: 9rdinarily, a pet. for 3C beco/es /ute 5
epide/ic "he he& when the restraint on the
liberty of the pets. 7s lifted either te/porarily or
per/anently. #ut the instant case presents a
di(. situation. The S to be resolved is whether
the State can reser%e the 'o,er to re$arrest a
'erson +or an oLense a+ter a *ourt o+ *om'etent
3urisdi*tion has absol%ed him o+ the oLense.
Such a reservation is repu0nant to the
0overn/ent of laws 5 not of /en principle.
Cnder this principle the /o/ent a person is
ac?uitted on a cri/ char0e he can no lon0er be
detained or re,arrested for the sa/e o(ense.
Alim+oos v$ .A
Fa1ts2 Aeynaldo )os?uito has been accused of
Aobbery w; less Serious !hysical 7n-uries. 3e
was detained by virtue of a warrant of arrest
which was issued without the observance of the
le0al re?uire/ents for the issuance thereof.
)os?uito fled a petition for 3abeas Corpus
before the Trial Court. )os?uito na/ed as
defendants in the case the !rov. Eiscal and the
private o(ended parties. he also fled a clai/ for
da/a0es pre/ised on .rts. < "I& and other
applicable provisions of the Civil Code.
Issues2
1. W98 the writ of 3abeas Corpus if the proper
re/edy for )os?uito4
. W98 da/a0es /ay be awarded in a 3abeas
Corpus case4
<. W98 private o(ended party /ay ta'e part in
the case4
9eld2
1. The W3C is not the proper re/edy. When a
warrant of arrest is bein0 assailed for i/proper
preli/inary investi0ation, the re/edy is a
petition to ?uash the warrant of arrest or petition
for reinvesti0ation of the case. 7t is the 0en. rule
that a 3C shld. not be resorted to when there is
another re/edy available.
. 8o. Da/a0es cannot be awarded. The sole
function of the writ is to relieve fr. unlawful
i/prison/ent and ordinarily it cannot be
properly used for another purpose.
<. While the issuance of the writ connotes the
co//ence/ent of a civil action, the proceedin0s
for 3C is technically not yet a suit bet. private
parties. The proper party is the Chief of !olice or
the person havin0 the accused in detention and
not the private o(ended party. 7t is also only the
fscal who /ay appeal the order 0rantin0 the
writ as /andated by Sec. 1* ACGE I1 of the
A9C.
Salvana v$ Saliendra
Fa1ts2 Salvana and Saliendra are the parents of
1D year old Eelicisi/a Salvana. The /inor is
presently in the custody of a -ustice of peace.
The parents fled a petition for W3C to re0ain
parental authority over the /inor. The pet. was
denied on the 0round that the parents are 0uilty
of abusin0 their child by forcin0 her to /arry
another a0ainst the her wishes.
Issue2 W98 W3C should issue4
9eld2 7t should issue. . W3C is the proper
le0al re/edy to enable parents to re0ain the
custody of a /inor dau0hter even thou0h the
child is in custody of a <rd person of her 9W8
EAEE W7GG. 8either the fact that the parents
sou0ht to co/pel her to /arry a0ainst her
wishes a le0al 0round for deprivin0 parents their
parental authority over the child as to deny the/
the ri0ht.
S6ARZ 5S$ .A
Fa1ts: Aespondent )anese fled a petition for
writ of 3C vs. petitioner Aenato Suare1, his
/other 5 sister. She fled a /otion to dis/iss
without pre-udice to her ri0ht to fle another
action for custody of /inor, contendin0 that the
issue as to who has ri0htful custody of the child
could be fully ad-udicated in another action and
not in the present action for 3C. TC 0ranted
/otion but with pre-udice.
Issue: W98 order of dis/issal with pre-udice is
res -udicata to present action for custody of
/inor 5 support
9eld: The order of dis/issal cannot be
considered as a valid ad-udication on the /erits
which would serve as a bar to the second action
for custody of /inor. TC dis/issed the case
without statin0 the reasons or the basis
therefore, contrary to the constitutional /andate
that decisions rendered by the court /ust clearly
5 distinctly state the law 5 facts on which it is
based. 7t is worthy to note thou0h that the
0round upon which the /otion to dis/iss was
fled was erroneous since the ?uestion as to who
shall have custody of the child can be su:ciently
resolved in the petition for writ of 3C pursuant to
Aule 1+, A9C.
The controversy in the instant case
involves a liti0ation initiated by the natural
/other over the welfare 5 custody of her child,
in which the State has a para/ount interest.
The funda/ental policy in the Constitution
pro/otin0 5 protectin0 the welfare of children
should not be disre0arded by a /ere technicality
in resolvin0 disputes which involve the fa/ily 5
youth.
3A/5Z 5S$ .A
Fa1ts: Three separate infor/ation "1 ho/icide,
frustrated ho/icide& were fled vs. >alve1
"incu/bent /ayor of one of the towns in
#ulacan ... !eter, don@t follow his footsteps, 9V4&
for the alle0ed shootin0 of the 6inculados. Said
infos. were later withdrawn in a )otion by the
prosecutor, but on the sa/e day, fled four
separate infor/ation "sa/e three plus ille0al
possession of frear/s&. Fud0e ordered the arrest
of the petitioners since no bail was
reco//ended.
Issue: W98 petition for 3C was properly fled
to0ether with the present petition for certiorari
and /anda/us
9eld: Writ of 3C and certiorari /ay be ancillary
to each other where necessary to 0ive e(ect to
the supervisory powers of the hi0her courts. The
writ reaches the body 5 -urisdictional /atters
while certiorari reaches the record. #ut 3C does
not lie where pet. has the re/edy of appeal or
certiorari because it will not be per/itted to
perfor/ the functions of a writ of error or appeal
for the purpose of reviewin0 /ere errors or
irre0ularities in the proceedin0s of a court
")
-
FRITZI
havin0 -urisdiction over the person 5 sub-ect
/atter.
Writ cannot be 0ranted in the case at bar
since petitioners failed to adduce any
-ustifcation or eBceptional circu/stances which
would warrant the 0rant of such writ. 3C is not
ordinarily available in advance of trial to
deter/ine -urisdictional ?uestions that /ay
arise. 7n the absence of eBceptional
circu/stances, the orderly course of trial should
be pursued 5 the usual re/edies eBhausted
before the writ /ay be invo'ed. !etition for 3C
is not the appropriate vehicle for assertin0 a
ri0ht to bail or vindicatin0 its denial.
;4;/ 5S$ FI36R4A
FA.TS: The accused were found by the
!hilippine 8avy o( the province of !alawan with
untaBed blue,seal ci0arettes in their possession.
They were brou0ht to )anila and investi0ated.
Durin0 this preli/inary investi0ation, each of the
accused eBecuted a:davits and waived their
ri0hts under .rt. 1D of the A!C "arbitrary
detention&. 9n reco//endation of the )anila
fscal, the accused were brou0ht bac' to !alawan
and another preli/inary investi0ation was held,
alle0edly for the purpose of Ja:r/"in0& the truth
of the sworn state/ents.K This ti/e, however,
the accused declined counsel and readily
a:r/ed their previous a:davits. Their counsel
fled a )TS, clai/in0 that the infor/ation was
fled without a preli/inary investi0ation and, if
there was, it was held in )anila and not !alawan
where the alle0ed cri/e was co//itted. The
lower court 0ranted the )TS, holdin0 that the
preli/inary investi0ation was conducted
JhurriedlyK.
ISS6: W98 the trial court correctly dis/issed
the infor/ation based on the lac' of preli/inary
investi0ation.
9/D: 89. .ssu/in0 that the trial court
felt that the accused should have been 0iven
/ore Ja/ple chance and opportunity to be
heard in the preli/inary investi0ationK, what it
should have properly done was not to dis/iss
the infor/ation but to hold the case in abeyance
and conduct its own investi0ation or re?uire the
fscal to hold a reinvesti0ation. The absence of
such investi0ation did not i/pair the validity of
the infor/ation or otherwise render it defective.
)uch less did it a(ect the -urisdiction of the
lower court over the case.
2RI/ 5S$ SA/AZAR
FA.TS: Fuan !once Enrile, >re0orio 3onasan,
and the !anlilio spouses were arrested by !8!
a0ents on a warrant of arrest issued by Fud0e
Sala1ar. They were denied bail, none bein0
reco//ended in the infor/ation which char0ed
the/ with the cri/e of rebellion with /urder and
/ultiple frustrated /urder alle0edly co//itted
durin0 the failed coup atte/pt of Dec. 1**+.
Enrile and the !anlilios fled this petition for
habeas corpus, invo'in0 denial of the
constitutional ri0ht to bail.
ISS6:
W98 a petition for habeas corpus is the
appropriate vehicle for assertin0 a ri0ht to bail or
vindicatin0 its denial.
9/D:
89. The cri/inal case before Fud0e
Sala1ar was the nor/al venue for invo'in0 the
petitioner@s ri0ht to have provisional liberty
pendin0 trial and -ud0/ent. The correct course
was for petitioner to invo'e that -urisdiction by
flin0 a petition to be ad/itted to bail, clai/in0 a
ri0ht to bail per se by reason of the wea'ness of
the evidence a0ainst hi/. 9nly after that re/edy
was denied by the trial court should the review
-urisdiction of the Supre/e Court have been
invo'ed, and even then, not without frst
applyin0 to the Court of .ppeals if appropriate
relief was also available there. The Court will no
lon0er countenance pleas li'e the present that
clearly short,circuit the -udicial process and
burden it with the resolution of issues properly
within the ori0inal co/petence of the lower
courts.
;ARDS 5S$ SA2DI3A2CA7A2
FA.TS: . cri/inal co/plaint was fled a0ainst
>overnor !aredes for violation of the .nti,>raft
and Corrupt !ractices .ct. . preli/inary
investi0ation was held but the su//ons for
!aredes to appear therein did not reach hi/. .n
infor/ation was subse?uently fled and a
warrant of arrest issued a0ainst !aredes. 3e now
petitions for habeas corpus on the 0round that
the preli/inary investi0ation was invalid and
that the o(ense has prescribed.
ISS6: W98 the circu/stances constitute valid
0rounds for the issuance of a writ of habeas
corpus.
9/D: 89. The absence of a preli/inary
investi0ation does not a(ect the court@s
-urisdiction over the case nor i/pair the validity
of the infor/ation or otherwise render it
defective. The re/edy of the accused in such a
case is to call the attention of the court to the
lac' of a preli/inary investi0ation and de/and,
as a /atter of ri0ht, that one be conducted. The
court, instead of dis/issin0 the infor/ation,
should /erely suspend the trial and order the
fscal to conduct a preli/inary investi0ation.
The defense of prescription of the
o(ense should be pleaded in the cri/inal action,
otherwise it would be dee/ed waived. 7t is a
proper 0round for a /otion to ?uash which
should be fled before the arrai0n/ent of the
accused for whether the cri/e /ay still be
prosecuted and penali1ed should be deter/ined
in the cri/inal case not in a special proceedin0
of habeas corpus. .ll ?uestions which /ay arise
in the orderly course of a cri/inal prosecution
are to be deter/ined by the court to whose
-urisdiction the defendant has been sub-ected by
the law, and the fact that a defendant has a
0ood and su:cient defense to a cri/inal char0e
on which he is held will not entitle hi/ to his
dischar0e on habeas corpus.
I/A3A2 5$ 2RI/
"When ,e ,ent to Da%ao, Judge Muitain, the
Daddy o+ Mamay, introdu*ed as to Atty. 0lagan
,ho ,as then 'res. o+ 0ntegrated Bar o+ the
Phils. Da%ao Cha'ter. May 'i*ture 'a (ami ,F
him.
Fa1ts: .tty. 7la0an was arrested in Davao City 5
detained on the basis of a /ission order
alle0edly issued by the )inistry of 8at@l.
Defense. 3e was visited by 1D lawyers fr. 7#!
Davao Chapter. 9ne of the visitors was also
arrested 5 detinaed on the basis of an unsi0ned
)9. .fter several days, another 7#! /e/ber
was arrested. !etitioners ar0ue that the arrests
were ille0al 5 violative of the Consti, since
arrests cannot be /ade on the basis of /ission
orders. Aesps. .nswered that the Writ was
suspended as to the/ by virtue of !roc. W+ID,
..
9eld: 7E the detained attys. Suestion their
detention bec. of i/proper arrest, or that no
preli/ inv has been conducted, the re/edy is
not a pet. for a writ of 3C but a )otion for the TC
to ?uash the Warrant of .rrest, 5;or the info on
0rounds provided by the rules or to as' for an
investi0ation; reinvesti0ation of the case.
This pet. is now /ood 5 acade/ic bec.
of cri/inal char0es for rebellion fled vs. the
lawyers.
/una v$ ;laDa
Eacts2 Supportin0 the co/plaint for /urder were
sworn state/ents of prosecution witness in the
for/ of S 5 . ta'en by the !C investi0ator, 5
subscribed 5 sworn to before the resp. Fud0e at
the ti/e of flin0 co/p. Fud0e read to the
proecution witnesses the S 5 .. This was how
he eBa/ined the/. The latter declared that
their answers were true, freely 5 voluntarily
/ade, 5 that they fully understood the S 5 . 5
")
#
FRITZI
were willin0 to si0n their respective a:davits.
Fud0e issued warrant of arrest. !et. fled writ for
certiorari on the 0round that he was deprived of
liberty w;o due process since the i/prison/ent
5 detention was the result of a W9. issued by
resp. -ud0e in violation of law since the eBa/
was not reduced to in writin0 in the for/ of
sear*hing M J A. Fud0e clai/s substantial
co/pliance.
9eld: There was substantial co/pliance. The
eBistence of probable cause depends to a lar0e
de0ree upon the fndin0 or opinion of the -ud0e
conductin0 the eBa/. A. <%% does not prohibit
the )un Fud0e fr. adoptin0 the ?uestions as'ed
by the previous investi0ator.
The ter/ Jsearchin0 S 5 .K /eans only
ta'in0 into consideration the purpose of the
preli/ eBa/, w;c is to deter/ine Jwhether there
is a reasonable 0round to believe that an o(ense
has been co//itted 5 the accused is probably
0uilty thereof so that a warrant of arrest /ay be
issued 5 the accused be held for trial, such S@s
havin0 tendency to show the co//ission of the
cri/e 5 the perpetrator.
")
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