Beruflich Dokumente
Kultur Dokumente
Rodriguez 02
I. INTRODUCTION
1. Legal Research, Defined
-It is the process of finding the law, rules and regulations that
govern activities of human society. It is also defined as the
investigation for information necessary to support legal decision
making.
2. Legal Research, Importance
-To provide competent representation* and uphold the standards of
the legal profession
*requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for representation.
3. Legal Research, Sources
-Involves the use of a variety of printed* and electronic sources.
*constitution, statutes, court decisions, administrative rules and
scholarly commentaries
4. Legal Research and Bibliography, Distinguished
-Legal Research is the method or system of inquiry and investigation
involving the actual use of the law books, while Legal Bibliography is
concerned with the study of the materials essential to the inquiry of
the researcher.
Legal Bibliography, Defined
-It is generally defined as the science or study of law books, their
history, evolution and description, their characteristics and use,
including such details as their authors, publishers, dates, editions
and degree of authoritativeness.
5. Legal Bibliography, Importance
-The efficient use of law books can only be learned by study and
application. It is an aid in the process* of analyzing a legal question.
*where to find the law, in what book, and how
6. Legal Research and Bibliography, Aim
-In order to provide legal basis for a claim, one must present for
consideration the authority which must be applied, and which the
court is bound to apply.
7. Sources of Law
Primary Sources
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Taada vs Tuvera
146 SCRA 446
FACTS: This is a motion for reconsideration of the
decision promulgated on April 24, 1985.
Respondent argued that while
publication was necessary as a rule, it was not so
when it was otherwise as when the decrees
themselves declared that they were to become
effective immediately upon their approval.
Umali vs Estanislao
209 SCRA 446
FACTS: RA 7167, providing additional exemptions to
taxpayers, was signed and approved on December
1991 with the clause shall take effect upon its
approval and was published on January 14, 1992 in
Malaya, a newspaper of general circulation.
Petitioner filed a Petition for Mandamus to compel
the Secretary of Finance and the CIR, herein
respondents, to implement RA 7167.
ISSUE: W.O.N. RA 7167 took effect upon its approval
or after 15 days upon its publication and if it covers
taxable income for year ended 1991.
5. Classification of Laws
Natural Law
A. Physical Law
Source: Internet
LEGAL RESEARCH
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B. Moral Law
C. Divine Law
Positive Law
A. Public Law
B. Private Law
III. STATUTES
1. Statute, Defined
-A written will of the legislature expressed according to the form
necessary to constitute it a law of the state and rendered authentic
by certain prescribed forms and solemnities
2. Classes of Statute Law
A. The 1987 Constitution
Constitution, Defined
-The fundamental law or supreme law of the land promulgated by
the people. A law, to which all other laws must conform
-The written instrument by which the fundamental powers of the
government are established, limited and defined and by which these
powers are distributed among the several departments for their safe
and useful exercise for the benefit of the people
B. Treaties and International Agreements
Treaty, Defined
-An agreement between or among states which generally governs
their mutual conduct with one another
Others
Prospective
Retrospective
before
Repealing
Amendatory
Reference
Declaratory
Preamble
Enacting Clause
Body
Provisos
Interpretative Clause
Repealing Clause
Saving Clause
Separability Clause
Date of effectivity
As to nature
Penal
Remedial
Substantive
Labor
Tax
As to application
Mandatory
-non-compliance renders act void or illegal
Directory -non-compliance does not invalidate act
As to performance
Permanent
Temporary
As to scope
General
Special
Local
Note:
*TITLE must have only one subject to prevent hodge-podge or logrolling legislation, to prevent surprise or fraud, and to fairly apprise
the people of the subject of legislation
Hodge-Podge, Defined
-A mischievous legislative practice of embracing in one bill several
distinct matters, none of which, perhaps, could singly obtain the
assent of the legislator, and then procuring its passage by a
combination of the minorities in favour of each of the measure into a
majority that will adopt them all
-Objective: to unite the legislators who favour any one of the
subjects in support of the whole act. VOID
Test of sufficiency of title: indicates in broad but CLEAR terms in
nature, scope and consequences of the proposed law and its
operation
In case of doubt as to the sufficiency of the title, the presumption is in
favour of the validity of the acts
LEGAL RESEARCH
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Lidasan vs COMELEC
21 SCRA 496
Aglipay vs Ruiz
64 SCRA 201
FACTS: Mons. Aglipay sought an issuance of
prohibition from the court to prevent Director of
Posts from issuing and selling postage stamps
commemorative of the 33rd International Eucharistic
Congress which violates the provision that no
public money or property shall ever be
appropriated, applied or used, directly or indirectly,
for the benefit, or support of any sect, church,
denomination or the principle of separation of
church and state.
LEGAL RESEARCH
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-it comes from judicial authorities of the state and is the 2 nd major
category of primary sources of law
2. Classes of Case Law
* Decisions Proper
-Decisions by regular courts of Justice2
-Decisions of the Supreme Court
-Decisions of the Court of Appeals
-Decisions of the Sandiganbayan
-Decisions of the Court of Tax Appeals
-Decisions of the Regional Trial Courts
-Decisions of the Metropolitan Trial Courts, the Municipal
Trial Courts and the Municipal Circuit Trial Courts
* Subordinate Decisions
-Ruling of Boards, Commissions, and Administrative officers, and
opinions of legal officers of the Government3
-Decisions of the Senate Electoral Tribunal and the House
of Representatives Electoral Tribunal
-Decisions of Administrative Agencies Exercising QuasiJudicial Powers, such as:
-COMELEC
-CSC
-Commission on Audit
-NLRC
-Insurance Commission
-Housing & Land Use Regulatory Board
-DAR Adjudication Board
3. Decision, Defined
-Judgment, decree, or determination of findings of fact and/or of law
by a judge, arbitrator, court, governmental agency, or other official
tribunal (court) 4
A conclusion reached after an evaluation of facts and law.
*When referring to judicial matters, a decision is not the same as an
opinion, although the terms are sometimes used interchangeably. A
decision is the pronouncement of the solution of the court or
judgment in a case, while an opinion is a statement of the reasons
for its determination made by the court5
4. Parts of a Decision/ Ponencia:
(1) Title (indicating the names of the parties)
(2) Syllabus (summary of important points of decision)
(3) Portion of the report that carries authority
______________________________________________________________________________
Legal-explanations.com 2010
2 Pedro Joven
3 Pedro Joven
4 Hill, 2005
5 West's Encyclopedia of American Law, edition 2
1
LEGAL RESEARCH
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Studyworld.com, 2010
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7 | PLATON
--
Parties
--
Facts
Prior Proceedings
Issue
Ruling/ Holding
Reasoning
Disposition
Comments
-Opinion
Santos vs. CA
240 SCRA 20
8 | PLATON
9 | PLATON
same as above
same page cited in the case
Code
xxx
xxx/10
xxx@10
wom?n
$
%
EVIDENCE
LEGAL RESEARCH
LAW
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The duty of the legal researcher arises on the third instance where
you have both the facts and the evidences but not the law
Cases
-Published reports of dispute which have come before the court
including the reason for the decision and the decision itself
Case Brief
-Written summary of the abstract of the case, in your own words
2. Issues
-Problem, sub-issues
3. Arguments
-Parties, court, discussion of pros and cons
-Formulation through general proposition from considering facts
(inductive reasoning)
4. Decision
-Application of the law
Holding
-Propositions actually relied on the decision
Citation, Elements
1. Name of the case
2. Volume #
3. Page #
4. Date decided
Example: People vs. Boncayao, 234 SCRA 567 (2010)
Methods
A. Living Law Approach
1. Law Finder
-Index, dictionaries, etc
2. Go to the law
-If not the law you are looking for, cross-reference to get the law that
applies appropriately
3. Supplement or evaluate it
B. Topic Method
Read also: Manual of Supreme Court on Legal Writing, Judicial
Writing by Dr. Ng (page 156-166) re: Citing Constitutions, Statutes,
Administrative Orders, and Foreign Materials
LEGAL RESEARCH
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1. Constitutional Text
2. Codes: cite the name of the particular code and specific article or
section (if numbered continuously; or the headings, from general to
specific, followed by the article or section (if not numbered
continuously)
CIVIL CODE, Art. 297
CIVIL CODE (1889), Art. 67
ADMINISTRATIVE CODE, Book IV, Title 1, Chapter 9, Sec. 29
6TH
CONGRESS
1ST
-cite case names beginning with procedural terms like In re. as they
appear in the decisions. Use In re instead of In the matter of
In re Elpidio Z. Magsaysay
C. Case Reports
2. Rules of Court
Rollo, p. 21
CA rollo, pp. 109-122
Sandiganbayan rollo, p. 9
CTA rollo, p. 10
LEGAL RESEARCH
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E. Order of Signals
2 Id.
3 Id.
at 601
3. Introductory Signals
A. Signals that indicate support
See
See also
Cf.
LEGAL RESEARCH
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