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Walang kulong na pagpatay kapag nahuling nakikipagtalik sa iba ang asawa

December 06, 2017 Post a Comment

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Kapag nahuli ng isang tao ang kaniyang asawa na may katalik na iba, hindi siya makukulong kahit na
patayin o saktan niya ang dalawa o isa sa kanila. Sa batas, ang "destierro" ay hindi pagkakakulong; ito
lamang ay isang kautusan ng korte para lumayo ang isang tao sa isang lugar. Act 3815's Article 247.
Death or physical injuries inflicted under exceptional circumstances. - Any legally married person who
having surprised his spouse in the act of committing sexual intercourse with another person, shall kill
any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious
physical injury, shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

These rules shall be applicable, under the same circumstances, to parents with respect to their
daughters under eighteen years of age, and their seducer, while the daughters are living with their
parents.

Any …

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50% of 2017 legal ethics questions plagiarized? J. Leonen requires proof

December 01, 2017 Post a Comment

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Fred. M. Papa on Twitter alleged that 8 out of the 16 questions in the 2017 bar examination questions
on legal ethics were copied from previous bar examinations and only the names were changed. Justice
Marvic Leonen, using his personal twitter account, asked Papa for proof of this charge which he
described as "serious." 8 out of the 16 questions (50%) in the 2017 Bar Exams in Legal Ethics were
copied from the previous bar questions. Only the names were changed. Plagiarism? Or the examiner is
too lazy to frame his own questions? Ano kaya say ni @fthilbay at @marvicleonen ? #BarExams2017 —
Fred M. Papa (@PapaFrenma) December 1, 2017 Which questions and allegedly copied from which bar
examinations. Please specify. This is a serious charge. If not true, it is also a serious offense to accuse. —
Marvic Leonen (@marvicleonen) December 1, 2017 Interestingly, a case has already been decided by
the Supreme Court regarding plagiarism involving a Justice of the High Court. This is IN…

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Lawyers NEVER forget 30 Facts about Certiorari Petitions

June 05, 2017

Here are thirty (30) things to remember when contemplating on filing a petition under Rule 65 of the
Rules of Court.

General Rule: The Supreme Court, the Court of Appeals and Regional Trial Court have concurrent
jurisdiction when it comes to petitions for certiorari.

Exception: De los Reyes vs. People, 480 SCRA 294 [ 2006] Petition for certiorari to annul RTC orders filed
with the SC should be dismissed. It should have been filed with the CA, following the principle of
hierarchy of courts.

[1] If aggrieved, even a non-party may institute a petition for certiorari.

[2] Petitions for certiorari, prohibition and mandamus are not available under the Rule on Summary
Procedure (Sec. 19), in a petition for a writ of amparo (Sec. 19, Rule on the Writ of Amparo), and in a
petition for a writ of habeas data (Sec. 19, Rule on the Writ of Habeas Data), It is also not available in
small claims cases (Sec. 14 (g). A.M. No. 08-8-7-SC).
[3] If involving acts or omissions of a quasi-judicial agency, the petition should be filed in CA (Sec. 4).

[4] This writ is directed against a tribunal, board or officer exercising judicial or quasi-judicial functions.

[5] Not available as a remedy for the correction of the acts performed by a sheriff during the execution
process, which acts are neither judicial nor quasi-judicial but are purely ministerial functions. Prohibition
is the proper remedy.

[6] Where the function is merely investigative and recommendatory with no power to pronounce
judgment on the controversy, it does not involve the exercise of judicial or quasi-judicial power. Hence,
the acts may not be challenged in a petition for certiorari.

[7] A petition for certiorari must be based on jurisdictional grounds because as long as the respondent
acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing
than an error of judgment which may be reviewed by or corrected by appeal.

[8] Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory
order of the lower court prior to an appeal from the judgment. I think this is the exception rather than
the general rule. As a rule, interlocutory orders must not assailed on certiorari during the pendency of
the case except when the same is patently erroneous or is cause for the miscarriage of justice.

[9] The ground for the issuance of a writ of certiorari is grave abuse of discretion, amounting to lack or
excess of jurisdiction.

[10] A court's denial of motion to dismiss or to quash, being interlocutory, cannot be questioned by
certiorari; it cannot be subject of appeal, until final order or judgment is rendered. What this means is
that if the court denying motion of A rendered a decision in favor of A, there is no longer any reason for
A to appeal. If, however, the decisions is adverse to A, he can go up to the next court in hierarchy and
attach as one of the issues to be resolved or assign as one of the errors to be reviewer the denial of the
motion.
Exceptions: Certiorari, Mandamus or Prohibition is appropriate:

DBP vs. La Campana Development Corp., 448 SCRA 384 [2005]

[a] When trial court issued the order without or excess of jurisdiction;

[b] When there is patent grave abuse of discretion by the trial court; or,

[c] When appeal would not prove to be a speedy and adequate remedy

as when an appeal would not promptly relieve defendants from

the injurious effects of the patently mistaken order.

[11] A mere denial of an application for an ex parte order for the seizure of evidence is not indicative of
grave abuse of discretion where petitioner failed to point out specific instances where grave abuse of
discretion was allegedly committed and how the respondent court supposedly exercised its power in a
despotic, capricious or whimsical manner.

[12] A judge gravely abuses his discretion when he extends by twenty (20) days the 72-hour restraining
order he initially issued because "in no case shall the total period of effectivity of the temporary
restraining order exceed 20 day.".

[13] There is grave abuse of discretion where the trial court fails to determine a factual controversy
before issuing a writ of demolition. Failure to do so is to disregard basic principles of due process
because before demolition could be effected, the parties concerned must be heard.

[14] For the extraordinary writ of certiorari to issue, the petitioner must have no other recourse, appeal,
for example, or any other remedy that makes the reparation of injury plain, speedy and adequate .

[15] Under the 2000 National Prosecution Service Rules on Appeal, the resolution of the Secretary of
Justice affirming, modifying or reversing the resolution of the Investigating Prosecutor is final. The
remedy of the aggrieved party is to file a petition for certiorari with the Court of Appeals since there is
no more appeal or other remedy available in the ordinary course of law. To file an appeal with the Court
of Appeals under Rule 43 is an improper remedy.
[16] The CA is empowered under its certiorari jurisdiction to annul and declare void the questioned
resolutions of the Secretary of Justice, but only on two grounds – lack of jurisdiction and grave abuse of
discretion amounting to lack of jurisdiction. The power to reverse and set aside partakes of an appellate
jurisdiction which the CA does not have over judgments of the Secretary of Justice exercising quasi-
judicial functions.

[17] A judgment or final order of the Court of Appeals on the petition for certiorari against the Secretary
of Justice is reviewable by the Supreme Court by a petition for review under Rule 45, not the original
action for certiorari under Rule 65. It is elementary that a writ of certiorari under Rule 65 where the
remedy of appeal (like Rule 45) is available precludes certiorari.

[18] Generally, if appeal is available, certiorari cannot be resorted to. Appeal and certiorari mutually
exclusive and not alternative or successive.

[19] Certiorari filed instead of appeal during period of appeal did not toll period or prevent judgment
from becoming final.

[20] Certiorari not substitute for lost appeal. Existence and availability of the right to appeal prohibits
the resort to certiorari even if the error ascribed to the court is lack or excess of jurisdiction or grave
abuse of discretion in the findings of fact or law set out in the decision.

[21] If remedy of appeal lost due to petitioner’s neglect or error in choice of remedies, certiorari not
substitute or tool to shield petitioner from adverse effects.

Exceptions:

[a] When public welfare and advancement of public policy dictate.

[b] When broader interest of justice so requires.

[c] When writs issued are null and void.

[d] When questioned order amounts to an oppressive exercise of judicial authority.

[e] Where appeal is not adequate, speedy and effective.

[f] In any such instances, special civil action of certiorari may be availed of: *** Even during the
pendency of the case or even after judgment, or *** Even when appeal has been availed of

[22] Availability of appeal does not foreclose recourse to certiorari where appeal not adequate, or
equally beneficial, speedy and sufficient.

[23] Rule may be relaxed when rigid application will result in manifest failure or miscarriage of justice.

[24] Where remedies not incompatible, filing of certiorari not abandonment of appeal. Appeal is from
decision in main case while certiorari is against order denying motion for new trial.

[25] An appeal from a judgment does not bar a certiorari petition against the order granting execution
pending appeal and the issuance of the writ of execution.

[24] However, a party is not allowed to question a decision on the merits and also invoke certiorari.
Filing of a petition for certiorari under Rule 65 and ordinary appeal under Rule 41 cannot be allowed
because one remedy would necessarily cancel each other.

[25] It is the danger of failure of justice without the writ, not the mere absence of all legal remedies, that
must determine the propriety of certiorari.

[26] In many instances, the Supreme Court has treated a petition for review under Rule 45 as a petition
for certiorari under Rule 65, where the subject of the recourse was one of jurisdiction, or the act
complained of was perpetrated by a court with grave abuse or discretion amounting to lack or excess of
jurisdiction but when the petition denominated as a Rule 45 petition neither involves any issue of
jurisdiction nor a grave abuse of discretion on the part of the Court of Appeals, it should be dismissed
outright.
[27] A prior motion for reconsideration is required before certiorari can be filed.

[28] Although the RTC has the authority to annul final judgments, such authority pertains only to final
judgments rendered by inferior courts and quasi-judicial bodies of equal ranking with such inferior
courts. Given that DARAB decisions are appealable to the CA, the inevitable conclusion is that the
DARAB is a co-equal body with the RTC and its decisions are beyond the RTC’s control.

[29] Rule 43 refers to appeals from judgments or orders of quasi-judicial agencies in the exercise of their
quasi-judicial functions. On the other hand, Rule 65 of the Rules of Court specifically governs special civil
actions for certiorari, Section 4 of which provides that if the petition involves acts or omissions of a
quasi-judicial agency, and unless otherwise provided by law or the rules, the petition shall be filed in and
cognizable only by the CA.

[30] Cases to read:

Alcaraz. vs. Gonzales. G.R. No. 164715, September 26, 2006

Bermudez vs.Gonzales, 347 SCRA 611 [2000]

Beso vs. Aballe, 326 SCRA 100 [2000]

Buan vs. Matugas, G.R. No. 161179, August 7, 2007

Bugarin vs. Palisoc, G.R. No. 157985, December 2, 2005,476 SCRA 587

China Banking Corporation vs. Asian Construction and Development Corporation, G.R. No. 158271, April
8, 2008

DBP vs. La Campana Development Corp., 448 SCRA 384 [2005]

De los Reyes vs. People, 480 SCRA 294 [ 2006]

Del Rosario vs. Galagot, 166 SCRA 429

Doran vs. Luczon,G.R.No. 151344, September 26, 2006

Estrera vs. CA, G.R. No. 154235, August 16, 2006

Lansang, Jr. vs. CA, 184 SCRA 230

Mañacop vs. Equitable PCIBank, 468 SCRA 256

Marawi Marantao General Hospital vs. CA, 349 SCRA 321

Mejares vs. Reyes, 254 SCRA 425

Microsoft Corporation vs. Best Deal Computer Center Corporation, 389 SCRA 615 [2002]

Miguel vs. JCT Group, Inc., 458 SCRA 529 [2005]

New Frontier Sugar Corporation vs. RTC of Iloilo, G.R. No. 165001, January 31, 2007

Pamana, Inc. vs. CA, 460 SCRA 133 [2005]

PNB vs. Sayoc, 292 SCRA 365

Professional Regulations Commission vs. CA, 292 SCRA 155

Public Hearing Committee of the Laguna Lake Development Authority vs. SM Prime Holdings, Inc., G.R.
No. 170599, September 22, 2010

Seven Brothers Shipping Corp. vs. CA, 246 SCRA 33 [1995]

Spouses Balanguan vs. CA, G. R. No. 174350, August 13, 2008

Springfield Development Corp. vs. Presiding Judge of RTC of Misamis Oriental, Branch 40, G.R. No.
142628, February 6, 2007

St. Peter Memorial Park vs. Campos, 63 SCRA 180

Tan, Jr. vs. Sandiganbayan, 292 SCRA 452