rocco69

ALR stands for American Law Reports. Bale that means Vol. 37 of the 4th edition of the American Law Reports, the 15 either stands for p. 15 or Section 15 of the said volume.

sa pagkaka-alam ko, ang UP Law Library ang pinaka-kompleto sa law books dito sa Pinas. Subukan mong pumunta run at baka may set sila ng ALR 4th ed. May bayad pag di taga-UP tsaka kung non-lawyer ka, you need a letter coming from your librarian. Kung lawyer, IBP ID pwede na tsaka wala atang bayad.

Guys,

 

ask ko lang...

 

saan ko makikita ito?

 

1. Crain v. Crain, 37 ALR 4th 15

 

it's about the HLA testing kaso hindi ko alam kung anong ibig sabihin ng "37 ALR 4th 15"

 

thank you po in advance

No, no, no. I'm interested in this so-called "far-out theory." As it is, the only way I can see for the friend to use the SPAs as authority/basis for acting on the property is if the same are executed with the formalities of a will and with "animo disponendi" (which I doubt would be the case). For academic purposes, however, let jake expound on his theory (let's disregard the actual wording of the SPAs as I believe that the same would be pro forma SPAs which would have become functus officio at the death of the principal) so we may see the merits of the same.

Huwag mo na ilusot. Baka sabihin na naman na lahat ng katarantaduhan at panlalamang galing sa mga abogado.

Basically, ang "special power of attorney" appoints the person named in the SPA as an agent of the principal to perform the special acts mentioned in the SPA. In other words, agent lang yung kaibigan mo ng mga magulang niya.

Ngayon, sa ilalim ng Art. 1919 ng Civil Code

Art. 1919. Agency is extinguished:

xxx xxx xxx

xxx xxx xxx

(3) By the death, civil interdiction, insanity or insolvency of the principal or of the agent;

xxx xxx xxx

Ang ibig sabihin, nung namatay yung magulang ng kaibigan mo, lahat ng hawak niyang SPA nawalan na ng bisa, kasi nga, a dead person can no longer appoint and have an agent. Your friend cannot act on the properties on the basis of the SPAs na hawak niya kasi nga paso na ang mga to.

All the heirs will have to talk and decide what to do (and how to apportion among themselves) the properties. If they can all agree, they can execute an Extrajudicial Settlement of Estate of the properties of their parents. Kakailanganin siguro para dito ang inventory ng lahat ng properties na naiwan.

question po:

 

may friend is holding several s.p.a.'s naming him as atty in fact for his parents who went abroad for several years na. he has several siblings na abroad na rin and meron din nakatira dito pero may kanya-kanya ng bahay sila.

 

about 5 months ago, naaksidente yung mag-asawa. unfortunately, walang naiwan na last will and testament.

 

question is will the s.p.a.'s na hawak niya be sufficient to exercise his decisions over the properties? pwede na ba niya i-claim na since siya ang may s.p.a., siay ang may karapatan na mag-desisyon kung ano gagawin niya dun sa mga property?

Tirahin ko na rin:

Question 1. Assuming someone filed a complaint for preliminary investigation with the fiscal.

For the purported robbery, the fiscal should dismiss the case. Note that the quantum of evidence required in preliminary investigation is such evidence sufficient to “engender a well founded belief” as to the fact of the commission of a crime and the respondent's probable guilt thereof. The prosecutor need only look for the probability of the accused having committed the crime. As it is, the evidence on hand is total crap. No way a public prosecutor worth his salt is going to press charges on the basis of an unverified tip.

For the death of Estares, the proper complainant should be his heirs. Since the wife is already married tot he respondent? i wouldn't think that she would be willing to press charges. But i digress. I think the principle applicable here would be "el causa dela causa es la causa del mal causado." I don't think you can tie-in the Abu Sayaff (who killed Estares) to the respondent (it is too speculative to say that his transfer would lead to his death, plus the fact that there is no evidence of wrongdoing with regards to the transfer), hence the case should also be dismissed.

For the purported unexplained wealth, without a showing that the wife has no source of income to purchase the property registered in her name, as well as a showing that the respondent himself has no other sources of income (or donations coming from relatives), the same must also be dismissed.

2. If the General has access to the Statement of Assets and Liabilities of the respondent, he can conduct an investigation as to respondent's (and his wife's) sources of income, after which he can file a complaint for unexplained wealth (if the results show that he could not have legitimately obtained the same). As for the rest, i don't think he has any grounds for filing a complaint.

3. Charges - ganun din. As it is, wala.

Allow me to take the first crack.

 

First, may conflicting. In the 1st para, you said the robbers fled "to their barracks" while on the 2nd, nobody saw where the robbers went. Which is which?

 

On to the questions.

 

1. Fiscal - The facts do not make a case. He should ask for further investigation from the appropriate law enforcement agencies.

 

2. The General - Nothing stops him from proceeding with an investigation of the incident that might have involved personnel under this command. However, pressing charges against them is another matter. The AFP's court martials only have exclusive jurisdiction of crimes defined as service-connected. It is considered service-connected if it falls within the acts punishable under the Articles of War.

 

3. Charges - Based on the facts, wala.

 

In relation to the investigation, under the Anti-Money Laundering Act, there is no need for a court order to open accounts suspected of being related to unlawful activity, which in this case is robbery. However you must apply for authorization with the Anti-Money Laundering Council.

In amplification, the Supreme Court recognizes the validity of post-employment restrictions, so long as the same is REASONABLE.

In Ferrazzini v. Gsell (34 Phil. 697) [cited in the Rivera v. Solidbank case], the Supreme Court declared as an unreasonable restraint of trade a provision in the contract of employment that prohibited the employee for five years from the termination of employment from accepting ANY employment with any employer in the Philippines except upon prior written permission from the former employer.

The Supreme Court said that while the restraint was for five years only and covered employment only inthe Philippines, it was not limited to a specific trade. The employee would have had to leave the Philippines to obtain other employment if the former employer withheld his consent to the employee’s working elsewhere in country.

In Ollendorf v. Abrahamson (38 Phil. 585), the contract of employment prohibited the employee from accepting employment in any business similar to or competitive with that of the employer within the Philippines for five years from the date of the agreement. The employee engaged in the manufacture and sale of embroidered underwear for export in competition with the employer. The Supreme Court held that the former employee may be enjoined from engaging in these competing activities, reasoning that:

“the contract here in question. . . does not seem to us to be obnoxious to the rule of reasonableness. While such restraint if imposed as a condition of the employment of a day laborer would at once be rejected as merely arbitrary and wholly unnecessary to the protection of the employer, it does not seen so with respect to an employee whose duties

are such as of necessity to give him an insight into the general scope and details of his employer’s business.”

However, the Supreme Court staed in Ollendorf that a post-employment restraint prohibiting employees from engaging in ANY employment in the cosmetics, pharmaceutical and personal case industries, ANYWHERE and ANYTIME would be broad and unbounded restraint and would be unenforceable.

In G. Martini v. Glaiserman (39 Phil. 120) the Supreme Court declared that a stipulation that the employee, for one year after the termination of his contract, will not engage, for himself or others, in any business similar to that in which the employer may be engaged, is void as constituting an unreasonable restriction where it appears that the employer is engaged in a great variety of business enterprises, while the employee was working only in a minor branch of the business. The Supreme Court also rejected the employer’s claim that the employee should be restrained from engaging in any business identical to that in which he was employed, holding that an employment restraint which is greater than necessary for the protection of the employer is void IN ITS ENTIRETY and the employer cannot cure the invalidity by a waiver of the express terms of the stipulation and its election to limit the restraint to that which would have been permissible.

Thanks for your patience gents. I've found it. Rivera vs. Solidbank Corp., G.R. No. 163269, April 19, 2006. Allow me to summarize the case.

 

Petitioner Rivera was an employee of Solidbank who availed of the company's retirement package and received the net amount of P963,619.28. Upon availment thereof, he was required to sign an Undertaking which stated thus:

 

"… I hereby expressly undertake that I will not seek employment with any competitor bank or financial institution within one (1) year from 28 February 1995."

 

At the time of his retirement, Rivera was the Manager of the Credit Investigation and Appraisal Division of the Consumer's Banking Group. On May 1, 1995, despite his Undertaking, Rivera was employed by Equitable as its own Manager of the Credit Investigation and Appraisal Division of the Consumer's Banking Group.

 

Solidbank sued Rivera for Sum of Money with a Prayer for Writ of Preliminary Attachment. On summary judgment, the trial court ruled in favor of the bank. The Court of Appeals affirmed the ruling in substance. It ruled that the contract was valid and constituted the law between the parties.

 

The SC found the petition meritorious but remanded the same to the trial court for reception of evidence. The SC made the following relevant rulings:

 

(1) "The issue as to whether the post-retirement competitive employment ban incorporated in the Undertaking is against public policy is a genuine issue of fact requiring the parties to present evidence to support their respective claims."

 

(2) "On the face of the Undertaking, the post-retirement competitive employment ban is unreasonable because it has no geographical limits; Rivera is barred from accepting any kind of employment in any competitive bank within the proscribed period. Although the period of one year may appear reasonable, the matter of whether the restriction is reasonable or unreasonable cannot be ascertained with finality solely from the terms and conditions of the Undertaking or even in tandem with the Release, Waiver and Quitclaim.

 

(3) The employer must establish that a restrictive covenant barring an employee from accepting a competitive employment after retirement or resignation is not unreasonable or oppressive, or in undue or unreasonable restraint of trade. The employer must show that the restriction is reasonable and not greater than necessary to protect the employer's business interests.

 

(4) The determination of reasonableness is made on the particular facts and circumstances of each case. Thus, the courts must have before it evidence relating to the legitimate interests of the employer which might be protected in terms of time, space and the types of activity proscribed.

 

(5) In determining whether or not the contract is reasonable, the trial court should consider the following factors: (a) whether the covenant protects a legitimate business interest of the employer; ( whether the covenant creates an undue burden on the employee; c ) whether the covenant is injurious to the public welfare; (d) whether the time and territorial limitations contained in the covenant are reasonable; and (e) whether the restraint is reasonable from the standpoint of public policy.

 

(6) There is a distinction between restrictive covenants barring an employee from accepting a post-employment competitive employment (restraint on trade in employment contracts) and restraints on post-retirement in pension and retirement plans (contracts which provide that an employee who accepts post-retirement competitive employment will forfeit retirement benefits. The strong weight of authority is that forfeitures for engaging in subsequent competitive employment included in pension and retirement plans are valid even though unrestricted in time or geography.

guys, question lang po.

 

pede po ba gumawa ng general power of attorney that will cover anything and everything?

 

my mom is leaving for the states. and ngayon lang namin nalaman na ang dami pala niyang iiwan na mga aasikasuhin e.g. sa SSS, Business permit sa Mayor's Office, with the banks, etc.

 

meron pang mga transakyon with private individuals kung saan may utang siya or may utang sa kanya.

 

can a general power of attorney to transact for and on behalf of her attend to ALL these?

Articles 1876-1880 of the Civil Code are the provisions relevant to your query.

Art. 1876. An agency is either general or special.

The former comprises all the business of the principal. The latter, one or more specific transactions. (1712)

Art. 1877. An agency couched in general terms comprises only acts of administration, even if the principal should state that he withholds no power or that the agent may execute such acts as he may consider appropriate, or even though the agency should authorize a general and unlimited management. (n

Art. 1878. Special powers of attorney are necessary in the following cases:

(1) To make such payments as are not usually considered as acts of administration;

(2) To effect novations which put an end to obligations already in existence at the time the agency was constituted;

(3) To compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive objections to the venue of an action or to abandon a prescription already acquired;

(4) To waive any obligation gratuitously;

(5) To enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration;

(6) To make gifts, except customary ones for charity or those made to employees in the business managed by the agent;

(7) To loan or borrow money, unless the latter act be urgent and indispensable for the preservation of the things which are under administration;

(8) To lease any real property to another person for more than one year;

(9) To bind the principal to render some service without compensation;

(10) To bind the principal in a contract of partnership;

(11) To obligate the principal as a guarantor or surety;

(12) To create or convey real rights over immovable property;

(13) To accept or repudiate an inheritance;

(14) To ratify or recognize obligations contracted before the agency;

(15) Any other act of strict dominion. (n)

Art. 1879. A special power to sell excludes the power to mortgage; and a special power to mortgage does not include the power to sell. (n)

Art. 1880. A special power to compromise does not authorize submission to arbitration. (1713a)

Clearly, hindi pwede ang GPA sa lahat ng transaksyon. For the transactions listed in 1878, kailangan ay SPA.

Correct me if Im wrong since my admin law is a bit rusty, but isnt there a minimum salary grade that a public officer must belong to in order for the Ombudsman to acquire jurisdiction over a case? And althoough there is an Ombudsman for the military, iba ang proseso pag pulis. Sensya na, hehe, not really my area of expertise, just commenting based on what I remember and the few cases I handled before the PLEB and Ombudsman. I handled an admin complaint before against a policeman and we filed it with the PLEB while the admin complaint against the BJMP personnel (handled by another lawyer) was filed before the Ombudsman (with criminal cases filed before the regular courts). Come to think of it, mababa lang ata sahod nung taga BJMP ah. Hmm...

You're probably referring to RA 7975. However, this refers to the jurisdiction of the Sandiganbayan, which basically says that for violations of the anti-graft law, as well as other offenses committed in rel'n to their office, committed by government employees salary grade 27 and up, you file these criminal cases with the Sandiganbayan. For govt. employees below SG27, these are filed with the regular courts (pero dadaan pa rin ang preliminary iinvestigation sa Ombudsman).

For the Ombudsman, its RA 6770, Section 15 of which states

Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of ANY public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;

In summary, all criminal complaints against a govt. official has to pass thru the Ombudsman's preliminary investigation process. If its a high-ranking govt. official, the case will be filed with the Sandiganbayan, if low-ranking, with the regular courts.

For admin. cases, you can opt for the Ombudsman, or the regular Civil Service process, with the agency first acquiring jurisdiction excluding the other, i.e. if you file with the regular agency, you can no longer file with the Ombudsman.

For military and police officers (regardless of rank), criminal and administrative complaints (just state in the complaint-affidavit that you are filing criminal and admin. charges against the respondent. The Ombudsman will already docket this as two cases - one criminal, one admin) will be handled by the Ombudsman for the Military and Other Law Enforcement Officers. Kung complainant ka, mas maganda sa Ombudsman kasi makakahingi ka ng 6-mos. preventive suspension (just add it as a prayer at the end of the affidavit-complaint).

boss jake roxas, please help me out.

 

i was once flagged down by a cop manning a checkpoint. was asked to step down but i refused to abide since there was no reason to do so. after a heated exchange of words, this cop pulled out his service firearm and pointed it to my face. luckily, a concerned motorist passing by shouted "hoy, bawal yan!" which made the cop stand down. i'm in the process of filing a criminal case against this cop. however, i also want to file an adminstrative case. question is, where do file it aside from the ombudsman? should it be with the concerned PLEB, NAPOLCOM or IAS? thanks bro

There is no ned to go to PLEB, NAPOLCOM or IAS if you are going to file a complaint with the Ombudsman. Just state in your affidavit-complaint with the Ombudsman that the affidavit is for filing criminal AND ADMINISTRATIVE CHARGES (for gross misconduct, oppression, abuse of authority, and conduct prejudicial to the service) against the cop. The Ombudsman also has administrative supervision over government employees so they can hear and decide this. Mas maganda pa kasi mahihirapan siyang lakarin ang kaso dun, unlike sa NAPOLCOM, IAS, at PLEB na baka may kakilala siya. Also, this is more convenient kasi isa lang ang pupuntahan mong lugar, sa Agham Road lang. In your affidavit complaint, you can also ask at the end thereof that the respondent be preventively suspended (tingnan mo ang nangyari kay Mayor Trinidad), which you can't do with the others.

Tanong lang po:

 

Is there anyway na pwedeng malaman ang status ng isang tao, ie. kung married na ba sya o hindi pa?

 

Thanks.

Sa pagkaka-alam ko, the NSO issues Certification of No Marriage (Cernoma). Dito lumalabas kung kinasal na ba ang isang tao o hindi. Di ko lang alam kung pwedeng mag-apply ang kahit sino with respect to a certain person. Pero, theoretically, dapat kahit sino pwedeng pag-apply, otherwise, how can prospective brides or grooms check on the status of their partners. Anyway, kung enterprising ka naman, I think you can find a way around this should the NSO require an authorization from the person whose status is being checked.

i have a problem with my surname and middle name it was mispelled. all my records in school and other docs carries the same name except my BC (birth cert). local registry told me na kailangan ko pa daw umatend ng hearing next year march. it they also asked me to pay Php1500. i needed this birth cert for my passport application. i am due to leave this year. can somebody help me on this? need reply asap.

tama ang payo nung iba na kailangan talagang dumaan yan sa Civil Registrar. Ang problema mo kasi this year ka aalis, while ang hearing mo ay next year pa, baka di umabot sa planned date of departure mo. Note that the DFA, pag nag-iissue ng passport ang sinusunod sa passport ang pangalan na nag-aappear sa birth certificate.

Your other option, aside from applying with the Civil Registrar for correction (mukhang matatagalan ka dito eh, baka di umabot sa plano mong date ng pag-alis), is to just apply for a passport using the current (yung may maling spelling) birth certificate. Bale, ang lalabas na pangalan sa passport mo ay yung maling spelling. Then, to reconcile this name with all your other records, ang babaguhin mo, yung school records mo at other documents. For correction of elementary and high school records, punta ka sa Legal Division ng DECS sa Pasig, meron sila doong list of requirements for correction of records (dun ka na rin mag-aaplay) para magtugma na yung passport mo at school records mo. Yung sa college, sa school registrar ka mag-aaplay (kasi di na sila covered ng DepEd, at sabi ng CHED school na ang bahala dito). Same with SSS, GSIS, etc. Dun ka na rin mag-aaplay for correction of the name appearing on their records. You will probably need to execute an affidavit stating that your name and the wrong name refer to one and the same person. Probably, another affidavit of the same tenor to be executed by your parents or two other disinterested but knowledgeable and credible persons.

Pero, this step means you will now have to use the incorrectly spelled surname and middle name that appears on your birth certificate. If you can live with this, then you can opt for this solution. Otherwise, kung gusto mo talagang gamitin yung tamang spelling, then apply with the Civil Registrar for correction.

Also, before you opt for this, ask the authorities involved kung magagawa nilang ma-correct yung school and other records mo within the year, otherwise, kung di rin naman, eh di sa correction of entry ka na with the Civil Registrar.

Altho sabi mo na di ka na interesadong mabawi yung properties na ibenenta ng asawa mo, just for your info, sa ilalim ng Article 96 ng Family Code walang kapangyarihan ang isang taong kasal na na magbenta ng properties ng mag-asawa ng walang pahintulot yung kanyang esposo/esposa. Hindi importante kung nakapangalan lang sa isa sa mga asawa yung property. Kung ibenenta man ng asawa mo ang mga ito, yung sale ay "void." Sa kaso mo (assuming kinasal ka after Aug. 3, 1988), yung withdrawals sa bank account, malabong mabawi mo na yun.

Yung sa kotse at real estate, pwede pang mabawi kasi nga "void" yung deed of sale, altho mas madaling mabawi yung lupa. Siguro ko wala naman "With my marital conformity" yung mga deed of sale nun or pineke niya kung meron.

If u change your mind, importanteng magfile ka na ng "adverse claim" sa register of deeds (kung nasa pangalan lang ng asawa mo yung property) dun sa mga real properties nyo.

I was out of the country working nung nangyari ang lahat.

 

All the money from our joint bank account was spirited away! :grr:

 

All the vehicles we owned she sold! Kasi nung binili yung mga yun out, i was out of the country! :evil:

 

All the real estate we owned she sold! Wala rin ako nung binili yun kahit naka name sa amin 2, kasi sya lahat pumirma! :grr:

 

May business kami she owned it, but the capital from me! binenta nya rin! :grr:

 

Wala akong magawa kasi i moved to their hometown, tapos lahat kamag- anak nya mga tao dun! Dayo lang ako! :grr:

 

Di ako pwede mag tagal dun baka ipapatay ako palabasin aksidente or suicide! :grr:

 

Tangap kona na that i lost everything. :cry:

 

Ang gusto kong mangyari ay kung papaano na mawalang bisa ang kasal namin kasi i dont want anything to do with her! :grr:

 

Kasi ginawa nya binenta nya lahat tapos iniwan ako nagtatago na sya so inabandona nya ako! :grr:

 

Wala na akong balak bawiin ang mga kinuha nya, or i contest yung mga transaction na ginawa nya or na hanapin pa sya! :grr:

 

Ang gusto ko mangyari kung papaano sya legally na mahiwalayan, i dont think after ng mga ginawa nya i contest pa nya na

maghiwalay na kami! :grr: Mag 1 year palang sya naging ala "fugitive bitch!" :grr: Wala kaming kontak whatsover for

 

about a year na! :grr:

Anong kaso pwedeng mag stick sa kanya para ma void yung marriage namin?

 

Sumama sya sa ibang lalake pero di ko kilala or wala akong ebidensya na klaro para sabihing nagsasama na sila!

 

Puro narinig ko lang sa ibang tao pero tutuo ito pero papaano ko mapatunayan?

I just recently read in one of the MP forums that a certain establishment had been "raided" by the local authorities. Among those brought to the precinct were several unfortunate clients.

 

I'm curious about the criminal liability of the clients. I've always thought that paying for sex was not a crime under the revised penal code. What was probably being violated was performing coitus or acts of lasciviousness in a public place, more of a violation of a local ordinance than a specific Republic Act.

 

All I'm aware of is that there is a statue on white slavery, which prescribes criminal liability on those who profit by prostitution. But nothing on the one who solicits the service nor the client.

 

I'd like to get your input please. Forgive me, but it's been a long time since I've been a lawyer. Thanks.

Republic Act 9208. Anti-Trafficking in Persons Act

SEC. 4. Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts:

xxx xxx xxx

(e) To maintain or hire a person to engage in prostitution or pornography;

SEC. 3. Definition of Terms - As used in this Act

xxx xxx xxx

© Prostitution - refers to any act, transaction, scheme or design involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration.

SEC. 11. Use of Trafficked Persons. - Any person who buys or engages the services of trafficked persons for prostitution shall be penalized as follows:

(a) First offense - six (6) months of community service as may be determined by the court and a fine of Fifty thousand pesos (P50,000.00); and

( Second and subsequent offenses - imprisonment of one (1) year and a fine of One hundred thousand pesos (P100,000.00).

@*pop quiz: any restrictions on doctors operating a pharmacy?

Offhand, parang wala namang batas na nagbabawal o nagpapataw ng limitasyon sa isang doktor na magbukas at mag-operate ng botika. Wala namang sinasabi ang Medical Act (RA 2382, as amended), ang Pharmacy Law (RA 5921, as amended)o ang Consumer Act (RA 7394) at ang Dangerous Drugs Act of 2002 (RA 9165) na bawal ang doktor mag-operate ng pharmacy. Posibleng may limitasyon kung yung doctor ay nagtratrabaho sa isang hospital o business at sa kanyang contract of employment ay may clause na nagbabawal sa kanya na mag-open ng botika o na magkaroon ng conflict of interest with his employer in relation to a pharmacy business. Other than that, parang wala namang limitasyon. Of course, the pharmacy he opens has to be registered with and approved by the BFAD, and he has to have a registered pharmacist supervising the pharmacy.

@*pop quiz: any restrictions on doctors operating a pharmacy?

Offhand, parang wala namang batas na nagbabawal o nagpapataw ng limitasyon sa isang doktor na magbukas at mag-operate ng botika. Wala namang sinasabi ang Medical Act (RA 2382, as amended), ang Pharmacy Law (RA 5921, as amended)o ang Consumer Act (RA 7394) at ang Dangerous Drugs Act of 2002 (RA 9165) na bawal ang doktor mag-operate ng pharmacy. Posibleng may limitasyon kung yung doctor ay nagtratrabaho sa isang hospital o business at sa kanyang contract of employment ay mag clause na nagbabawal sa kanya na mag-open ng botika o na magkaroon ng conflict of interest with his employer in relation to a pharmacy business. Other than that, parang wala namang limitasyon. Of course, the pharmacy he opens has to be registered with and approved by the BFAD, and he has to have a registered pharmacist supervising the pharmacy.

Thanks 'agentjackbauer' for shedding some light. So is it safe to say na 4-6 mos from the date of submission ung possible duration ng kaso (that is kung walang counter affidavit)?

 

Much thanks :mtc:

The period 4-6 months would cover only the preliminary investigation by the fiscal. That is, this is period for the fiscal to determine whether or not a crime has probably been committed. If he finds ity is so, he will then file the case in court. The case filed in court could take a year (hopefully) or more to resolve. However, this case is covered by summary procedure so the period should be shorter than for ordinary criminal cases. Ganyan talaga pag nagkakaso, matagal din, due in part to the number of cases pending with the courts (it has been estimated that in the Metro Manila area, MTCs on the average have a backlog of 2,000 to 3,000 cases each).

tama si fauxhead, dapat hindi makasampa ng kaso ng filiation yung illegitimate na anak habang buhay pa yung friend mo. otherwise, baka mapilitan sya ng korte na i-recognize yun. meaning, pagnamatay siya, sure na meron syang share sa property.

 

in the case of your friend, at least half of the property will automatically go to the illegitimate kung testate (meaning meron will), and only a half can be given away. kung mamatay syang intestate (walang will), sa illegitimate mapupunta lahat.

 

also, whether mag ampon man sya o hindi, sure na me share yung illegitimate kung me judgment of filiation.

 

kung lipat nya by SALE yung properties sa mga relatives nya, of course, mahihirapan na maghabol ang illegitimate. pero kung DONATE nya lang, pwede collate yun at half ng property ay maaring bumalik sa illegitimate.

 

again, to be safe, mas mabuti na wag na sya (yung friend mo) makipagkita o makipagsulatan sa illegitimate na yun. baka gamitin na ebidensya yun laban sa kanya.

Just to correct the misimpression na di na makakahabol yung anak sa labas pag di siya nagsampa ng kaso for recognition habang buhay pa yung friend mo. Depende sa ebidensyang hawak nung anak kung makakapagclaim pa siya ng share o hindi after the death of your friend. Sa ilalim kasi ng Family Code, kung yung anak sa labas ay merong:

(1) record of birth appearing in the civil register [kung saan nakapirma yung friend mo na siya yung ama] or a final judgment; or

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

pwede siyang magsampa ng action for recognition kahit patay na yung sinasabi niyang ama niya. Consequently, he can claim his legitime after he proves his filiation (even though the alleged parent is already dead at the tinme of the filing of the action).

However, kung hindi ganito ang ebidensya niya, he has to file the action while his alleged parent is still alive (See Arts. 175 in relation to Articl 172 and 173, Family Code).

Dear Sir,

 

My father left an unpaid credit card, he passed away 8 years ago (died in 1998) previously he had a business sole proprietorship, now some collection agency is asking my mother to coordinate with them regarding the unsettled payment around Php 27,000.00 only, I told them that the family never benefitted from the business. What shall we do (children and my mother)?

Depende kasi kung may naiwang ari-arian yung ama mo na minana nyo. Kasi dapat imenos yung utang nya sa anumang namana nyo. Note however that, given the measly amount involved, I don't think the agency will file a case to collect on this. Yung nga lang, mangungulit ang mga to. Kung meron naman talaga kayong namana mula sa father nyo na more than P27,000 ang value, kausapin nyo na lang kung paano mababayaran kasi kahit papano "ang utang ay dapat bayaran" ng estate ng father mo.

hi guys,

 

hope you can help,

 

i applied for an nso copy of my birth certificate  . pagkakuha ko alang first name. pinapuntahan ko sa pasay city hall civil registrar. pati yung copy nila alang name. nag-issue lang sila ng copy of my birth cert tapos nilagyan ng marginal note  na first name was supplied from supplemental records two years after i was born.

 

the way i see it ang pumalpak dito e yung ermats ko .spilt milk.i might be needing a good nso copy (with a first name) by middle of june. does anyone here know what's the best way to go about it.

 

my sis says late registration nalang raw. is this a good idea ren? thanks

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Late registration would definitely be a bad idea. Since you already have a birth certificate, any application for late registration would be falsification of public documents, as you would be claiming that you have not yet been registered with the Civil Registrar, which is untrue.

Since most persons have to have a first name and a surname (the NSO recognizes that members of indigenous cultural communities might have a tradition of having only one name and allows this exception), your lack of a first name can be corrected by a mere supplemental report to be submitted to the Civil Registrar. Ang nakapagtataka, parang nagawa na ito sa kaso mo (since you say that there is a marginal note where your first name was supplied). Maybe the addition of a first name in your birth records need to be formalized by the submission of a supplemental report. Go to the Pasay City Civil Registrar and inquire if you can just submit a supplemental report to add your first name.

Or you can go the NSO at EDSA (near Quezon Ave) and ask the help of Director Lourdes Hufana in adding a first name to your birth records.

Just for the sake of clarity, let us go through what you said that RA 9262 does not apply to married women.

 

First, under Art. 170 of the family Code, the legitimacy of the child cannot be impugned collaterally because only a direct suit within the applicable prescriptive period and brought only by the father or his heirs can impugn the legitimate status of a child. Well and good.

 

Second, because of the above, a married mother cannot file a case under RA 9262 against someone who impregnated her who is not her husband because it would collaterally impugn the legitimacy of child. Again, well and good.

 

However, let's throw a little wrinkle into that very neat theory.

 

Can't the mother, on behalf of her child, file a case to claim the illegitimate filiation of her child as given under Art. 173 of the Family Code with an attendant claim for support? And subsequently, file a case of violation of R.A. 9262? Because the former is a prejudicial question to the latter, the criminal case would have to be suspended.

 

There is nothing in R.A. 9262 that says it is inapplicable to married women. Ubi lex non distinguit nec nos distinguere debemos. The law does not distinguish, neither should we. In fact, the law says that it must be given a liberal construction to protect the women and their children.

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Under Article 167 of the Family Code, "the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress." To allow the mother to file a case (on behalf of the child) claiming illegitimate filiation of the child would be to have the mother indirectly declaring against its legitimacy. This runs up against the maxim "what cannot be done directly cannot be done indirectly." Consequently, I believe that the mother may not be allowed to file a case on behalf of the child. Note also that a legitimate status favors the child. I think we can apply by analogy the cases where the SC ruled that a parent may not file a petition to change the child's surname and that it should be the child himself, when he reaches the age of majority, who should decide on the matter.

Today is paycheck day! I have a problem with my salary. The salary covers from April 1- 15 and I just got it today. My day-off is thursday and friday, That fall into maundy thursday and good friday (Arpil 13 and 14). I do expect  that I can get a 100% salary on that day because the it is a legal holiday but I didn't. I got my payslip also and I found that I got a 200% pay only for April 9(araw ng kagitingan).

 

I ask our finance department about it and they said that I cannot get a 100% on APR 14 and 15 because we are on monthly basis.

 

Is this correct?

 

This is not the case when I am on daily basis. I get a 100% pay during legal holidays.

 

I need your full explaination on this so that I can reason out myself.

 

Thank you.

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Mukhang tama ang Finance nyo. Iba kasi ang computation pag monthly na ang pagsuweldo mo kesa sa arawan.

Pag arawan ka kasi, No work no pay. Pag pinatrabaho ka during a holiday, entitled ka sa holiday pay (doble ng regular rate mo).

Yung sa monthly, yung formula pagcompute ng daily rate mo ay = (monthly salary x 12 months)/261 days.

Alam ng lahat, ang isang taon ay 365 days, pero ang divisor na ginagamit ay 261, hindi 365. Kasi, minemenos ng company mula sa 365 yung lahat ng day-off mo sa isang taon (52 weeks x 2 days pwer week = 104) sa pagcocompute ng daily rate mo. Kung 261 ang divisor, ibig sabihin kasama na sa computation o bayad na yung sampung (onse na yata ngayon dahil sa Eid al Fit'r) holiday sa suweldo mong natatanggap buwan buwan, kaya wala nang dagdag sa suweldo mo kahit pa bumagsak sa day off mo ang maundy thursday at good friday. Parang ang gulo, ano.

Hope this helps.

hi mtc lawyers!

 

some questions about the extrajudicial settlement among heirs:

 

*does it have a deadline?

*what is the procedure for accomplishing this? documents that are needed?

*how much does the whole process usually cost?

 

thanks guys

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As to the deadline:

R.A. 8424 (Tax Reform Act of 1997) SEC. 90. Estate Tax Returns. -

( Time for Filing. - For the purpose of determining the estate tax provided for in Section 84 of this Code, the estate tax return required under the preceding Subsection (A) shall be filed within six (6) months from the decedent's death.

otherwise, you'll have to pay interest and penalty charges on the estate tax.

Ang sinasabi ng "parol evidence rule" hindi mo puwedeng ibahin o dagdagan yung nakasulat sa kontrata sa pamamagitan ng testimonya ng testigo (kasi nga yung terms ng kontrata yung nakasulat lang dun mismo sa kontrata).

Hindi naman sinabi sa problem na yung pagprisinta ng testigo ni B ay upang ibahin ang terms ng deed of sale kay B. Therefore, hindi ang parol evidence rule ang applicable. What should be applicable is the "best evidence rule." Bago makapagtestigo yung witnesses ni B tungkol sa deed of sale, kailangan munang ipakita ni B na nawawala yung original deed of sale. Kung walang ebidensya na nawawala nga ito, hindi siya makakapagprisinta ng testigo kasi nga ang pinakamagandang ebidensya ng purchase ni B ay ang deed of sale itself.

Kaya, ang conclusion should be that B cannot present witnesses to prove the sale without first proving that the original deed of sale has been lost or destroyed (Sec. 3, Rule 130)

Likewise, yung 1358 hindi applicable kasi ito ay merely for the convenience of the parties (the parties can compel the other party to put it in a public instrument but it is not necessary for the validity of the contract), the general rule being that contracts are valid whatever form they are in (see 1356, Civil Code). Baka ang ibig mong sabihin unenforceable contract ito (see 1403[2e]), kaya lang di rin ito applicable kasi it seems that the seller has received benefits under the contract kaya di na siya unenforceable.

Is this an excerpt from an exam on evidence?

 

In land registration cases, tax declarations are considered indicia of ownership. However, as an evidence to prove that he bought it, it is immaterial. It does prove that indeed he bought it.

 

On the other hand, the testimony of witnesses that B bought is should be inadmissible under the "parole evidence rule." Section 9 Rule 130, Rules of Court  states that when the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement.

 

If B wanted to prove that he bought it, such disposition must comply with:

 

Art. 1358. The following must appear in a public document:

 

(1) Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; sales of real property or of an interest therein a governed by Articles 1403, No. 2, and 1405;

 

(2) xxx

(3) xxx

(4) xxx

Therefore, B cannot introduce secondary evidence (the testimonies) to prove the sale because the law requires that such disposition be made in a public document.

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