legal Free Legal Advice

[jojoendejr]

bro... yeah it's been a while...

 

got a few questions for the learned men here... verily i am stumped myself... no, it's not some pop quiz for school...

 

Case A:

in a statutory rape case, can the parents of the rape victim pardon the accused by a written agreement formalized in front of barangay officials stipulating that once the victim turns eighteen they would marry?

 

Case B:

in a case of a bigamous marriage, but the first spouse could not be found, and the second spouse opts for declaration of nullity of marriage, what would the consequence be on the spouse seeking such nullity (ie any tax implications, matters of co ownership over properties and the like)?

 

how's life been treating you bro?

 

 

Bro I'll just comment on the criminal case (Case A) since it is my forte. 1) Criminal cases like statutory rape case cannot be the subject of an amicable settlement. A criminal case is an offense against the State and not against any particular person. That is why the title of criminal case is "People of the Philippines vs. .......". I other words, the private complainant is reduced to being a witness for the State. In actual practice, however, private complainants may execute an affidavit of desistance where the complainant will signify under oath that he is no longer interested in pursuing the case. In which case, the Prosecutor (Fiscal) will have no choice but to request for te dismissal of the case for lack of witness.

 

An agreement (or even contract) that one person will marry another is not an enforceable agreement/contract. Nobody can force anyone to marry another. This means the consent to marry is vitiated and if such consent is vitiated, this is a ground for the nullification of the marriage (kung somehow ay natuloy) considering that one of the very essential requisites of marriage (which is the consent freely given) is lacking.

[oliverjohnholmes]

Bro I'll just comment on the criminal case (Case A) since it is my forte. 1) Criminal cases like statutory rape case cannot be the subject of an amicable settlement. A criminal case is an offense against the State and not against any particular person. That is why the title of criminal case is "People of the Philippines vs. .......". I other words, the private complainant is reduced to being a witness for the State. In actual practice, however, private complainants may execute an affidavit of desistance where the complainant will signify under oath that he is no longer interested in pursuing the case. In which case, the Prosecutor (Fiscal) will have no choice but to request for te dismissal of the case for lack of witness.

 

An agreement (or even contract) that one person will marry another is not an enforceable agreement/contract. Nobody can force anyone to marry another. This means the consent to marry is vitiated and if such consent is vitiated, this is a ground for the nullification of the marriage (kung somehow ay natuloy) considering that one of the very essential requisites of marriage (which is the consent freely given) is lacking.

 

 

Thanks bro... the "kasunduan" entered into is at best a faulty tactic designed to avoid liability on the part of the accused... i also understand affidavits of desistance and this document is not one of them... clearly the affidavit of desistance must not include any form of benefit or reward especially in crimes... my issue here is whether statutory rape cases, the victim being a minor, can an affidavit of desistance executed by the parents at the time of minority be valid and binding upon the victim once she reaqches age of majority and chooses to file a case?

 

thank you too for the quick review on the essential requisites of marriage... isn't this an endemic defect for pardon in rape cases?

 

 

[fauxhead]

1. Can the parents of the rape victim pardon the accused by a written agreement formalized in front of barangay officials stipulating that once the victim turns eighteen they would marry?

 

Yes. There is no law forbidding victims from giving pardon to the accused. In fact, it is something encouraged by those in the "business" of providing moral standards in our society. The agreement will be considered a pardon and the condition to marry once the victim turns 18 shall be considered as not written.

 

The rule would be different if the tenor of the written instrument is a compromise. We all know that compromise agreements are not recognized in criminal law, at least in theory.

 

However, it begs the question: will it have any legal effect?

 

Generally, it will have no legal effect as to the criminal liability of the accused. Under the third paragraph of Section 344, pardon of the offended party as an absolutory cause is now only applicable in seduction, acts of lasciviousness and abduction. Since crime is now considered a crime against persons, it should be considered excluded there. At the most, the pardon will only result in the waiver of the civil liability of the accused as expressed in Section 23, RPC.

 

On the other hand, under the fourth paragraph of Section 344 of the RPC, it is the valid marriage that is deemed a pardon. A promise to marry will not do.

 

The following scenarios may come up:

 

First scenario, the minor does not agree with the parents. Even with that pardon extended by the parents, the minor can institute the prosecution of the accused.

 

Second scenario, the minor may agree with the parents but still the State may institute the prosecution. Rape is now a public crime. The State, under the principle of parens patriae, may step in to protect the rights of the victim. This will hold true when the State can procure the conviction of the accused even without the cooperation of the victim and her parents (existence of other eyewitnesses, etc.).

 

However, in case the State cannot prove the guilt of the accused without the cooperation of the victim and the parents, the document would have the effect of a compromise agreement. The accused can probably take shelter under the "compromise agreement" but only up to the point that he can convince the victim and her parents not to institute prosecution. Since said compromise agreement is not recognized, the victim and her parents can always renege on it.

 

 

 

 

bro... yeah it's been a while...

 

got a few questions for the learned men here... verily i am stumped myself... no, it's not some pop quiz for school...

 

Case A:

in a statutory rape case, can the parents of the rape victim pardon the accused by a written agreement formalized in front of barangay officials stipulating that once the victim turns eighteen they would marry?

 

Case B:

in a case of a bigamous marriage, but the first spouse could not be found, and the second spouse opts for declaration of nullity of marriage, what would the consequence be on the spouse seeking such nullity (ie any tax implications, matters of co ownership over properties and the like)?

 

how's life been treating you bro?

 

[fauxhead]

Generally, it will have no legal effect as to the criminal liability of the accused. Under the third paragraph of Section 344, pardon of the offended party as an absolutory cause is now only applicable in seduction, acts of lasciviousness and abduction. Since the crime of rape is now considered a crime against persons, it should be considered excluded there. At the most, the pardon will only result in the waiver of the civil liability of the accused as expressed in Section 23, RPC.

 

 

1. Can the parents of the rape victim pardon the accused by a written agreement formalized in front of barangay officials stipulating that once the victim turns eighteen they would marry?

 

Yes. There is no law forbidding victims from giving pardon to the accused. In fact, it is something encouraged by those in the "business" of providing moral standards in our society. The agreement will be considered a pardon and the condition to marry once the victim turns 18 shall be considered as not written.

 

The rule would be different if the tenor of the written instrument is a compromise. We all know that compromise agreements are not recognized in criminal law, at least in theory.

 

However, it begs the question: will it have any legal effect?

 

Generally, it will have no legal effect as to the criminal liability of the accused. Under the third paragraph of Section 344, pardon of the offended party as an absolutory cause is now only applicable in seduction, acts of lasciviousness and abduction. Since crime is now considered a crime against persons, it should be considered excluded there. At the most, the pardon will only result in the waiver of the civil liability of the accused as expressed in Section 23, RPC.

 

On the other hand, under the fourth paragraph of Section 344 of the RPC, it is the valid marriage that is deemed a pardon. A promise to marry will not do.

 

The following scenarios may come up:

 

First scenario, the minor does not agree with the parents. Even with that pardon extended by the parents, the minor can institute the prosecution of the accused.

 

Second scenario, the minor may agree with the parents but still the State may institute the prosecution. Rape is now a public crime. The State, under the principle of parens patriae, may step in to protect the rights of the victim. This will hold true when the State can procure the conviction of the accused even without the cooperation of the victim and her parents (existence of other eyewitnesses, etc.).

 

However, in case the State cannot prove the guilt of the accused without the cooperation of the victim and the parents, the document would have the effect of a compromise agreement. The accused can probably take shelter under the "compromise agreement" but only up to the point that he can convince the victim and her parents not to institute prosecution. Since said compromise agreement is not recognized, the victim and her parents can always renege on it.

[vagabond]

i'm sort of a middle man or in the trading business...

 

one of my clients owes me a huge amount of money and she gave me post dated checks to assure me. but recently her checking account got closed, though she informed me of it and asks for an extension.

 

i need the money soon and could no longer give in to her requests. i already given her 9 months but still she has just gave me a measly amount of what she owes me.

 

what is my recourse? tnx.

[vagabond]

In Metro Manila, law enforcers may not confiscate a driver's license if he is caught committing a traffic violation. Section 5 of PD 1605 specifically provides:

 

Section 5. In case of traffic violations, the driver's license SHALL NOT BE CONFISCATED but the erring driver shall be immediately issued a traffic citation ticket prescribed by the Metropolitan Manila Commission which shall state the violation committed, the amount of fine imposed for-the violation and an advice that he can make payment to the city or municipal treasurer where the violation was committed or to the Philippine National Bank or Philippine Veterans Bank or their branches within seven days from the date of issuance of the citation ticket.

 

xxx xxx xxx

 

This prohibition to confiscate has been confirmed by the Supreme Court in Metropolitan Traffic Command v. Gonong (187 SCRA 432 [1990]) and in SolGen v. MMA (Sept. 11, 1991), and most recently reiterated in MMDA v. Garin (G.R. No. 130230, April 15, 2005)

this is very informative... tnx.

 

but what do we do if an ignorant law enforcer insists in confiscating our license?

[vagabond]

According to Customs officials I have queried regarding this matter, you can bring pornographic materials into the Philippines if it is for personal use. The rule of thumb at the Bureau of Customs is that personal use means "not more than 12 items of the same kind"

tnx...

 

just to clarify, what do you mean by "you can bring pornographic materials"? courier (through fed ex, etc.)? tnx.

[oliverjohnholmes]

1. Can the parents of the rape victim pardon the accused by a written agreement formalized in front of barangay officials stipulating that once the victim turns eighteen they would marry?

 

Yes. There is no law forbidding victims from giving pardon to the accused. In fact, it is something encouraged by those in the "business" of providing moral standards in our society. The agreement will be considered a pardon and the condition to marry once the victim turns 18 shall be considered as not written.

 

The rule would be different if the tenor of the written instrument is a compromise. We all know that compromise agreements are not recognized in criminal law, at least in theory.

 

However, it begs the question: will it have any legal effect?

 

Generally, it will have no legal effect as to the criminal liability of the accused. Under the third paragraph of Section 344, pardon of the offended party as an absolutory cause is now only applicable in seduction, acts of lasciviousness and abduction. Since crime is now considered a crime against persons, it should be considered excluded there. At the most, the pardon will only result in the waiver of the civil liability of the accused as expressed in Section 23, RPC.

 

On the other hand, under the fourth paragraph of Section 344 of the RPC, it is the valid marriage that is deemed a pardon. A promise to marry will not do.

 

The following scenarios may come up:

 

First scenario, the minor does not agree with the parents. Even with that pardon extended by the parents, the minor can institute the prosecution of the accused.

 

Second scenario, the minor may agree with the parents but still the State may institute the prosecution. Rape is now a public crime. The State, under the principle of parens patriae, may step in to protect the rights of the victim. This will hold true when the State can procure the conviction of the accused even without the cooperation of the victim and her parents (existence of other eyewitnesses, etc.).

 

However, in case the State cannot prove the guilt of the accused without the cooperation of the victim and the parents, the document would have the effect of a compromise agreement. The accused can probably take shelter under the "compromise agreement" but only up to the point that he can convince the victim and her parents not to institute prosecution. Since said compromise agreement is not recognized, the victim and her parents can always renege on it.

 

thanks for enlightening me sir fauxhead...

 

no seminal case on the matter here yet, right? still subject to interpretation...

 

again, my thanks...

[Google]

UP ko lang po yung question koh..

 

download mo lang yung SP2 from the Microsoft WIndows Update site.

[fauxhead]

Can you enlighten me on what you deem is "subject to interpretation"?

 

thanks for enlightening me sir fauxhead...

 

no seminal case on the matter here yet, right? still subject to interpretation...

 

again, my thanks...

[Josh29]

Hi people.

Quick question.

A college friend of mine incurred a loan from a credit card

The company of the card company closed already for like.,... 8 years and there are various collection agencies going after him. However, my friend also transferred residence.

 

After a number of years, the collection agency filed a case of fraud and there was a warrant of arrest served. Cash bond was filed and arraignment was scheduled soon.

 

Since he transferred residence and he did not receive the notices for hearing, can an appeal or motion be made to defer arraignment and bring the case back to the fiscal for hearing?

 

Thanks in advance.

 

The basis pala of the fraud case was due to the change of address without providing a notice nor informing the credit agency. But since the bank closed, where can he file the notice?

[oliverjohnholmes]

Can you enlighten me on what you deem is "subject to interpretation"?

 

just used to judicial engineering... so in the absence of a clear pronouncement by the Supreme Court, everything is still subject to interpretation... even if it is clear and unequivocal by the statute...

[bukoloids]

Sirs do you know what a multi sala court is? and What do you mean by an executive judge?

[vagabond]

i'm sort of a middle man or in the trading business...

 

one of my clients owes me a huge amount of money and she gave me post dated checks to assure me. but recently her checking account got closed, though she informed me of it and asks for an extension.

 

i need the money soon and could no longer give in to her requests. i already given her 9 months but still she has just gave me a measly amount of what she owes me.

 

what is my recourse? tnx.

pls i need advice asap. tnx.

[Dr_PepPeR]

pls i need advice asap. tnx.

 

Deposit the checks that are due, let them bounce (returned to you stamped 'DAIF' or 'CLOSED ACCOUNT') and then file a criminal case for violation of BP 22.