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Archive for July, 2010

When Interest Imposed by the Lender is Excessive

Posted by lexforiphilippines on July 29, 2010

In Asian Cathay Finance and Leasing Corporation vs. Spouses Cesario Gravador and Norma de Vera, et al. (G.R. No. 186550; 5 July 2010), the Supreme Court declared –

“Stipulations authorizing the imposition of iniquitous or unconscionable interest are contrary to morals, if not against the law.  Under Article 1409 of the Civil Code, these contracts are inexistent and void from the beginning. They cannot be ratified nor the right to set up their illegality as a defense be waived. The nullity of the stipulation on the usurious interest does not, however, affect the lender’s right to recover the principal of the loan. Nor would it affect the terms of the real estate mortgage.  The right to foreclose the mortgage remains with the creditors, and said right can be exercised upon the failure of the debtors to pay the debt due.  The debt due is to be considered without the stipulation of the excessive interest.  A legal interest of 12% per annum will be added in place of the excessive interest formerly imposed. x x”

Click on Digested Cases under Tools for a digest of Asian Cathay Finance and Leasing Corporation vs. Spouses Cesario Gravador and Norma de Vera, et al. (G.R. No. 186550; 5 July 2010).

Posted in Civil Law, Remedial Law, Uncategorized | Tagged: , , | 1 Comment »

Can the Courts Compel Re-correction of Board Examination?

Posted by lexforiphilippines on July 27, 2010

In the recent consolidated cases of Antolin vs. Domondon, et al. (G.R. No. 165036; 5 July 2010) and Antolin vs. Fortuna-Ibe (G.R. No. 175705; 5 July 2010), involving a CPA Board examinee’s prayer for re-correction of her examination by the Board of Accountancy, the Supreme Court held that any claim for re-correction or revision of her examination cannot be compelled by the court.  The High Court reiterated its previous ruling in the case of Agustin Ramos vs. Sandoval (G.R. No. 84470, 2 February 1989), where it dismissed an action to compel the Medical Board of Examiners and the Professional Regulation Commission to re-correct the petitioning examinees’ ratings, explaining that the function of reviewing and re-assessing the answers to the examination questions was a discretionary function of the Medical Board, not a ministerial and mandatory one.

Click on Digested Cases under Tools to find a digest of the consolidated cases of Antolin vs. Domondon, et al. (G.R. No. 165036; 5 July 2010) and Antolin vs. Fortuna-Ibe (G.R. No. 175705; 5 July 2010).

Posted in Cases, Civil Law, Political Law, Uncategorized | Leave a Comment »

Charter Change – How the Constitution can be Amended

Posted by lexforiphilippines on July 20, 2010

Under Article XVII of the 1987 Philippine Constitution

  • Any amendment to, or revision of, the Constitution may be proposed by:

1. Congress (acting as a constituent assembly), upon a vote of three-fourths of all its Members; or

2. A constitutional convention.

A constitutional convention may be called by Congress by a vote of two-thirds of all its members.  Congress may, by a majority vote of all its members, opt to submit to the electorate the question of calling such a convention.

Any amendment to, or revision of, the Constitution, as proposed by a constituent assembly or a constitutional convention, shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the approval of such amendment or revision.

  • Amendments to the Constitution may also be directly proposed by the people through initiative upon a petition of at least 12% of the total number of registered voters, of which every legislative district must be represented by at least 3% of the registered voters in the district.

Any amendment as proposed through said initiative shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90 days after the certification by the Commission on Elections of the sufficiency of the petition.

The power of initiative may be exercised only after 5 years from the ratification of the 1987 Constitution and only once every 5 years thereafter.  There must be an enabling law providing for the implementation of the exercise of this power.

* Republic Act No. 6735, otherwise known as “The Initiative and Referendum Act” was enacted by Congress and signed into law on 4 August 1989.  However, the Supreme Court, in Santiago vs. Comelec (G.R. No. 127325; 19 March 1997) declared R.A. 6735 “incomplete, inadequate or wanting in essential terms and conditions” to cover the system of initiative on amendments to the Constitution.

Posted in Political Law | Leave a Comment »

Lands Acquired by NHA Exempt from Land Reform

Posted by lexforiphilippines on July 16, 2010

Lands acquired by the National Housing Authority (NHA) for its housing and resettlements projects are exempt from the land reform program, whether they were acquired by the NHA before Presidential Decree No. 1472* took effect or afterwards.  The exemption applies even if the lands so acquired by the NHA are tenanted.  This was the Supreme Court’s holding in the recent case of National Housing Authority vs. The Department of Agrarian Reform Adjudication Board, et al. (G.R. No. 175200; 4 May 2010).

(For a Digest of the case of National Housing Authority vs. The Department of Agrarian Reform Adjudication Board, et al., G.R. No. 175200, 4 May 2010, click on Digested Cases under Tools.)

* Amending Republic Act Nos. 4852 and 6026 by Providing Additional Guidelines in the Utilization, Disposition and Administration of All Government Housing and Resettlement Projects.

Posted in Uncategorized | Leave a Comment »

Republic Act No. 10054 – Motorcycle Helmet Act

Posted by lexforiphilippines on July 14, 2010

Republic Act No. 10054, also known as the “Motorcycle Helmet Act” was signed into law on 23 March 2010.  Under this new law –

  • All motorcycle riders, including drivers and back riders, are required to wear standard protective motorcycle helmets at all times while driving, whether long or short drives, in any type of road and highway.  Standard protective motorcycle helmets are appropriate types of helmets for motorcycle riders that comply with the specifications issued by the Department of   Trade and Industry (DTI).
  • Any person caught not wearing the standard protective motorcycle helmet will be punished with a fine of P1,500.00 for the first offense, P3,000.00 for the second offense, P5,000.00 for the third offense, and P10,000.00 plus confiscation of the driver’s license for the fourth and succeeding offenses.
  • Tricycle drivers are exempted from complying with the mandatory wearing of motorcycle helmets.
  • Every seller and/or dealer should make available, every time a new motorcycle unit is purchased, a new motorcycle helmet that bears the Philippine Standard (PS) mark or Import Commodity Clearance (ICC) of the Bureau of Product Standards (BPS) and complies with the standards set by the BPS, which the purchaser may buy at his option.  Any seller and/or dealer who violates this requirement will be punished with a fine of not less than P10,000.00 but not more than P20,000.00.
  • All manufacturers and importers of standard protective motorcycle helmets are required to secure a PS license or ICC prior to the sale and distribution of their products.  Upon the effectivity of R.A. 10054, only those standard protective motorcycle helmets bearing the PS or ICC mark shall be sold in the market.
  • The DTI, through the BPS, shall conduct a mandatory testing of all manufactured and imported motorcycle helmets in the Philippines.  The BPS shall periodically issue a list of motorcycle helmet manufacturers and importers and the brands which pass the standards of the BPS, to be published in a newspaper of general circulation or in its website.

  • Any person who uses, sells and distributes substandard motorcycle helmets or those which do not bear the PS mark or the ICC certificate will be punished with a fine of not less than P3,000.00 for the first offense, and P5,000.00 for the second offense, without prejudice to other penalties under Republic Act No. 7394 or the “Consumer Act of the Philippines.”
  • Tampering, alteration, forgery and imitation of the PS mark and the ICC certificates in the helmets will be punished with a fine of not less than P10,000.00 but not more than P20,000.00, without prejudice to other penalties imposed in Republic Act No. 7394 or the “Consumer Act of the Philippines.”

Posted in Laws and Implementing Rules | 47 Comments »

Separation Pay in lieu of Reinstatement

Posted by lexforiphilippines on July 12, 2010

An illegally dismissed employee is entitled to two reliefs: backwages and reinstatement.  The two reliefs are separate and distinct.  When reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative.  The payment of separation pay is in addition to payment of backwages.  In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages.  Strained relations must be demonstrated as a fact and must be supported by substantial evidence showing that the relationship between the employer and the employee is indeed strained as a necessary consequence of the judicial controversy. So said the Supreme Court in the case of Golden Ace Builders and Arnold Azul vs. Jose A. Talde, G.R. No. 187200; 5 May 2010.

(For a digest of the case of Golden Ace Builders and Arnold Azul vs. Jose A. Talde, G.R. No. 187200; 5 May 2010, click on Digested Cases under Tools.)

Posted in Cases, Labor Law | Leave a Comment »

Expanded Senior Citizens Act of 2010 – Implementing Rules

Posted by lexforiphilippines on July 8, 2010

The Department of Social Welfare and Development signed on June 18,2010 the Implementing Rules with respect to the Expanded Senior Citizens Act of 2010.

Under the Implementing Rules, a qualified senior citizen shall be granted a 20% discount and VAT exemption on his/her purchases, if applicable.

The said privileges shall apply to purchases of medicine, medical supplies and accessories, including medical and dental services, as well as to domestic air and sea travel, public transportation (PUJ, taxi, LRT), hotel accommodation and purchases in restaurants. With respect to food establishments, the discount now also applies to take-outs  and deliveries. The discount shall also apply to recreation centers (for golf cart rentals, yoga classes or badminton courts), and tickets to theaters, cinemas, carnivals, concert halls, museums and parks.

The Implementing Rules also provide for free medical and dental services in all government hospitals, medical facilities, out patient clinics, including professional fees. There is also a grant of a 5% discount on the monthly utilization of water and electricity subject to certain rules and criteria.

A social pension of P500.00 is also granted but such grant is subject to guidelines still to be issued.

For a copy of the Implementing Rules, you may click on the Tools Tab.

Posted in Civil Law, Laws and Implementing Rules, Taxation | Tagged: , , | 2 Comments »

Venue for Libel Cases on the Internet

Posted by lexforiphilippines on July 5, 2010

Under Article 360 of the Revised Penal Code, as amended by Republic Act No. 4363, libel cases where the complainant is a private individual is either (1) where the complainant actually resides at the time of the commission of the offense; or (2) where the alleged defamatory article was printed and first published.  If the private complainant opts for the second, the Information (formal indictment) must specifically state where the libelous article was printed and first published.  Previously, the case could be filed where the article was published or circulated, regardless of where it was written or printed.  The purpose of the amendment was to prevent indiscriminate filing of libel cases in far-flung areas in order to harass or intimidate the accused.

If the libelous article appears on a website, there is no way of finding out the location of its printing and first publication.  It is not enough for the complainant to lay the venue where the article was accessed, as this will open the floodgates to the libel suit being filed in all other locations where the website is also accessed or capable of being accessed, and spawn the very ills the amendment sought to prevent.  At any rate, the private complainant has the option to file the case in his/her place of residence, which will not necessitate finding out exactly where the libelous matter was printed and first published. So said the Supreme Court in the case of Bonifacio, et al. vs. RTC of Makati, Br. 129 (G.R. 184800; 5 May 2010).

Click on Tools for a Digest of the case of Bonifacio, et al. vs. RTC of Makati, Br. 129 (G.R. 184800; 5 May 2010).

Posted in Cases, Civil Law, Criminal Law, Law School, Remedial Law | Tagged: , , , | Leave a Comment »