Administrative Law
CHAPTER 1
Administrative law- that branch of public law which fixes the organization of government, determines the competence of the administrative authorities who execute the law, and indicates to the individual remedies for the violation of his rights (Goodnow).
Constitutional law versus Administrative law• Constitutional law
1. prescribes the permanent framework of the system of government
2. prescribes the limitation on the exercise of governmental power
3. assigns to the different departments their respective powers and duties
4. establishes certain fixed first principles on which the government is founded
5. supplies the general plan of governmental organization.
6. Lays emphasis on the rights of the citizen
• Administrative law
1. Prescribes to the individuals relief against violation of their rights
2. sees that this plan carried out
3. fixes and regulates the activity of the administrative organization of the government
4. determines the competence of administrative authorities and the rule of law that governs their activity
5. Lays stress on the duties of the citizens to the government.
Scope of administrative law:
1. Covers all the portion of the public law of the land concerning executive and administrative officials.
2. Deals with the enforcement and execution of the laws on the state, its powers and duties, the law of public officers, their election, appointment and removal, their rights, duties and liabilities
3. Covers the public corporations, the law that provides for the grant of rights, privileges and bounties of government to private individuals.
4. Cover the legal principles and doctrines laid down by the courts relating to the enforcement of statues regulating private affairs
5. Deals with the methods of enforcement of those statutes.
Purpose of administrative law:• The protection of private rights-the nature and mode of exercise of administrative power and the system of relief against administrative action.
Function of administrative law:• To make the government machinery work well and in an orderly manner
Kinds of Administrative Law:
1. Statues setting up administrative authorities
2. Body of doctrines and decisions dealing with the creation, operation and effect of determinations and regulations of administrative authorities
3. Rules, regulations, or orders of such administrative authorities enacted and promulgated in pursuance of the purpose for which they were created or endowed;
4. Determination, decisions and orders of such administrative authorities made in settlement of controversies arising in their particular fields.
CHAPTER 2
ADMINISTRATIVE BODIES IN THE PHILIPPINES
Administrative body- is a body composed of one or more officials designed to carry on certain business of government to:
1. Dispense certain services or privileges accorded by government
2. Regulate certain public callings
3. Promote general welfare through police regulations
4. Determine rights of individuals in certain case where a strong social policy is involved
5. Use a varying degree of discretion in arriving at decisions
6. Exercise powers in accordance with pre-determined policy.
Administrative body versus court• Administrative body:
1. Generally large organization, staffed by men who are deemed to become something of experts in their particular fields;
2. Has variety of functions
3. Uses varying degree of discretion in arriving at decisions and often proceeds without being bound by the technical rules of evidence and procedure
• Court:
1. A tribunal which is impartial, open to all alike presided by one or more jurist learned in the law, removed from passing pressure of politics and prejudiced
2. Has only one function-judicial
3. Governed by a fixed principle in arriving at its decision.
Principle of Primary Jurisdiction• Courts have no brooding superintendence over such administrative agencies unless there is a clear and convincing proof that the agency has acted arbitrarily and capriciously as to amount to a grave abuse of discretion. In such a case the court should intervene to protect public interest or private rights.
Test to determine whether a certain body or agency is administrative or judicial:• A body or agency is administrative where its function is primarily regulatory even if it conducts hearing and determines controversy to carry out its regulatory duty. It is judicial if its primary duty is to decide legal rights between private parties affecting their property or liberty.
Types of administrative bodies:
1. Bodies set up to function in situations wherein the government is offering some gratuity, grant or special privileges.(ex. Bureau of Lands, bureau of Public works, social welfare administration, Philippine Veterans Administration and the board of Pensions for Veterans)
2. Bodies set up to function in situations wherein the government is seeking to carry on certain business of government (ex. BIR, Bureau of Customs, the Board of Special Inquiry, the Commission on Immigration and the Tariff commission).
3. Bodies set up to function in situations wherein the government is seeking to regulate business affected with public interest (ex. The Philippine National railways, the National Waterworks and Sewerage Authority, the Bureau of post).
4. Bodies set up to function in situations wherein the government is seeking to regulate business affected with public interest (ex. LTO Commission)
5. Bodies set up to function in situations wherein the government is seeking under the police power to regulate business and individuals (ex. SEC, the different Board of examiners, the Bank Commission, the Board of Food inspections, the patent office).
6. Bodies set up to function in situation wherein he government is seeking to adjust individual controversies because of some strong social policy involved (ex. NLRC, Courts of Agrarian Relations, ECC and the different offices of the department of labor).
7. Administrative bodies set up to make government a private party (ex. COA an GSIS).
Creation and establishment of Administrative bodies• Created by or receive thei5r powers from constitutional provisions, but most of them have their source in legislative enactments.
Reorganization and dissolution of Administrative bodies• Administrative bodies owe their existence from the congress which can abolish, change or reorganized them to better achieve the purpose for which they are created.
CHAPTER 3
POWER OF ADMINISTRATIVE BODIES
Powers of administrative bodies my be classified into:
1. Quasi-legislative or the rule making power
• The power of making rules and regulation to govern a certain subject.
Different categories of rule and regulations that may be promulgated by administrative bodies:
a. Those that are intended to supply the details of legislation
b. Those that are intended to interpret or construe the particular law or statue being enforced
c. Those that are intended to determine some fact or state of things upon which the enforcement of the act shall depend.
2. Quasi-judicial or the power of adjudication• A duty which the law in words or by implication commits to any officer to look into facts and act upon them not in a way which it specifically directs but on discretion judicial in its nature.
3. Discretionary and ministerial• Discretionary-Where the administrative body or officer is given authority to do any act but not required to do such act, the doing of the same being dependent upon his sound discretion.
• Ministerial- the officer or tribunal performs in a given state of fact, in a prescribed manner, in obedience to the mandate of a legal authority without regard to the exercise of his own judgment, upon the propriety or impropriety of the act done.
4. Investigatory and inquisitorial powers
• The power to inspect or to secure or to require the disclosure of information by means of accounts, records or otherwise.
It consist of:
a. The issuance of subpoena
b. The swearing in of the witnesses
c. The interrogation of witnesses
d. The calling for production of books, papers and records
e. Requiring that the books, papers, and records be made available for inspection
f. Inspecting premises
g. Requiring written answers to questionnaires
h. Requiring reports, periodic or special
i. Requiring the filing of statements.
5. Determinative power:
a. Enabling power• The power of permitting or allowing something which the law undertakes to regulate to be done with approval. It is manifested in the granting or denial of licenses to engage in a particular business or occupation.
b. Directing powers• Includes corrective power, power or assessment, fixing of awards, power of abstract determination such as definition, valuation classification and fact finding.
c. Dispensing powers• Consist of the granting of exemption form or relaxing of a general prohibition. It may also exercised to relieve an individual or corporation from an affirmative duty.
d. Examining powers• Also called the investigatory powers which consist in requiring the production of books, papers, records for inspection, the attendance of witnesses and compelling their testimony and the filing of statements.
e. Summary powers• The power to apply compulsion or force against person or property to effectuate a legal purpose without a judicial warrant to authorize such action
CHAPTER 4
PROCEEDINGS BEFORE ADMINISTRATIVE BODIES
Requisites of due process in administrative proceedings
1. The tries of the facts shall be an impartial tribunal legally constituted to determine the rights involved
2. No finding shall be made except upon due notice and opportunity to be heard
3. That the procedure at the hearing shall be consistent with essentials of fair trial
4. It shall be conducted in such a way that there will be opportunity for a court to determine whether the applicable rules of law and procedure were observed.
Cardinal rights of a person appearing before an administrative body:
1. The right to a hearing which includes the right to present ones case and submit evidence in support thereof
2. The tribunal must consider the evidence presented
3. The decision must have something to support itself
4. The evidence must be substantial
5. The decision must ne rendered on the evidence presented at the hearing or at least contained in the record and disclosed to the parties affected
6. The tribunal or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision
7. The tribunal should, in all controversial questions, render its decision in such a manner that the parties to the proceedings can determine the various issues involved and the reason for the decision rendered.
Instances where notice and hearing in administrative proceedings are not required:
1. The arrest of criminal offenders’ before the filing of charges against them
2. The distraint of property of delinquent taxpayers
3. The granting of preliminary attachment ex parte
4. The issuance o f preliminary injunctions ex parte
5. The suspension of officers or employees pending an investigation
6. Removal of an acting employee
7. Cancellation of a passport
CHAPTER 5
EXHAUSTION OF ADMINISTRATIVE REMEDIES
Doctrine of Exhaustion of Administrative remedies• Where the law provides for the remedies against the action of an administrative board, body or officer, relief to court against such action cab be sought only after exhausting all the remedies provided for.
Purpose of the doctrine:
1. To compel parties to an administrative proceeding to avail themselves of all the administrative remedies on hand
2. To save the parties from a long, tedious litigation in court and expenses to be incurred there from
3. To help prevent clogging of the court dockets.
Exemptions to the principle of Exhaustion of administrative remedies:
1. When the decision is rendered by a department secretary the aggrieved party may directly go to court without appealing the decision of the Department head to the president
2. Where the only question to be settled is a purely legal one and nothing of an administrative nature is to be done
3. Where the action of the administrative officer is clearly and obviously devoid of any color of authority, the aggrieved party may forthwith see the protection of the court notwithstanding his failure to appeal form the action of the department head
4. When the administrative body is in estoppels to invoke exhaustion of administrative remedies
5. If its application will cause great and irreparable damage
6. Where insistence on its observance would result in the nullification of the claim being asserted
7. Where exhaustion of administrative remedies result in denial of due process
CHAPTER 6
REVIEW OF ADMINISTRATIVE DECISIONS
Administrative decisions can only be set aside on proof of:
1. Gross abuse of discretion
2. Fraud
3. Error of law
When may courts review administrative decisions:
1. To determine the constitutionality or validity of any treaty law, ordinance, executive order or regulation
2. To determine the jurisdiction of any administrative board, commissioner or officer
3. To determine any other question of law
4. To determine question of facts when necessary to determine either:
a. A constitutional or jurisdictional issue
b. The commission of abuse of authority
c. When the administrative fact-finding body was unduly restricted by an error of law
Tuesday, March 4, 2008
Tuesday, February 19, 2008
Transportation Law Chapter 12: Collisions
Transportation Law
CHAPTER 12- COLLISION
Collision- is an impact or sudden contact of a vessel with another whether both are in motion or one stationary.
•Strictly speaking, collision refers to the contact of two moving vessels.
•Allision, the contact between a moving vessel to a stationary vessel
3 divisions of time or zones:
1.Covers all the time up to the moment when the risk of collision may be said to have begun.
•No rules apply (each vessel is free to direct its course as it deems best without reference to the movements of the other vessel.
2.Covers the time between the moment when the risk of collision begins and the movement when it has become a practical certainty.
•The burden is on the vessel required to keep away and avoid the danger
3.Covers the time between the moment of actual contact (the period in which errors in extremis occur)
•The rule s that the vessel which has forced the privileged vessel into danger is responsible even if the privileged vessel committed an error within that zone.
Rules of navigation are obligatory from the time the necessity for precaution begins, and continue to be applicable as the vessels advance, so long as the means and opportunity to avoid the danger remain; but they did not apply to a vessel required to keep her course after the approach is so near that the collision is inevitable, and are equally inapplicable to vessels of every description while they are yet so distant from each other that measures of precaution have not become necessary.
Applicable law:
1.Liability for negligence in the absence of contract-Article 2176 of the new civil code-the provision on quasi delict.
2.Liabilities of ship owners and ship agents as well as the captain or crew in collision cases –provisions of code of commerce on collision.
Rule on Liability
Courts are still called upon to determine the negligence of the persons involved in order to impose liability. The person who caused the injury in both civilly and criminally liable.
SPECIFIC RULES UNDER THE CODE OF COMMERCE
A.ONE VESSEL AT FAULT
ARTICLE 826. If a vessel should collide with another, through or the fault, negligence, or lack of skill of the captain, sailing mate, or any other member of the complement, the owner of the vessel at fault shall indemnify the losses and damages suffered, after an expert appraisal.
B.BOTH VESSELS AT FAULT
ARTICLE 827. if the collision is imputable to both vessels, each one shall suffer its own damages, and both shall be solidarily responsible for the losses and damages occasioned to their cargoes.
C.PARTY AT FAULT CANNOT BE DETERMINED
Cause of fortuitous event
ARTICLE 830. If a vessel should collide with another, through fortuitous event or force majure, each vessel and its cargo shall bear its own damages.
ARTICLE 832. If by reason of a storm or other case if force majeure, a vessel which is properly anchored and moored should collide with those nearby, causing them damages, the injury occasioned shall be considered cause, the captain thereof being civilly liable to said owner.
Third person at fault
ARTICLE 831. If a vessel should be forced by a third vessel to collide with another, the owner of the third vessel shall indemnify the losses and damages caused, the captain thereof being civilly liable to said owner.
OTHER RULES.
ARTICLE 833. a vessel which, upon being run into, sinks immediately, as well as that which, having been obliged to make a port to repair the damages caused by the collision, is lost during the voyage or is obliged to be stranded in order to be saved, shall presumed as lost by reason of collision.
ARTICLE 834. if the vessels colliding with each other should have pilots on board discharging their duties at the time of the collision, their presence shall not exempt the captains from the liabilities they incur. But the latter shall have the right to be indemnified by the pilots, without prejudice to the criminal liability which the latter may incur.
ARTICLE 838. When the value of the vessel and her appurtenances should not be sufficient to cover all the liabilities, the indemnity due by reason of the death or injury of the persons shall have preference.
ARTICLE 839. if the collision should take place between Philippine vessels in foreign waters, or if having taken place in the open seas, and the vessels should make a foreign port, the consul of the Republic of the Philippines in said port shall hold summary investigation of the accident, forwarding the proceedings to the Secretary of the Department of Foreign Affairs for continuation and conclusion.
PROTEST.
ARTICLE 835. The action for the recovery of losses and damages arising from collisions cannot be admitted if a protest or declaration is not presented within twenty four hours before the competent authority of the point where the collision took place, or that of the first port of arrival of the vessel, if in Philippine territory, and to the consul of the Republic of the Philippines if it occurred in a foreign country.
ARETICLE 836. With respect to damages caused to persons or to the cargo, the absence of protest may not prejudiced the persons interested who ere not on board or where not in a condition to make earned during the voyage.
LIMITED LIABILITY RULE
ARTICLE 837. the civil liability incurred by the ship owners in the case prescribed in this section, shall be understood as limited to the value of the vessel with all its appurtenances and freightage earned during the voyage.
RELATED CASES:
National Development Company v. Court of Appeals G.R. No.L-49407, August 19, 1988
The City of Manila v. Atlantic, Gulf and Pacific Company G.R. No. 4510, December 19,1908
The Governemnt of the Philippine Islands v. Philippine Steamship Co. Inc. G.R. No. 1857, January 16,1923
CHAPTER 12- COLLISION
Collision- is an impact or sudden contact of a vessel with another whether both are in motion or one stationary.
•Strictly speaking, collision refers to the contact of two moving vessels.
•Allision, the contact between a moving vessel to a stationary vessel
3 divisions of time or zones:
1.Covers all the time up to the moment when the risk of collision may be said to have begun.
•No rules apply (each vessel is free to direct its course as it deems best without reference to the movements of the other vessel.
2.Covers the time between the moment when the risk of collision begins and the movement when it has become a practical certainty.
•The burden is on the vessel required to keep away and avoid the danger
3.Covers the time between the moment of actual contact (the period in which errors in extremis occur)
•The rule s that the vessel which has forced the privileged vessel into danger is responsible even if the privileged vessel committed an error within that zone.
Rules of navigation are obligatory from the time the necessity for precaution begins, and continue to be applicable as the vessels advance, so long as the means and opportunity to avoid the danger remain; but they did not apply to a vessel required to keep her course after the approach is so near that the collision is inevitable, and are equally inapplicable to vessels of every description while they are yet so distant from each other that measures of precaution have not become necessary.
Applicable law:
1.Liability for negligence in the absence of contract-Article 2176 of the new civil code-the provision on quasi delict.
2.Liabilities of ship owners and ship agents as well as the captain or crew in collision cases –provisions of code of commerce on collision.
Rule on Liability
Courts are still called upon to determine the negligence of the persons involved in order to impose liability. The person who caused the injury in both civilly and criminally liable.
SPECIFIC RULES UNDER THE CODE OF COMMERCE
A.ONE VESSEL AT FAULT
ARTICLE 826. If a vessel should collide with another, through or the fault, negligence, or lack of skill of the captain, sailing mate, or any other member of the complement, the owner of the vessel at fault shall indemnify the losses and damages suffered, after an expert appraisal.
B.BOTH VESSELS AT FAULT
ARTICLE 827. if the collision is imputable to both vessels, each one shall suffer its own damages, and both shall be solidarily responsible for the losses and damages occasioned to their cargoes.
C.PARTY AT FAULT CANNOT BE DETERMINED
Cause of fortuitous event
ARTICLE 830. If a vessel should collide with another, through fortuitous event or force majure, each vessel and its cargo shall bear its own damages.
ARTICLE 832. If by reason of a storm or other case if force majeure, a vessel which is properly anchored and moored should collide with those nearby, causing them damages, the injury occasioned shall be considered cause, the captain thereof being civilly liable to said owner.
Third person at fault
ARTICLE 831. If a vessel should be forced by a third vessel to collide with another, the owner of the third vessel shall indemnify the losses and damages caused, the captain thereof being civilly liable to said owner.
OTHER RULES.
ARTICLE 833. a vessel which, upon being run into, sinks immediately, as well as that which, having been obliged to make a port to repair the damages caused by the collision, is lost during the voyage or is obliged to be stranded in order to be saved, shall presumed as lost by reason of collision.
ARTICLE 834. if the vessels colliding with each other should have pilots on board discharging their duties at the time of the collision, their presence shall not exempt the captains from the liabilities they incur. But the latter shall have the right to be indemnified by the pilots, without prejudice to the criminal liability which the latter may incur.
ARTICLE 838. When the value of the vessel and her appurtenances should not be sufficient to cover all the liabilities, the indemnity due by reason of the death or injury of the persons shall have preference.
ARTICLE 839. if the collision should take place between Philippine vessels in foreign waters, or if having taken place in the open seas, and the vessels should make a foreign port, the consul of the Republic of the Philippines in said port shall hold summary investigation of the accident, forwarding the proceedings to the Secretary of the Department of Foreign Affairs for continuation and conclusion.
PROTEST.
ARTICLE 835. The action for the recovery of losses and damages arising from collisions cannot be admitted if a protest or declaration is not presented within twenty four hours before the competent authority of the point where the collision took place, or that of the first port of arrival of the vessel, if in Philippine territory, and to the consul of the Republic of the Philippines if it occurred in a foreign country.
ARETICLE 836. With respect to damages caused to persons or to the cargo, the absence of protest may not prejudiced the persons interested who ere not on board or where not in a condition to make earned during the voyage.
LIMITED LIABILITY RULE
ARTICLE 837. the civil liability incurred by the ship owners in the case prescribed in this section, shall be understood as limited to the value of the vessel with all its appurtenances and freightage earned during the voyage.
RELATED CASES:
National Development Company v. Court of Appeals G.R. No.L-49407, August 19, 1988
The City of Manila v. Atlantic, Gulf and Pacific Company G.R. No. 4510, December 19,1908
The Governemnt of the Philippine Islands v. Philippine Steamship Co. Inc. G.R. No. 1857, January 16,1923
Monday, January 28, 2008
Social Legislation
Midterm Exam on Social Legislation class under Atty. E. Bonocan will be on Febuary 2,2008...yup this saturday na...(YES na lang ta ani). The coverage:
Social Security Act of 1997 Republic Act 8282
The Government System Insurance Service Act of 1997 Republic Act 8291
Employees Compensation Act P.D 626
Social Security Act of 1997 Republic Act 8282
The Government System Insurance Service Act of 1997 Republic Act 8291
Employees Compensation Act P.D 626
Tuesday, January 22, 2008
Civil Procedure Assignment January 22,2008
1.What are the 2 kinds of execution?
2.May an execution issue upon an interlocutory order?
3.What is a final order?
4.What is an interlocutory order?
5.What is the effect of a timely appeal on the judgment appealed from?
6.How may a final and executory judgment be enforced?
7.What court must execution be filed?
8.What is the remedy of the judgment obligee if the trial court refuses to issue writ?
9.What are the instances where even if judgment is already final and executory, court may still refuse to issue writ?
10.What is a dormant judgment?
11.What is the remedy if judgment is not executed within 5 years?
12.What are the requisites pending appeal?
13.What court should the motion pending appeal be filed?
14.May execution pending appeal be stayed? How?
15.Cite reasons that may justify execution pending appeal.
16.How may execution be enforced in case of death of a party?
17.Who is a third party claimant?
18.What is a third party claim? A claim by the civil defendant/respondent against a party not already named in a court or other adversarial proceeding.
19.Is there a right of redemption when the property of the judgment debtor has been sold?
20.Who can redeem?
2.May an execution issue upon an interlocutory order?
3.What is a final order?
4.What is an interlocutory order?
5.What is the effect of a timely appeal on the judgment appealed from?
6.How may a final and executory judgment be enforced?
7.What court must execution be filed?
8.What is the remedy of the judgment obligee if the trial court refuses to issue writ?
9.What are the instances where even if judgment is already final and executory, court may still refuse to issue writ?
10.What is a dormant judgment?
11.What is the remedy if judgment is not executed within 5 years?
12.What are the requisites pending appeal?
13.What court should the motion pending appeal be filed?
14.May execution pending appeal be stayed? How?
15.Cite reasons that may justify execution pending appeal.
16.How may execution be enforced in case of death of a party?
17.Who is a third party claimant?
18.What is a third party claim? A claim by the civil defendant/respondent against a party not already named in a court or other adversarial proceeding.
19.Is there a right of redemption when the property of the judgment debtor has been sold?
20.Who can redeem?
Sunday, January 20, 2008
Landmark cases in Ombudsman and Sandiganbayan for midterm
Read the following landmark cases for ombudsman class under Atty. Manriquez for midterms.(wala na na nako nadigest kay gikapoy ko...actually mas nice jud basahon ang whole case para bongga pagabot sa exam...hehehe)
Ledesma v. Court of Appeals GR No. 161629 July 29,2005
Tapiador v. Office of the Ombudsman GR No. 129124 March 15,2002
George Uy v. Sandiganbayan GR No. 105965 March 21,2001
Ledesma v. Court of Appeals GR No. 161629 July 29,2005
Tapiador v. Office of the Ombudsman GR No. 129124 March 15,2002
George Uy v. Sandiganbayan GR No. 105965 March 21,2001
Thursday, January 17, 2008
Love quotes from Supreme Court (ASTIG!)
1. “Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures the continuation of family relations. x x x. (Ching Ming Tsoi vs. Court of Appeals, 16 January 1997)
2. " xxx She unconditionally laid herself prostrate to his charms, too much enamored of him to care about anything else. For, as philosopher Blaise Pascal has so pithily stated of the profundity of human love, 'love has reasons that reason cannot explain." - Abaigar vs. Paz - September 10, 1979.
3. Cua-Chua vs. CA: Its about a teacher who fell in love with her student, who happens to be so much younger than the teacher. The teacher was sued for damages (?) by the family of the student (obviuosly because they don't want the teacher due to age gap and the fact the she was his teacher). Also , an administrative case was filed against her to oust her from the school she had been teaching. Is the relationship immoral and against decency? Let us see what the Supreme Court has to say. "If eventually I fall in love despite of our disparities, it only lands truism to the fact that the heart has its reason of its own that reason dot not know." I guess, you already know who won the case; love prevails... ayus....
4. ...there can be no love where respect is gone (People vs. Rivera November 17, 1999)
2. " xxx She unconditionally laid herself prostrate to his charms, too much enamored of him to care about anything else. For, as philosopher Blaise Pascal has so pithily stated of the profundity of human love, 'love has reasons that reason cannot explain." - Abaigar vs. Paz - September 10, 1979.
3. Cua-Chua vs. CA: Its about a teacher who fell in love with her student, who happens to be so much younger than the teacher. The teacher was sued for damages (?) by the family of the student (obviuosly because they don't want the teacher due to age gap and the fact the she was his teacher). Also , an administrative case was filed against her to oust her from the school she had been teaching. Is the relationship immoral and against decency? Let us see what the Supreme Court has to say. "If eventually I fall in love despite of our disparities, it only lands truism to the fact that the heart has its reason of its own that reason dot not know." I guess, you already know who won the case; love prevails... ayus....
4. ...there can be no love where respect is gone (People vs. Rivera November 17, 1999)
Sunday, January 13, 2008
Administrative Law
Assignment in Administrative Law for midterms under Atty. Manriquez: Read Administrative Code of 1987
full text Administrative Code of the Philippines
full text Administrative Code of the Philippines
Thursday, January 10, 2008
Civil Procedure Assignment January 08,2008
Read Rule 17 to 21.
1. What is the effect of two-dismissal rule?
Such dismissal is without prejudice except:
a. where the notice of dismissal so provides
b. where the plaintiff has previously dismissed the same case in a court of competent jurisdiction.
2. May the court dismiss the complaint on the complainant's motion?
(by Ms. Suzzette)Yes, on the following grounds:
a. the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint (o.k.a. plaintiff is NON-SUITED)
b. the plaintiff fails to prosecute his action for an unreasonable length of time
c. the plaintiff fails to comply with the Rules of Court
d. the plaintiff fails to comply with any order of the Court
3. May the court dismiss the complaint on the plaintiff's motion?
(by ms. Suzzette)Yes, by filing a:
a. Notice of Dismissal - if the defendant's answer or counterclaim has not yet been filed
b. Motion to Dismiss - if the defendant's answer or counterclaim has already been filed
4. What is the effect of dismissal by the court where there is no statement "with
prejudice"?
(by Ms. Suzzette)It depends
a. It shall be without prejudice if the dismissal was upon notice by the plaintiff, except when the dismissal operates as an adjudication upon the merits (Rule 17, Sec. 1)
b. It shall be without prejudice if the dismissal was upon motion by the plaintiff (Rule 17, Sec. 2)
c. It shall be with prejudice if the dismissal is ion motion by the defendant, or upon the court motu propio, on the grounds due to plaintiff's fault(Rule 17, Sec. 3)
5. What is pretrial?
A mandatory conference and personal confrontation before the judge between the parties and their respective counsels.
6. What is the purpose of pretrial?
The court shall consider:
a. the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution
b. the simplification of issues
c. the necessity or desirability of amendments to the pleadings
d. the possibility of obtaining stipulations or admissions of facts and documents to avoid unnecessary proof.
e. the limitation of the number of witnesses
f. the advisability of a preliminary reference of issues to a commissioner
g. the property of rendering judgement on the pleadings, or summary judgement, or of dismissing the action should a valid ground therefore be found to exist
h. the advisability or necessity of suspending the proceedings
i. such other matters as may aid in the prompt disposition of the case.
7. What is the effect of failure to mark exhibits during the pretrial?
Any Evidences that are not marked during pre trial shall not be admissible in during actual court proceedings.
8. What is the effect of failure by the plaintiff to appear at the pretrial
conference?
Shall cause for the dismissal of the action, with prejudice, unless otherwise ordered by the court.
9. What is the effect of failure by the defendant to appear at the pretrial
conference?
Shall cause the plaintiff to present evidence ex parte and for the court to render judgement on the basis thereof.
10. Can the court set the pretrial?
11. What is a pretrial brief?
A pretrial brief is a document that contains:
a. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;
b. A summary of admitted facts and proposed stipulation of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented stating the purpose thereof;
e. A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and
f. The number and names of the witnesses, and the substance of their respective testimonies.
12. What is a pretrial order?
13. What is a motion for intervention?
Is a legal proceeding by which a third party is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the rules of court.
NOTE: intervention is never an independent proceeding but is ancillary and supplemental to an existing litigation. Hence, the final dismissal of the principal action results into dismissal of said ancillary action.
14. Who may intervene?
a. one who has legal interest in the matter in litigation
b. one who has a legal interest in the success of either of the parties
c. one who has an interest against both parties or,
d. one who is situated as to be adversely affected by distribution of other disposition of property in the custody of the court or of an officer thereof.
15. What are the requisites for intervention?
Factors to be considered by the court:
a. whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and
b. whether the intervenor's rights may be fully protected in a separate proceedings.
16. What is a subpoena?
Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition.
17. What are the different kinds of subpoena?
The two kinds of Subpoena:
a. Subpoena duces tecum- the process directed to a person which requires him to bring with him:
i. any books,
ii. documents, or
iii. other things under his control.
b. Subpoena ad testificandum- process directed to a person requiring him to attend and testify:
i. at the hearing or the trial of an action, or
ii. at any investigation conducted by competent authority,or
iii. for taking his disposition.
18. What do you mean by the 100-km rule?
19. Who may serve the subpoena?
a. the court before whom witness is required to attend;
b. the court of the place where the deposition is to be taken
c. the officer or body authorized by law to do so in connection with its investigations conducted by the said officer of body, or
d. any justice of the supreme court or of the court of appeals in any case or investigation pending within the Philippines
20. What is the effect of disobedience to subpoena?
Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.
1. What is the effect of two-dismissal rule?
Such dismissal is without prejudice except:
a. where the notice of dismissal so provides
b. where the plaintiff has previously dismissed the same case in a court of competent jurisdiction.
2. May the court dismiss the complaint on the complainant's motion?
(by Ms. Suzzette)Yes, on the following grounds:
a. the plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint (o.k.a. plaintiff is NON-SUITED)
b. the plaintiff fails to prosecute his action for an unreasonable length of time
c. the plaintiff fails to comply with the Rules of Court
d. the plaintiff fails to comply with any order of the Court
3. May the court dismiss the complaint on the plaintiff's motion?
(by ms. Suzzette)Yes, by filing a:
a. Notice of Dismissal - if the defendant's answer or counterclaim has not yet been filed
b. Motion to Dismiss - if the defendant's answer or counterclaim has already been filed
4. What is the effect of dismissal by the court where there is no statement "with
prejudice"?
(by Ms. Suzzette)It depends
a. It shall be without prejudice if the dismissal was upon notice by the plaintiff, except when the dismissal operates as an adjudication upon the merits (Rule 17, Sec. 1)
b. It shall be without prejudice if the dismissal was upon motion by the plaintiff (Rule 17, Sec. 2)
c. It shall be with prejudice if the dismissal is ion motion by the defendant, or upon the court motu propio, on the grounds due to plaintiff's fault(Rule 17, Sec. 3)
5. What is pretrial?
A mandatory conference and personal confrontation before the judge between the parties and their respective counsels.
6. What is the purpose of pretrial?
The court shall consider:
a. the possibility of an amicable settlement or of a submission to alternative modes of dispute resolution
b. the simplification of issues
c. the necessity or desirability of amendments to the pleadings
d. the possibility of obtaining stipulations or admissions of facts and documents to avoid unnecessary proof.
e. the limitation of the number of witnesses
f. the advisability of a preliminary reference of issues to a commissioner
g. the property of rendering judgement on the pleadings, or summary judgement, or of dismissing the action should a valid ground therefore be found to exist
h. the advisability or necessity of suspending the proceedings
i. such other matters as may aid in the prompt disposition of the case.
7. What is the effect of failure to mark exhibits during the pretrial?
Any Evidences that are not marked during pre trial shall not be admissible in during actual court proceedings.
8. What is the effect of failure by the plaintiff to appear at the pretrial
conference?
Shall cause for the dismissal of the action, with prejudice, unless otherwise ordered by the court.
9. What is the effect of failure by the defendant to appear at the pretrial
conference?
Shall cause the plaintiff to present evidence ex parte and for the court to render judgement on the basis thereof.
10. Can the court set the pretrial?
11. What is a pretrial brief?
A pretrial brief is a document that contains:
a. A statement of their willingness to enter into amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;
b. A summary of admitted facts and proposed stipulation of facts;
c. The issues to be tried or resolved;
d. The documents or exhibits to be presented stating the purpose thereof;
e. A manifestation of their having availed or their intention to avail themselves of discovery procedures or referral to commissioners; and
f. The number and names of the witnesses, and the substance of their respective testimonies.
12. What is a pretrial order?
13. What is a motion for intervention?
Is a legal proceeding by which a third party is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the rules of court.
NOTE: intervention is never an independent proceeding but is ancillary and supplemental to an existing litigation. Hence, the final dismissal of the principal action results into dismissal of said ancillary action.
14. Who may intervene?
a. one who has legal interest in the matter in litigation
b. one who has a legal interest in the success of either of the parties
c. one who has an interest against both parties or,
d. one who is situated as to be adversely affected by distribution of other disposition of property in the custody of the court or of an officer thereof.
15. What are the requisites for intervention?
Factors to be considered by the court:
a. whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and
b. whether the intervenor's rights may be fully protected in a separate proceedings.
16. What is a subpoena?
Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition.
17. What are the different kinds of subpoena?
The two kinds of Subpoena:
a. Subpoena duces tecum- the process directed to a person which requires him to bring with him:
i. any books,
ii. documents, or
iii. other things under his control.
b. Subpoena ad testificandum- process directed to a person requiring him to attend and testify:
i. at the hearing or the trial of an action, or
ii. at any investigation conducted by competent authority,or
iii. for taking his disposition.
18. What do you mean by the 100-km rule?
19. Who may serve the subpoena?
a. the court before whom witness is required to attend;
b. the court of the place where the deposition is to be taken
c. the officer or body authorized by law to do so in connection with its investigations conducted by the said officer of body, or
d. any justice of the supreme court or of the court of appeals in any case or investigation pending within the Philippines
20. What is the effect of disobedience to subpoena?
Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.
Wednesday, January 9, 2008
Case Digest for TRANSPORTATION LAW:Japan Airlines V. Asuncion (G.R No. 161730, January 28,2005) 449 SCRA 544
FACTS:
This petition for review seeks to reverse and set aside the October 9, 2002 decision of the Court of Appeals and its January 12, 2004 resolution, which affirmed in toto the June 10, 1997 decision of the Regional Trial Court of Makati City, Branch 61 in Civil Case No. 92-3635.
On March 27, 1992, respondents Michael and Jeanette Asuncion left Manila on board Japan Airlines’ (JAL) Flight 742 bound for Los Angeles. Their itinerary included a stop-over in Narita and an overnight stay at Hotel Nikko Narita. Upon arrival at Narita, Mrs. Noriko Etou-Higuchi of JAL endorsed their applications for shore pass and directed them to the Japanese immigration official. A shore pass is required of a foreigner aboard a vessel or aircraft who desires to stay in the neighborhood of the port of call for not more than 72 hours.
During their interview, the Japanese immigration official noted that Michael appeared shorter than his height as indicated in his passport. Because of this inconsistency, respondents were denied shore pass entries and were brought instead to the Narita Airport Rest House where they were billeted overnight.
Mr. Atsushi Takemoto of the International Service Center (ISC), the agency tasked by Japan’s Immigration Department to handle passengers who were denied shore pass entries, brought respondents to the Narita Airport Rest House where they stayed overnight until their departure the following day for Los Angeles. Respondents were charged US$400.00 each for their accommodation, security service and meals.
On December 12, 1992, respondents filed a complaint for damages claiming that JAL did not fully apprise them of their travel requirements and that they were rudely and forcibly detained at Narita Airport.
Issue: Whether or not JAL is liable of breach of contract of carriage.
Side Issues:
· Whether or not JAL is liable for moral, exemplary damages,
· Whether or not the plaintiff is liable for attorney’s fee and cost of suit incurred (JAL counterclaim)
Ruling:
The court finds that JAL did not breach its contract of carriage with respondents. It may be true that JAL has the duty to inspect whether its passengers have the necessary travel documents, however, such duty does not extend to checking the veracity of every entry in these documents. JAL could not vouch for the authenticity of a passport and the correctness of the entries therein. The power to admit or not an alien into the country is a sovereign act which cannot be interfered with even by JAL. This is not within the ambit of the contract of carriage entered into by JAL and herein respondents. As such, JAL should not be faulted for the denial of respondents’ shore pass applications.
In the Respondents claim that petitioner breached its contract of carriage when it failed to explain to the immigration authorities that they had overnight vouchers at the Hotel Nikko Narita. They imputed that JAL did not exhaust all means to prevent the denial of their shore pass entry applications. JAL or any of its representatives have no authority to interfere with or influence the immigration authorities. The most that could be expected of JAL is to endorse respondents’ applications, which Mrs. Higuchi did immediately upon their arrival in Narita.
Moral damages may be recovered in cases where one willfully causes injury to property, or in cases of breach of contract where the other party acts fraudulently or in bad faith. Exemplary damages are imposed by way of example or correction for the public good, when the party to a contract acts in wanton, fraudulent, oppressive or malevolent manner. Attorney’s fees are allowed when exemplary damages are awarded and when the party to a suit is compelled to incur expenses to protect his interest.[17] There being no breach of contract nor proof that JAL acted in wanton, fraudulent or malevolent manner, there is no basis for the award of any form of damages.
Neither should JAL be held liable to reimburse respondents the amount of US$800.00. It has been sufficiently proven that the amount pertained to ISC, an agency separate and distinct from JAL, in payment for the accommodations provided to respondents. The payments did not in any manner accrue to the benefit of JAL.
However, we find that the Court of Appeals correctly dismissed JAL’s counterclaim for litigation expenses, exemplary damages and attorney’s fees. The action was filed by respondents in utmost good faith and not manifestly frivolous. Respondents honestly believed that JAL breached its contract. A person’s right to litigate should not be penalized by holding him liable for damages. This is especially true when the filing of the case is to enforce what he believes to be his rightful claim against another although found to be erroneous.[
WHEREFORE, in view of the foregoing, the instant petition is PARTLY GRANTED. The October 9, 2002 decision of the Court of Appeals and its January 12, 2004 resolution in CA-G.R. CV No. 57440, are REVERSED and SET ASIDE insofar as the finding of breach on the part of petitioner and the award of damages, attorney’s fees and costs of the suit in favor of respondents is concerned. Accordingly, there being no breach of contract on the part of petitioner, the award of actual, moral and exemplary damages, as well as attorney’s fees and costs of the suit in favor of respondents Michael and Jeanette Asuncion, is DELETED for lack of basis. However, the dismissal for lack of merit of petitioner’s counterclaim for litigation expenses, exemplary damages and attorney’s fees, is SUSTAINED. No pronouncement as to costs.
This petition for review seeks to reverse and set aside the October 9, 2002 decision of the Court of Appeals and its January 12, 2004 resolution, which affirmed in toto the June 10, 1997 decision of the Regional Trial Court of Makati City, Branch 61 in Civil Case No. 92-3635.
On March 27, 1992, respondents Michael and Jeanette Asuncion left Manila on board Japan Airlines’ (JAL) Flight 742 bound for Los Angeles. Their itinerary included a stop-over in Narita and an overnight stay at Hotel Nikko Narita. Upon arrival at Narita, Mrs. Noriko Etou-Higuchi of JAL endorsed their applications for shore pass and directed them to the Japanese immigration official. A shore pass is required of a foreigner aboard a vessel or aircraft who desires to stay in the neighborhood of the port of call for not more than 72 hours.
During their interview, the Japanese immigration official noted that Michael appeared shorter than his height as indicated in his passport. Because of this inconsistency, respondents were denied shore pass entries and were brought instead to the Narita Airport Rest House where they were billeted overnight.
Mr. Atsushi Takemoto of the International Service Center (ISC), the agency tasked by Japan’s Immigration Department to handle passengers who were denied shore pass entries, brought respondents to the Narita Airport Rest House where they stayed overnight until their departure the following day for Los Angeles. Respondents were charged US$400.00 each for their accommodation, security service and meals.
On December 12, 1992, respondents filed a complaint for damages claiming that JAL did not fully apprise them of their travel requirements and that they were rudely and forcibly detained at Narita Airport.
Issue: Whether or not JAL is liable of breach of contract of carriage.
Side Issues:
· Whether or not JAL is liable for moral, exemplary damages,
· Whether or not the plaintiff is liable for attorney’s fee and cost of suit incurred (JAL counterclaim)
Ruling:
The court finds that JAL did not breach its contract of carriage with respondents. It may be true that JAL has the duty to inspect whether its passengers have the necessary travel documents, however, such duty does not extend to checking the veracity of every entry in these documents. JAL could not vouch for the authenticity of a passport and the correctness of the entries therein. The power to admit or not an alien into the country is a sovereign act which cannot be interfered with even by JAL. This is not within the ambit of the contract of carriage entered into by JAL and herein respondents. As such, JAL should not be faulted for the denial of respondents’ shore pass applications.
In the Respondents claim that petitioner breached its contract of carriage when it failed to explain to the immigration authorities that they had overnight vouchers at the Hotel Nikko Narita. They imputed that JAL did not exhaust all means to prevent the denial of their shore pass entry applications. JAL or any of its representatives have no authority to interfere with or influence the immigration authorities. The most that could be expected of JAL is to endorse respondents’ applications, which Mrs. Higuchi did immediately upon their arrival in Narita.
Moral damages may be recovered in cases where one willfully causes injury to property, or in cases of breach of contract where the other party acts fraudulently or in bad faith. Exemplary damages are imposed by way of example or correction for the public good, when the party to a contract acts in wanton, fraudulent, oppressive or malevolent manner. Attorney’s fees are allowed when exemplary damages are awarded and when the party to a suit is compelled to incur expenses to protect his interest.[17] There being no breach of contract nor proof that JAL acted in wanton, fraudulent or malevolent manner, there is no basis for the award of any form of damages.
Neither should JAL be held liable to reimburse respondents the amount of US$800.00. It has been sufficiently proven that the amount pertained to ISC, an agency separate and distinct from JAL, in payment for the accommodations provided to respondents. The payments did not in any manner accrue to the benefit of JAL.
However, we find that the Court of Appeals correctly dismissed JAL’s counterclaim for litigation expenses, exemplary damages and attorney’s fees. The action was filed by respondents in utmost good faith and not manifestly frivolous. Respondents honestly believed that JAL breached its contract. A person’s right to litigate should not be penalized by holding him liable for damages. This is especially true when the filing of the case is to enforce what he believes to be his rightful claim against another although found to be erroneous.[
WHEREFORE, in view of the foregoing, the instant petition is PARTLY GRANTED. The October 9, 2002 decision of the Court of Appeals and its January 12, 2004 resolution in CA-G.R. CV No. 57440, are REVERSED and SET ASIDE insofar as the finding of breach on the part of petitioner and the award of damages, attorney’s fees and costs of the suit in favor of respondents is concerned. Accordingly, there being no breach of contract on the part of petitioner, the award of actual, moral and exemplary damages, as well as attorney’s fees and costs of the suit in favor of respondents Michael and Jeanette Asuncion, is DELETED for lack of basis. However, the dismissal for lack of merit of petitioner’s counterclaim for litigation expenses, exemplary damages and attorney’s fees, is SUSTAINED. No pronouncement as to costs.
Civil Procedure assignment (November 26,2007)
1. What are the remedies of the plaintiff if the motion to dismiss is granted/ denied?
An order granting a motion to dismiss is final and appeal able. (Rule 16 Sec. 3 Rules of court)
General Rule:
An order denying a motion to dismiss is interlocutory and hence, not appealable until final judgment or order is rendered. The ordinary procedure to be followed in such a case is to file an answer and interpose, as a defense or defenses, the objection or objections raised in the motion to dismiss, proceed to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment.
2. Effects of the dismissal of the complaint?
Shall bar the refilling of the same action or claim in the following instances: (Rule 16, Sec. 3, Rules of Court
a. when the cause if action is barred by a prior judgment or by the statute of limitations;
b. when the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or otherwise extinguished;
c. when the claim on which the action is founded in unenforceable under the provisions on the statue of frauds;
d. When the judgment in the other pending actions will constitute res judicata.
3. Requisites before a party may be declared in default:
If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (Rule 9, Sec. 3, Rules of Court)
4. Remedies of a defending party declared in default
Relief from order of default. - A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (Rule 9, Sec. 3 (b), Rules of Court).
5. Effects of a declaration/order of default.
Effect of order of default. - A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial (Rule 9, Sec. 3 (a), Rules of Court)
6. Cases where a declaration/order of default cannot be made?
Where no defaults allowed. - If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (Rule 19,Sec. 3 (e), Rules of Court)
7. What are the modes of extraterritorial service?
When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (Rule 14, Sec. 15 , Rules of Court)
8. How is substituted service made?
If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected:
(a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or
(b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (Rule 14, Sec. 7 Rules of Court).
9. What are the 3 options available to defendant upon receipt of complaint?
(a) File Motion to Dismiss
(b) File a Motion for Bill of Particulars
(c) File an Answer (may be with counter-claim, third-party claim, etc.)
An order granting a motion to dismiss is final and appeal able. (Rule 16 Sec. 3 Rules of court)
General Rule:
An order denying a motion to dismiss is interlocutory and hence, not appealable until final judgment or order is rendered. The ordinary procedure to be followed in such a case is to file an answer and interpose, as a defense or defenses, the objection or objections raised in the motion to dismiss, proceed to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment.
2. Effects of the dismissal of the complaint?
Shall bar the refilling of the same action or claim in the following instances: (Rule 16, Sec. 3, Rules of Court
a. when the cause if action is barred by a prior judgment or by the statute of limitations;
b. when the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned or otherwise extinguished;
c. when the claim on which the action is founded in unenforceable under the provisions on the statue of frauds;
d. When the judgment in the other pending actions will constitute res judicata.
3. Requisites before a party may be declared in default:
If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (Rule 9, Sec. 3, Rules of Court)
4. Remedies of a defending party declared in default
Relief from order of default. - A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (Rule 9, Sec. 3 (b), Rules of Court).
5. Effects of a declaration/order of default.
Effect of order of default. - A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial (Rule 9, Sec. 3 (a), Rules of Court)
6. Cases where a declaration/order of default cannot be made?
Where no defaults allowed. - If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (Rule 19,Sec. 3 (e), Rules of Court)
7. What are the modes of extraterritorial service?
When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. (Rule 14, Sec. 15 , Rules of Court)
8. How is substituted service made?
If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected:
(a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or
(b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. (Rule 14, Sec. 7 Rules of Court).
9. What are the 3 options available to defendant upon receipt of complaint?
(a) File Motion to Dismiss
(b) File a Motion for Bill of Particulars
(c) File an Answer (may be with counter-claim, third-party claim, etc.)
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