Philippine e-Legal Forum

Republic Act No. 8353, also known as the "Anti-Rape Law of 1997", reclasifies rape to a crime against persons.  It amended the Revised Penal Code, thus:

Article 266-A. Rape: When and How Committed. - Rape is Committed-

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority;
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present;

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into other person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

Article 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.

Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be reclusion perpetua to death.

When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, homicide is committed, the penalty shall be death.

The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.
2) When the victim is under the custody of the police or military authorities or any law enforcement of penal institution.
3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity.
4) When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime.
(5) When the victim is a child below seven (7) years old.
(6) When the offender knows that he is afflicted with Human Immune-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim.
(7) When committed by any member of the Armed Forces of the Philippines or paramilitary units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime.
(8) When by reason or on the occasion of the rape, the victim suffered permanent physical mutilation or disability.
(9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime.
(10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime.

Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.

Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be prision mayor to reclusion temporal.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be reclusion temporal.

When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion temporal to reclusion perpetua.

When by reason or on the occasion of the rape, homicide is committed, the penalty shall be reclusion perpetua.

Reclusion temporal shall also be imposed if the rape is committed by any of the ten aggravating/qualifying circumstances mentioned in this article.

Article 266-C. Effect of Pardon - The subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed.

In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty. Provided, That the crime shall be extinguish or the penalty shall not be abated if the marriage is void ab initio.

Article 266-D. Presumptions. - Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-A.

In a previous case arising from the 2003 "Oakwood mutiny", Pres. Arroyo issued Proclamation 427, declaring a "state of rebellion" and calling out the Armed Forces of the Philippines (AFP) to quell it.  Proclamation 427 pertinently reads:

WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the President, as the Commander-in-Chief of the Armed Forces of the Philippines, may call out such Armed Forces to suppress the rebellion;

The basis of said Proclamation is Section 18, Article VII of the Constitution, which pertinently reads:

Sec. 18.  The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.  In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.  xxx (Underscoring supplied)

These are the Commander-in-Chief powers of the President, which provides a "sequence" of "graduated powers".  From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law.  In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power.  However, these conditions are not required in the exercise of the calling out power.  The only criterion is that "whenever it becomes necessary," the President may call the armed forces "to prevent or suppress lawless violence, invasion or rebellion."

What’s the significance of the declaration of a "state of rebellion"?  The Supreme Court said:

The foregoing discussion notwithstanding, in calling out the armed forces, a declaration of a state of rebellion is an utter superfluity. At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. Perhaps the declaration may wreak emotional effects upon the perceived enemies of the State, even on the entire nation.  But this Court’s mandate is to probe only into the legal consequences of the declaration.  This Court finds that such a declaration is devoid of any legal significance.  For all legal intents, the declaration is deemed not written.

Corporations are no longer allowed to use “Metro Manila” as a principal place of business in the Articles of Incorporation (”AOI”), as provided under Memorandum Circular No. 3 (26 January 2006) of the Securities and Exchange Commission (SEC).

Prior to this Circular, corporations located within Metro Manila usually indicate “Metro Manila”, without specifying the city or municipality where they are actually located, as their corporate address or principal place of business. This is intended to obviate the need of amending the AOI if the corporation subsequently transfers its place of business.

From a litigation point of view, the more obvious significance is the determination of venue in filing of cases. Like natural persons or individuals, a corporation also has a residence, which is the address specified in its AOI duly filed with the SEC. A case may be filed, for or against the corporation, at a court where the corporation “resides”.

With the increased media coverage this past months regarding businesses undergoing corporate rehabilitation (e.g., College Assurance Plan [CAP] and Pacific Plans, Inc. [PPI]), even the general pubic has started asking questions about corporate rehabilitation, a legal option that is available to distressed corporations.

Philippine corporate rehabilitation, which is similar to Chapter 11 reorganization in the United States of America, is distinct and separate from insolvency. Rehabilitation is intended to enable a distressed corporation to gain a new lease on life, so to speak, and to continue its business as a going concern. On the other hand, insolvency is intended to close and liquidate an insolvent corporation.

Jurisdiction over petitions for corporate rehabilitation was previously lodged with the Securities and Exchange Commission (SEC), pursuant to Presidential Decree (”P.D.“) No. 902-A, as amended by P.D. 1758 and P.D. 1799. While Republic Act No. 8799 (otherwise known as the “Securities Regulations Code of 2000“) transferred this jurisdiction to regular courts, P.D. 902-A remains to be the governing law on corporate rehabilitations. The procedure is set forth in the Interim Rules of Procedure on Corporate Rehabilitation (”Interim Rules).

Thrust of rehabilation. - Rehabilitation contemplates a continuance of corporate life and activities in an effort to restore and reinstate the corporation to its former position of successful operation and solvency.

Issuance of Stay Order. - If the court is convinced that the petition is sufficient in form and substance, it will issue a Stay Order, which shall include, among other things, the appointment of a Receiver and the suspension of ALL pending claims against the corporation under rehabilitation.

Pari passu treatment of creditors. - All assets of a corporation under rehabilitation receivership are held in trust for the equal benefit of all creditors to preclude one from obtaining an advantage or preference over another by the expediency of attachment, execution or otherwise. All the creditors ought to stand on equal footing, with due regard to the rights of secured creditors.

Corporate rehabilitation is theoretically expeditious, but actual practice shows it could be otherwise. We had an ocassion to write the Supreme Court about these problems and, hopefully, the Supreme Court’s referral to the rules committee will bear fruit in the immediate future.

The concept of networking, whether in the virtual or real world, is basically the same. The purposes may be different (e.g., professional, personal, business, dating), but the general concept is the same - to link people/entities for optimum utilization of resources. In the real world (and in this side of the world), we have been exposed to the more common kind of business networking: the multi-level marketing (MLM).

This is a very effective business strategy, which is the reason why many companies utilize it. It is important to point out that MLM, per se, is not illegal. However, due to the increase in number of fraudulent transactions using variants of the MLM strategy, the Securities and Exchange Commission (SEC) issued guidelines defining and governing it.

The more common among the illegal variants is the “pyramid”, hence, the “pyramiding scam”. In “pyramiding”, as characterized by the SEC, the promoters (who are on top) entice others down the line to bring in others in an ever-widening triangle, so that the top feeds from those at the base. It is only a matter of time before new “recruits” will run out, and the whole triangle collapses. Administrative and criminal cases have been filed against certain companies, as well as their responsible officers. If cases were filed, it obviously means people (I know many) already parted with their hard-earned money.

Hence, before it is too late, a potential investor (whether someone who wants to set up an MLM company or one who wants to invest in it) must familiarize himself with the guidelines, as well as the pitfalls, of MLM (the guidelines will be another subject).

Anyway, here are some of the suggestions from the SEC (also sourced from the US Federal Trade Commission):

1. Avoid any plan that includes commissions for recruiting additional investors.

2. Be cautious of schemes that claim you will make more money through the growth of your “downlines”, rather than sales of products you make.

3. Beware of plans that require new investors to purchase expensive inventory. (The usual selling approach is this: if you are not using our product, how can you convince your buyers?)

4. Check with the local business bureau. (This is not really fool-proof, because those “pyramiding” companies ave regular incorporation papers and permits).

As for me, I always go by the time-tested cliche: If it’s too good to be true, it usually is.

Some people still have this misplaced confidence in the deterrent effect of Batas Pambansa (”B.P.“) Blg. 22, also known as the Bouncing Checks Law. Here are some things a layman should know:

1. The issuer is not automatically liable simply because the check “bounced”. A check generally “bounces” when dishonored upon presentment (reasons include, account closed, drawn against insufficient funds or DAIF). However, it is indispensable that the issuer must be notified in WRITING about the fact of dishonor, and he has 5 days from receipt to pay the value of the check or make arrangements for the payment thereof.

2. Filing fees are generally not required for criminal cases. For B.P. 22 cases, however, the complainant is required to pay the filing fees (based on the value of the check/s and the damages claimed, just like in civil cases) upon filing of the case in court.

3. One major deterrent against bouncing checks is the threat of a warrant of arrest being issued once the criminal case is filed in court. This is no longer true. No warrant of arrest is issued unless the accused fails to appear when required by the court.

4. Even if a criminal case under B.P. 22 is filed, the court can’t issue a hold-departure order (HDO). All violations of the Bouncing Checks Law, regardless of the amount involved, are filed only with the municipal/metropolitan trial courts. These courts cannot issue an HDO.

5. Courts have the discretion of imposing: (a) imprisonment only; (b) fine only; OR (c) both. It is entirely possible that only a fine, without imprisonment, is imposed.

On the other hand, just like in any aspects of business, high vigilance is required because check frauds are prevalent. In my experience working with banks, I have seen really clever forgeries and fraudulent schemes. Some cases are difficult to detect, yet some could have been prevented by simple vigilance.

1. Never accept a second-endorsement check. Mr. A issues a check to pay Mr. B (payee), and Mr. B uses the same check to pay Mr. C. That is a second-endorsement check. It’s so risky that banks, as a rule, do not accept this kind of checks.

2. Be careful with crossed checks (with diagonal lines in one corner). It’s good only for the one named as the payee and it can only be deposited by said payee with a bank where he has an account.

3. Always reconcile your record at the end of each month. Banks send statements; if they do not, ask them. Many fraudulent activities can be prevented or minimized by simple bookkeeping. This is really basic, yet the Supreme Court had to repeat this reminder in many cases.