Government Presidential Form vs. Parliamentary Form

POLITICAL LAW QUESTION 2006

1. a) What is the principal identifying feature of a presidential form of government? Explain.

SUGGESTED ANSWER:

The principal identifying feature of a presidential form of government is embodied in the separation of powers doctrine. Each department of government exercises powers granted to it by the Constitution and may not control, interfere with or encroach upon the acts done within the constitutional competence of the others. However, the Constitution also gives each department certain powers by which it may definitely restrain the others from improvident action, thereby maintaining a system of checks and balances among them, thus, preserving the will of the sovereign expressed in the Constitution.

b) What are the essential characteristics of a parliamentary form of government?

SUGGESTED ANSWER:

The essential characteristics of a parliamentary form of government are: the fusion of the legislative and executive branches in parliament; the prime minister, who is the head of government, and the members of the cabinet, are chosen from among the members of parliament and as such are accountable to the latter; and the prime minister may be removed from office by a vote of loss of confidence of parliament. There may be a head of state who may or may not be elected.

Banks; Diligence Required

MERCANTILE LAW QUESTION 1992

Placido, a bank depositor, left his checkbook on his desk at his house. Unknown to him, a visitor at the time, noticing the same, took a check therefrom, filled it up in the amount of P3,000.00 and succeeded in encashing the check on the same day. Placido’s account was thereby debited in the same amount.

Discovering the erroneous debit, Placido demanded that the bank credit him with a like amount. The bank refused on the ground that Placido was negligent in leaving his checkbook on his desk so that he could not put up the defense of forgery or want of authority under the NIL.

The Facts disclose that even to the naked eye, there were marked differences between Placido’s signature and the one in the check forged by the visitor. As between Placido and the bank, who should bear the loss? Explain.

SUGGESTED ANSWER:

The bank should bear the loss. A drawee bank must exercise the highest diligence in safeguarding the accounts of its client-depositors. The bank is also charged with genuineness of the signatures of its current account holders. But what can be more striking is that there were marked differences between Placido’s signature and the one in the check forged by the visitor. Certainly, Placido was not negligent in leaving his checkbook in his own desk (PNB v Quimpo 158 SCRA 582)

Banks; Conservator vs. Receiver

MERCANTILE LAW QUESTION 2006

Distinguish between the role of a conservator and that of a receiver of a bank.

SUGGESTED ANSWER:

The Conservator is appointed for a period not exceeding one (1) year, to take charge of the assets, liabilities, and the management of a bank or a quasi-bank in a state of continuing inability, or unwillingness to maintain a condition of liquidity deemed adequate to protect the interest of depositors and creditors. On the other hand, the Receiver is appointed to manage a bank or quasi-bank that is unable to pay its liabilities in the ordinary course of business, or has insufficient realizable assets to meet its liabilities, or cannot continue in business without probable losses to its depositors or creditors; or has willfully violated a final cease and desist order, involving acts or transactions amounting to fraud or a dissipation of the assets of the institution. The main purpose of the Receiver is to recommend the rehabilitation or liquidation of the bank

Banks; Classifications of Banks

MERCANTILE LAW QUESTION 2002

There are six (6) classes of banks identified in the General Banking Law of 2000. Name at least four (4) of them and explain the distinguishing characteristic or function of each one.

SUGGESTED ANSWER:

Any four (4) of the following six (6) classes of banks identified in the General Banking Law of 2002, to wit:

1              Universal Banks – These are those which used to be called expanded commercial banks and the operations of which are now primarily governed by the General Banking Law of 2002. They can exercise the powers of an investment house and invest in non-allied enterprises. They have the highest capitalization requirement.

2              Commercial Banks – These are ordinary or regular commercial banks, as distinguished from a universal bank. They have a lower capitalization requirement than universal banks and cannot exercise the powers of an investment house and invest in non-allied enterprises.

3              Thrift Banks – These banks (such as savings and mortgage banks, stock savings and loan associations, and private development banks) may exercise most of the powers and functions of a commercial bank except that they cannot, among others, open current or check accounts without prior Monetary Board approval, and they cannot issue letters of credit. Their operations are governed primarily by the Thrift Banks Act of 1995 (RA 7906).

4              Rural Banks – these are those which are organized primarily to extend loans and other credit facilities to farmers, fishermen or farm families, as well as cooperatives, merchants, and private and public employees and whose operations are primarily governed by the Rural Banks Act of 1992 (RA 7353).

5              Cooperative Banks – these are those which are organized primarily to provide financial and credit services to cooperatives and whose operations are primarily governed by the Cooperative Code of the Philippines (RA 6938).

6              Islamic Banks – these are those which are organized primarily to provide financial and credit services in a manner or transaction consistent with the Islamic Shari’ah. At present, only the Al Amanah Islamic Investment Bank of the Philippines has been organized as an Islamic Bank

Banks: Secrecy of Bank Deposits; Garnishment

MERCANTILE LAW QUESTION 2004

CDC maintained a savings account with CBank. On orders of the MM Regional Trial Court, the Sheriff garnished P50,000 of his account, to satisfy the judgment in favor of his creditor, MO. CDC complained that the garnishment violated the Law on the Secrecy of Bank Deposits because the existence of his savings account was disclosed to the public. Is CDC's complaint meritorious or not? Reason briefly.

SUGGESTED ANSWER:

No. CDC's complaint is not meritorious. It was held in China Banking Corporation v. Ortega, 49 SCRA 355 (1973) that peso deposits may be garnished and the depositary bank can comply with the order of garnishment without violating the Law on the Secrecy of Bank Deposits. Execution is the goal of litigation as it is its fruit. Garnishment is part of the execution process. Upon service of the notice of garnishment on the bank where the defendant deposited funds, such funds become part of the subject matter of litigation. 

Banks: Collateral Security

MERCANTILE LAW QUESTION 2002

Andrew is engaged in the business of building low-cost housing units under contracts with real estate developers. He applied for a loan of P3 Million from Ready Credit Bank (the Bank), which required Andrew to provide collateral security for it. Andrew offered to assign to the Bank his receivables amounting to P4 million from Home Builders Development Corporation (the Obligor). The Bank accepted the offer. Accordingly, Andrew obtained the loan and he executed a promissory note undertaking to pay the loan in full in one lump sum on September 1, 2002, together with interest thereon at the rate of 20% per annum. At the same time, Andrew executed a Deed of Assignment in favor of the Bank assigning to the Bank his receivables from the Obligor. The deed of assignment read:

 “I, Andrew Lee, hereby assign, transfer and convey, absolutely and unconditionally, to Ready Credit Bank (hereinafter called the Bank) all of my right, title and interest in and to my accounts receivable from Home Builders Development Corporation (hereinafter called the Obligor) arising from delivery of housing units with a total contract price of P4,000,000.00, the description and contract value of which are attached hereto as Annex A (hereinafter called the Receivables).”

“In the event that I shall be unable to pay my outstanding indebtedness owned to the Bank, the Bank shall have the right, without any further formality or act on its part, to collect the Receivables from the Obligor and to apply the proceeds thereof toward payment of my said indebtedness.”

Andrew failed to pay the loan on its due date on September 1, 2002. When the Bank attempted to collect from the Obligor, the Bank discovered that the latter had already closed operations and liquidated all its assets. The Bank sued Andrew for collection, but Andrew moved to dismiss the complaint on the ground that the debt had already been paid by reason of his execution of the aforesaid Deed of Assignment which, being absolute and unconditional, was in essence a dacion en pago. The Bank opposed the motion, contending that the Deed of Assignment was only  a security for a loan. If you were the Judge, how would you resolve the motion to dismiss filed by Andrew? Explain 

SUGGESTED ANSWER:

(Since the question is outside the scope of the Bar Examination, it is recommended that the candidate be given full credit of 5%, whatever may be his answer, and he be given a bonus if he made an answer in the following manner:)

The motion to dismiss should be granted. The simple absolute and unconditional conveyance embodied in the deed of assignment would be operative, and the assignment would constitute essentially a mode of payment or dacion en pago. 

Conspiracy; Flight to Evade Apprehension

CRIMINAL LAW QUESTION 2003

A and B, both store janitors, planned to kill their employer C at midnight and take the money kept in the cash register. A and B together drew the sketch of the store, where they knew C would be sleeping, and planned the sequence of their attack. Shortly before midnight, A and B were ready to carry out the plan. When A was about to lift C's mosquito net to thrust his dagger, a police car with sirens blaring passed by. Scared, B ran out of the store and fled, while A went on to stab C to death, put the money in the bag, and ran outside to look for B. The latter was nowhere in sight. Unknown to him, B had already left the place. What was the participation and corresponding criminal liability of each, if any? Reasons.

SUGGESTED ANSWER:

There was an expressed conspiracy between A and B to kill C and take the latter's money. The planned killing and taking of the money appears to be intimately related as component crimes, hence a special complex crime of robbery with homicide. The conspiracy being expressed, not just implied, A and B are bound as co-conspirators after they have planned and agreed on the sequence of their attack even before they committed the crime. Therefore, the principle in law that when there is a conspiracy, the act of one is the act of all, already governs them. In fact, A and B were already in the store to carry out their criminal plan.

That B ran out of the store and fled upon hearing the sirens of the police car, is not spontaneous desistance but flight to evade apprehension. It would be different if B then tried to stop A from continuing with the commission of the crime; he did not. So the act of A in pursuing the commission of the crime which both he and B designed, planned, and commenced to commit, would also be the act of B because of their expressed conspiracy. Both are liable for the composite crime of robbery with homicide.

ALTERNATIVE ANSWER:

A shall incur full criminal liability for the crime of robbery with homicide, but B shall not incur criminal liability because he desisted. B's spontaneous desistance, made before all acts of execution are performed, is exculpatory. Conspiracy to rob and kill is not per se punishable.

The desistance need not be actuated by remorse or good motive. It is enough that the discontinuance comes from the person who has begun the commission of the crime but before all acts of execution are performed. A person who has began the commission of a crime but desisted, is absolved from criminal liability as a reward to one, who having set foot on the verge of crime, heeds the call of his conscience and returns to the path of righteousness 

Conspiracy; Complex Crime with Rape

CRIMINAL LAW QUESTION 1996

Jose, Domingo, Manolo, and Fernando, armed with bolos, at about one o'clock in the morning, robbed a house at a desolate place where Danilo, his wife, and three daughters were living. While the four were in the process of ransacking Danilo's house, Fernando, noticing that one of Danilo's daughters was trying to get away, ran after her and finally caught up with her in a thicket somewhat distant from the house. Fernando, before bringing back the daughter to the house, raped her first. Thereafter, the four carted away the belongings of Danilo and his family.

a) What crime did Jose, Domingo, Manolo and Fernando commit? Explain.

b) Suppose, after the robbery, the four took turns in raping the three daughters of Danilo inside the latter's house, but before they left, they killed the whole family to prevent identification, what crime did the four commit? Explain.

SUGGESTED ANSWER:

(a) Jose, Domingo, and Manolo committed Robbery, while Fernando committed complex crime of Robbery with Rape, Conspiracy can be inferred from the manner the offenders committed the robbery but the rape was committed by Fernando at a place "distant from the house" where the robbery was committed, not in the presence of the other conspirators. Hence, Fernando alone should answer for the rape, rendering him liable for the special complex crime. (People vs. Canturia et. al, G.R. 108490, 22 June 1995}

b) The crime would be Robbery with Homicide ... (implied: there is still conspiracy)

Conspiracy; Common Felonious Purpose

CRIMINAL LAW QUESTION 1994

At about 9:30 in the evening, while Dino and Raffy were walking along Padre Faura Street, Manila. Johnny hit them with a rock injuring Dino at the back. Raffy approached Dino, but suddenly, Bobby, Steve, Danny and Nonoy surrounded the duo. Then Bobby stabbed Dino. Steve, Danny, Nonoy and Johnny kept on hitting Dino and Raffy with rocks. As a result. Dino died, Bobby, Steve, Danny, Nonoy and Johnny were charged with homicide. Is there conspiracy in this case?

SUGGESTED ANSWER:

Yes, there is conspiracy among the offenders, as manifested by their concerted actions against the victims, demonstrating a common felonious purpose of assaulting the victims. The existence of the conspiracy can be inferred or deduced from the manner the offenders acted in commonly attacking Dino and Raffy with rocks, thereby demonstrating a unity of criminal design to inflict harm on their victims. 

Conspiracy; Co-Conspirator

CRIMINAL LAW QUESTION 1998

Juan and Arturo devised a plan to murder Joel. In a narrow alley near Joel's house, Juan will hide behind the big lamppost and shoot Joel when the latter passes through on his way to work. Arturo will come from the other end of the alley and simultaneously shoot Joel from behind. On the appointed day, Arturo was apprehended by the authorities before reaching the alley. When Juan shot Joel as planned, he was unaware that Arturo was arrested earlier. Discuss the criminal liability of Arturo, if any. 

SUGGESTED ANSWER:

Arturo, being one of the two who devised the plan to murder Joel, thereby becomes a co-principal by direct conspiracy. What is needed only is an overt act and both will incur criminal liability. Arturo's liability as a conspirator arose from his participation in jointly devising the criminal plan with Juan, to kill Jose. And it was pursuant to that conspiracy that Juan killed Joel. The conspiracy here is actual, not by inference only. The overt act was done pursuant to that conspiracy whereof Arturo is co-conspirator. There being a conspiracy, the act of one is the act of all. Arturo, therefore, should be liable as a co-conspirator but the penalty on him may be that of an accomplice only (People vs. Nierra, 96 SCRA 1; People us. Medrano, 114 SCRA 335) because he was not able to actually participate in the shooting of Joel, having been apprehended before reaching the place where the crime was committed. 

ALTERNATIVE ANSWER:

Arturo is not liable because he was not able to participate in the killing of Joel. Conspiracy itself is not punishable unless expressly provided by law and this is not true in the case of Murder. A co-conspirator must perform an overt act pursuant to the conspiracy