Title | UST Golden Notes in Persons and Family Relations 2011 |
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Author | E. Caliwan, J.D. |
Pages | 88 |
File Size | 7.2 MB |
File Type | |
Total Downloads | 123 |
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EFFECT AND APPLICATION OF LAWS I. EFFECT AND APPLICATION OF LAWS Inasmuch as the law has no specific date for its effectivity and neither can it become effective A. WHEN LAW TAKES EFFECT upon its approval notwithstanding its express statement, following Article 2 of t...
EFFECT AND APPLICATION OF LAWS I. EFFECT AND APPLICATION OF LAWS A. WHEN LAW TAKES EFFECT Q: When did the Civil Code take effect? A: August 30, 1950 Q: When do laws take effect? A: Laws take effect: GR: After 15 days following the completion of its publication in the official gazette or newspaper of general circulation. Note: “after 15 days”– Law shall take effect on the 16th day from date of publication
XPN: unless otherwise provided by the law. Q: What is meant by the phrase “unless it is otherwise provided” in the provision on effectivity of laws? A: 15‐day period may be lengthened or shortened by Congress. The exception refers to the 15‐day period, not the requirement of publication, publication being mandated by due process. Note: No one shall be charged with notice of the statutes provision until the publication is completed and the 15 day period has expired. The law produces no effect until and unless it completes the requirement of publication.
Q: When will the law take effect if it is made to take effect “immediately”? A: It shall take effect immediately after publication. The 15 day period after publication is dispensed with but publication is not. Q: When will the law take effect if it states that it shall be “effective upon approval”? A: The clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislator may make the law effective immediately upon approval, or on any other date without its previous publication. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen‐day period shall be shortened or extended.
Inasmuch as the law has no specific date for its effectivity and neither can it become effective upon its approval notwithstanding its express statement, following Article 2 of the Civil Code and the doctrine enunciated in Tanada, supra, it took effect fifteen days after its publication. (Umali v Estanislao, G.R. No. 104037, May 29, 1992, [citing Tanada v. Tuvera, G.R. No. L‐63915, Dec. 29, 1986]) RULES ON PUBLICATION Q: Are all laws required to be published? A: GR: Yes. Publication is indispensable. XPN: 1. Municipal Ordinances (governed by the Local Government Code not the Civil Code) 2. Rules and regulations that are internal in nature. 3. Letters of Instruction issued by administrative supervisors on internal rules and guidelines. 4. Interpretative regulations regulating only the personnel of administrative agency. XPN to the XPN: Administrative rules and regulations that require publication: 1. The purpose of which is to implement or enforce existing laws pursuant to a valid delegation; 2. Penal in Nature; 3. It diminishes existing rights of certain individuals Q: Honasan questions the authority and jurisdiction of the DOJ panel of prosecutors to conduct a preliminary investigation and to eventually file charges against him, claiming that since he is a senator with a salary grade of 31, it is the Office of the Ombudsman, not the DOJ, which has authority and jurisdiction to conduct the preliminary investigation. DOJ claims that it has concurrent jurisdiction, invoking an OMB‐ DOJ Joint Circular which outlines the authority and responsibilities among prosecutors of the DOJ and the Office of the Ombudsman in the conduct of preliminary investigations. Honasan counters that said circular is ineffective as it was never published. Is OMB‐DOJ Circular No. 95‐001 ineffective because it was not published?
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA Facultad de Derecho Civil V ICE C HAIR FOR A DMINISTRATION AND F INANCE : J EANELLE C. L EE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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UST GOLDEN NOTES 2011 A: No. OMB‐DOJ Circular No. 95‐001 is merely an internal circular between the two offices which outlines the authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of preliminary investigations. It does not contain any penal provision nor prescribe a mandatory act or prohibit any under pain of penalty. Further, it does not regulate the conduct of persons or the public, in general. As such therefore, it need not be published. (Honasan, II v. The Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747, Jun. 15, 2004) Q: What is the effect of non‐publication of the law? A: The law shall not be effective. It is a violation of due process. Q: What must be published in order to comply with the publication requirement? A: Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws…the mere mention of the number of the presidential decree, the title of such decree, its whereabouts, the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial compliance. (Tañada v. Tuvera, G.R. No. L‐63915, Dec. 29, 1986) Q: Judicial decisions form part of the law or the legal system of the land. Is compliance with the publication requirement for effectivity of laws necessary for judicial decisions to be effective? A: No. The term “laws” do not include decisions of the Supreme Court because lawyers in the active law practice must keep abreast of decisions, particularly where issues have been clarified, consistently reiterated and published in advance reports and the SCRA (Roy v. CA, G.R. No. 80718, Jan. 29, 1988) Q: Publication must be made in a newspaper of general circulation or in the Official Gazette.When is a newspaper of general circulation? A: 1. It is published within the court’s jurisdiction 2. Published for disseminating local news and general information.
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It has a bona fide subscription list of paying subscribers Not merely caters to a specific class of persons. It is published at regular intervals.
B. IGNORANCE OF THE LAW Q: Differentiate mistake of law from mistake of fact. A: MISTAKE OF FACT Want of knowledge of some fact or facts constituting or relating to the subject matter in hand. When some facts which really exist are unknown or some fact is supposed to exist which really does not exist. Good faith is an excuse
MISTAKE OF LAW Want of knowledge or acquaintance with the laws of the land insofar as they apply to the act, relation, duty, or matter under consideration. Occurs when a person having full knowledge of the facts come to an erroneous conclusion as to its legal effects Not excusable, even if in good faith
Note: Ignorance of a foreign law is a mistake of fact
Q: Tina charged Eduardo with bigamy. He invokes as defense good faith and that he did not know that there was still a need for a prior declaration of nullity of marriage before he can contract a subsequent marriage. Is his defense tenable? A: No. Eduardo is presumed to have acted with malice or evil intent when he married Tina. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem excusat. (Manuel v. People, G.R. No. 165842, Nov. 29, 2005)
Q: Eduardo was married to Ruby. He then met Tina and proposed marriage, assuring her that he was single. They got married and lived together. Tina, upon learning that Eduardo had been previously married, charged Eduardo for bigamy for which he was convicted. Eduardo testified that he declared he was “single” because he believed in good faith that his first wife was already dead, having
CIVIL LAW TEAM: ADVISER: ATTY. ELMER T. RABUYA; SUBJECT HEAD: ALFREDO B. DIMAFELIX II; ASST. SUBJECT HEADS: KAREN FELIZ G. SUPNAD, LAMBERTO L. SANTOS III; MEMBERS: PAUL ELBERT E. AMON, ALSTON ANARNA, OZAN J. FULLEROS, CECILIO M. JIMENO, JR., ISMAEL SARANGAYA, JR.; CONTRIBUTORS: LOISE RAE G. NAVAL, MONICA JUCOM
EFFECT AND APPLICATION OF LAWS not heard from her for 20 years, and that he did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina. Is Eduardo liable for the crime of bigamy? A: Yes. Eduardo is presumed to have acted with malice or evil intent when he married Tina. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. It was the burden of the Eduardo to prove his defense that when he married the Tina, he was of the well‐grounded belief that his first wife was already dead. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also constitutes proof that Eduardo acted in good faith, and would negate criminal intent on his part when he married the private complainant and, as a consequence, he could not be held guilty of bigamy in such case. Eduardo, however, failed to discharge his burden. (Manuel v. People, G.R. No. 165842, Nov. 29, 2005) Q: What is the rule as regards difficult questions of law? A: In specific instances provided by law, mistake as to difficult questions of law has been given the same effect as a mistake of fact. E.g. Mistake upon a doubtful or difficult question of law may be the basis of good faith. [Art. 526 (3)] C. RETROACTIVITY OF LAWS Q: Do laws have retroactive effect? A: GR: Laws shall have no retroactive effect. XPN: TIN CREEP 1. Tax laws 2. Interpretative statutes 3. Laws creating New Rights 4. Curative Statutes 5. Remedial/procedural 6. Emergency Laws 7. When Expressly provided
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Penal laws favorable to the accused provided, accused is not a habitual criminal
XPN to the XPN: constitutional limits, where retroactivity would result to: IE 1. Impairment of obligation of contracts 2. Ex Post Facto Laws Note: In case of doubt: laws apply prospectively, not retroactively.
Q: May judicial decisions be given retroactive effect? A: No. When a doctrine of the Supreme Court is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereon. (Rabuya, p. 10) D. MANDATORY OR PROHIBITORY LAWS Q: What is the status of acts which are contrary to law? A: GR: Acts that are contrary to the provisions of mandatory and proibitory law are void. (Art. 5, NCC) XPN: Where the law: 1. Makes the act valid but punishes the violator, e.g. Marriage solemnized by a person not authorized to do so; 2. Itself authorizes its validity; 3. Makes the act merely voidable i.e. valid until annulled; 4. Declares the nullity of an act but recognizes its effects as legally existing, e.g. Child born after the annulment of marriage is considered legitimate. E. WAIVER OF RIGHTS Q: What is a right? A: It is a legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act (Pineda, Persons, p. 23)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA Facultad de Derecho Civil V ICE C HAIR FOR A DMINISTRATION AND F INANCE : J EANELLE C. L EE VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
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UST GOLDEN NOTES 2011 Q: What are the kinds of rights? Distinguish. A: 1. Natural Rights – Those which grow out of the nature of man and depend upon personality. E.g. right to life, liberty, privacy, and good reputation. 2. Political Rights – Consist in the power to participate, directly or indirectly, in the establishment or administration of government. E.g. right of suffrage, right to hold public office, right of petition. 3. Civil Rights– Those that pertain to a person by virtue of his citizenship in a state or community. E.g. property rights, marriage, equal protection of laws, freedom of contract, trial by jury. (Pineda, Persons, p. 24) a. Rights of personalty or human rights; b. Family rights; and c. Patrimonial rights: i. Real rights ii. Personal rights. (Rabuya Persons, p. 19) Q: May rights be waived? A: GR: Yes. XPN: 1. If waiver is: a. Contrary to law, public order, public policy, morals or good customs. b. Prejudicial to a third person with a right recognized by law. 2. If the right is: a. A natural right, such as right to life. b. Inchoate, such as future inheritance. Q: What are the elements of waiver of rights? A: EKI 1. Must be an Existing right
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The one waiving such right must have Knowledge of evidence thereof Intention to relinquish said right. (Valderamma v. Macalde, G.R. No.165005, Sept. 16,2005)
Q: What are the requisites of a valid waiver? A: AFCUNF 1. Waiving party must Actually have the right he is renouncing. 2. He must have Full capacity to make the waiver 3. Waiver must be Clear and Unequivocal 4. Waiver must Not be contrary to law, public order, public morals, etc. 5. When Formalities are required, they must be complied with. F. REPEAL OF LAWS Q: What are the kinds of repeal? Distinguish. A: Repeal may be express or implied. It is express if the law expressly provides for such. On the other hand, it is implied when the provisions of the subsequent law are incompatible or inconsistent with those of the previous law. Q: What are the requisites of implied repeal? A: 1. Laws cover the same subject matter 2. Latter is repugnant to the earlier Q: What is the rule on repeal of repealing laws? A: It depends upon how the old law is repealed by the repealing law: 1. If the old law is expressly repealed and repealing law is repealed: the Old law is not revived 2. If the old law is impliedly repealed and repealing law is repealed: the Old law is revived. Note: Unless the law otherwise provides, in both cases.
G. JUDICIAL DECISIONS Q: Are judicial decisions considered laws in this jurisdiction? A: No. Decisions of the Supreme Court, although in themselves not laws, are nevertheless evidence of what the laws mean.
CIVIL LAW TEAM: ADVISER: ATTY. ELMER T. RABUYA; SUBJECT HEAD: ALFREDO B. DIMAFELIX II; ASST. SUBJECT HEADS: KAREN FELIZ G. SUPNAD, LAMBERTO L. SANTOS III; MEMBERS: PAUL ELBERT E. AMON, ALSTON ANARNA, OZAN J. FULLEROS, CECILIO M. JIMENO, JR., ISMAEL SARANGAYA, JR.; CONTRIBUTORS: LOISE RAE G. NAVAL, MONICA JUCOM
EFFECT AND APPLICATION OF LAWS Q: When do judicial decisions form part of the law of the land? A: GR: As of the date of the enactment of said law. This is so because the Supreme Court’s interpretation merely establishes the contemporaneous legislative intent that the construed law purports to carry into effect. XPN: When a doctrine is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not prejudice parties who relied on the old doctrine. Q: Explain the concept of stare decisis. A: It is adherence to judicial precedents. Once a question of law has been examined and decided, it should be deemed settled and closed to further argument. Note: This doctrine however is not inflexible, so that when in the light of changing conditions, a rule has ceased to be beneficial to the society, courts may depart from it. Courts are required to follow the rule established in earlier decisions of the Supreme Court.
H. DUTY TO RENDER JUDGMENT Q: Can the Court decline to render judgment by reason of silence of the law? A: No.No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law. Note: However, this duty is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.
I.PRESUMPTION AND APPLICABILITY OF CUSTOM Q: What is the presumption in case there is doubt in the interpretation or application of laws? A: That the lawmaking body intended right and justice to prevail (Art. 10). Q: What are customs?
A: These are rules of conduct, legally binding and obligatory, formed by repetition of acts uniformly observed as a social rule. Q: How are customs proved? A: GR: Must be proved as a fact, according to the rules on evidence. XPN: Courts may take judicial notice of a custom if there is already a decision rendered by the same court recognizing the custom. Q: What are the requisites to make a custom an obligatory rule? A: P‐TOP 1. Pluralityor Repetition of acts 2. Practiced for a long period of Time 3. The community accepts it as a proper way of acting, such that it is considered Obligatory upon all. 4. Practiced by the great mass of the social group. Q: May courts apply customs in deciding cases? A: 1. In civil cases, customs may be applied by the courts in cases where the applicable law is: SOI a. Silent b. Obscure c. Insufficient Provided said customs are not contrary to law, public morals, etc. 2. In criminal cases, customs cannot be applied because nullum crimen nulla poena sine lege (There is neither crime nor punishment, without a law). J. LEGAL PERIODSS Q: How do you compute the periods? A: Year – 365 days Month – 30 days Day – 24 hours Nighttime – from sunset to sunrise Note: Month: if designated by its name: compute by the number of days which it respectively has. Week: 7 successive days regardless of which day it would start
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F S A N T O T O M A S VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA Facultad de Derecho Civil V ICE C HAIR FOR A DMINISTRATION AND F INANCE : J EANELLE C. L EE VICE C...