2010 BAR Questions.doc

7/27/2019 2010 BAR Questions.doc

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2010 BAR Questions

Legal Ethics

PART I

I

Prepare the following:

Verification and Certification against Forum Shopping. (5%)

Petition for Letters Rogatory. (5%)

II

Enumerate the instances when a Notary Public may authenticate documentswithout requiring the physical presence of the signatories. (2%)

III

Atty. Y, in his Motion for Reconsideration of the Decision rendered by theNational Labor Relations Commission (NLRC), alleged that there was connivanceof the NLRC Commissioners with Atty. X for monetary considerations in arrivingat the questioned Decision. He insulted the Commissioners for their ineptness inappreciating the facts as borne by the evidence presented. Atty. X files anadministrative complaint against Atty. Y for using abusive language.

Atty. Y posits that as lawyer for the down-trodden laborers, he is entitled toexpress his righteous anger against the Commissioners for having cheated them;that his allegations in the Motion for Reconsideration are absolutely privileged;and that proscription against the use of abusive language does not cover pleadingsfiled with the NLRC, as it is not a court, nor are any of its Commissioners Justices


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or Judges. Is Atty. Y administratively liable under the Code of ProfessionalResponsibility? Explain. (3%)

IV

Atty. XX rented a house of his cousin JJ on a month-tomonth basis. He left for a 6-month study in Japan without paying his rentals and electric bills while he wasaway despite JJs repeated demands. Upon his return to the Philippines, Atty. XXstill failed to settle his rental arrearages and electric bills, drawing JJ to file anadministrative complaint against Atty. XX.

Atty. XX contended that his non-payment of rentals and bills to his cousin is apersonal matter which has no bearing on his profession as a lawyer and, therefore,he did not violate the Code of Professional Responsibility.

Is Atty. XXs contention in order? Explain. (3%)

Cite two (2) specific Rules in the Code of Professional Responsibility, violation ofwhich subjects a lawyer to disciplinary action by the Supreme Court although the

acts complained of are purely personal or private activities that do not involve thepractice of law. (2%)

V

When is professional incompetence a ground for disbarment under the Rules ofCourt? Explain. (3%)

VI


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Atty. Monica Santos-Cruz registered the firm name Santos- Cruz Law Officewith the Department of Trade and Industry as a single proprietorship. In herstationery, she printed the names of her husband and a friend who are both non-lawyers as her senior partners in light of their investments in the firm. She allowedher husband to give out calling cards bearing his name as senior partner of the firmand to appear in courts to move for postponements.

Did Atty. Santos-Cruz violate the Code of Professional Responsibility? Why? (3%)

VII

Atty. Candido commented in a newspaper that the decision of the Court of Appealswas influenced by a powerful relative of the prevailing party. The appellate courtfound him guilty of indirect contempt. Does this involve moral turpitude? Explain.(3%)

VIII

For services to be rendered by Atty. Delmonico as counsel for Wag Yu in a caseinvolving 5,000 square meters (sq.m.) of land, the two agreed on a success fee ofP50,000 plus 500 sq.m. of the land.

The trial court rendered judgment in favor of Wag Yu which became final andexecutory. After receiving P50,000, Atty. Delmonico demanded the transfer tohim of the promised 500 sq.m. Instead of complying, Wag Yu filed anadministrative complaint charging Atty. Delmonico with violation of the Code ofProfessional Responsibility and Article 1491(5) of the Civil Code for demandingthe delivery of a portion of the land subject of litigation.

Is Atty. Delmonico liable under the Code of Professional Responsibility and theCivil Code? Explain. (5%)


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IX

Is the defense of Atty. R in a disbarment complaint for immorality filed by hisparamour P that P is in pari delicto material or a ground for exoneration? Explain.(3%)

X

Allison hired Atty. X as his counsel in his complaint for Collection of Sum ofMoney. Upon receipt on March 20, 2009 of the Notice of Pre-Trial which wasscheduled on May 24, 2009, Allison noted that at that time he would still be in atwo-week conference in St. Petersburg. He thus asked Atty. X to represent himduring the pre-trial.

Prepare the necessary document that Atty. X should submit to the court to enablehim to represent Allison during Pre-Trial. (5%)

XI

After passing the Philippine Bar in 1986, Atty. Richards practiced law until 1996when he migrated to Australia where he subsequently became an Australian citizenin 2000. As he kept abreast of legal developments, petitioner learned about theCitizenship Retention and Re-Acquisition Act of 2003 (Republic Act No. 9225),

pursuant to which he reacquired his Philippine citizenship in 2006. He took his

oath of allegiance as a Filipino citizen at the Philippine embassy in Canberra,Australia. Jaded by the laid back life in the outback, he returned to the Philippinesin December 2008. After the holidays, he established his own law office andresumed his practice of law.


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Months later, a concerned woman who had secured copies of Atty. Richardsnaturalization papers with consular authentication, filed with the Supreme Court ananonymous complaint against him< for illegal practice of law.

May the Supreme Court act upon the complaint filed by an anonymous person?Why or why not? (3%)

Is respondent entitled to resume the practice of law? Explain. (5%)

PART II

XII

Rebeccas complaint was raffled to the sala of Judge A. Rebecca is a daughter ofJudge As wife by a previous marriage. This is known to the defendant who doesnot, however, file a motion to inhibit the Judge.

Is the Judge justified in not inhibiting himself from the case? (3%)

XIII

Reacting to newspaper articles and verbal complaints on alleged rampant sale ofTemporary Restraining Orders by Judge X, the Supreme Court ordered the conductof a discreet investigation by the Office of the Court Administrator.

Judges in the place where Judge X is assigned confirmed the complaints.

What administrative charge/s may be leveled against Judge X? Explain. (3%)

What defense/s can Judge X raise in avoidance of any liability? (2%)


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XIV

Farida engaged the services of Atty. Garudo to represent her in a complaint for

damages. The two agreed that all expenses incurred in connection with the casewould first be shouldered by Atty. Garudo and he would be paid for his legalservices and reimbursed for all expenses which he had advanced out of whateverFarida may receive upon the termination of the case. What kind of contract is this?(2%)

XV

Rico, an amiable, sociable lawyer, owns a share in Marina Golf Club, easily one ofthe more posh golf courses. He relishes hosting parties for government officialsand members of the bench.

One day, he had a chance meeting with a judge in the Intramuros golf course. Thetwo readily got along well and had since been regularly playing golf together at theMarina Golf Club.

If Atty. Rico does not discuss cases with members of the bench during parties andgolf games, is he violating the Code of Professional Responsibility? Explain. (3%)

How about the members of the bench who grace the parties of Rico, are theyviolating the Code of Judicial Conduct? Explain. (3%)

XVI

Judge L is assigned in Turtle Province. His brother ran for Governor in RabbitProvince. During the election period this year, Judge L took a leave of absence tohelp his brother conceptualize the campaign strategy. He even contributed amodest amount to the campaign kitty and hosted lunches and dinners.


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Did Judge L incur administrative and/or criminal liability? Explain. (3%)

XVII

Judge X was invited to be a guest speaker during the annual convention of aprivate organization which was covered by media. Since he was given the libertyto speak on any topic, he discussed the recent decision of the Supreme Courtdeclaring that the President is not, under the Constitution, proscribed fromappointing a Chief Justice within two months before the election.

In his speech, the judge demurred to the Supreme Court decision and even stressedthat the decision is a serious violation of the Constitution.

Did Judge X incur any administrative liability? Explain. (3%)

If instead of ventilating his opinion before the private organization, Judge Xincorporated it, as an obiter dictum, in one of his decisions, did he incur anyadministrative liability? Explain. (3%)

XVIII

Draft the accusatory portion of an Information for RAPE of a 13-year old childcommitted by her maternal uncle in broad daylight at the back of a church. (5%)

Draft a Petition for the Issuance of a Writ of Habeas Data. (5%)

Draft a Petition for Bail. (5%)

XIX

Judges of the first and second level courts are allowed to receive assistance fromthe local government units where they are stationed. The assistance could be in theform of equipment or allowance.


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Justices at the Court of Appeals in the regional stations in the Visayas andMindanao are not necessarily residents there, hence, they incur additional expensesfor their accommodations.

Pass on the propriety of the Justices receipt of assistance/allowance from the localgovernments. (3%)

XX

Arabella filed a complaint for disbarment against her estranged husband Atty. P on

the ground of immorality and use of illegal drugs.

After Arabella presented evidence and rested her case before the InvestigatingCommissioner of the IBP Committee on Bar Discipline, she filed an Affidavit ofDesistance and motion to dismiss the complaint, she and her husband havingreconciled for the sake of their children.

You are the Investigating Commissioner of the IBP. Bearing in mind that thefamily is a social institution which the State is duty-bound to preserve, what will beyour action on Arabellas motion to dismiss the complaint? (3%)

XXI

On the proposal of Judge G, which was accepted, he and his family donated a lot to

the city of Gyoza on the condition that a public transport terminal would beconstructed thereon. The donation was accepted and the condition was compliedwith.


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The family-owned tracts of land in the vicinity of the donated lot suddenlyappreciated in value and became commercially viable as in fact a restaurant and ahotel were soon after built.

Did the Judge commit any violation of the Code of Judicial Conduct? (2%)

XXII

A retired member of the Judiciary is now engaged in private practice. In attendinghearings, he uses his car bearing his protocol plate which was issued to him while

still in the service. Pass on the ethical aspect of the judges use of the protocolplate. (2%)

NOTHING FOLLOWS.

Remedial Law

PART I

I

On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio.

To prove the qualifying circumstance of evident premeditation, the prosecutionintroduced on December 11, 2009 a text message, which Mabinis estranged wifeGregoria had sent to Emilio on the eve of his death, reading: Honey, pa2tayin u niMabini. Mtgal n nyang plano i2. Mg ingat u bka ma tsugi k.


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A subpoena ad testificandum was served on Gregoria for her to be presented forthe purpose of identifying her cellphone and the text message. Mabini objected toher presentation on the ground of marital privilege. Resolve. (3%)

Suppose Mabinis objection in question A was sustained. The prosecution

thereupon announced that it would be presenting Emilios wife Graciana toidentify Emilios cellphone bearing Gregorias text message. Mabini objectedagain. Rule on the objection. (2%)

If Mabinis objection in question B was overruled, can he object to the presentationof the text message on the ground that it is hearsay? (2%)

Suppose that shortly before he expired, Emilio was able to send a text message tohis wife Graciana reading Nasaksak ako. D na me makahinga. Si Mabini ang maygawa ni2. Is this text message admissible as a dying declaration? Explain. (3%)

II

On August 13, 2008, A, as shipper and consignee, loaded on the M/V Atlantis inLegaspi City 100,000 pieces of century eggs. The shipment arrived in Manilatotally damaged on August 14, 2008. A filed before the Metropolitan Trial Court(MeTC) of Manila a complaint against B Super Lines, Inc. (B Lines), owner of theM/V Atlantis, for recovery of damages amounting to P167,899. He attached to thecomplaint the Bill of Lading.

B Lines filed a Motion to Dismiss upon the ground that the Regional Trial Courthas exclusive original jurisdiction over all actions in admiralty and maritimeclaims. In his Reply, A contended that while the action is indeed admiralty andmaritime in nature, it is the amount of the claim, not the nature of the action, thatgoverns jurisdiction. Pass on the Motion to Dismiss. (3%)

The MeTC denied the Motion in question A. B Lines thus filed an Answer raising

the defense that under the Bill of Lading it issued to A, its liability was limited toP10,000.

At the pre-trial conference, B Lines defined as one of the issues whether thestipulation limiting its liability to P10,000 binds A. A countered that this was nolonger in issue as B Lines had failed to deny under oath the Bill of Lading. Whichof the parties is correct? Explain. (3%)


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On July 21, 2009, B Lines served on A a Notice to Take Deposition, setting thedeposition on July 29, 2009 at 8:30 a.m. at the office of its counsel in Makati. Afailed to appear at the deposition-taking, despite notice. As counsel for B Lines,

how would you proceed? (3%)

III

Anabel filed a complaint against B for unlawful detainer before the MunicipalTrial Court (MTC) of Candaba, Pampanga. After the issues had been joined, theMTC dismissed the complaint for lack of jurisdiction after noting that the actionwas one for accion publiciana.

Anabel appealed the dismissal to the RTC which affirmed it and accordinglydismissed her appeal. She elevates the case to the Court of Appeals, whichremands the case to the RTC. Is the appellate court correct? Explain. (3%)

IV

X was driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan.Due to his negligence, X hit and injured V who was crossing the street. Lawyer L,who witnessed the incident, offered his legal services to V. V, who suffered

physical injuries including a fractured wrist bone, underwent surgery to screw ametal plate to his wrist bone. On complaint of V, a criminal case for RecklessImprudence Resulting in Serious Physical Injuries was filed against X before theMunicipal Trial Court (MTC) of Sta. Maria. Atty. L, the private prosecutor, did notreserve the filing of a separate civil action.

V subsequently filed a complaint for Damages against X and Y before theRegional Trial Court of Pangasinan in Urdaneta where he resides. In hisCertification Against Forum Shopping, V made no mention of the pendency ofthe criminal case in Sta. Maria.


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Is V guilty of forum shopping? (2%)

Instead of filing an Answer, X and Y move to dismiss the complaint for damageson the ground of litis pendentia. Is the motion meritorious? Explain. (2%)

Suppose only X was named as defendant in the complaint for damages, may hemove for the dismissal of the complaint for failure of V to implead Y as anindispensable party? (2%)

X moved for the suspension of the proceedings in the criminal case to await thedecision in the civil case. For his part, Y moved for the suspension of the civil caseto await the decision in the criminal case. Which of them is correct? Explain. (2%)

Atty. L offered in the criminal case his affidavit respecting what he witnessedduring the incident. Xs lawyer wanted to cross-examine Atty. L who, however,objected on the ground of lawyer-client privilege. Rule on the objection. (2%)

V

Charisse, alleging that she was a resident of Lapu-Lapu City, filed a complaint fordamages against Atlanta Bank before the RTC of Lapu-Lapu City, following thedishonor of a check she drew in favor of Shirley against her current account whichshe maintained in the banks local branch.

The bank filed a Motion to Dismiss the complaint on the ground that it failed tostate a cause of action, but it was denied. It thus filed an Answer.

In the course of the trial, Charisse admitted that she was a US citizen residing inLos Angeles, California and that she was temporarily billeted at the Pescado Hotelin Lapu-Lapu City, drawing the bank to file another motion to dismiss, this time onthe ground of improper venue, since Charisse is not a resident of Lapu-Lapu City.

Charisse opposed the motion citing the omnibus motion rule. Rule on themotion. (3%)


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Suppose Charisse did not raise the omnibus motion rule, can the judge proceedto resolve the motion to dismiss? Explain. (3%)

Suppose the judge correctly denied the second motion to dismiss and renderedjudgment in favor of Charisse, ordering the bank to pay her P100,000 in damages

plus legal interest. The judgment became final and executory in 2008. To date,Charisse has not moved to execute the judgment. The bank is concerned that itsliability will increase with the delay because of the interest on the judgment award.

As counsel of the bank, what move should you take? (3%)

VI

Antique dealer Mercedes borrowed P1,000,000 from antique collector Benjamin.Mercedes issued a postdated check in the same amount to Benjamin to cover thedebt.

On the due date of the check, Benjamin deposited it but it was dishonored. Asdespite demands, Mercedes failed to make good the check, Benjamin filed in

January 2009 a complaint for collection of sum of money before the RTC ofDavao.

Mercedes filed in February 2009 her Answer with Counterclaim, alleging thatbefore the filing of the case, she and Benjamin had entered into a dacion en pagoagreement in which her vintage P1,000,000 Rolex watch which was taken byBenjamin for sale on commission was applied to settle her indebtedness; and thatshe incurred expenses in defending what she termed a frivolous lawsuit. She

accordingly prayed for P50,000 damages.

Benjamin soon after moved for the dismissal of the case. The trial courtaccordingly dismissed the complaint. And it also dismissed the Counterclaim.


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Mercedes moved for a reconsideration of the dismissal of the Counterclaim. Passupon Mercedes motion. (3%)

Suppose there was no Counterclaim and Benjamins complaint was not dismissed,and judgment was rendered against Mercedes for P1,000,000. The judgment

became final and executory and a writ of execution was correspondingly issued.

Since Mercedes did not have cash to settle the judgment debt, she offered herToyota Camry model 2008 valued at P1.2 million. The Sheriff, however, onrequest of Benjamin, seized Mercedes 17th century ivory image of the La SagradaFamilia estimated to be worth over P1,000,000.

Was the Sheriffs action in order? (3%)

VII

As Cicero was walking down a dark alley one midnight, he saw an owner-type

jeepney approaching him. Sensing that the occupants of the vehicle were up to nogood, he darted into a corner and ran. The occupants of the vehicle elementsfrom the Western Police District gave chase and apprehended him.

The police apprehended Cicero, frisked him and found a sachet of 0.09 gram ofshabu tucked in his waist and a Swiss knife in his secret pocket, and detained himthereafter. Is the arrest and body-search legal? (3%)

PART II

VIII


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Dominique was accused of committing a violation of the Human Security Act. Hewas detained incommunicado, deprived of sleep, and subjected to water torture. Helater allegedly confessed his guilt via an affidavit.

After trial, he was acquitted on the ground that his confession was obtainedthrough torture, hence, inadmissible as evidence.

In a subsequent criminal case for torture against those who deprived him of sleepand subjected him to water torture, Dominique was asked to testify and to, amongother things, identify his above-said affidavit of confession. As he was about toidentify the affidavit, the defense counsel objected on the ground that the affidavitis a fruit of a poisonous tree. Can the objection be sustained? Explain. (3%)

IX

In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA)evidence showing that the semen found in the private part of the victim was notidentical with that of the accuseds. As private prosecutor, how will you dispute theveracity and accuracy of the results of the DNA evidence? (3%)

X

Marinella is a junior officer of the Armed Forces of the Philippines who claims tohave personally witnessed the malversation of funds given by US authorities inconnection with the Balikatan exercises.

Marinella alleges that as a result of her expos, there are operatives within themilitary who are out to kill her. She files a petition for the issuance of a writ ofamparo against, among others, the Chief of Staff but without alleging that the latterordered that she be killed.


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Atty. Daro, counsel for the Chief of Staff, moves for the dismissal of the Petitionfor failure to allege that his client issued any order to kill or harm Marinella. Ruleon Atty. Daros motion. Explain. (3%)

XI

X was arrested for the alleged murder of a 6-year old lad. He was read his Mirandarights immediately upon being apprehended.

In the course of his detention, X was subjected to three hours of non-stopinterrogation. He remained quiet until, on the 3rd hour, he answered yes to thequestion of whether he prayed for forgiveness for shooting down the boy. Thetrial court, interpreting Xs answer as an admission of guilt, convicted him.

On appeal, Xs counsel faulted the trial court in its interpretation of his clientsanswer, arguing that X invoked his Miranda rights when he remained quiet for thefirst two hours of questioning. Rule on the assignment of error. (3%)

XII

In a prosecution for murder, the prosecutor asks accused Darwin if he had beenpreviously arrested for violation of the Anti- Graft and Corrupt Practices Act. Asdefense counsel, you object. The trial court asks you on what ground/s. Respond.(3%)

XIII


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Policemen brought Lorenzo to the Philippine General Hospital (PGH) andrequested one of its surgeons to immediately perform surgery on him to retrieve a

packet of 10 grams of shabu which they alleged was swallowed by Lorenzo.

Suppose the PGH agreed to, and did perform the surgery, is the package of shabuadmissible in evidence? Explain. (3%)

XIV

Czarina died single. She left all her properties by will to her friend Duqueza. In the

will, Czarina stated that she did not recognize Marco as an adopted son because ofhis disrespectful conduct towards her.

Duqueza soon instituted an action for probate of Czarinas will. Marco, on theother hand, instituted intestate proceedings. Both actions were consolidated beforethe RTC of Pasig. On motion of Marco, Duquezas petition was ordered dismissedon the ground that the will is void for depriving him of his legitime. Argue forDuqueza. (5%)

XV

Pedrillo, a Fil-Am permanent resident of Los Angeles, California at the time of hisdeath, bequeathed to Winston a sum of money to purchase an annuity.

Upon Pedrillos demise, his will was duly probated in Los Angeles and thespecified sum in the will was in fact used to purchase an annuity with XYZ ofHong Kong so that Winston would receive the equivalent of US$1,000 per monthfor the next 15 years.


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Wanting to receive the principal amount of the annuity, Winston files for theprobate of Pedrillos will in the Makati RTC. As prayed for, the court namesWinston as administrator of the estate.

Winston now files in the Makati RTC a motion to compel XYZ to account for allsums in its possession forming part of Pedrillos estate. Rule on the motion. (5%)

XVI

Sal Mineo died intestate, leaving a P1 billion estate. He was survived by his wife

Dayanara and their five children.

Dayanara filed a petition for the issuance of letters of administration. Charlene, oneof the children, filed an opposition to the petition, alleging that there was neither anallegation nor genuine effort to settle the estate amicably before the filing of the

petition. Rule on the opposition. (5%)

XVII

What is res judicata in prison grey? (2%)

XVIII

While window-shopping at the mall on August 4, 2008, Dante lost his organizerincluding his credit card and billing statement. Two days later, upon reporting thematter to the credit card company, he learned that a one-way airplane ticket was

purchased online using his credit card for a flight to Milan in mid- August 2008.Upon extensive inquiry with the airline company, Dante discovered that the planeticket was under the name of one Dina Meril. Dante approaches you for legaladvice.


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What is the proper procedure to prevent Dina from leaving the Philippines? (2%)

Suppose an Information is filed against Dina on August 12, 2008 and she is

immediately arrested. What pieces of electronic evidence will Dante have to securein order to prove the fraudulent online transaction? (2%)

XIX

1. Enumerate the requisites of a trial in absentia (2%) and a promulgation ofjudgment in absentia (2%).

2. Name two instances where the trial court can hold the accused civilly liable evenif he is acquitted. (2%)

XX

Azenith, the cashier of Temptation Investments, Inc. (Temptation, Inc.) withprincipal offices in Cebu City, is equally hated and loved by her co-employeesbecause she extends cash advances or vales to her colleagues whom she likes.One morning, Azenith discovers an anonymous letter inserted under the door ofher office threatening to kill her.

Azenith promptly reports the matter to her superior Joshua, who thereuponconducts an internal investigation to verify the said threat.

Claiming that the threat is real, Temptation, Inc. opts to transfer Azenith to itsPalawan Office, a move she resists in view of the companys refusal to disclose theresults of its investigation.


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Decrying the move as a virtual deprivation of her employment, Azenith files apetition for the issuance of a writ of habeas data before the Regional Trial Court(RTC) to enjoin Temptation, Inc. from transferring her on the ground that thecompanys refusal to provide her with a copy of the investigation resultscompromises her right to life, liberty and privacy.

Resolve the petition. Explain. (5%)

NOTHING FOLLOWS.

Taxation

PART I

I

True or False.

In civil cases involving the collection of internal revenue taxes, prescription isconstrued strictly against the government and liberally in favor of the taxpayer.(1%)

In criminal cases involving tax offenses punishable under the National InternalRevenue Code (NIRC), prescription is construed strictly against the government.(1%)

In criminal cases where the Court of Tax Appeals (CTA) has exclusive originaljurisdiction, the right to file a separate civil action for the recovery of taxes may bereserved. (1%)

Proceedings before the CTA in the exercise of its exclusive original jurisdiction arein the nature of trial de novo. (1%)


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Judgments, resolutions or orders of the Regional Trial Court in the exercise of itsoriginal jurisdiction involving criminal offenses arising from violations of the

NIRC are appealable to the CTA, which shall hear the cases en banc. (1%)

II

What is the all events test? Explain briefly. (2%)

What is the immediacy test? Explain briefly. (2%)

What is the rational basis test? Explain briefly. (2%)

What is the effect of the execution by a taxpayer of a waiver of the statute oflimitations on his defense of prescription? (2%)

What is the basis for the computation of business tax on contractors under theLocal Government Code? (2%)

How are retiring businesses taxed under the Local Government Code? (2%)

III

Mirador, Inc., a domestic corporation, filed its Annual Income Tax Return for itstaxable year 2008 on April 15, 2009. In the Return, it reflected an income taxoverpayment of P1,000,000.00 and indicated its choice to carry-over theoverpayment as an automatic tax credit against its income tax liabilities insubsequent years.

On April 15, 2010, it filed its Annual Income Tax Return for its taxable year 2009reflecting a taxable loss and an income tax overpayment for the current year 2009

in the amount of P500,000.00 and its income tax overpayment for the prior year2008 of P1,000,000.00.

In its 2009 Return, the corporation indicated its option to claim for refund the totalincome tax overpayment of P1,500,000.00


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Choose which of the following statements is correct.

Mirador, Inc. may claim as refund the total income tax overpayment ofP1,500,000.00 reflected in its income tax return for its taxable year 2009;

It may claim as refund the amount of P500,000.00 representing its income taxoverpayment for its taxable year 2009; or

No amount may be claimed as refund.

Explain the basis of your answer. (5%)

IV

On March 10, 2010, Continental, Inc. received a preliminary assessment notice(PAN) dated March 1, 2010 issued by the Commissioner of Internal Revenue(CIR) for deficiency income tax for its taxable year 2008. It failed to protest thePAN. The CIR thereupon issued a final assessment notice (FAN) with letter ofdemand on April 30, 2010. The FAN was received by the corporation on May 10,2010, following which or on May 25, 2010, it filed its protest against it.

The CIR denied the protest on the ground that the assessment had already becomefinal and executory, the corporation having failed to protest the PAN.

Is the CIR correct? Explain. (5%)

V

Does the Court of Appeals have the power to review compromise agreementsforged by the Commissioner of Internal Revenue and a taxpayer? Explain. (5%)


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VI

Based on the Affidavit of the Commissioner of Internal Revenue (CIR), an

Information for failure to file income tax return under Section 255 of the NationalInternal Revenue Code (NIRC) was filed by the Department of Justice (DOJ) withthe Manila Regional Trial Court (RTC) against XX, a Manila resident.

XX moved to quash the Information on the ground that the RTC has no jurisdictionin view of the absence of a formal deficiency tax assessment issued by the CIR.

Is a prior assessment necessary before an Information for violation of Section 255of the NIRC could be filed in court? Explain. (4%)

VII

What are the conditions that must be complied with before the Court of TaxAppeals may suspend the collection of national internal revenue taxes? (3%)

VIII

What is the rule on appeal from decisions of the Collector of Customs in protestand seizure cases? When is the decision of the Collector of Customs appealable tothe Court of Tax Appeals? Explain. (5%)

IX

On May 15, 2009, La Manga Trading Corporation received a deficiency businesstax assessment of P1,500,000.00 from the Pasay City Treasurer. On June 30, 2009,


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the corporation contested the assessment by filing a written protest with the CityTreasurer.

On October 10, 2009, the corporation received a collection letter from the CityTreasurer, drawing it to file on October 25, 2009 an appeal against the assessment

before the Pasay Regional Trial Court (RTC).

Was the protest of the corporation filed on time? Explain. (3%)

Was the appeal with the Pasay RTC filed on time? Explain. (3%)

PART II

X

True or False. (1% each)

Gains realized by the investor upon redemption of shares of stock in a mutual fund

company are exempt from income tax.

A corporation can claim the optional standard deduction equivalent to 40% of itsgross sales or receipts, as the case may be.

Premium payment for health insurance of an individual who is an employee in anamount of P2,500 per year may be deducted from gross income if his gross salary

per year is not more than P250,000.

The Tax Code allows an individual taxpayer to pay in two equal installments, thefirst installment to be paid at the time the return is filed, and the second on or

before July 15 of the same year, if his tax due exceeds P2,000.

An individual taxpayer can adopt either the calendar or fiscal period for purposesof filing his income tax return.

The capitalization rules may be resorted to by the BIR in order to compel corporatetaxpayers to declare dividends to their stockholders regularly.


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Informers reward is subject to a final withholding tax of 10%.

A non-resident alien who stays in the Philippines for less than 180 days during thecalendar year shall be entitled to personal exemption not to exceed the amountallowed to citizens of the Philippines by the country of which he is subject or

citizen.

XI

Are the following transactions subject to VAT? If yes, what is the applicable ratefor each transaction. State the relevant authority/ies for your answer.

Construction by XYZ Construction Co. of concrete barriers for the AsianDevelopment Bank in Ortigas Center to prevent car bombs from ramming theADB gates along ADB Avenue in Mandaluyong City. (3%)

Call Center operated by a domestic enterprise in Makati that handles exclusivelythe reservations of a hotel chain which are all located in North America. Theservices are paid for in US$ and duly accounted for with the Bangko Sentral ngPilipinas. (3%)

Sale of orchids by a flower shop which raises its flowers in Tagaytay. (3%)

XII

Ferremaro, Inc., a manufacturer of handcrafted shoes, maintains its principal officein Cubao, Quezon City. It has branches/sales offices in Cebu and Davao. Itsfactory is located in Marikina City where most of its workers live. Its principaloffice in Quezon City is also a sales office.

Sales of finished products for calendar year 2009 in the amount of P10 millionwere made at the following locations:

i) Cebu branch25%

ii) Davao branch 15%


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iii) Quezon City branch 60%

Total 100%

Where should the applicable local taxes on the shoes be paid? Explain. (3%)

XIII

XYZ Shipping Corporation is a branch of an international shipping line withvoyages between Manila and the West Coast of the U.S. The companys vesselsload and unload cargoes at the Port of Manila, albeit it does not have a branch orsales office in Manila. All the bills of lading and invoices are issued by the branch

office in Makati which is also the companys principal office.

The City of Manila enacted an ordinance levying a 2% tax on gross receipts ofshipping lines using the Port of Manila.

Can the City Government of Manila legally impose said levy on the corporation?Explain. (3%)

XIV

A inherited a two-storey building in Makati from his father, a real estate broker inthe 60s. A group of Tibetan monks approached A and offered to lease the buildingin order to use it as a venue for their Buddhist rituals and ceremonies. A acceptedthe rental of P1 million for the whole year.

The following year, the City Assessor issued an assessment against A for non-payment of real property taxes. Is the assessor justified in assessing As deficiencyreal property taxes? Explain. (3%)


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XV

Don Sebastian, single but head of the family, Filipino, and resident of Pasig City,

died intestate on November 15, 2009. He left the following properties andinterests:

House and lot (family home) in Pasig P 800,000

Vacation house and lot in Florida, USA 1,500,000

Agricultural land in Naic, Cavite which he inherited from his father 2,000,000

Car which is being used by his brother in Cavite 500,000

Proceeds of life insurance where he named his estate as irrevocable beneficiary1,000,000

Household furnitures and appliances 1,000,000

Claims against a cousin who has assets of P10,000 and liabilities of P100,000100,000

Shares of stock in ABC Corp, a domestic enterprise 100,000

The expenses and charges on the estate are as follows:

Funeral Expenses P 250,000

Legal fees for the settlement of the estate 500,000

Medical expenses of last illness 600,000

Claims against the estate 300,000

The compulsory heirs of Don Sebastian approach you and seek your assistance in

the settlement of his estate for which they have agreed to the above-statedprofessional fees. Specifically, they request you to explain and discuss with themthe following questions. You oblige:

What are the properties and interests that should be included in the computation ofthe gross estate of the decedent? Explain. (2.5%)


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What is the net taxable estate of the decedent? Explain. (2.5%)

When is the due date for filing and payment of the applicable tax return and tax?Are these dates extendible? If so, under what conditions or requirements? (2.5%)

If X, one of the compulsory heirs, renounces his share in the inheritance in favor ofthe other co-heirs, is there any tax implication of Xs renunciation? What about theother coheirs? (2.5%)

XVI

A is a travelling salesman working full time for Nu Skin Products. He receives a

monthly salary plus 3% commission on his sales in a Southern province where heis based. He regularly uses his own car to maximize his visits even to far flungareas. One fine day a group of militants seized his car. He was notified thefollowing day by the police that the marines and the militants had a bloodyencounter and his car was completely destroyed after a grenade hit it.

A wants to file a claim for casualty loss. Explain the legal basis of your tax advice.(3%)

XVII

In 2009, Caruso, a resident Filipino citizen, received dividend income from a U.S.-based corporation which owns a chain of Filipino restaurants in the West Coast,U.S.A. The dividend remitted to Caruso is subject to U.S. withholding tax withrespect to a non-resident alien like Caruso.

What will be your advice to Caruso in order to lessen the impact of possible doubletaxation on the same income? (3%)


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Would your answer in A. be the same if Caruso became a U.S. immigrant in 2008and had become a non-resident Filipino citizen? Explain the difference in treatmentfor Philippine income tax purposes. (3%)

XVIII

ABC, a domestic corporation, entered into a software license agreement with XYZ,a non-resident foreign corporation based in the U.S. Under the agreement whichthe parties forged in the U.S., XYZ granted ABC the right to use a computersystem program and to avail of technical know-how relative to such program. Inconsideration for such rights, ABC agreed to pay 5% of the revenues it receivesfrom customers who will use and apply the program in the Philippines.

Discuss the tax implication of the transaction. (5%)

NOTHING FOLLOWS.

Civil Law

I True or False.

Under Article 26 of the Family Code, when a foreign spouse divorces his/herFilipino spouse, the latter may re-marry by proving only that the foreign spousehas obtained a divorce against her or him abroad. (1%)

X, a widower, died leaving a will stating that the house and lot where he livedcannot be partitioned for as long as the youngest of his four children desires to staythere. As coheirs and co-owners, the other three may demand partition anytime.

(1%)

II Multiple choice.

A had a 4-storey building which was constructed by Engineer B. After five years,the building developed cracks and its stairway eventually gave way and collapsed,


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resulting to injuries to some lessees. Who should the lessees sue for damages?(1%)

1. A, the owner

2. B, the engineer

3. both A & B

O, owner of Lot A, learning that Japanese soldiers may have buried gold and othertreasures at the adjoining vacant Lot B belonging to spouses X & Y, excavated inLot B where she succeeded in unearthing gold and precious stones. How will thetreasures found by O be divided? (1%)

1. 100% to O as finder

2. 50% to O and 50% to the spouses X and Y

3. 50% to O and 50% to the state

4. None of the above

A executed a Deed of Donation in favor of B, a bachelor, covering a parcel of landvalued at P1 million. B was, however, out of the country at the time. For thedonation to be valid, (1%)

1. B may e-mail A accepting the donation.

2. The donation may be accepted by Bs father with whom he lives.

3. B can accept the donation anytime convenient to him.

4. Bs mother who has a general power of attorney may accept the donation forhim.

5. None of the above is sufficient to make Bs acceptance valid

A executed a 5-page notarial will before a notary public and three witnesses. All ofthem signed each and every page of the will. One of the witnesses was B, thefather of one of the legatees to the will. What is the effect of B being a witness tothe will? (1%)


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1. The will is invalidated

2. The will is valid and effective

3. The legacy given to Bs child is not valid

III Define, Enumerate or Explain. (2% each)

What is the difference between guaranty and suretyship?

Define quasi tort. Who are the persons liable under quasi torts and what are thedefenses available to them?

Give at least two reasons why a court may assume jurisdiction over a conflict oflaws case.

IV Spouses B and G begot two offsprings. Albeit they had serious personalitydifferences, the spouses continued to live under one roof. B begot a son by anotherwoman. G also begot a daughter by another man.

If G gives the surname of B to her daughter by another man, what can B do toprotect their legitimate childrens interests? Explain. (5%)

If B acquiesces to the use of his surname by Gs daughter by another man, whatis/are the consequence/s? Explain. (5%)

V G filed on July 8, 2000 a petition for declaration of nullity of her marriage to B.During the pendency of the case, the couple entered into a compromise agreementto dissolve their absolute community of property. B ceded his right to their houseand lot and all his shares in two business firms to G and their two children, aged 18and 19. B also opened a bank account in the amount of P3 million in the name ofthe two children to answer for their educational expenses until they finish their

college degrees. For her part, G undertook to shoulder the day-to-day livingexpenses and upkeep of the children. The Court approved the spouses agreementon September 8, 2000.


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Suppose the business firms suffered reverses, rendering G unable to support herselfand the children. Can G still ask for support pendente lite from B? Explain. (3%)

Suppose in late 2004 the two children had squandered the P3 million fund for theireducation before they could obtain their college degrees, can they ask for more

support from B? Explain. (3%)

VI Gigolo entered into an agreement with Majorette for her to carry in her wombhis baby via in vitro fertilization. Gigolo undertook to underwrite Majorettes pre-natal expenses as well as those attendant to her delivery. Gigolo would thereafter

pay Majorette P2 million and, in return, she would give custody of the baby to him.After Majorette gives birth and delivers the baby to Gigolo following her receipt ofP2 million, she engages your services as her lawyer to regain custody of the baby.

What legal action can you file on behalf of Majorette? Explain. (2.5%)

Can Gigolo demand from Majorette the return of the P2 million if he returns thebaby? Explain. (2.5%)

Who of the two can exercise parental authority over the child? Explain. (2.5%)

Is the child entitled to support and inheritance from Gigolo? Explain. (2.5%)

VII G and B were married on July 3, 1989. On March 4, 2001, the marriage, whichbore no offspring, was declared void ab initio under Article 36 of the Family Code.At the time of the dissolution of the marriage, the couple possessed the following

properties:

a house and lot acquired by B on August 3, 1988, one third (1/3) of the purchaseprice (representing downpayment) of which he paid; one third (1/3) was paid by Gon February 14, 1990 out of a cash gift given to her by her parents on hergraduation on April 6, 1989; and the balance was paid out of the spouses jointincome; and

an apartment unit donated to B by an uncle on June 19, 1987.

Who owns the foregoing properties? Explain. (5%)

If G and B had married on July 3, 1987 and their marriage was dissolved in 2007,who owns the properties? Explain. (5%)


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XII On May 5, 1989, 16-year old Rozanno, who was issued a student permit, droveto school a car, a gift from his parents. On even date, as his class was scheduled togo on a field trip, his teacher requested him to accommodate in his car, as he did,four (4) of his classmates because the van rented by the school was too crowded.On the way to a museum which the students were scheduled to visit, Rozannomade a wrong maneuver, causing a collision with a jeepney. One of his classmatesdied. He and the three (3) others were badly injured.

Who is liable for the death of Rozannos classmate and the injuries suffered byRozanno and his 3 other classmates? Explain. (2%)

How about the damage to the jeepney? Explain. (2%)

Under the same facts, except the date of occurrence of the incident, this time inmid-1994, what would be your answer? Explain. (2%)

XIII Franz was the owner of Lot E which was surrounded by four (4) lots one ofwhich Lot C he also owned. He promised Ava that if she bought Lot E, hewould give her a right of way in Lot C. Convinced, Ava bought Lot E and, as

promised, Franz gave her a right of way in Lot C. Ava cultivated Lot E and usedthe right of way granted by Franz. Ava later found gainful employment abroad.On her return after more than 10 years, the right of way was no longer available toher because Franz had in the meantime sold Lot C to Julia who had it fenced.

Does Ava have a right to demand from Julia the activation of her right of way?Explain. (2.5%)

Assuming Ava opts to demand a right of way from any of the owners of Lots A, B,and D, can she do that? Explain. (2.5%)

XIV Primo owns a pet iguana which he keeps in a man-made pond enclosed by afence situated in his residential lot. A typhoon knocked down the fence of the pond

and the iguana crawled out of the gate of Primos residence. N, a neighbor whowas passing by, started throwing stones at the iguana, drawing the iguana to movetoward him. N panicked and ran but tripped on something and suffered a brokenleg. Is anyone liable for Ns injuries? Explain. (4%) XV A, B, and C entered intoa partnership to operate a restaurant business. When the restaurant had gone past

break-even stage and started to garner considerable profits, C died. A and Bcontinued the business without dissolving the partnership. They in fact opened a


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branch of the restaurant, incurring obligations in the process. Creditors starteddemanding for the payment of their obligations.

Who are liable for the settlement of the partnerships obligations? Explain? (3%)

What are the creditors recourse/s? Explain. (3%)

XVI X was the owner of an unregistered parcel of land in Cabanatuan City. As shewas abroad, she advised her sister Y via overseas call to sell the land and sign acontract of sale on her behalf. Y thus sold the land to B1 on March 31, 2001 andexecuted a deed of absolute sale on behalf of X. B1 fully paid the purchase price.B2, unaware of the sale of the land to B1, signified to Y his interest to buy it butasked Y for her authority from X. Without informing X that she had sold the landto B1, Y sought X for a written authority to sell. X e-mailed Y an authority to sellthe land. Y thereafter sold the land on May 1, 2001 to B2 on monthly installment

basis for two years, the first installment to be paid at the end of May 2001. Whobetween B1 and B2 has a better right over the land? Explain. (5%)

NOTHING FOLLOWS.

Criminal Law

PART I

I

An agonizing and protracted trial having come to a close, the judge found A guiltybeyond reasonable doubt of homicide and imposed on him a straight penalty of

SIX (6) YEARS and ONE (1) DAY of prision mayor. The public prosecutorobjected to the sentence on the ground that the proper penalty should have beenTWELVE (12) YEARS and ONE (1) DAY of reclusion temporal. The defensecounsel chimed in, contending that application of the Indeterminate Sentence Lawshould lead to the imposition of a straight penalty of SIX (6) MONTHS and ONE(1) DAY of prision correccional only. Who of the three is on the right track?Explain. (3%)


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II

What is the crime of qualified bribery? (2%)

May a judge be charged and prosecuted for such felony? How about a publicprosecutor? A police officer? Explain. (5%)

III

May a public officer charged under Section 3(b) of Republic Act No. 3019["directly or indirectly requesting or receiving any gift, present, share, percentageor benefit, for himself or for any other person, in connection with any contract ortransaction between the government and any other party, wherein the public officerin his official capacity has to intervene under the law"] also be simultaneously orsuccessively charged with direct bribery under Article 210 of the Revised PenalCode? Explain. (4%)

IV

Because of the barbarity and hideousness of the acts committed by thesuspects/respondents in cutting off their victims appendages, stuffing their torsos,legs, body parts into oil drums and bullet-riddled vehicles and later on buryingthese oil drums, vehicles with the use of backhoes and other earth-movingmachinery, the Commission on Human Rights (CHR) investigating teamrecommended to the panel of public prosecutors that all respondents be chargedwith violation of the Heinous Crimes Law. The prosecution panel agreed withthe CHR. As the Chief Prosecutor tasked with approving the filing of the

Information, how will you pass upon the recommendation? Explain. (5%)

V


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Arlene is engaged in the buy and sell of used garments, more popularly known asukay-ukay. Among the items found by the police in a raid of her store in BaguioCity were brand-new Louie Feraud blazers. Arlene was charged with fencing.Will the charge prosper? Why or why not? (5%)

VI

There being probable cause to believe that certain deposits and investments in abank are related to an unlawful activity of smuggling by Alessandro as definedunder Republic Act (RA) No. 9160, as amended (Anti-Money Laundering Act) anapplication for an order to allow inquiry into his deposit was filed with theRegional Trial Court. After hearing the application, the court granted theapplication and issued a freeze order.

Pass upon the correctness of the courts order. Explain. (3%)

VII

A widower of ten years, septuagenarian Canuto felt that he had license to engage invoyeurism. If not peeping into his neighbors rooms through his powerful single-cylinder telescope, he would trail young, shapely damsels along the hallways ofshopping malls. While going up the escalator, he stayed a step behind a mini-skirted one, and in a moment of excitement, put his hand on her left hip andmassaged it. The damsel screamed and hollered for help. Canuto was apprehendedand brought up on inquest. What charge/s, if any, may he be held responsible for?Explain. (5%)

VIII

A asked financial support from her showbiz friend B who accommodated her byissuing in her favor a postdated check in the sum of P90,000.00. Both of them


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knew that the check would not be honored because Bs account had just beenclosed. The two then approached trader C whom they asked to change the checkwith cash, even agreeing that the exchange be discounted at P85,000.00 with theassurance that the check shall be funded upon maturity. Upon Cs presentment ofthe check for payment on due date, it was dishonored because the account hadalready been closed.

What action/s may C commence against A and B to hold them to account for theloss of her P85,000.00? Explain. (5%)

IX

Proserfina, an assistant public high school principal, acted to facilitate the releaseof salary differentials and election duty per diem of classroom teachers with theagreement that they would reimburse her for her expenses.

Did Proserfina commit a crime? Explain. (5%)

X

A, B and C are members of SFC Fraternity. While eating in a seaside restaurant,they were attacked by X, Y and Z, members of a rival fraternity. A rumble ensuedin which the abovenamed members of the two fraternities assaulted each other in aconfused and tumultuous manner resulting in the death of A. As it cannot beascertained who actually killed A, the members of the two fraternities who took

part in the rumble were charged for death caused in a tumultuous affray. Will thecharge prosper? Explain. (4%)

XI


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Angelina maintains a website where visitors can give their comments on the postedpictures of the goods she sells in her exclusive boutique. Bettina posted a commentthat the red Birkin bag shown in Angelinas website is fake and that Angelina isknown to sell counterfeit items.

Angelina wants to file a case against Bettina. She seeks your advice. What advicewill you give her? (4%)

PART II

XII

Define Money Laundering. What are the three (3) stages in money laundering?(3%)

What is the doctrine of pro reo? How does it relate to Article 48 of the RevisedPenal Code? (3%)

XIII

While his wife was on a 2-year scholarship abroad, Romeo was having an affairwith his maid Dulcinea. Realizing that the affair was going nowhere, Dulcinea toldRomeo that she was going back to the province to marry her childhood sweetheart.Clouded by anger and jealousy, Romeo strangled Dulcinea to death while she wassleeping in the maids quarters.

The following day, Romeo was found catatonic inside the maids quarters. He wasbrought to the National Center for Mental Health (NCMH) where he wasdiagnosed to be mentally unstable.

Charged with murder, Romeo pleaded insanity as a defense.


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Will Romeos defense prosper? Explain. (2%)

What is the effect of the diagnosis of the NCMH on the case? (2%)

XIV

Paul lives with his long-time girlfriend Joan in a ondominium in Makati. For morethan a year, he has been secretly saving money in an envelope under their bed to

buy her an engagement ring. One day, while Joan was cleaning their room, shefound the envelope, took the money, and left Paul. As prosecutor, what crime, ifany, would you charge Joan? Explain. (3%)

XV

Suspecting that her husband of twenty years was having an affair, Leilanie hired aprivate investigator to spy on him. After two weeks, the private investigatorshowed Leilanie a video of her husband having sexual intercourse with anotherwoman in a room of a five-star hotel. Based on what she saw on the video, Leilanieaccused her husband of concubinage.

Will the case of concubinage prosper? Explain. (3%)

XVI

The president, treasurer, and secretary of ABC Corporation were charged withsyndicated estafa under the following Information:

That on or about the 1st week of January 2010 or subsequent thereto in Cebu Cityand within the jurisdiction of this Honorable Court, the above-named accused,conspiring and confederating together and all of them mutually helping and aiding


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one another in a syndicated manner, through a corporation registered with theSecurities and Exchange Commission (SEC), with intention of carrying out theunlawful or illegal act, transaction, enterprise or scheme, with intent to gain and bymeans of fraud and deceit, did then and there wilfully, unlawfully, and feloniouslydefraud Virna, Lana, Deborah and several other persons by falsely or fraudulently

pretending or representing in a transaction or series of transactions, which theymade with complainants and the public in general, to the effect that they were in alegitimate business of foreign exchange trading successively or simultaneouslyoperating under the name and style of ABC Corporation and DEF ManagementPhilippines, Incorporated, induced and succeeded in inducing complainants andseveral other persons to give and deliver to said accused the amount of at leastP20,000,000.00 on the strength of said manifestations and representations, theaccused knowing fully well that the abovenamed corporations registered with theSEC are not licensed nor authorized to engage in foreign exchange trading and that

such manifestations and representations to transact in foreign exchange were falseand fraudulent, that these resulted to the damage and prejudice of the complainantsand other persons, and that the defraudation pertains to funds solicited from the

public in general by such corporations/associations.

Will the case for syndicated estafa prosper? Explain. (5%)

XVII

A killed his wife and buried her in their backyard. He immediately went intohiding in the mountains. Three years later, the bones of As wife were discovered

by X, the gardener. Since X had a standing warrant of arrest, he hid the bones in anold clay jar and kept quiet about it. After two years, Z, the caretaker, found the

bones and reported the matter to the police.

After 15 years of hiding, A left the country but returned three years later to takecare of his ailing sibling. Six years thereafter, he< was charged with parricide butraised the defense of prescription.


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Under the Revised Penal Code, when does the period of prescription of a crimecommence to run? (1%)

When is it interrupted? (1%)

Is As defense tenable? Explain. (3%)

XVIII

On her way home, Eva Marie saw an injured chow chow puppy behind a bush.Since the puppy did not have a collar, she brought it home so she could have it as a

pet. Her son in fact begged Eva Marie to keep the puppy. The following day, EvaMarie bought a collar for the puppy and brought it to a veterinarian for treatment.

Did Eva Marie incur criminal liability in bringing the puppy home as a pet?Explain. (2%)

Did she incur civil liability? Explain. (2%)

XIX

Jack and Jill have been married for seven years. One night, Jack came home drunk.Finding no food on the table, Jack started hitting Jill only to apologize thefollowing day. A week later, the same episode occurred Jack came home drunkand started hitting Jill. Fearing for her life, Jill left and stayed with her sister. Towoo Jill back, Jack sent her floral arrangements of spotted lilies andconfectioneries. Two days later, Jill returned home and decided to give Jackanother chance. After several days, however, Jack again came home drunk. Thefollowing day, he was found dead.

Jill was charged with parricide but raised the defense of battered womansyndrome.

Define Battered Woman Syndrome. (2%)

What are the three phases of the Battered Woman Syndrome? (3 %)


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Would the defense prosper despite the absence of any of the elements for justifyingcircumstances of self-defense under the Revised Penal Code? Explain. (2%)

XX

Matt was found guilty of drug trafficking while his younger brother Jeff was foundguilty of possession of equipment, instrument, apparatus and other paraphernaliafor dangerous drugs under Section 12 of Republic Act No. 9165. Matt filed a

petition for probation. Jeff appealed his conviction during the pendency of whichhe also filed a petition for probation. The brothers counsel argued that they beingfirst time offenders, their petitions for probation should be granted. How wouldyou resolve the brothers petitions for probation? Explain. (3%)

XXI

Because peace negotiations on the Spratlys situation had failed, the PeoplesRepublic of China declared war against the Philippines. Myra, a Filipina who liveswith her Italian expatriate boyfriend, discovered e-mail correspondence betweenhim and a certain General Tung Kat Su of China. On March 12, 2010, Myradiscovered that on even date her boyfriend had sent an e-mail to General Tung Kat

Su, in which he agreed to provide vital information on the military defense of thePhilippines to the Chinese government in exchange for P1 million and his safereturn to Italy. Two weeks later, Myra decided to report the matter to the properauthorities.

Did Myra commit a crime? Explain. (3%)

XXII

Immediately after murdering Bob, Jake went to his mother to seek refuge. Hismother told him to hide in the maids quarters until she finds a better place for himto hide. After two days, Jake transferred to his aunts house. A week later, Jake


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was apprehended by the police. Can Jakes mother and aunt be made criminallyliable as accessories to the crime of murder? Explain. (3 %)

XXIII

Christopher, John, Richard, and Luke are fraternity brothers. To protect themselvesfrom rival fraternities, they all carry guns wherever they go. One night, afterattending a party, they boarded a taxicab, held the driver at gunpoint and took thelatters earnings.

What crime, if any, did the four commit? Enumerate the elements of the crime.(2%)

Would your answer be the same if they killed the driver? Explain. (2%)

NOTHING FOLLOWS.

Mercantile Law

I

Briefly describe the following types of banks: (2% each)

universal bank

commercial bankthrift bank

rural bank

cooperative bank

II


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Once the accumulated amount reaches $5,000, the same is used as down paymentfor the real property chosen by the BCO.

Does this multi-level marketing scheme constitute an investment contract underthe Securities Regulation Code? Define an investment contract. (2%)

What procedure must be followed under the Securities Regulation Code toauthorize the sale or offer for sale or distribution of an investment contract? (2%)

What are the legal consequences of failure to follow this procedure? (2%)

V

Venezia is a famous international fashion chain with outlets in Makati, Ortigas,and Manila. It has complied with the minimum capitalization required under theRetail Trade Nationalization Act and carries on retail business worth more than $3million for each of its outlets. As its Manila outlet is not doing very well, it decidesto sell all of its business there consisting of remaining inventory, furniture andfixtures and other assets to its competitor.

Venezias Manila outlet constitutes one-third (1/3) of its total business. Should it

comply with the requirements of the Bulk Sales Law? Why or why not? (2%)

If instead of selling its Manila outlet, Venezia merely mortgages its assets there,would it need to comply with the requirements of the Bulk Sales Law? (2%)

What are the legal consequences of a failure to comply with the requirements ofthe Bulk Sales Law? (2%)

VI

What contractual stipulations are required in all technology transfer agreements?(2%)

Enumerate three (3) stipulations that are prohibited in technology transferagreements. (3%)


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Can an article of commerce serve as a trademark and at the same time enjoy patentand copyright protection? Explain and give an example. (2%)

VII

Union Mines, Inc. has total assets of P60 million with 210 stockholders holding atleast 100 shares each. The company has two principal stockholders, ABC whichowns 60% of the shares of stock, and XYZ which owns 17%. ABC in turn isowned to the extent of 21.31% by Acme, Inc.; 29.69% by Golden Boy, Inc.; 9% byXYZ; and the rest by individual stockholders. None of the parties is a publicly-listed company. XYZ now proposes to buy Acmes and Golden Boys shares inABC, which would give it direct control of ABC and indirect control of UnionMines.

Is the proposed acquisition by XYZ subject to the mandatory tender offer rule?Why or why not? What is a tender offer and when is it mandatory? (5%)

VIII

Marlon deposited with LYRIC Bank a money market placement of P1 million for aterm of 31 days. On maturity date, one claiming to be Marlon called up the LYRICBank account officer and instructed him to give the managers check representingthe proceeds of the money market placement to Marlons girlfriend Ingrid. Thecheck, which bore the forged signature of Marlon, was deposited in Ingridsaccount with YAMAHA Bank. YAMAHA Bank stamped a guaranty on the checkreading: All prior endorsements and/or lack of endorsement guaranteed.

Upon presentment of the check, LYRIC Bank funds the check. Days later, Marlongoes to LYRIC Bank to collect his money market placement and discovers theforegoing transactions. Marlon thereupon sues LYRIC Bank which in turn files athird-party complaint against YAMAHA Bank. Discuss the respective rights andliabilities of the two banks. (5%)


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IX

Your client Dianne approaches you for legal advice on putting up a medium-sized

restaurant business that will specialize in a novel type of cuisine. As Dianne feelsthat the business is a little risky, she wonders whether she should use a corporationas the business vehicle, or just run it as a single proprietorship. She already has anexisting corporation that is producing meat products profitably and is alsoconsidering the alternative of simply setting up the restaurant as a branch office ofthe existing corporation.

Briefly explain to your client what you see as the legal advantages anddisadvantages of using a separate corporation, a single proprietorship, or a branchof an existing corporation for the proposed restaurant business. (3%)

If you advise your client to use a corporation, what officer positions must thecorporation at least have? (2%)

What particular qualifications, if any, are these officers legally required to possessunder the Corporation Code? (2%)

X

To secure a loan of P10 million, Mario mortgaged his building to Armando. Inaccordance with the loan arrangements, Mario had the building insured with FirstInsurance Company for P10 million, designating Armando as the beneficiary.Armando also took an insurance on the building upon his own interest with SecondInsurance Company for P5 million. The building was totally destroyed by fire, a

peril insured against under both insurance policies. It was subsequently determinedthat the fire had been intentionally started by Mario and that in violation of the loanagreement, he had been storing inflammable materials in the building.

How much, if any, can Armando recover from either or both insurance companies?(2%)

What happens to the P10 million debt of Mario to Armando? Explain. (3%)

XI


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Enrique obtained from Seguro Insurance Company a comprehensive motor vehicleinsurance to cover his top of the line Aston Martin. The policy was issued onMarch 31, 2010 and, on even date, Enrique paid the premium with a personal

check postdated April 6, 2010.

On April 5, 2010, the car was involved in an accident that resulted in its total loss.On April 10, 2010, the drawee bank returned Enriques check with the notationInsufficient Funds. Upon notification, Enrique immediately deposited additionalfunds with the bank and asked the insurer to redeposit the check.

Enrique thereupon claimed indemnity from the insurer. Is the insurer liable underthe insurance coverage? Why or why not? (3%)

XII

AA entered into a contract with BB for the latter to transport ladies wear fromManila to France with transhipment via Taiwan. Somehow the goods were not

loaded in Taiwan on time, hence, these arrived in France off-season. AA wasonly paid for onehalf (1/2) the value by the buyer. AA claimed damages from BB.BB invoked prescription as a defense under the Carriage of Goods by Sea Act.Considering the loss of value of the ladies wear as claimed by AA, is BBsdefense tenable? Explain. (3%)

XIII

Paolo, the owner of an ocean-going vessel, offered to transport the logs ofConstantino from Manila to Nagoya. Constantino accepted the offer, not knowingthat the vessel was manned by an irresponsible crew with deep-seated resentmentsagainst Paolo, their employer. Constantino insured the cargo of logs against both

perils of the sea and barratry. The logs were improperly loaded on one side,thereby causing the vessel to tilt on one side. On the way to Nagoya, the crew


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unbolted the sea valves of the vessel causing water to flood the ship hold. Thevessel sank.

Constantino tried to collect from the insurance company which denied liability,given the unworthiness of both the vessel and its crew. Constantino countered thathe was not the owner of the vessel and he could therefore not be responsible forconditions about which he was innocent.

Is the insurance company liable? Why or why not? (3%)

What is barratry in marine insurance? (2%)

XIV

When OCCIDENTAL Bank folded up due to insolvency, Manuel had thefollowing separate deposits in his name: P200,000 in savings deposit; P250,000 intime deposit; P50,000 in a current account; P1 million in a trust account; and P3million in money market placement. Under the Philippine Deposit InsuranceCorporation Act, how much could Manuel recover? Explain. (2%)

XV

While vacationing in Boracay, Valentino surreptitiously took photographs of hisgirlfriend Monaliza in her skimpy bikini. Two weeks later, her photographsappeared in the Internet and in a national celebrity magazine. Monaliza found outthat Valentino had sold the photographs to the magazine and, adding insult toinjury, uploaded them to his personal blog on the Internet.

Monaliza filed a complaint against Valentino for damages based on, among othergrounds, violation of her intellectual property rights. Does she have any cause ofaction? Explain. (2%)


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Valentinos friend Francesco stole the photographs and duplicated them and soldthem to a magazine publication. Valentino sued Francesco for infringement anddamages. Does Valentino have any cause of action? Explain. (2%)

Does Monaliza have any cause of action against Francesco? Explain. (2%)

XVI

An importer of Christmas toys loaded 100 boxes of Santa Claus talking dollsaboard a ship in Korea bound for Manila. With the intention of smuggling one-halfof his cargo, he took a bill of lading for only 50 boxes. On the voyage to Manila,50 boxes were jettisoned to save the more precious cargo.

Is the importer entitled to receive any indemnity for average? Explain. (2%)

What are the types of averages in marine commerce? (3%)

XVII

The Supreme Court has held that fraud is an exception to the independenceprinciple governing letters of credit. Explain this principle and give an example of

how fraud can be an exception. (3%)

XVIII

For years, Y has been engaged in the parallel importation of famous brands,including shoes carrying the foreign brand MAGIC. Exclusive distributor Xdemands that Y cease importation because of his appointment as exclusive

distributor of MAGIC shoes in the Philippines. Y counters that the trademarkMAGIC is not registered with the Intellectual Property Office as a trademark andtherefore no one has the right to prevent its parallel importation.

Who is correct? Why? (2%)


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3. As a general rule, direct hiring of Overseas Filipino Workers (OFWs) is notallowed. (2%)

II

Distinguish the terms conciliation, mediation and arbitration. (3%)

Differentiate surface bargaining from blue-sky bargaining. (2%)

III

A, single, has been an active member of the Social Security System for the past 20months. She became pregnant out of wedlock and on her 7th month of pregnancy,she was informed that she would have to deliver the baby through caesareansection because of some complications. Can A claim maternity benefits? If yes,how many days can she go on maternity leave? If not, why is she not entitled?(3%)

IV

A, a worker at ABC Company, was on leave with pay on March 31, 2010. Hereported for work on April 1 and 2, Maundy Thursday and Good Friday,respectively, both regular holidays. Is A entitled to holiday pay for the twosuccessive holidays? Explain. (3%)

V

Company XYZ has two recognized labor unions, one for its rank-and-fileemployees (RFLU), and one for supervisory employees (SELU). Of late, thecompany instituted a restructuring program by virtue of which A, a rank-and-fileemployee and officer of RFLU, was promoted to a supervisory position along withfour (4) other colleagues, also active union members and/or officers. Labor Union


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KMJ, a rival labor union seeking recognition as the rank-and-file bargaining agent,filed a petition for the cancellation of the registration of RFLU on the ground thatA and her colleagues have remained to be members of RFLU. Is the petitionmeritorious? Explain. (3%)

VI

A is a member of the labor union duly recognized as the sole bargainingrepresentative of his company. Due to a bargaining deadlock, 245 members of the500-strong union voted on March 13, 2010 to stage a strike. A notice of strike wassubmitted to the National Conciliation and Mediation Board on March 16, 2010.Seven days later or on March 23, 2010, the workers staged a strike in the course ofwhich A had to leave and go to the hospital where his wife had just delivered a

baby. The union members later intimidated and barred other employees fromentering the work premises, thus paralyzing the business operations of thecompany.

A was dismissed from employment as a consequence of the strike.

Was the strike legal? Explain. (3%)

Was As dismissal valid? Why or why not? (3%)

VII

A was an able seaman contracted by ABC Recruitment Agency for its foreignprincipal, Seaworthy Shipping Company (SSC). His employment contractprovided that he would serve on board the Almieda II for eight (8) months with amonthly salary of US$450. In connection with his employment, he signed anundertaking to observe the drug and alcohol policy which bans possession or use ofall alcoholic beverages, prohibited substances and un-prescribed drugs on boardthe ship. The undertaking provided that: (1) disciplinary action including dismissalwould be taken against anyone in possession of the prohibited substances or who is


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impaired by the use of any of these substances, and (2) to enforce the policy,random test sampling would be done on all those on board the ship.

On his third month of service while the Almieda II was docked at a foreign port, arandom drug test was conducted on all members of the crew and A tested positivefor marijuana. He was given a copy of the drug test result. In compliance with thecompanys directive, he submitted his written explanation which the company didnot find satisfactory. A month later, he was repatriated to the Philippines.

Upon arrival in the Philippines, A filed with the National Labor RelationsCommission (NLRC) a complaint against the agency and the principal for illegaldismissal with a claim for salaries for the unexpired portion of his contract.

Was As dismissal valid? Explain. (3%)

Is his claim for salaries for the unexpired portion of his contract tenable? Explain.(3%)

VIII

ABC company and U labor union have been negotiating for a new CollectiveBargaining Agreement (CBA) but failed to agree on certain economic provisionsof the existing agreement. In the meantime, the existing CBA expired. Thecompany thereafter refused to pay the employees their midyear bonus, saying thatthe CBA which provided for the grant of midyear bonus to all company employeeshad already expired. Are the employees entitled to be paid their midyear bonus?Explain your answer. (3%)

IX

A was working as a medical representative of RX pharmaceutical company whenhe met and fell in love with B, a marketing strategist for Delta Drug Company, acompetitor of RX. On several occasions, the management of RX called As


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On December 12, 2008, A signed a contract to be part of the crew of ABC Cruises,Inc. through its Philippine manning agency XYZ. Under the standard employmentcontract of the Philippine Overseas Employment Administration (POEA), hisemployment was to commence upon his actual departure from the port in the pointof hire, Manila, from where he would take a flight to the USA to join the cruiseship MS Carnegie. However, more than three months after A secured his exitclearance from the POEA for his supposed departure on January 15, 2009, XYZstill had not deployed him for no valid reason.

Is A entitled to relief? Explain. (3%)

XIII

A is employed by XYZ Company where XYZ Employees Union (XYZ-EU) is therecognized exclusive bargaining agent. Although A is a member of rival unionXYR-MU, he receives the benefits under the CBA that XYZ-EU had negotiatedwith the company.

XYZ-EU assessed A a fee equivalent to the dues and other fees paid by itsmembers but A insists that he has no obligation to pay said dues and fees becausehe is not a member of XYZEU and he has not issued an authorization to allow thecollection. Explain whether his claim is meritorious. (3%)

PART II

XIV

After working from 10 a.m. to 5 p.m. on a Thursday as one of 5,000 employees ina beer factory, A hurried home to catch the early evening news and have dinnerwith his family. At around 10 p.m. of the same day, the plant manager called andordered A to fill in for C who missed the second shift.


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May A validly refuse the plant managers directive? Explain. (2%)

Assuming that A was made to work from 11 p.m. on Thursday until 2 a.m. on

Friday, may the company argue that, since he was two hours late in coming towork on Thursday morning, he should only be paid for work rendered from 1 a.m.to 2 a.m.? Explain? (3%)

XV

Samahang Manggagawa ng Terracota, a union of supervisory employees atTerracota Inc., recently admitted a member of the companys managerial staff, A,into the union ranks.

Should A be a member of the supervisory union? Explain. (2%)

Assuming that A is ineligible to join the union, should the registration ofSamahang Manggagawa ng Terracota be cancelled? Explain. (3%)

XVI

On the first day of collective bargaining negotiations between rank-and-file UnionA and B Bus Company, the former proposed a P45/day increase. The companyinsisted that ground rules for negotiations should first be established, to which theunion agreed. After agreeing on ground rules on the second day, the unionrepresentatives reiterated their proposal for a wage increase. When companyrepresentatives suggested a discussion of political provisions in the CollectiveBargaining Agreement as stipulated in the ground rules, union members went onmass leave the next day to participate in a whole-day prayer rally in front of thecompany building.

The company filed a petition for assumption of jurisdiction with the Secretary ofLabor and Employment. The Union opposed the petition, arguing that it did notintend to stage a strike. Should the petition be granted? Explain. (2%)


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The Union contended that assuming that the mass leave will be considered as astrike, the same was valid because of the refusal of the company to discuss theeconomic provisions of the CBA. Rule on the contention. (2%)

Union member AA, a pastor who headed the prayer rally, was served a notice of

termination by management after it filed the petition for assumption of jurisdiction.May the company validly terminate AA? Explain. (2%)

XVII

A was hired to work in a sugar plantation performing such tasks as weeding,cutting and loading canes, planting cane points, fertilizing and cleaning thedrainage. Because his daily presence in the field was not required, A also workedas a houseboy at the house of the plantation owner. For the next planting season,the owner decided not to hire A as a plantation worker but as a houseboy instead.Furious, A filed a case for illegal dismissal against the plantation owner. Decidewith reason. (3%)

XVIII

Flight attendant A, five feet and six inches tall, weighing 170 pounds ended upweighing 220 pounds in two years. Pursuant to the long standing Cabin and CrewAdministration Manual of the employer airline that set a 147-pound limit for Asheight, management sent A a notice to shape up or ship out within 60 days. Atthe end of the 60-day period, A reduced her weight to 205 pounds. The companyfinally served her a Notice of Administration Charge for violation of companystandards on weight requirements. Should A be dismissed? Explain. (3%)

XIX

Several employees and members of Union A were terminated by Western PhoneCo. on the ground of redundancy. After complying with the necessaryrequirements, the Union staged a strike and picketed the premises of the company.The management then filed a petition for the Secretary of Labor and Employment


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May X be held criminally liable for illegal recruitment? Explain. (2%)

May the officers having control, management or direction of Alpha PersonnelServices, Inc. be held criminally liable for illegal recruitment? Explain. (3%)

XXII

A was recruited to work abroad by Speedy Recruitment Agency as a technician fora Saudi Arabian construction firm, with a monthly salary of $650.00. When she gotto the construction site, the employer compelled her to sign another contract thatreferred her to another employer for a salary of $350.00. She worked for thesecond employer and was paid $350.00 until her two-year contract expired. Uponher return to the Philippines, she filed a case against the agency and the twoemployers. May the agency validly raise the defense that it was not privy to thetransfer of A to the second employer? Explain. (3%)

XXIII

A worked as a roomboy in La Mallorca Hotel. He sued for underpayment of wagesbefore the NLRC, alleging that he was paid below the minimum wage. Theemployer denied any underpayment, arguing that based on long standing,unwritten policy, the Hotel provided food and lodging to its housekeepingemployees, the costs of which were partly shouldered by it and the balance wascharged to the employees. The employees corresponding share in the costs wasthus deducted from their wages. The employer concluded that such valid deductionnaturally resulted in the payment of wages below the prescribed minimum. If youwere the Labor Arbiter, how would you rule? Explain. (3%)

XXIV

Rank-and-file workers from Peacock Feathers, a company with 120 employees,registered their independent labor organization with the Department of Labor andEmployment (DOLE) Regional Office. Management countered with a petition tocancel the unions registration on the ground that the minutes of ratification of the


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IV

Choose the statement which appropriately completes the opening phrase:

A State which resorts to retorsion in international law

A. must ensure that all states consent to its act.

B. cannot curtail migration from the offending state.

C. can expel the nationals of the offending state.

D. should apply proportionate response within appreciable limit.

E. None of the above.

Explain your answer. (2%)

V

Congresswoman A is a co-owner of an industrial estate in Sta. Rosa, Laguna whichshe had declared in her Statement of Assets and Liabilities. A member of her

political party authored a bill which would provide a 5-year development plan forall industrial estates in the Southern Tagalog Region to attract investors. The planincluded an appropriation of 2 billion pesos for construction of roads around theestates. When the bill finally became law, a civil society watchdog questioned the


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constitutionality of the law as it obviously benefitted Congresswoman Asindustrial estate. Decide with reasons. (3%)

VI

The Poverty Alleviation and Assistance Act was passed to enhance the capacityof the most marginalized families nationwide. A financial assistance scheme calledconditional cash transfers was initially funded 500 million pesos by Congress.

One of the provisions of the law gave the Joint-Congressional OversightCommittee authority to screen the list of beneficiary families initially determinedby the Secretary of Department of Social Welfare and Development pursuant to theDepartment implementing rules. Mang Pandoy, a resident of Smokey Mountain inTondo, questioned the authority of the Committee.

A. Does Mang Pandoy have legal standing to question the law? (2%)

B. Is the grant of authority to the Oversight Committee to screen beneficiariesconstitutional? (3%)

Decide with reasons.

VII

True or False.

A. A proclamation of a state of emergency is sufficient t

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