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2010 Bar Exams

Questions in Remedial Law

I

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

To prove the qualifying circumstance of evident premeditation, the prosecution introduced on December11, 2009 a text message, which Mabinis estranged wife Gregoria had sent to Emilio on the eve of his

death, reading: Honey, pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg ingat u bka ma tsugi k.

a. A subpoena ad testificandum was served on Gregoria for her to be presented for the purpose ofidentifying her cellphone and the text message. Mabini objected to her presentation on the

ground of marital privilege. Resolve. (3%)b. Suppose Mabinis objection in question A was sustained. The prosecution thereupon announced

that it would be presenting Emilios wife Graciana to identify Emilios cellphone bearingGregorias text message. Mabini objected again. Rule on the objection. (2%)

c. If Mabinis objection in question B was overruled, can he object to the presentation of the textmessage on the ground that it is hearsay? (2%)

d. Suppose that shortly before he expired, Emilio was able to send a text message to his wifeGraciana reading Nasaksak ako. D na me makahinga. Si Mabini ang may gawa 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 in Legaspi City 100,000

pieces of century eggs. The shipment arrived in Manila totally damaged on August 14, 2008. A filed

before the Metropolitan Trial Court (MeTC) of Manila a complaint against B Super Lines, Inc. (BLines), owner of the M/V Atlantis, for recovery of damages amounting to P167,899. He attached to thecomplaint the Bill of Lading.

a. B Lines filed a Motion to Dismiss upon the ground that the Regional Trial Court has exclusiveoriginal jurisdiction over all actions in admiralty and maritime claims. In his Reply, Acontended that while the action is indeed admiralty and maritime in nature, it is the amount of

the claim, not the nature of the action, that governs jurisdiction. Pass on the Motion to Dismiss.(3%)

b. The MeTC denied the Motion in question A. B Lines thus filed an Answer raising the defensethat under the Bill of Lading it issued to A, its liability was limited to P10,000.

At the pre-trial conference, B Lines defined as one of the issues whether the stipulation limitingits liability to P10,000 binds A. A countered that this was no longer in issue as B Lines had failed

to deny under oath the Bill of Lading. Which of the parties is correct? Explain. (3%)

c. On July 21, 2009, B Lines served on A a Notice to Take Deposition, setting the deposition onJuly 29, 2009 at 8:30 a.m. at the office of its counsel in Makati. A failed to appear at the

deposition-taking, despite notice. As counsel for B Lines, how would you proceed? (3%)

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III

Anabel filed a complaint against B for unlawful detainer before the Municipal Trial Court (MTC) ofCandaba, Pampanga. After the issues had been joined, the MTC dismissed the complaint for lack of

jurisdiction after noting that the action was one foraccion publiciana.

Anabel appealed the dismissal to the RTC which affirmed it and accordingly dismissed her appeal. Sheelevates the case to the Court ofAppeals, which remands 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 legalservices to V. V, who suffered physical injuries including a fractured wrist bone, underwent surgery to

screw a metal plate to his wrist bone. On complaint of V, a criminal case for Reckless ImprudenceResulting in Serious Physical Injuries was filed against X before the Municipal Trial Court (MTC) of

Sta. Maria. Atty. L, the private prosecutor, did not reserve the filing of a separate civil action.

V subsequently filed a complaint for Damages against X and Y before the Regional Trial Court ofPangasinan in Urdaneta where he resides. In his Certification Against Forum Shopping, V made no

mention of the pendency of the criminal case in Sta. Maria.

a. Is V guilty of forum shopping? (2%)b. Instead of filing an Answer, X and Y move to dismiss the complaint for damages on the ground

oflitis pendentia. Is the motion meritorious? Explain. (2%)

c. Suppose only X was named as defendant in the complaint for damages, may he move for thedismissal of the complaint for failure of V to implead Y as an indispensable party? (2%)

d. X moved for the suspension of the proceedings in the criminal case to await the decision in the

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

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

V

Charisse, alleging that she was a resident of Lapu-Lapu City, filed a complaint for damages against

Atlanta Bank before the RTC of Lapu-Lapu City, following the dishonor of a check she drew in favor ofShirley against her current account which she maintained in the banks local branch.

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

a. In the course of the trial, Charisse admitted that she was a US citizen residing in Los AngelesCalifornia and that she was temporarily billeted at the Pescado Hotel in Lapu-Lapu City, drawingthe bank to file another motion to dismiss, this time on the ground of improper venue, since

Charisse is not a resident of Lapu-Lapu City.

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

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

c. Suppose the judge correctly denied the second motion to dismiss and rendered judgment in favorof 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 its liability 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 the debt.

On the due date of the check, Benjamin deposited it but it was dishonored. As despite demandsMercedes failed to make good the check, Benjamin filed in January 2009 a complaint for collection of

sum of money before the RTC of Davao.

Mercedes filed in February 2009 herAnswer with Counterclaim, alleging that before the filing of the

case, she and Benjamin had entered into a dacion en pago agreement in which her vintage P1,000,000Rolex watch which was taken by Benjamin for sale on commission was applied to settle her

indebtedness; and that she incurred expenses in defending what she termed a frivolous lawsuit. Sheaccordingly prayed for P50,000 damages.

a. Benjamin soon after moved for the dismissal of the case. The trial court accordingly dismissedthe complaint. And it also dismissed the Counterclaim.

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

b. Suppose there was no Counterclaim and Benjamins complaint was not dismissed, and judgmentwas 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 her Toyota Camrymodel 2008 valued at P1.2 million. The Sheriff, however, on request of Benjamin, seized

Mercedes 17th century ivory image of the La Sagrada Familia 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 approachinghim. Sensing that the occupants of the vehicle were up to no good, he darted into a corner and ran. The

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occupants of the vehicle elements from the Western Police District gave chase and apprehendedhim.

The police apprehended Cicero, frisked him and found a sachet of 0.09 gram of shabu tucked in his

waist and a Swiss knife in his secret pocket, and detained him thereafter. Is the arrest and body-searchlegal? (3%)

PART II

VIII

Dominique was accused of committing a violation of the Human Security Act. He was detainedincommunicado, deprived of sleep, and subjected to water torture. He later allegedly confessed his guilt

via an affidavit.

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

In a subsequent criminal case for torture against those who deprived him of sleep and subjected him towater torture, Dominique was asked to testify and to, among other things, identify his above-said

affidavit of confession. As he was about to identify the affidavit, the defense counsel objected on theground that the affidavit is 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 not identical with that of the accuseds. As privateprosecutor, how will you dispute the veracity 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 to have personallywitnessed the malversation of funds given by US authorities in connection with the Balikatan exercises.

Marinella alleges that as a result of her expos, there are operatives within the military who are out to

kill her. She files a petition for the issuance of a writ of amparo against, among others, the Chief ofStaffbut without alleging that the latter ordered that she be killed.

Atty. Daro, counsel for the Chief ofStaff, moves for the dismissal of the Petition for failure to allegethat his client issued any order to kill or harm Marinella. Rule on Atty. Daros motion. Explain. (3%)

XI

X was arrested for the alleged murder of a 6-year old lad. He was read his Miranda rights immediately

upon being apprehended.

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In the course of his detention, X was subjected to three hours of non-stop interrogation. He remainedquiet until, on the 3rd hour, he answered yes to the question of whether he prayed for forgiveness for

shooting down the boy. The trial court, interpreting Xs answer as an admission of guilt, convicted him

On appeal, Xs counsel faulted the trial court in its interpretation of his clients answer, arguing that Xinvoked his Miranda rights when he remained quiet for the first 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 been previously arrested for

violation of the Anti- Graft and Corrupt Practices Act. As defense counsel, you object. The trial courtasks you on what ground/s. Respond. (3%)

XIII

Policemen brought Lorenzo to the Philippine General Hospital (PGH) and requested one of its surgeons

to immediately perform surgery on him to retrieve a packet of 10 grams ofshabu which they allegedwas swallowed by Lorenzo.

Suppose the PGH agreed to, and did perform the surgery, is the package ofshabu admissible inevidence? 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 of his disrespectful conduct towards her.

Duqueza soon instituted an action for probate of Czarinas will. Marco, on the other hand, instituted

intestate proceedings. Both actions were consolidated before the RTC of Pasig. On motion of MarcoDuquezas petition was ordered dismissed on the ground that the will is void for depriving him of his

legitime. Argue for Duqueza. (5%)

XV

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

Upon Pedrillos demise, his will was duly probated in Los Angeles and the specified sum in the will wasin fact used to purchase an annuity with XYZ of Hong Kong so that Winston would receive the

equivalent of US$1,000 per month for the next 15 years.

Wanting to receive the principal amount of the annuity, Winston files for the probate of Pedrillos will inthe Makati RTC. As prayed for, the court names Winston as administrator of the estate.

Winston now files in the Makati RTC a motion to compel XYZ to account for all sums in its possession

forming part of Pedrillos estate. Rule on the motion. (5%)

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XVI

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

Dayanara filed a petition for the issuance of letters of administration. Charlene, one of the children, filed

an opposition to the petition, alleging that there was neither an allegation nor genuine effort to settle theestate 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 organizer including his credit card

and billing statement. Two days later, upon reporting the matter to the credit card company, he learnedthat 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 plane ticketwas under the name of one Dina Meril. Dante approaches you for legal advice.

a. What is the proper procedure to prevent Dina from leaving the Philippines? (2%)b. 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 secure in order to prove the

fraudulent online transaction? (2%)

XIX

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

(2%).

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

XX

Azenith, the cashier of Temptation Investments, Inc. (Temptation, Inc.) with principal offices in CebuCity, is equally hated and loved by her co-employees because she extends cash advances or vales to

her colleagues whom she likes. One morning, Azenith discovers an anonymous letter inserted under thedoor of her office threatening to kill her.

Azenith promptly reports the matter to her superior Joshua, who thereupon conducts an internal

investigation to verify the said threat.

Claiming that the threat is real, Temptation, Inc. opts to transferAzenith to its Palawan Office, a moveshe resists in view of the companys refusal to disclose the results of its investigation.

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Decrying the move as a virtual deprivation of her employment, Azenith files a petition for the issuanceof a writ of habeas data before the Regional Trial Court (RTC) to enjoin Temptation, Inc. from

transferring her on the ground that the companys refusal to provide her with a copy of the investigationresults compromises her right to life, liberty and privacy.

Resolve the petition. Explain. (5%)

Questions in Legal Ethics and Practical Exercises

I

Prepare the following:

a. Verification and Certification against Forum Shopping. (5%)b. Petition for Letters Rogatory. (5%)

II

Enumerate the instances when a Notary Public may authenticate documents without requiring thephysical presence of the signatories. (2%)

III

Atty. Y, in his Motion for Reconsideration of the Decision rendered by the National Labor RelationsCommission (NLRC), alleged that there was connivance of the NLRC Commissioners with Atty. X for

monetary considerations in arriving at the questioned Decision. He insulted the Commissioners for theirineptness in appreciating the facts as borne by the evidence presented. Atty. X files an administrative

complaint against Atty. Y for using abusive language.

Atty. Y posits that as lawyer for the down-trodden laborers, he is entitled to express his righteous anger

against the Commissioners for having cheated them; that his allegations in the Motion forReconsideration are absolutely privileged; and that proscription against the use of abusive language does

not cover pleadings filed with the NLRC, as it is not a court, nor are any of its Commissioners Justicesor Judges. Is Atty. Y administratively liable under the Code of Professional Responsibility? 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 was away despite JJs repeated demands. Upon hisreturn to the Philippines, Atty. XX still failed to settle his rental arrearages and electric bills, drawing JJto file an administrative complaint against Atty. XX.

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

Responsibility.

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

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b. Cite two (2) specific Rules in the Code of Professional Responsibility, violation of whichsubjects a lawyer to disciplinary action by the Supreme Court although the acts complained of

are purely personal or private activities that do not involve the practice of law. (2%)

V

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

VI

Atty. Monica Santos-Cruz registered the firm name Santos- Cruz Law Office with the Department of

Trade and Industry as a single proprietorship. In her stationery, she printed the names of her husbandand a friend who are both non-lawyers as her senior partners in light of their investments in the firm. She

allowed her husband to give out calling cards bearing his name as senior partner of the firm and toappear 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 ofAppeals was influenced by apowerful relative of the prevailing party. The appellate court found 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 case involving 5,000 square

meters (sq.m.) of land, the two agreed on a success fee of P50,000 plus 500 sq.m. of the land.

The trial court rendered judgment in favor of Wag Yu which became final and executory. Afterreceiving P50,000, Atty. Delmonico demanded the transfer to him of the promised 500 sq.m. Instead of

complying, Wag Yu filed an administrative complaint charging Atty. Delmonico with violation of theCode of Professional Responsibility and Article 1491(5) of the Civil Code for demanding the delivery of

a portion of the land subject of litigation.

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

IX

Is the defense ofAtty. R in a disbarment complaint for immorality filed by his paramour P that P is inpari delicto material or a ground for exoneration? Explain. (3%)

X

Allison hired Atty. X as his counsel in his complaint for Collection ofSum of Money. Upon receipt onMarch 20, 2009 of the Notice of Pre-Trial which was scheduled on May 24, 2009, Allison noted that at

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that time he would still be in a two-week conference in St. Petersburg. He thus asked Atty. X torepresent him during the pre-trial.

Prepare the necessary document that Atty. X should submit to the court to enable him to represent

Allison during Pre-Trial. (5%)

XI

After passing the Philippine Bar in 1986, Atty. Richards practiced law until 1996 when he migrated to

Australia where he subsequently became an Australian citizen in 2000. As he kept abreast of legaldevelopments, petitioner learned about the Citizenship Retention and Re-Acquisition Act of 2003

(Republic Act No. 9225), pursuant to which he reacquired his Philippine citizenship in 2006. He tookhis 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 Philippines in December 2008. After the holidays, heestablished his own law office and resumed his practice of law.

Months later, a concerned woman who had secured copies ofAtty. Richards naturalization papers with

consular authentication, filed with the Supreme Court an anonymous complaint against him< for illegalpractice of law.

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

b. 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 of Judge As wife by a

previous marriage. This is known to the defendant who does not, however, file a motion to inhibit theJudge.

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

XIII

Reacting to newspaper articles and verbal complaints on alleged rampant sale of Temporary Restraining

Orders by Judge X, the Supreme Court ordered the conduct of a discreet investigation by the Office ofthe Court Administrator.

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

a. What administrative charge/s may be leveled against Judge X? Explain. (3%)b. What defense/s can Judge X raise in avoidance of any liability? (2%)

XIV

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Farida engaged the services ofAtty. Garudo to represent her in a complaint for damages. The twoagreed that all expenses incurred in connection with the case would first be shouldered by Atty. Garudo

and he would be paid for his legal services and reimbursed for all expenses which he had advanced outof whatever Farida 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 of the more posh golf

courses. He relishes hosting parties for government officials and members of the bench.

One day, he had a chance meeting with a judge in the Intramuros golf course. The two readily got along

well and had since been regularly playing golf together at the Marina Golf Club.

a. IfAtty. Rico does not discuss cases with members of the bench during parties and golf games, ishe violating the Code of Professional Responsibility? Explain. (3%)

b. How about the members of the bench who grace the parties of Rico, are they violating the Codeof Judicial Conduct? Explain. (3%)

XVI

Judge L is assigned in Turtle Province. His brother ran for Governor in Rabbit Province. During theelection period this year, Judge L took a leave of absence to help his brother conceptualize the campaign

strategy. He even contributed a modest amount to the campaign kitty and hosted lunches and dinners.

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 a private organization which

was covered by media. Since he was given the liberty to speak on any topic, he discussed the recentdecision of the Supreme Court declaring that the President is not, under the Constitution, proscribed

from appointing a Chief Justice within two months before the election.

In his speech, the judge demurred to the Supreme Court decision and even stressed that the decision is aserious violation of the Constitution.

a. Did Judge X incur any administrative liability? Explain. (3%)b. If instead of ventilating his opinion before the private organization, Judge X incorporated it, as

an obiter dictum, in one of his decisions, did he incur any administrative liability? Explain. (3%)

XVIII

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

b. Draft a Petition for the Issuance of a Writ ofHabeas Data. (5%)c. Draft a Petition for Bail. (5%)

XIX

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Judges of the first and second level courts are allowed to receive assistance from the local governmentunits where they are stationed. The assistance could be in the form of equipment or allowance.

Justices at the Court ofAppeals in the regional stations in the Visayas and Mindanao are not necessarily

residents there, hence, they incur additional expenses for their accommodations.

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

XX

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

immorality and use of illegal drugs.

AfterArabella presented evidence and rested her case before the Investigating Commissioner of the IBPCommittee on Bar Discipline, she filed an Affidavit of Desistance and motion to dismiss the complaint

she and her husband having reconciled for the sake of their children.

You are the Investigating Commissioner of the IBP. Bearing in mind that the family is a social

institution which the State is duty-bound to preserve, what will be your action on Arabellas motion todismiss 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 be constructed thereon. The donation was acceptedand the condition was complied with.

The family-owned tracts of land in the vicinity of the donated lot suddenly appreciated in value andbecame commercially viable as in fact a restaurant and a hotel 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 attending hearings, he uses hiscar bearing his protocol plate which was issued to him while still in the service. Pass on the ethica

aspect of the judges use of the protocol plate. (2%)

NOTHING FOLLOWS.

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Questions in Taxation

I

True or False.

a. In civil cases involving the collection of internal revenue taxes, prescription is construed strictlyagainst the government and liberally in favor of the taxpayer. (1%)

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

c. In criminal cases where the Court of Tax Appeals (CTA) has exclusive original jurisdiction, theright to file a separate civil action for the recovery of taxes may be reserved. (1%)

d. Proceedings before the CTA in the exercise of its exclusive original jurisdiction are in the natureof trial de novo. (1%)

e. Judgments, resolutions or orders of the Regional Trial Court in the exercise of its originajurisdiction involving criminal offenses arising from violations of the NIRC are appealable to theCTA, which shall hear the cases en banc. (1%)

II

a. What is the all events test? Explain briefly. (2%)b. What is the immediacy test? Explain briefly. (2%)c. What is the rational basis test? Explain briefly. (2%)d. What is the effect of the execution by a taxpayer of a waiver of the statute of limitations on his

defense of prescription? (2%)e. What is the basis for the computation of business tax on contractors under the Local Government

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

III

Mirador, Inc., a domestic corporation, filed its Annual Income Tax Return for its taxable year 2008 onApril 15, 2009. In the Return, it reflected an income tax overpayment of P1,000,000.00 and indicated its

choice to carry-over the overpayment 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 2009 reflecting a taxable

loss and an income tax overpayment for the current year 2009 in the amount of P500,000.00 and itsincome tax overpayment for the prior year 2008 of P1,000,000.00.

In its 2009 Return, the corporation indicated its option to claim for refund the total income tax

overpayment of P1,500,000.00

Choose which of the following statements is correct.

a. Mirador, Inc. may claim as refund the total income tax overpayment of P1,500,000.00 reflectedin its income tax return for its taxable year 2009;

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b. It may claim as refund the amount of P500,000.00 representing its income tax overpayment forits taxable year 2009; or

c. 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 taxableyear 2008. It failed to protest the PAN. The CIR thereupon issued a final assessment notice (FAN) with

letter of demand on April 30, 2010. The FAN was received by the corporation on May 10, 2010following 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 become final and executory,the corporation having failed to protest the PAN.

Is the CIR correct? Explain. (5%)

V

Does the Court ofAppeals have the power to review compromise agreements forged by theCommissioner of Internal Revenue and a taxpayer? Explain. (5%)

VI

Based on the Affidavit of the Commissioner of Internal Revenue (CIR), an Information for failure to file

income tax return underSection 255 of the National Internal Revenue Code (NIRC) was filed by theDepartment of Justice (DOJ) with the Manila Regional Trial Court (RTC) against XX, a Manila

resident.

XX moved to quash the Information on the ground that the RTC has no jurisdiction in view of the

absence of a formal deficiency tax assessment issued by the CIR.

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

VII

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

VIII

What is the rule on appeal from decisions of the Collector of Customs in protest and seizure cases?

When is the decision of the Collector of Customs appealable to the Court of Tax Appeals? Explain. (5%)

IX

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On May 15, 2009, La Manga Trading Corporation received a deficiency business tax assessment ofP1,500,000.00 from the Pasay City Treasurer. On June 30, 2009, the corporation contested the

assessment by filing a written protest with the City Treasurer.

On October 10, 2009, the corporation received a collection letter from the City Treasurer, drawing it tofile on October 25, 2009 an appeal against the assessment before the Pasay Regional Trial Court (RTC).

a. Was the protest of the corporation filed on time? Explain. (3%)b. Was the appeal with the Pasay RTC filed on time? Explain. (3%)

PART II

X

True or False. (1% each)

a. Gains realized by the investor upon redemption of shares of stock in a mutual fund company areexempt from income tax.

b. A corporation can claim the optional standard deduction equivalent to 40% of its gross sales orreceipts, as the case may be.

c. Premium payment for health insurance of an individual who is an employee in an amount ofP2,500 per year may be deducted from gross income if his gross salary per year is not more than

P250,000.d. The Tax Code allows an individual taxpayer to pay in two equal installments, the first

installment to be paid at the time the return is filed, and the second on or before July 15 of thesame year, if his tax due exceeds P2,000.

e. An individual taxpayer can adopt either the calendar or fiscal period for purposes of filing hisincome tax return.

f. The capitalization rules may be resorted to by the BIR in order to compel corporate taxpayers to

declare dividends to their stockholders regularly.g. Informers reward is subject to a final withholding tax of 10%.h. A non-resident alien who stays in the Philippines for less than 180 days during the calendar year

shall be entitled to personal exemption not to exceed the amount allowed to citizens of thePhilippines by the country of which he is subject or citizen.

XI

Are the following transactions subject to VAT? If yes, what is the applicable rate for each transaction.

State the relevant authority/ies for your answer.

a. Construction by XYZ Construction Co. of concrete barriers for the Asian Development Bank inOrtigas Center to prevent car bombs from ramming the ADB gates along ADB Avenue inMandaluyong City. (3%)

b. Call Center operated by a domestic enterprise in Makati that handles exclusively the reservationsof a hotel chain which are all located in North America. The services are paid for in US$ and

duly accounted for with the Bangko Sentral ng Pilipinas. (3%)c. Sale of orchids by a flower shop which raises its flowers in Tagaytay. (3%)

XII

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Ferremaro, Inc., a manufacturer of handcrafted shoes, maintains its principal office in Cubao, QuezonCity. It has branches/sales offices in Cebu and Davao. Its factory is located in Marikina City where most

of its workers live. Its principal office in Quezon City is also a sales office.

Sales of finished products for calendar year 2009 in the amount of P10 million were made at thefollowing locations:

i) Cebu branch 25%

ii) Davao branch 15%

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 with voyages between Manila

and the West Coast of the U.S. The companys vessels load and unload cargoes at the Port of Manilaalbeit it does not have a branch or sales 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 of shipping lines using thePort 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 in the 60s. A group ofTibetan monks approached A and offered to lease the building in order to use it as a venue for their

Buddhist rituals and ceremonies. A accepted the 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 deficiency real property taxes? Explain. (3%)

XV

Don Sebastian, single but head of the family, Filipino, and resident of Pasig City, died intestate onNovember 15, 2009. He left the following properties and interests:

House and lot (family home) in PasigP800,000

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

Agricultural land in Naic, Cavite which 2,000,000

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he inherited from his father

Car which is being used by his brother

in Cavite 500,000

Proceeds of life insurance where henamed his estate as irrevocable

beneficiary 1,000,000Household furnitures and appliances 1,000,000

Claims against a cousin who has assets

of P10,000 and liabilities of P100,000 100,000

Shares of stock in ABC Corp, a

domestic enterprise 100,000

The expenses and charges on the estate are asfollows:

Funeral ExpensesP250,000

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-stated professional fees. Specifically, they request you toexplain and discuss with them the following questions. You oblige:

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

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

d. If X, one of the compulsory heirs, renounces his share in the inheritance in favor of the other co-heirs, is there any tax implication of Xs renunciation? What about the other 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 he is based. He regularly uses his own car to

maximize his visits even to far flung areas. One fine day a group of militants seized his car. He wasnotified the following day by the police that the marines and the militants had a bloody encounter 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

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In 2009, Caruso, a resident Filipino citizen, received dividend income from a U.S.-based corporationwhich 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 with respect to a non-resident alien like Caruso.

a. What will be your advice to Caruso in order to lessen the impact of possible double taxation onthe same income? (3%)

b. Would your answer in A. be the same if Caruso became a U.S. immigrant in 2008 and hadbecome a non-resident Filipino citizen? Explain the difference in treatment for 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 which the parties forged in the U.S., XYZgranted ABC the right to use a computer system program and to avail of technical know-how relative to

such program. In consideration for such rights, ABC agreed to pay 5% of the revenues it receives fromcustomers who will use and apply the program in the Philippines.

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

NOTHING FOLLOWS.

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Questions in Civil Law

ITrue or False.

a. UnderArticle 26 of the Family Code, when a foreign spouse divorces his/her Filipino spouse, thelatter may re-marry by proving only that the foreign spouse has obtained a divorce against her or

him abroad. (1%)b. X, a widower, died leaving a will stating that the house and lot where he lived cannot be

partitioned for as long as the youngest of his four children desires to stay there. As coheirs and

co-owners, the other three may demand partition anytime. (1%)

IIMultiple choice.

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

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

1. A, the owner2. B, the engineer3. both A & B

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

1. 100% to O as finder2. 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

c. A executed a Deed of Donation in favor of B, a bachelor, covering a parcel of land valued at P1million. B was, however, out of the country at the time. For the donation 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 for him.

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

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

1. The will is invalidated

2. The will is valid and effective3. The legacy given to Bs child is not valid

IIIDefine, Enumerate or Explain. (2% each)

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a. What is the difference between guaranty and suretyship?b. Define quasi tort. Who are the persons liable underquasi torts and what are the defenses

available to them?c. Give at least two reasons why a court may assume jurisdiction over a conflict of laws case.

IVSpouses B and G begot two offsprings. Albeit they had serious personality differences, the spouses

continued to live under one roof. B begot a son by another woman. G also begot a daughter by anotherman.

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

b. If B acquiesces to the use of his surname by Gs daughter by another man, what is/are theconsequence/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 agreement to dissolve their absolute community ofproperty. B ceded his right to their house and lot and all his shares in two business firms to G and their

two children, aged 18 and 19. B also opened a bank account in the amount of P3 million in the name of

the two children to answer for their educational expenses until they finish their college degrees. For herpart, G undertook to shoulder the day-to-day living expenses and upkeep of the children. The Courtapproved the spouses agreement on September 8, 2000.

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

b. Suppose in late 2004 the two children had squandered the P3 million fund for their educationbefore 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 womb his baby via in vitro

fertilization. Gigolo undertook to underwrite Majorettes pre-natal expenses as well as those attendant toher 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 of P2million, she engages your services as her lawyer to regain custody of the baby.

a. What legal action can you file on behalf of Majorette? Explain. (2.5%)b. Can Gigolo demand from Majorette the return of the P2 million if he returns the baby? Explain.

(2.5%)c. Who of the two can exercise parental authority over the child? Explain. (2.5%)d. 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, which bore no offspring,was declared void ab initio underArticle 36 of the Family Code. At the time of the dissolution of the

marriage, the couple possessed the following properties:

y a house and lot acquired by B on August 3, 1988, one third (1/3) of the purchase price

(representing downpayment) of which he paid; one third (1/3) was paid by G on February 14,1990 out of a cash gift given to her by her parents on her graduation on April 6, 1989; and the

balance was paid out of the spouses joint income; andy an apartment unit donated to B by an uncle on June 19, 1987.

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

properties? Explain. (5%)

VIIISpouses Rex and Lea bore two children now aged 14 and 8. During the subsistence of theirmarriage, Rex begot a child by another woman. He is now 10 years of age. On Leas discovery of

Rexs fathering a child by another woman, she filed a petition for legal separation which wasgranted. Rex now wants to adopt his illegitimate child.

a. Whose consent is needed for Rexs adoption of his illegitimate child? (2.5%)b. If there was no legal separation, can Rex still adopt his illegitimate child? Explain. (2.5%)

IX Eighteen-year old Filipina Patrice had a daughter out of wedlock whom she named Laurie. At 26,

Patrice married American citizen John who brought her to live with him in the United States ofAmericaJohn at once signified his willingness to adopt Laurie.Can John file the petition for adoption? If yes,

what are the requirements? If no, why? (5%) X In 1997, B and G started living together without thebenefit of marriage. The relationship produced one offspring, Venus. The couple acquired a residential

lot in Paraaque. After four (4) years or in 2001, G having completed her 4-year college degree as a

fulltime student, she and B contracted marriage without a license. The marriage of B and G was, twoyears later, declared null and void due to the absence of a marriage license.

a. If you were the judge who declared the nullity of the marriage, to whom would you award thelot? Explain briefly. (3%)

b. Is Venus legitimate, illegitimate, or legitimated? Explain briefly. (3%)

XI The spouses Peter and Paula had three (3) children. Paula later obtained a judgment of nullity ofmarriage. Their absolute community of property having been dissolved, they delivered P1 million to

each of their 3 children as their presumptive legitimes. Peter later re-married and had two (2) children byhis second wife Marie. Peter and Marie, having successfully engaged in business, acquired real

properties. Peter later died intestate.

a. Who are Peters legal heirs and how will his estate be divided among them? (5%)b. What is the effect of the receipt by Peters 3 children by his first marriage of their presumptive

legitimes on their right to inherit following Peters death? (5%)

XII On May 5, 1989, 16-year old Rozanno, who was issued a student permit, drove to school a car, a

gift from his parents. On even date, as his class was scheduled to go on a field trip, his teacher requestedhim 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, Rozanno made awrong maneuver, causing a collision with a jeepney. One of his classmates died. He and the three (3)

others were badly injured.

a. Who is liable for the death of Rozannos classmate and the injuries suffered by Rozanno and his3 other classmates? Explain. (2%)

b. How about the damage to the jeepney? Explain. (2%)c. Under the same facts, except the date of occurrence of the incident, this time in mid-1994, what

would be your answer? Explain. (2%)

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XIII Franz was the owner of Lot E which was surrounded by four (4) lots one of which Lot C healso owned. He promised Ava that if she bought Lot E, he would 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 cultivatedLot E and used the 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 to her because Franz had in themeantime sold Lot C to Julia who had it fenced.

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

residential lot. A typhoon knocked down the fence of the pond and the iguana crawled out of the gate ofPrimos residence. N, a neighbor who was passing by, started throwing stones at the iguana, drawing the

iguana to move toward him. N panicked and ran but tripped on something and suffered a broken leg. Isanyone liable for Ns injuries? Explain. (4%) XVA, B, and C entered into a partnership to operate a

restaurant business. When the restaurant had gone past break-even stage and started to garnerconsiderable profits, C died. A and B continued the business without dissolving the partnership. They in

fact opened a branch of the restaurant, incurring obligations in the process. Creditors started demandingfor the payment of their obligations.

a. Who are liable for the settlement of the partnerships obligations? Explain? (3%)b. What are the creditors recourse/s? Explain. (3%)

XVI X was the owner of an unregistered parcel of land in Cabanatuan City. As she was abroad, she

advised her sister Y via overseas call to sell the land and sign a contract of sale on her behalf. Y thussold the land to B1 on March 31, 2001 and executed 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 itbut asked Y for her authority from X. Without informing X that she had sold the land to B1, Y sought X

for a written authority to sell. X e-mailed Y an authority to sell the land. Y thereafter sold the land onMay 1, 2001 to B2 on monthly installment basis for two years, the first installment to be paid at the end

of May 2001. Who between B1 and B2 has a better right over the land? Explain. (5%)

NOTHING FOLLOWS.

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Criminal Law Questions

I

An agonizing and protracted trial having come to a close, the judge found A guilty beyond reasonable

doubt of homicide and imposed on him a straight penalty ofSIX (6) YEARS and ONE (1) DAY of

prision mayor. The public prosecutor objected to the sentence on the ground that the proper penaltyshould have been TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal. The defensecounsel chimed in, contending that application of the Indeterminate Sentence Law should lead to the

imposition of a straight penalty ofSIX (6) MONTHS and ONE (1) DAY ofprision correccionalonlyWho of the three is on the right track? Explain. (3%)

II

a. What is the crime of qualified bribery? (2%)b. May a judge be charged and prosecuted for such felony? How about a public prosecutor? A

police officer? Explain. (5%)

III

May a public officer charged under Section 3(b) of Republic Act No. 3019 ["directly or indirectlyrequesting or receiving any gift, present, share, percentage or benefit, for himself or for any other

person, in connection with any contract or transaction between the government and any other party,wherein the public officer in his official capacity has to intervene under the law"] also be simultaneously

or successively charged with direct bribery underArticle 210 of the Revised Penal Code? Explain. (4%)

IV

Because of the barbarity and hideousness of the acts committed by the suspects/respondents in cuttingoff their victims appendages, stuffing their torsos, legs, body parts into oil drums and bullet-riddledvehicles and later on burying these oil drums, vehicles with the use of backhoes and other earth-moving

machinery, the Commission on Human Rights (CHR) investigating team recommended to the panel ofpublic prosecutors that all respondents be charged with violation of the Heinous Crimes Law. The

prosecution panel agreed with the CHR. As the Chief Prosecutor tasked with approving the filing of theInformation, how will you pass upon the recommendation? Explain. (5%)

V

Arlene is engaged in the buy and sell of used garments, more popularly known as ukay-ukay. Among

the items found by the police in a raid of her store in Baguio City were brand-new Louie Feraudblazers. 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 a bank are related to anunlawful activity of smuggling by Alessandro as defined under Republic Act (RA) No. 9160, as

amended (Anti-Money Laundering Act) an application for an order to allow inquiry into his deposit was

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filed with the Regional Trial Court. After hearing the application, the court granted the application andissued 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 in voyeurism. If notpeeping into his neighbors rooms through his powerful single-cylinder telescope, he would trail young,

shapely damsels along the hallways of shopping malls. While going up the escalator, he stayed a stepbehind a mini-skirted one, and in a moment of excitement, put his hand on her left hip and massaged it

The damsel screamed and hollered for help. Canuto was apprehended and brought up on inquest. Whatcharge/s, if any, may he be held responsible for? Explain. (5%)

VIII

A asked financial support from her showbiz friend B who accommodated her by issuing in her favor a

postdated check in the sum of P90,000.00. Both of them knew that the check would not be honoredbecause Bs account had just been closed. The two then approached trader C whom they asked to change

the check with cash, even agreeing that the exchange be discounted at P85,000.00 with the assurancethat the check shall be funded upon maturity. Upon Cs presentment of the check for payment on due

date, it was dishonored because the account had already been closed.

What action/s may C commence against A and B to hold them to account for the loss of her P85,000.00?

Explain. (5%)

IX

Proserfina, an assistant public high school principal, acted to facilitate the release of salary differentials

and election duty per diem of classroom teachers with the agreement that they would reimburse her forher expenses.

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

X

A, B and C are members ofSFC Fraternity. While eating in a seaside restaurant, they were attacked by

X, Y and Z, members of a rival fraternity. A rumble ensued in which the abovenamed members of thetwo fraternities assaulted each other in a confused and tumultuous manner resulting in the death ofA. As

it cannot be ascertained 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 the charge prosper? Explain. (4%)

XI

Angelina maintains a website where visitors can give their comments on the posted pictures of the goodsshe sells in her exclusive boutique. Bettina posted a comment that the red Birkin bag shown in

Angelinas website is fake and that Angelina is known to sell counterfeit items.

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That on or about the 1st week of January 2010 or subsequent thereto in Cebu City and within thejurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together

and all of them mutually helping and aiding one another in a syndicated manner, through a corporationregistered with the Securities and Exchange Commission (SEC), with intention of carrying out the

unlawful or illegal act, transaction, enterprise or scheme, with intent to gain and by means of fraud anddeceit, did then and there wilfully, unlawfully, and feloniously defraud Virna, Lana, Deborah and

several other persons by falsely or fraudulently pretending or representing in a transaction or series oftransactions, which they made with complainants and the public in general, to the effect that they were

in a legitimate business of foreign exchange trading successively or simultaneously operating under thename and style ofABC Corporation and DEF Management Philippines, Incorporated, induced and

succeeded in inducing complainants and several other persons to give and deliver to said accused theamount of at least P20,000,000.00 on the strength of said manifestations and representations, the

accused knowing fully well that the abovenamed corporations registered with the SEC are not licensednor authorized to engage in foreign exchange trading and that such manifestations and representations to

transact in foreign exchange were false and fraudulent, that these resulted to the damage and prejudiceof the complainants and 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 into hiding in the mountains.

Three years later, the bones ofAs wife were discovered by X, the gardener. Since X had a standingwarrant of arrest, he hid the bones in an old 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 take care of his ailingsibling. Six years thereafter, he< was charged with parricide but raised the defense of prescription.

a. Under the Revised Penal Code, when does the period of prescription of a crime commence torun? (1%)

b. When is it interrupted? (1%)c. 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 tokeep the puppy. The following day, Eva Marie bought a collar for the puppy and brought it to a

veterinarian for treatment.

a. Did Eva Marie incur criminal liability in bringing the puppy home as a pet? Explain. (2%)b. 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 onthe table, Jack started hitting Jill only to apologize the following day. A week later, the same episode

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occurred Jack came home drunk and started hitting Jill. Fearing for her life, Jill left and stayed withher sister. To woo Jill back, Jack sent her floral arrangements of spotted lilies and confectioneries. Two

days later, Jill returned home and decided to give Jack another chance. After several days, however, Jackagain came home drunk. The following day, he was found dead.

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

a. Define Battered Woman Syndrome. (2%)b. What are the three phases of the Battered Woman Syndrome? (3 %)c. Would the defense prosper despite the absence of any of the elements for justifying

circumstances of self-defense under the Revised Penal Code? Explain. (2%)

XX

Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of possession

of equipment, instrument, apparatus and other paraphernalia for dangerous drugs underSection 12 ofRepublic Act No. 9165. Matt filed a petition for probation. Jeff appealed his conviction during the

pendency of which he also filed a petition for probation. The brothers counsel argued that they beingfirst time offenders, their petitions for probation should be granted. How would you resolve the brothers

petitions for probation? Explain. (3%)

XXI

Because peace negotiations on the Spratlys situation had failed, the Peoples Republic of China declared

war against the Philippines. Myra, a Filipina who lives with her Italian expatriate boyfriend, discoverede-mail correspondence between him and a certain General Tung Kat Su of China. On March 12, 2010

Myra discovered that on even date her boyfriend had sent an e-mail to General Tung Kat Su, in which heagreed to provide vital information on the military defense of the Philippines to the Chinese government

in exchange for P1 million and his safe return to Italy. Two weeks later, Myra decided to report the

matter to the proper authorities.

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

XXII

Immediately after murdering Bob, Jake went to his mother to seek refuge. His mother told him to hide inthe maids quarters until she finds a better place for him to hide. After two days, Jake transferred to his

aunts house. A week later, Jake was apprehended by the police. Can Jakes mother and aunt be madecriminally liable as accessories to the crime of murder? Explain. (3 %)

XXIII

Christopher, John, Richard, and Luke are fraternity brothers. To protect themselves from riva

fraternities, they all carry guns wherever they go. One night, after attending a party, they boarded ataxicab, held the driver at gunpoint and took the latters earnings.

a. What crime, if any, did the four commit? Enumerate the elements of the crime. (2%)b. Would your answer be the same if they killed the driver? Explain. (2%)

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b. What procedure must be followed under the Securities Regulation Code to authorize the sale oroffer for sale or distribution of an investment contract? (2%)

c. 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 hascomplied with the minimum capitalization required under the Retail Trade Nationalization Act and

carries on retail business worth more than $3 million for each of its outlets. As its Manila outlet is notdoing very well, it decides to sell all of its business there consisting of remaining inventory, furniture

and fixtures and other assets to its competitor.

a. Venezias Manila outlet constitutes one-third (1/3) of its total business. Should it comply withthe requirements of the BulkSales Law? Why or why not? (2%)

b. If instead of selling its Manila outlet, Venezia merely mortgages its assets there, would it need tocomply with the requirements of the BulkSales Law? (2%)

c. What are the legal consequences of a failure to comply with the requirements of the BulkSalesLaw? (2%)

VI

a. What contractual stipulations are required in all technology transfer agreements? (2%)b. Enumerate three (3) stipulations that are prohibited in technology transfer agreements. (3%)c. Can an article of commerce serve as a trademark and at the same time enjoy patent and copyright

protection? Explain and give an example. (2%)

VII

Union Mines, Inc. has total assets of P60 million with 210 stockholders holding at least 100 shares each.

The company has two principal stockholders, ABC which owns 60% of the shares of stock, and XYZwhich owns 17%. ABC in turn is owned to the extent of 21.31% by Acme, Inc.; 29.69% by Golden Boy,Inc.; 9% by XYZ; and the rest by individual stockholders. None of the parties is a publicly-listed

company. XYZ now proposes to buyAcmes and Golden Boys shares in ABC, which would give itdirect control ofABC and indirect control of Union Mines.

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 a term of 31 days. Onmaturity date, one claiming to be Marlon called up the LYRIC Bank account officer and instructed himto give the managers check representing the proceeds of the money market placement to Marlons

girlfriend Ingrid. The check, which bore the forged signature of Marlon, was deposited in Ingridsaccount with YAMAHA Bank. YAMAHA Bank stamped a guaranty on the check reading: All prior

endorsements and/or lack of endorsement guaranteed.

Upon presentment of the check, LYRIC Bank funds the check. Days later, Marlon goes to LYRIC Bank

to collect his money market placement and discovers the foregoing transactions. Marlon thereupon sues

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LYRIC Bank which in turn files a third-party complaint against YAMAHA Bank. Discuss the respectiverights and liabilities of the two banks. (5%)

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 feels that the business is a little risky, shewonders whether she should use a corporation as the business vehicle, or just run it as a single

proprietorship. She already has an existing corporation that is producing meat products profitably and isalso considering the alternative of simply setting up the restaurant as a branch office of the existing

corporation.

a. Briefly explain to your client what you see as the legal advantages and disadvantages of using aseparate corporation, a single proprietorship, or a branch of an existing corporation for theproposed restaurant business. (3%)

b. If you advise your client to use a corporation, what officer positions must the corporation at leasthave? (2%)

c. What particular qualifications, if any, are these officers legally required to possess under theCorporation Code? (2%)

X

To secure a loan of P10 million, Mario mortgaged his building to Armando. In accordance with the loan

arrangements, Mario had the building insured with First Insurance Company for P10 million,designating Armando as the beneficiary. Armando also took an insurance on the building upon his own

interest with Second Insurance Company for P5 million. The building was totally destroyed by fire, aperil insured against under both insurance policies. It was subsequently determined that the fire had been

intentionally started by Mario and that in violation of the loan agreement, he had been storinginflammable materials in the building.

a. How much, if any, can Armando recover from either or both insurance companies? (2%)b. What happens to the P10 million debt of Mario to Armando? Explain. (3%)

XI

Enrique obtained from Seguro Insurance Company a comprehensive motor vehicle insurance to cover

his top of the line Aston Martin. The policy was issued on March 31, 2010 and, on even date, Enriquepaid 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 notation Insufficient Funds. Upon notification,Enrique immediately deposited additional funds with the bank and asked the insurer to redeposit thecheck.

Enrique thereupon claimed indemnity from the insurer. Is the insurer liable under the insurance

coverage? Why or why not? (3%)

XII

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AA entered into a contract with BB for the latter to transport ladies wear from Manila to France withtranshipment via Taiwan. Somehow the goods were not loaded in Taiwan on time, hence, these arrived

in France off-season. AA was only paid for onehalf (1/2) the value by the buyer. AA claimeddamages 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 BBs defense tenable? Explain(3%)

XIII

Paolo, the owner of an ocean-going vessel, offered to transport the logs of Constantino from Manila to

Nagoya. Constantino accepted the offer, not knowing that the vessel was manned by an irresponsiblecrew with deep-seated resentments against 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 causingthe vessel to tilt on one side. On the way to Nagoya, the crew unbolted the sea valves of the vessel

causing water to flood the ship hold. The vessel sank.

Constantino tried to collect from the insurance company which denied liability, given the unworthiness

of both the vessel and its crew. Constantino countered that he was not the owner of the vessel and he

could therefore not be responsible for conditions about which he was innocent.

a. Is the insurance company liable? Why or why not? (3%)b. What is barratry in marine insurance? (2%)

XIV

When OCCIDENTAL Bank folded up due to insolvency, Manuel had the following separate deposits in

his name: P200,000 in savings deposit; P250,000 in time deposit; P50,000 in a current account; P1million in a trust account; and P3 million in money market placement. Under the Philippine Deposit

Insurance Corporation Act, how much could Manuel recover? Explain. (2%)

XV

While vacationing in Boracay, Valentino surreptitiously took photographs of his girlfriend Monaliza inher skimpy bikini. Two weeks later, her photographs appeared in the Internet and in a national celebrity

magazine. Monaliza found out that Valentino had sold the photographs to the magazine and, addinginsult to injury, uploaded them to his personal blog on the Internet.

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

b. Valentinos friend Francesco stole the photographs and duplicated them and sold them to a

magazine publication. Valentino sued Francesco for infringement and damages. Does Valentinohave any cause of action? Explain. (2%)

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

XVI

An importer of Christmas toys loaded 100 boxes ofSanta Claus talking dolls aboard a ship in Koreabound for Manila. With the intention of smuggling one-half of 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.

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Legislation Questions

I

TRUE OR FALSE. Explain your answer briefly.

1. Deeds of release, waivers and quitclaims are always valid and binding. (2%)

2. The relations between employer and employee are purely contractual in nature. (2%)

3. As a general rule, direct hiring of Overseas Filipino Workers (OFWs) is not allowed. (2%)

II

a. Distinguish the terms conciliation, mediation and arbitration. (3%)b. Differentiate surface bargaining from blue-sky bargaining. (2%)

III

A, single, has been an active member of the Social Security System for the past 20 months. She becamepregnant out of wedlock and on her 7th month of pregnancy, she was informed that she would have to

deliver the baby through caesarean section because of some complications. Can A claim maternitybenefits? 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. He reported for work on Apri1 and 2, Maundy Thursday and Good Friday, respectively, both regular holidays. Is A entitled to holiday

pay for the two successive holidays? Explain. (3%)

V

Company XYZ has two recognized labor unions, one for its rank-and-file employees (RFLU), and one

for supervisory employees (SELU). Of late, the company instituted a restructuring program by virtue ofwhich A, a rank-and-file employee and officer of RFLU, was promoted to a supervisory position along

with four (4) other colleagues, also active union members and/or officers. Labor Union KMJ, a rivallabor union seeking recognition as the rank-and-file bargaining agent, filed a petition for the cancellation

of the registration of RFLU on the ground that A and her colleagues have remained to be members ofRFLU. Is the petition meritorious? Explain. (3%)

VI

A is a member of the labor union duly recognized as the sole bargaining representative of his company

Due to a bargaining deadlock, 245 members of the 500-strong union voted on March 13, 2010 to stage astrike. A notice of strike was submitted 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 of which A had toleave and go to the hospital where his wife had just delivered a baby. The union members later

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intimidated and barred other employees from entering the work premises, thus paralyzing the businessoperations of the company.

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

a. Was the strike legal? Explain. (3%)b. Was As dismissal valid? Why or why not? (3%)

VII

A was an able seaman contracted by ABC Recruitment Agency for its foreign principal, Seaworthy

Shipping Company (SSC). His employment contract provided that he would serve on board the AlmiedaII for eight (8) months with a monthly salary of US$450. In connection with his employment, he signed

an undertaking to observe the drug and alcohol policy which bans possession or use of all alcoholicbeverages, prohibited substances and un-prescribed drugs on board the ship. The undertaking provided

that: (1) disciplinary action including dismissal would be taken against anyone in possession of theprohibited substances or who is 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, a random drug test wasconducted on all members of the crew and A tested positive for marijuana. He was given a copy of the

drug test result. In compliance with the companys directive, he submitted his written explanation whichthe company did not find satisfactory. A month later, he was repatriated to the Philippines.

Upon arrival in the Philippines, A filed with the National Labor Relations Commission (NLRC) acomplaint against the agency and the principal for illegal dismissal with a claim for salaries for the

unexpired portion of his contract.

a. Was As dismissal valid? Explain. (3%)b. 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 Collective Bargaining Agreement(CBA) but failed to agree on certain economic provisions of the existing agreement. In the meantime

the existing CBA expired. The company thereafter refused to pay the employees their midyear bonus,saying that the CBA which provided for the grant of midyear bonus to all company employees had

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 when he met and fell in lovewith B, a marketing strategist for Delta Drug Company, a competitor of RX. On several occasions, the

management of RX called As attention to the stipulation in his employment contract that requires himto disclose any relationship by consanguinity or affinity with coemployees or employees of competing

companies in light of a possible conflict of interest. A seeks your advice on the validity of the companypolicy. What would be your advice? (3%)

X

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b. Assuming that A was made to work from 11 p.m. on Thursday until 2 a.m. on Friday, may thecompany argue that, since he was two hours late in coming to work 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 at Terracota Inc., recentlyadmitted a member of the companys managerial staff, A, into the union ranks.

a. Should A be a member of the supervisory union? Explain. (2%)b. 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 Union A and B BusCompany, the former proposed a P45/day increase. The company insisted that ground rules for

negotiations should first be established, to which the union agreed. After agreeing on ground rules on thesecond day, the union representatives reiterated their proposal for a wage increase. When company

representatives suggested a discussion of political provisions in the Collective Bargaining Agreement asstipulated in the ground rules, union members went on mass leave the next day to participate in a whole-

day prayer rally in front of the company building.

a. The company filed a petition for assumption of jurisdiction with the Secretary of Labor andEmployment. The Union opposed the petition, arguing that it did not intend to stage a strike.Should the petition be granted? Explain. (2%)

b. The Union contended that assuming that the mass leave will be considered as a strike, the samewas valid because of the refusal of the company to discuss the economic provisions of the CBA.

Rule on the contention. (2%)

c. Union memberAA, a pastor who headed the prayer rally, was served a notice of termination bymanagement after it filed the petition for assumption of jurisdiction. May the company validlyterminate 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 the drainage. Because his daily presence in the field wasnot required, A also worked as 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, Afiled a case for illegal dismissal against the plantation owner. Decide with reason. (3%)

XVIII

Flight attendant A, five feet and six inches tall, weighing 170 pounds ended up weighing 220 pounds intwo years. Pursuant to the long standing Cabin and Crew Administration Manual of the employer airline

that set a 147-pound limit forAs height, management sent A a notice to shape up or ship out within60 days. At the end of the 60-day period, A reduced her weight to 205 pounds. The company finally

served her a Notice of Administration Charge for violation of company standards on weightrequirements. Should A be dismissed? Explain. (3%)

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XIX

Several employees and members of Union A were terminated by Western Phone Co. on the ground ofredundancy. After complying with the necessary requirements, the Union staged a strike and picketed

the premises of the company. The management then filed a petition for the Secretary of Labor andEmployment to assume jurisdiction over the dispute. Without the benefit of a hearing, the Secretary

issued an Order to assume jurisdiction and for the parties to revert to the status quo ante litem.

a. Was the order to assume jurisdiction legal? Explain. (2%)b. Under the same set of facts the Secretary instead issued an Order directing all striking workers to

return to work within 24 hours, except those who were terminated due to redundancy. Was theOrder legal? Explain. (3%)

XX

A, a driver for a bus company, sued his employer for nonpayment of commutable service incentive leavecredits upon his resignation after five years of employment. The bus company argued that A was not

entitled to service incentive leave since he was considered a field personnel and was paid on commissionbasis and that, in any event, his claim had prescribed. If you were the LaborArbiter, how would you

rule? Explain. (6%)

XXI

A was approached for possible overseas deployment to Dubai by X, an interviewer of job applicants for

Alpha Personnel Services, Inc., an overseas recruitment agency. X required A to submit certaindocuments (passport, NBI clearance, medical certificate) and to pay P25,000 as processing fee. Upon

payment of the said amount to the agency cashier, A was advised to wait for his visa. After five monthsA visited the office ofAlpha Personnel Services, Inc. during which X told him that he could no longer

be deployed for employment abroad. A was informed by the Philippine Overseas Employment

Administration (POEA) that while Alpha Personnel Services, Inc. was a licensed agency, X was notregistered as its employee, contrary to POEA Rules and Regulations. Under POEA Rules andRegulations, the obligation to register personnel with the POEA belongs to the officers of a recruitment

agency.

a. May X be held criminally liable for illegal recruitment? Explain. (2%)b. May the officers having control, management or direction ofAlpha Personnel Services, Inc. be

held criminally liable for illegal recruitment? Explain. (3%)

XXII

A was recruited to work abroad by Speedy Recruitment Agency as a technician for a Saudi Arabianconstruction firm, with a monthly salary of$650.00. When she got to the construction site, the employercompelled her to sign another contract that referred her to another employer for a salary of$350.00. She

worked for the second employer and was paid $350.00 until her two-year contract expired. Upon herreturn to the Philippines, she filed a case against the agency and the two employers. May the agency

validly raise the defense that it was not privy to the transfer ofA to the second employer? Explain. (3%)

XXIII

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A worked as a roomboy in La Mallorca Hotel. He sued for underpayment of wages before the NLRC,alleging that he was paid below the minimum wage. The employer 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 was charged to the

employees. The employees corresponding share in the costs was thus deducted from their wages. Theemployer concluded that such valid deduction naturally resulted in the payment of wages below the

prescribed minimum. If you were the LaborArbiter, how would you rule? Explain. (3%)

XXIV

Rank-and-file workers from Peacock Feathers, a company with 120 employees, registered theirindependent labor organization with the Department of Labor and Employment (DOLE) Regional

Office. Management countered with a petition to cancel the unions registration on the ground that theminutes of ratification of the union constitution and by-laws submitted to the DOLE were fraudulent

Specifically, management presented affidavits of ten (10) out of forty (40) individuals named in the listof union members who participated in the ratification, alleging that they were not present at the

supposed January 1, 2010 meeting held for the purpose. The union argued that the stated date of themeeting should have read January 11, 2010, instead of January 1, 2010, and that, at any rate, the

other thirty (30) union members were enough to register a union. Decide with reason. (3%)

XXV

Company C, a toy manufacturer, decided to ban the use of cell phones in the factory premises. In the

pertinent Memorandum, management explained that too much texting and phone-calling by employeesdisrupted company operations. Two employeesmembers of Union X were terminated from employment

due to violation of the memorandum-policy. The union countered with a prohibitory injunction case(with prayer for the issuance of a temporary restraining order) filed with the Regional Trial Court,

challenging the validity and constitutionality of the cell phone ban. The company filed a motion todismiss, arguing that the case should be referred to the grievance machinery pursuant to an existing

Collective Bargaining Agreement with Union X, and eventually to Voluntary Arbitration. Is thecompany correct? Explain. (3%)

NOTHING FOLLOWS.

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Political and Public International Law Questions

PART I

I

The dictatorial regime of President A of the Republic of Gordon was toppled by a combinedforce led by Gen. Abe, former royal guards and the secessionist Gordon Peoples Army. Thenew government constituted a Truth and Reconciliation Commission to look into the seriouscrimes committed under President As regime. After the hearings, the Commissionrecommended that an amnesty law be passed to cover even those involved in mass killings ofmembers of indigenous groups who opposed President A. International human rights groupsargued that