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PERSONS AND FAMILY RELATIONS > ARTICLE 33-47 CIVIL CODE > Flashcards

ARTICLE 33-47 CIVIL CODE Flashcards

1
Q

T or F
In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution and shall require only a preponderance of evidence.

A

True. (Art 33)

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2
Q

What does preponderance of evidence mean??

A

In civil cases, the burden of proof is on the plaintiff to establish his case by preponderance of evidence, i.e., superior weight of evidence on the issues involved. “Preponderance of evidence” means evidence which is of greater weight, or more convincing than that which is offered in opposition to it.

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3
Q

T or F

An independent civil action presupposes the existence of a criminal offense BASED ON THE SAME FACTS.

A

True.

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4
Q

What is defamation?

A

Defamation is the action of damaging the good reputation of someone, either by LIBEL or SLANDER.

Defamation is committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, or theatrical or cinematographic exhibition, or any similar means is LIBEL.

Defamation orally perpetrated is SLANDER.

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5
Q

T or F

Swindling and other deceits are punishable under Articles 215,216,217, and 218 of the RPC.

A

False, 315-318 of RPC.

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6
Q

T or F

Physical injuries under Article 33 covers only those enumerated under the RPC.

A

False. It covers all kinds of physical injuries including attempted, frustrated and consummated.

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7
Q

T or F
In independent civil actions, the offended party may intervene in the criminal case, if he had filed a separate civil case.

A

False, the offended party CANNOT INTERVENE in the criminal case if he had filed a separate civil case.

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8
Q

T or F
Article 34 covers a situation where:
1. There is a danger to the life or property of a person
2. A member of a city or municipal police force who is present in the scene REFUSED OR FAILED to render aid or protection to the person
3. Damages are caused either to the person and/or property of the victim

A

True.

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9
Q

What is the rationale behind Article 35?

A

Article 35 allows offended parties to bring a civil action for damages against an alleged offender when:

  1. there is no independent civil action granted
  2. Justice finds no reasonable grounds to believe a crimes was committed
  3. Prosecuting attorney fails or refuses to institute criminal proceedings

Only preponderance of evidence is needed in the case above.

Article 35 is also in place to PREVENT MALICIOUS HARASSMENT, by REQUIRING PLAINTIFF TO POST A BOND DEPENDING ON THE CIRCUMSTANCES. The imposition of a bond would discourage filing of malicious complaints.

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10
Q

What is a prejudicial question?

A

A prejudicial question is one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would be necessarily determined.

A prejudicial question is a question which arises in a case the resolution of which is a logical antecedent to the issue involved in said case and the cognizance of which pertains to another tribunal.

Prejudicial question generally comes into play where a civil action and a criminal action are both pending and there exists in the former an issue that must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case.

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11
Q

T or F
When there is a prejudicial question, the criminal action must be suspended to await the resolution of the issue in the civil court.

A

True.

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12
Q

T or F
The court when exercising jurisdiction over the civil action is considered distinct and different from itself when trying the criminal action.

A

True.

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13
Q

What is the rationale behind the principle of prejudicial question?

A

It tests the sufficiency of the allegations in the complaint or information in order to sustain the further prosecution of the criminal case.

It is also to avoid 2 conflicting decisions which could cause absurdity and damage the image and integrity of the courts, and place the accused in a great disadvantage.

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14
Q

T or F

There is prejudicial question when the civil action and criminal action can proceed independently of each other.

A

False.

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15
Q

What are the elements of a prejudicial question?

A
  1. A PREVIOUSLY INSTITUTED CIVIL ACTIONS involves an ISSUE similar or intimately related to the issue raised in a SUBSEQUENT CRIMINAL ACTION.
  2. The resolution of such issue determines whether or not the criminal action may proceed.
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16
Q

Why must the prejudicial question first be resolved?

A

Its resolution will guide in the resolution of the issue of whether or not the accused is guilty or innocent.

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17
Q

T or F
Under Section 3 Rule 114 of the Rules of Court, the criminal proceedings may be dismissed when there exists a prejudicial question.

A

False, Under Section 6 Rule 111 of the Rules of Court, the criminal proceedings may ONLY BE SUSPENDED when there exists a prejudicial question.

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18
Q

What is jus abutendi?

A

It provides that an owner has the right to destroy his own property.

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19
Q

Where and when must the petition to file petition for suspension based on the existence of prejudicial question be filed?

A

It must be filed:
1. BEFORE THE OFFICE OF THE PROSECUTOR DURING THE PENDENCY OF THE PRELIMINARY INVESTIGATION

OR

  1. BEFORE THE TRIAL COURT BUT BEFORE THE PROSECUTION HAS RESTED ITS CASE.

Otherwise, the right to file the petition is foreclosed.

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20
Q

T or F

There can be prejudicial question in an independent civil action.

A

False.

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21
Q

Who can invoke prejudicial question?

A

The defendant.

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22
Q

T or F

A prejudicial question, once raised, cannot be waived.

A

False, it can be waived.

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23
Q

What are the classifications of persons?

A
  1. Natural persons - humans

2. Juridical persons - entities created by law or by a group or association of men for certain lawful purposes.

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24
Q

What are the kinds of personalities?

A

a. Presumptive/provisional - while in the womb of the mother
b. Actual personality - after becoming a person
c. Artificial personality - after death

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25
Q

T or F

Estates acquire artificial personality.

A

True.

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26
Q

What are the characteristics of status?

A
  1. It cannot be subject of commerce
  2. It is imprescriptible
  3. It is not subject of compromise
  4. Right to claim it cannot be renounced
  5. Rights arising from it cannot be exercised by creditors
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27
Q

When is juridical capacity lost?

A

Upon death.

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28
Q

What is plena capacidad civil?

A

It is when a person has juridical capacity and capacity to act.

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29
Q

What is juridical capacity?

A

Juridical capacity is the fitness to be the subject of legal relations and is inherent in every natural person and is only lost through death.

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30
Q

What is capacity to act?

A

Capacity to act is the power to do acts with legal effect, and is acquired and may be lost.

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31
Q

T or F

Juridical capacity cannot exist without capacity to act but capacity to act cannot exist without juridical capacity.

A

False. Juridical capacity can exist without capacity to act but capacity to act cannot exist without juridical capacity.

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32
Q

What are the restrictions on capacity to act enumerated in Article 38?

A
  1. Minority
  2. Insanity
  3. Imbecility
  4. State of being deaf-mute
  5. Prodigality
  6. Civil interdiction
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33
Q

T or F

The incapacity of a person exempts him absolutely from all obligations.

A

False, but it only exempts the incapacitated person from CERTAIN OBLIGATIONS.

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34
Q

What is minority?

A

Under RA 6809, those below 18 years

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35
Q

What is insanity?

A

Insanity is the legal term for mental disorder. It is a manifestation, in language or conduct, of a disease or defect of the brain characterized by perversion, inhibition, or disordered function of the sensory or of the intellective faculties or by impaired or disordered volition.

36
Q

T or F

Imbecility falls under the definition of insanity.

A

False. Imbecility is not insanity, but is included in the concept of FEEBLEMINDEDNESS.

Imbecility is a manifestation of mental deficiency/retardation.

37
Q

Give the different degrees of mental defect/feeblemindedness.

A
  1. Idiot - IQ below 20
  2. Imbecility - IQ below 50
  3. Moron - IQ below 70
38
Q

T or F

It is presumed that every person is of sound mind in the absence of proof to the contrary.

A

True.

39
Q

Give the classification of mental retardation under Article 169.

A
  1. Custodial group - least capable, IQ below 25
  2. Trainable group - IQ is 25 to 50, mental level is 1/4 to 1/2 of an average child
  3. Educable group - IQ is 50 to 75, mental level is 1/2 to 3/4 of an average child
  4. Borderline or Low Normal group - IQ is 75 to 89
40
Q

What is deaf mutism?

A

A person who can neither hear or speak.

41
Q

What is prodigality?

A

A prodigal or spendthrift is a squanderer of his money and property without regard to the needs and future of his family which he is bound to protect and support under the law.

42
Q

What is civil interdiction?

A

Civil interdiction deprives the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos.

43
Q

What are penalties in relation to Article 39?

A

Penalties are restrictions and modifications to a person’s capacity to act, such as perpetual or temporary absolute disqualification.

These have their effects and consequences such as deprivation of office or employment, or the right to vote.

44
Q

Give instances wherein family relations put a limitation on one’s capacity to act.

A
  1. Relatives who fall under Art 37 cannot marry each other
  2. Certain situations wherein relatives cannot testify against each other.
  3. Spouses cannot donate properties to each other
45
Q

Give instances wherein being an alien puts a limitation on one’s capacity to act.

A
  1. An alien cannot vote
  2. An alien cannot acquire land
  3. An alien cannot operate public utilities
  4. Cannot practice certain professions
  5. Cannot own and manage mass media
46
Q

Give instances wherein being an absentee puts a limitation on one’s capacity to act.

A
  1. When an absentee is absent for at least 10 years, the estate could be divided among the heirs
    2 The absentee can be deprived of his/her right to co-administer the community or conjugal property.
47
Q

What is insolvency?

A

Insolvency is that condition whereby a man’s assets would not be sufficient to discharge all his obligations/liabilities. It is the inability or the lack of means to pay one’s debt or the condition of a person who is unable to pay his debts as they fall due.

48
Q

What is trusteeship?

A

Trusteeship is a legal relationship concerning property which obliges the person holding it to deal with the property for the benefit of another.

49
Q

What are the characteristics of trust?

A
  1. A fiduciary relationship
  2. A relationship with respect to property
  3. Existence of equitable duties imposed upon the holder of another’s property
  4. Arises as a result of a manifestation of intention to create the relationship
50
Q

What are the types of delivery in birthing a child?

A

Natural - delivery through vaginal opening

Artificial - Caesarian operation

51
Q

What must be done for a fetus to be considered as born?

A

The fetus must be delivered from the mother’s womb.

52
Q

What is conception?

A

It is the beginning of pregnancy, the fecundation of the female ovum by the male sperm resulting in human life capable of survival and maturation under normal conditions.

53
Q

Is a fetus a person?

A

No.

54
Q

When does a fetus become a person?

A

When it is born.

55
Q

T or F

A still-born baby is considered a person.

A

False.

56
Q

T or F

A fetus aborted is considered a person

A

False

57
Q

T or F

Award for death of a person also covers an unborn fetus.

A

False

58
Q

When is a child considered born?

A

When it is separated from the womb and is ALIVE, meaning it has acquired complete respiration.

59
Q

Discuss the different scenarios when a fetus is separated from the mother’s womb prematurely.

A
  1. If the fetus is separated from the womb and HAD AN INTRA-UTERINE LIFE OF LESS THAN 7 MONTHS, it is NOT CONSIDERED BORN UNLESS IT SURVIVES FOR AT LEAST 24 HOURS.
  2. If the fetus is separated from the womb and HAD AN INTRA-UTERINE LIFE OF AT LEAST 7 MONTHS, it is CONSIDERED BORN EVEN IF SURVIVES ONLY FOR A FEW MINUTES.
60
Q

What is a still-born?

A

Still-born - child has not breathed or has not shown any sign of life after being completely separated from the mother’s womb.

61
Q

T or F
Any fetus having human features which dies after 24 hours of existence, completely disengaged from the maternal womb shall NOT be entered in the proper civil register as having been born and having died.

A

False.

62
Q

T or F
Though personality has been extinguished, the rights and obligations of the deceased are not necessarily extinguished by his death.

A

True.

63
Q

T or F

The estate of a deceased person is considered as a continuity of the personality of the deceased.

A

True

64
Q

T or F

An estate can sue and be sued

A

True

65
Q

T or F

The estate has a personality distinct and independent of the heirs.

A

True.

66
Q

Give the rules on presumption of survivorship under Article 43.

A

If there is doubt as between two persons who are CALLED TO SUCCEED EACH OTHER, as to which of them died first, whoever alleges the death of one prior to the other shall prove the same. PREPONDERANCE OF EVIDENCE IS THE RULE.

Where there are no available facts, the following shall govern:

  1. FOR SUCCESSION ONLY - If there is NO PROOF as to who died first, THE PRESUMPTION IS THAT THE PARTIES DIED AT THE SAME TIME, and that NO TRANSMISSION OF RIGHTS OCCURS AS BETWEEN THEM.
  2. IN CASES OTHER THAN SUCCESSION - In cases of CALAMITY and BOTH PARTIES DIED, the following rules shall apply:
    a. If both were under the age of 15, the older is deemed to have survived
    b. If both were above the age of 60, the younger is deemed to have survived
    c. If one is under 15 and the other above 60, the former is deemed to have survived
    d. If both be over 15 and under 60 and the sex be different, the male is deemed to have survived
    e. If both be over 15 and under 60 and the sex be the same, the older is deemed to have survived
    f. If one be under 15 or over 60, and the other between those two ages, the latter is deemed to have survived.

The above are only intended as substitute for facts, and so are not to be used when there are facts available.

67
Q

What is a juridical person?

A

A juridical person is a being of legal existence, susceptible of rights and obligations or of being subject of juridical relations.

A juridical person is a being formed for the realization of collective purposes to which the law has granted capacity for rights and obligations.

68
Q

What are the classifications of juridical persons?

A
  1. The State and its political subdivisions
  2. Juridical persons for public purpose
  3. Juridical persons for private purpose
69
Q

When do juridical persons for public purpose begin to exist?

A

They begin to exist as soon as they have been constituted according to law, and their specific date of operation shall be provided by the law of creation.

70
Q

When do juridical persons for private purpose begin to exist?

A

They begin to exist when the law grants a juridical personality in accordance with the law governing their creation or in accordance with their articles of association or formation.
Corporation - certificate of registration by SEC
Partnership - execution of AoP unless otherwise stipulated.

71
Q

What is a corporation?

A

A corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence.

72
Q

Explain the Doctrine of piercing the veil of corporate entity.

A

It is the doctrine to the effect that the separate personality of a corporation may be disregarded when the veil of the corporation is used as a shield to perpetuate fraud, defeat public convenience, justify wrong, or defend crime. The corporation will then be treated as merely an association and the individuals composing it will be treated identically and liability will attach personally or directly to the officers and stockholders.

73
Q

What is a partnership?

A

Two or more persons enter into a contract binding themselves to contribute money, property or industry to a common fund with the intention of dividing the profits among themselves.

74
Q

T or F

Partnership begins to exist from the moment of the execution of the contract, unless otherwise stipulated.

A

True

75
Q

How is the nationality of a private corporation determined?

A

It is determined by the character or by the citizenship of its controlling stockholders.

76
Q

T or F
If the State happens to be a shareholder in a private corporation, this does not make the corporation a public corporation.

A

True.

77
Q

T or F

Juridical persons can stand on the same footing as natural persons

A

False

78
Q

T or F

Juridical persons can be held criminally liable or be defendants in criminal actions.

A

False.

79
Q

T or F

Foreign corporations are absolutely prohibited from acquiring lands in the Philippines even temporarily.

A

True.

80
Q

T or F

Article 47, which talks about the dissolution of corporations, is applicable only to public corporations.

A

True.

81
Q

How do juridical persons lose their personality?

A

By dissolution.

82
Q

What are the types of dissolution?

A
  1. Involuntary
  2. Voluntary
    a. Where no creditors are affected - effected by MAJORITY VOTE OF BOD AND 2/3 OF SH
    b. Where creditors are affected - a petition must be filed before the SEC, and it is effected by MAJORITY OF BOD AND 2/3 OF SH
    c. Dissolution by shortening corporate term
83
Q

T or F

A dissolved corporation can be sued

A

False.

84
Q

What is winding up of corporate affairs?

A

Winding up is the process of settling business affairs after dissolution such as payment of previous obligations and collection of assets previously demandable.

85
Q

What is termination?

A

Termination is the last stage which is the time after all the affairs have been wound up.

86
Q

How should assets be disposed of after dissolution?

A

It should be disposed of in accordance with the law or charter creating them.

If nothing is specified, the assets shall be applied for public purpose for which they were created for the benefit of the region or province or municipality where the entities derived their principal benefits during its existence.

87
Q

What are the causes of partnership dissolution?

A
  1. ) By the termination of the definite term or particular undertaking specified in the agreement
  2. ) By express will of any partner or all the partners
  3. ) By expulsion of any partner from the business
  4. ) When any event makes it unlawful for the business to carry on
  5. ) Loss BEFORE OR AFTER the delivery of property where the PARTNER CONTRIBUTED ONLY ITS USE OR ENJOYMENT
  6. ) Loss BEFORE THE DELIVERY OF SPECIFIC THING which a partner promised to contribute
  7. ) Death of a partner
  8. ) Insolvency of a partner/partnership
  9. ) Civil interdiction of any partner
  10. ) By decree of court in the following cases:
    a. ) application by a partner or his legal representative whenever a partner becomes
    - INSANE

-INCAPABLE OF PERFORMING HIS PART IN
PARTNERSHIP CONTRACT

-GUILTY OF CONDUCT AFFECTING PARTNERSHIP
BUSINESS

-PARTNER BREACHES PARTNERSHIP AGREEMENT

-PARTNERSHIP CAN ONLY BE CARRIED ON AT A 
LOSS.

PERSONS AND FAMILY RELATIONS (14 decks)

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