Article 39

Question 1

Title of Art. 39 of the RPC

Answer 1

Subsidiary Penalty

Question 2

What is subsidiary penalty?

Answer 2

It is a subsidiary personal liability to be suffered by the convict who has NO PROPERTY with which to meet the fine, at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the RENDITION OF JUDGMENT of conviction by the trial court, subject to rules provided for in Art. 39 of the RPC

Question 3

Current highest minimum wage rate in the Philippines as of October 2024

Answer 3

Php 645 / day according to Wage Order No. NCR-25, effective from 17 July 2024

Question 4

Can the accused be made to undergo susbisidary imprisonment in case of insolvency to pay the fine imposed when the subsidiary imprisonment is not imposed in the judgment of conviction?

Answer 4

No, for the accused to undergo subsidiary imprisonment, it must be included in the judgment of conviction

Question 5

Under Art. 39, in which instances are there no subsidiary penalty for nonpayment? (3)

Answer 5

1. Reparation of the damage caused
2. Indemnification of the consequential damages
3. Costs of the proceedings

Question 6

When does Art. 39 of the RPC apply?

Answer 6

It is applicable only when the accused has NO PROPERTY with which to meet the fines mentioned in Par. 3 of Art. 38

Question 7

Can the convict choose instead to undergo subsidiary imprisonment instead of paying the fine when they have enough property to pay the fine?

Answer 7

No, the convict cannot choose to serve the subsidiary penalty, instead of paying for the fine

Question 8

English for cuando la pena impuesta

Answer 8

When the penalty imposed

Question 9

Is subsidiary imprisonment an accessory penalty?

Answer 9

No, it is not an accessory penalty

Question 10

Is subsidiary imprisonment covered under Articles 40-45 of the RPC?

Answer 10

No, since it is not an accessory penalty

Question 11

Rules for subsidiary imprisonment (5)

Answer 11

1. If the penalty imposed is PRISION CORRECCIONAL or ARRESTO AND FINE - subsidiary imprisonment SHALL NOT EXCEED 1/3 of the TERM OF THE SENTENCE, and SHALL NOT CONTINUE FOR MORE THAN 1 YEAR. Fraction or part of a day, not counted (round down always)
2. When the penalty imposed is FINE ONLY - subsidiary imprisonment SHALL NOT EXCEED 6 MONTHS, if the culprit is prosecuted for GRAVE OR ELSS GRAVE FELONY, SHALL NOT EXCEED 15 DAYS, if prosecuted for LIGHT FELONY
3. When the penalty imposed is HIGHER THAN PRISION CORRECCIONAL - NO SUBSIDIARY IMPRISONMENT
4. If the penalty imposed is NOT TO BE EXECUTED BY CONFINEMENT BUT OF FIXED DURATION - subsidiary penalty shall consist in the SAME DEPRIVATION as those of the principal penalty, under the same rules as in No.’s 1, 2, and 3 above
5. In case the FINANCIAL CIRCUMSTANCES of the convict, SHOULD IMPROVE, he SHALL PAY THE FINE, notwithstanding the fact that HE HAS ALREADY SERVED subsidiary imprisonment

Question 12

When does rule 1 of Art. 39 apply?

Answer 12

Only to light and correctional penalties where imprisonment does not exceed 6 years.

Question 13

For a fine or Php 100,000, what is the maximum number of days of subsidiary imprisonment assuming the highest daily minimum wage rate is Php 645?

Answer 13

155 Days

Question 14

Is there subsidiary imprisonment if the fine is less than the highest minimum wage rate in the NCR?

Answer 14

No

Question 15

When does rule 2 of Art. 39 apply?

Answer 15

Where there is only a FINE

Question 16

What is controlling in rule 2 of Art. 39 with regards to the duration of the subsidiary penalty?

Answer 16

The classification of the felony whether it be grave or less grave felony, or light felony. This is important to determine whether the subsidiary penalty shall not exceed either 6 months or 15 days

Question 17

Cases in which rule 4 of Art. 39 applies (2)

Answer 17

1. Destierro
2. Suspension

Question 18

How is rule 4 of Art. 39 applied?

Answer 18

When the penalty imposed does not involve confinement suchas destierro, the fine shall be converted into an additional period of destierro at the rate of highest daily minimum wage rate per day at the time of rendition of the judgment

Question 19

In order for subsidiary penalty to be imposed, these penalties must be imposed (6)

Answer 19

1. Prision correccional
2. Arresto mayor
3. Arresto menor
4. Suspension
5. Destierro
6. Fine only

Question 20

Which penalties therein is subsidiary penalty not applicable? (3)

Answer 20

1. Prision mayor
2. Reclusion Temporal
3. Reclusion Perpetua

Question 21

Is the subsidiary penalty if penalty is six years? What about six years and one day?

Answer 21

Six years - Yes, because it is prision correccional
Six years and one day - No, because it becomes prision mayor

Question 22

Should additional penalty for habitual delinquency be included in determining whether or not subsidiary penalty should be imposed?

Answer 22

Yes

Question 23

What penalty determines if there can be subsidiary penalty? Penalty provided by the Code or penalty actually imposed by the Court?

Answer 23

Penalty actually imposed by the Court

Question 24

Is there subsidiary penalty when the penalty imposed is not to be executed by confinement and has no fixed duration?

Answer 24

No, example of which is censure since it has no fixed duration

Question 25

What do you mean by “the same deprivations as those of which the principal penalty consists”?

Answer 25

If the penalty imposed is imprisionment, the subsidiary penalty must be imprisonment also. If the penalty is destierro, the subsidiary penalty must be destierro also. If the penalty is suspension, the subsidiary penalty must be suspension also.

Question 26

Is the convict who served the subsidiary penalty still required to pay the fine?

Answer 26

Yes

Question 27

Is subsidiary imprisonment for the civil liability arising from a felony a violation of the constitutional provision against imprisonment for nonpayment of “debt”?

Answer 27

No, civil liability in a felony arises from a tort or a crime, hence, from law and not from a contract that is to be understood as “debt”. It does not violate the constitutional injunction.

Question 28

Can there be subsidiary imprisonment under special laws?

Answer 28

Yes, unless the special law expressly provides the contrary

Question 29

Is there subsidiary imprisonment for nonpayment of income tax?

Answer 29

No

Question 30

Is subsidiary imprisonment essential in determining jurisdiction of courts?

Answer 30

No

Question 31

Does the court need to include in their judgment that there is no subsidiary penalty when the penalty imposed is prision mayor?

Answer 31

No, it is not necessary when the law expressly forbids to impose subsidiary penalty as the case may be. A judgment which does not include said pronouncement is in accordanace with the law.