REMEDIAL LAW
REMEDIAL LAW
MULTIPLE CHOICE QUESTIONS
1. TRUE OR FALSE: When the recital of facts constituting the offense
charged and determinative of the jurisdiction of the courts are
changed, the amendment is not substantial.
a) True
b) False
2. The following are limitations on the right to substitute an
information by filing a new one, except one:
a) No judgement rendered
b) Accused can be convicted of the offense charged or of any
other offense necessarily included therein
c) The accused should not be placed in double jeopardy
3. May the venue in a criminal case be changed?
a) Yes, by the SC to avoid miscarriage of justice
b) No, to avoid miscarriage of justice
4. It is one where some acts material and essential to the crime
occur in one province and some in another in which case, the rule
settled that the court of other province where any of the
essential ingredients of the crime took place has jurisdiction to
try the case.
a) Transitory offense
b) Local offense
c) Continuing Offense
5. The following are examples of continuing offenses except one:
a) Libel
b) Kidnapping
c) Graft and corrupt practices
6. TRUE or FALSE: As a general rule, the offended party may not
intervene in a criminal action
a) True
b) False
7. Does double jeopardy attach in preliminary investigation?
a) No, because it is not a trial for which double jeopardy
attaches.
b) Yes, because it is a trial for which double jeopardy
attaches.
8. The following are natures of a preliminary examination, except
one:
a) It is a proceeding for the purpose of determining probable
cause for the issuance of a warrant of arrest
b) It is mandated by the Civil code
c) Only judges may determine probable cause for the purpose of
issuing a warrant of arrest
9. It is one in which the appellate court may adopt by reference,
the findings of facts and conclusions of law contained in the
decision appealed from.
a) Memorandum decision
b) Judgement
c) Trial
10. Relevant evidence as a reasonable man might accept as
evidence to support a conclusion
a) Proof beyond reasonable doubt
b) Clear evidence
c) Substantial evidence
11. The ultimate fact or fact sought to be established
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a) Factum Probans
b) Pactum Possessorium
c) Factum Probandum
12. The evidentiary fact
a) Factum probans
b) Pactum Possessorium
c) Factum Probandum
13. TRUE or FALSE: The Rules of Evidence in criminal and civil
cases are the same.
a) True
b) False
14. TRUE or FALSE: Collateral Matters are allowed in evidence
when they tend to establish the probability or improbability of
the fact in issue.
a) True
b) False
15. The duty of the party to present evidence on the facts in
issue necessary to establish his claim or defense by the amount
of evidence required by law
a) Burden of evidence
b) Burden of proof
c) Burden of presumption
16. Does the filing of the petition of Writ of amparo preclude
the filing of other cases?
a) No, it shall not preclude the filing of separate criminal,
civil, or administrative cases.
b) Yes, it shall preclude the filing of separate criminal,
civil, or administrative cases.
17. Remedy to any person whose right to privacy in life,
liberty, or security is violated or threatened by an unlawful act
or omission of a public official
a) Writ of habeas corpus
b) Writ of habeas data
c) Writ of amparo
18. There must be a statement made by a person while a startling
occurrence is taking place or immediately prior to or subsequent
thereto in respect to the circumstances thereof
a) Res gestae
b) Res ipsa loquitor
c) Res ta unla
19. TRUE or FALSE: A bystander’s account is admissible in
evidence provided that such fact is based on his personal
knowledge from his own perception
a) True
b) False
20. TRUE or FALSE: During their marriage, neither of the spouses
may testify for or against the other without the consent of the
affected spouse, except in civil case by one against the other,
or in a criminal case for a crime committed by one against the
other or the other’s direct ascendants or descendants
a) True
b) False
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ESSAY
Where and how will you appeal the following:
1. order of execution issued by the RTC.
SUGGESTED ANSWER:
A petition for certiorari under Rule 65 before the Court of Appeals.
ALTERNATIVE ANSWER:
The mode of elevation may be either by appeal (writ of error or
certiorari), or by a special civil action of certiorari,
prohibition, or mandamus. (Banaga vs. Majaducon cited in General
Milling Corporation-Independent Labor Union vs. General Milling
Corporation, G.R. No. 183122, June 15, 2011, Perez, J.).
2. Judgment of RTC denying a petition for Writ of Amparo.
SUGGESTED ANSWER:
Any party may appeal from the final judgment or order to the Supreme
Court by way of a petition for review on certiorari under Rule 45 of
the Rules of Court. the period of appeal shall be five
(5) working days from the date of notice of the adverse judgment,
and the appeal may raise questions of fact or law or both. (sec. 19,
Rule on Writ of Amparo, A.M. No. 07-9-12-SC, 25 September 2007).
3. A decision of the Court of Tax Appeal's First Division.
SUGGESTED ANSWER:
The decision of the Court of Tax Appeals Division may be appealed to
the CTA en banc.
The decisions of the Court of Tax Appeals are no longer appealable
to the Court of Appeals. Under the modified appeal procedure, the
decision of a division of the CTA may be appealed to the CTA en
banc. The decision of the CTA en banc may in turn be directly
appealed to the Supreme Court by way of a petition for review on
certiorari under Rule 45 on questions of law. (Section 11, R.A.
9282, March 30, 2004).
Pleadings; Counterclaim (2010)
4. 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 demands, Mercedes 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 her Answer with Counterclaim,
alleging that before the filing of the case, she and Benjamin had
entered into a dacion en pagoagreement in which her vintage
P1,000,000 Rolex watch which was taken 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." She accordingly prayed for P50,000 damages.
Benjamin soon after moved for the dismissal of the case. The trial
court accordingly dismissed the complaint. And it also dismissed
the Counterclaim.
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Mercedes moved for a reconsideration of the dismissal of the
Counterclaim. Pass upon Mercedes’ motion.
SUGGESTED ANSWER:
Mercedes‟ Motion for Reconsideration is impressed with merit: the
trial courts should not have dismissed her counter- claim despite
the dismissal of the Complaint.
Since it was the plaintiff (Benjamin) who moved for the dismissal of
his Complaint, and at a time when the defendant (Mercedes) had
already filed her Answer thereto and with counterclaim, the
dismissal of the counterclaim without conformity of the defendant-
counterclaimant. The Revised Rules of Court now provides in Rule 17,
Sec. 2 thereof that “If a counterclaim has been pleaded by a
defendant prior to the service upon him of the plaintiff‟s motion
for dismissal, the dismissal shall be limited to the complaint. The
dismissal shall be without prejudice to the right of the defendant
to prosecute his counterclaim x x x x.”
5. After an information for rape was filed in the RTC, the DOJ
Secretary, acting on the accused's petition for review, reversed
the investigating prosecutor's finding of probable cause. Upon
order of the
DOJ Secretary, the trial prosecutor filed a Motion to Withdraw
Information which the judge granted. The order of the judge
stated only the following:
"Based on the review by the DOJ Secretary of the findings of the
investigating prosecutor during the preliminary investigation,
the Court agrees that there is no sufficient evidence against
the accused to sustain the allegation in the information. The
motion to withdraw Information is, therefore, granted."
If you were the private prosecutor, what should you do? Explain.
SUGGESTED ANSWER:
If I were the private prosecutor, I would file a petition for
certiorari under Rule 65 with the Court of Appeals (Cerezo vs.
People, G.R. No.185230, June 1, 2011).
It is well-settled that when the trial court is confronted with a
motion to withdraw and Information (on the ground of lack of probable
cause to hold the accused for trial based on resolution of the DOJ
Secretary), the trial court has the duty to make an independent
assessment of the merits of the motion. It may either agree or
disagree with the recommendation of the Secretary. Reliance alone on
the resolution of the Secretary would be an abdication of the trial
court‟s duty and jurisdiction to determine a prima facie case. The
court must itself be convinced that there is indeed no sufficient
evidence against the accused. Otherwise, the judge acted with grave
abuse of discretion if he grants the Motion to Withdraw Information
by the trial prosecutor. (Harold Tamargo vs. Romulo Awingan et. al.
G.R. No. 177727, January 19, 2010).
6. While leisurely walking along the street near her house in
Marikina, Patty unknowingly stepped on a garden tool left behind
by CCC, a construction company based in Makati. She lost her
balance as a consequence and fell into an open manhole.
Fortunately, Patty suffered no major injuries except for
contusions, bruises and scratches that did not require any
hospitalization. However, she lost self-esteem, suffered
embarrassment and ridicule, and had bouts of anxiety and bad
dreams about the accident. She wants vindication for her
uncalled for experience and hires you to act as counsel for her
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and to do whatever is necessary to recover at least Php100,000
for what she suffered.
What action or actions may Patty pursue, against whom, where
(court and venue), and under what legal basis?
SUGGESTED ANSWER:
Patty may avail any of the following remedies:
a. She may file a complaint for damages arising from fault or
negligence under the Rules on Small Claims against CCC Company
before the MTC of Marikina City where she resides or Makati City
where the defendant corporation is holding office, at her option
(A.M. No. 8- 8-7-SC in relation to Section 2, Rule 4, Rules of
Court).
b. She may also file an action to recover moral damages based on
quasi-delict under Article 2176 of the New Civil Code. The law
states that, whoever by act or omission causes damage to another,
there being fault or negligence is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-
delict.
Under Article 2217 of the New Civil Code, moral damages include
physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the
proximate result of the defendant‟s wrongful act or omission.
Since moral damages are incapable of pecuniary estimation, Patty
should file the action before the Regional Trial Court of Marikina
City where she resides or Makati City, where the defendant
corporation is holding office, at her option (Section 19(1), B.P.
129).
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