BAR Q AND A REM LAW.pdf - COVERAGE REMEDIAL LAW 2015 BAR EXAMINATIONS Table of Contents I General Principles A Concept of remedial law 15 B Substantive

BAR Q AND A REM LAW.pdf - COVERAGE REMEDIAL LAW 2015 BAR...

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Unformatted text preview: COVERAGE REMEDIAL LAW 2015 BAR EXAMINATIONS Table of Contents I. General Principles A. Concept of remedial law 15 B. Substantive law vis-á-vis remedial law 15 C. Nature of Philippine courts 15 1. Principle of judicial hierarchy 15 2. Doctrine of non-interference or doctrine of judicial stability 15 II. Jurisdiction A. Over the parties 16 1. How jurisdiction over the plaintiff is acquired 16 2. How jurisdiction over the defendant is acquired 18 B. Over the subject matter 19 1. Error of jurisdiction as distinguished from error of judgment 19 2. How jurisdiction is conferred and determined 19 3. Objections to jurisdiction over the subject matter 19 4. Effect of estoppel on objections to jurisdiction 20 C. Over the issues 22 D. Over the res or property in litigation 22 E. Jurisdiction of courts 23 1. Supreme Court 23 2. Court of Appeals 23 3. Sandiganbayan 26 4. Regional Trial Courts 26 5. Family Courts 30 6. Metropolitan Trial Courts/Municipal Trial Courts 30 F. Over small claims; cases covered by the Rules on Summary Procedure and Barangay conciliation 38 G. Totality Rule 40 III. Civil Procedure A. Actions 41 1 1. Meaning of ordinary civil actions 41 2. Meaning of special civil actions 41 3. Civil actions versus special proceedings 41 4. Personal actions and real actions 41 5. Local and transitory actions 41 6. Actions in rem, in personam and quasi in rem 42 B. Cause of action 43 1. Meaning of cause of action 43 2. Right of action versus cause of action 44 3. Failure to state a cause of action 44 4. Test of the sufficiency of a cause of action 45 5. Splitting a single cause of action and its effects 46 6. Joinder and mis-joinder of causes of action 48 C. Parties to civil actions 51 1. Real parties-in-interest; indispensable parties; representatives as parties; necessary parties; indigent parties; alternative defendants 51 2. Compulsory and Permissive Joinder of parties 51 3. Misjoinder and Non-joinder of parties 52 4. Class suit 53 5. Effect of death of party-litigant 53 D. Venue 57 1. Venue versus jurisdiction 57 2. Venue of real actions 57 3. Venue of personal actions 58 4. Venue of actions against non-residents 59 5. When the rules on venue do not apply 59 E. Pleadings 60 1. Kinds of pleadings 60 a. Complaint 60 b. Answer (Negative defenses, Negative pregnant, Affirmative defenses) 60 c. Counterclaims (Compulsory counterclaim, Permissive counterclaim, Effect on the counterclaim when the complaint is dismissed) 60 d. Cross-claims 64 e. Third (fourth, etc.) party complaints 65 2 f. Complaint-in-intervention 66 g. Reply 66 2. Pleadings allowed in small claim cases and cases covered by the Rules on Summary Procedure 67 3. Parts of a pleading 68 a. Caption 68 b. Signature and address 68 c. Verification and certification against forum shopping 68 d. Effect of the signature of counsel in a pleading 70 4. Allegations in a pleading 71 a. Manner of making allegations i. Condition precedent 71 71 ii. Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts 71 b. Pleading an actionable document 71 c. Specific denials (Effect of failure to make specific denials, When a specific denial requires an oath) 73 5. Effect of failure to plead 75 a. Failure to plead defenses and objections 75 b. Failure to plead a compulsory counterclaim and cross-claim 75 6. Default 75 a. When a declaration of default is proper 75 b. Effect of an order of default, Effect of a partial default 76 c. Relief from an order of default, Extent of relief 76 d. Actions where default is not allowed 80 7. Filing and service of pleadings 81 a. Modes of service (Personal service, Service by mail, Substituted service) 8. Amendment 81 82 a. Amendment as a matter of right 82 b. Amendments by leave of court 82 c. Formal amendment 83 d. Amendments to conform to or authorize presentation of evidence 83 e. Effect of amended pleading 84 F. Summons 87 3 1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem 87 2. Voluntary appearance 88 3. Personal service 89 4. Substituted service 89 5. Extra-territorial service, when allowed 90 G. Motions 92 1. Motions in general 92 a. Definition of a motion 92 b. Motions versus pleadings 92 c. Notice of hearing and hearing of motions 92 d. Omnibus Motion Rule 92 2. Motions for Bill of Particulars 94 a. Purpose and when applied for 94 b. Actions of the court 94 c. Compliance with the order and effect of noncompliance 94 3. Motion to dismiss 95 a. Grounds 95 b. Resolution of motion 95 c. Remedies of plaintiff when the complaint is dismissed 96 d. Remedies of the defendant when the motion is denied 96 e. When grounds pleaded as affirmative defenses 97 H. Dismissal of actions 98 1. Dismissal upon notice by plaintiff; two-dismissal rule 98 2. Dismissal upon motion by plaintiff; effect on existing counterclaim 99 I. Pre-trial 100 1. Concept of pre-trial, Nature and purpose 100 2. Notice of pre-trial 100 3. Appearance of parties; effect of failure to appear 100 4. Distinction between pre-trial in civil case and pre-trial in criminal case 102 5. Alternative Dispute Resolution (ADR) (Special Rules of Court on ADR (A.M. No. 07-11-08-SC)) 102 J. Intervention 103 1. Requisites for intervention 103 2. Remedy for the denial of motion to intervene 103 4 K. Subpoena 104 1. Subpoena duces tecum 104 2. Subpoena ad testificandum 105 3. Quashing of subpoena 105 L. Modes of Discovery 106 1. Depositions pending action; depositions before action or pending appeal 106 2. Production or inspection of documents or things 107 3. Consequences of refusal to comply with modes of discovery 108 M. Trial 109 1. Order of trial; reversal of order 109 N. Demurrer to evidence 109 1. Waiver of right to present evidence 109 2. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case 110 O. Judgments and Final Orders 112 1. Judgment without trial 113 2. Judgment on the pleadings 113 3. Summary judgments 115 a. For the claimant 115 b. For the defendant 116 c. When the case not fully adjudicated 116 4. Judgment on the pleadings versus summary judgments 117 5. Rendition of judgments and final orders 117 6. Entry of judgment and final order 118 P. Post-judgment remedies 119 1. Motion for new trial or reconsideration 119 2. Appeals in general 119 a. Judgments and final orders subject to appeal 119 b. Modes of appeal 119 i. Ordinary appeal 119 ii. Petition for review 119 iii. Petition for review on certiorari 119 c. Period of appeal 124 d. Perfection of appeal 124 5 e. Appeal from judgments or final orders of the MTC 127 f. Appeal from judgments or final orders of the RTC 127 g. Appeal from judgments or final orders of the CA 131 h. Appeal from judgments or final orders of the CTA 132 i. Review of final judgments or final orders of quasi-judicial agencies 132 3. Relief from judgments, orders and other proceedings 133 a. Grounds for availing of the remedy 133 b. Time to file petition 133 c. Contents of petition 133 4. Annulment of judgments or final orders and resolutions 133 a. Grounds for annulment 133 b. Period to file action 135 c. Effects of judgment of annulment 135 5. Collateral attack of judgments 136 Q. Execution, satisfaction and effect of judgments 136 1. Difference between finality of judgment for purposes of appeal; for purposes of execution 136 2. When execution shall issue (Execution as a matter of right, Discretionary execution) 136 3. How a judgment is executed 138 a. Execution by motion or by independent action 138 b. Issuance and contents of a writ of execution 139 c. Execution of judgments for money 140 4. Properties exempt from execution 143 5. Proceedings where property is claimed by third persons 143 a. In relation to third-party claim in attachment and replevin 143 6. Rules on Redemption 144 7. Examination of judgment obligor when judgment is unsatisfied 145 8. Effect of judgment or final orders 146 9. Enforcement and effect of foreign judgments or final orders 146 R. Provisional remedies 148 1. Nature of Provisional Remedies 149 2. Preliminary Attachment 149 a. Grounds for issuance of writ of attachment 6 149 b. Requisites; Issuance and contents of order of attachment; affidavit and bond 151 c. Rule on prior or contemporaneous service of summons 152 d. Manner of attaching real and personal property; when property attached is claimed by third person 153 e. Satisfaction of judgment out of property attached 154 3. Preliminary injunction 155 a. Definitions and differences: preliminary injunction and temporary restraining order; status quo ante order 155 b. Requisites 156 c. Kinds of injunction 156 d. When writ may be issued 156 e. Grounds for issuance of preliminary injunction 157 f. Duration of a Temporary Restraining Order (TRO) 157 5. Receivership 159 a. Cases when receiver may be appointed 6. Replevin 159 159 a. When may writ be issued 160 b. Requisites 160 c. Affidavit and bond; redelivery bond 160 d. Sheriff’s duty in the implementation of the writ; when property is claimed by third party 161 S. Special civil actions 161 1. Interpleader (Requisites for interpleader, When to file) 161 2. Declaratory reliefs and similar remedies 162 a. When court may refuse to make judicial declaration 162 3. Review of judgments and final orders or resolution of the Comelec and COA 162 a. Application of Rule 65 under Rule 64 162 b. Distinction in the application of Rule 65 to judgments of the Comelec and COA and the application of Rule 65 to other tribunals, persons and officers 162 4. Certiorari, prohibition and mandamus a. Definitions and distinctions 163 163 i. Certiorari distinguished from appeal by certiorari b. When petition for certiorari, prohibition and mandamus is proper c. Exceptions to filing of motion for reconsideration before filing 7 163 163 petition 165 d. Effects of filing of an unmeritorious petition 5. Quo Warranto 165 169 a. Judgment in quo warranto action 6. Expropriation 169 170 a. When plaintiff can immediately enter into possession of the real property, in relation to R.A. No. 8974 170 b. Defenses and objections 170 c. Ascertainment of just compensation 171 7. Foreclosure of real estate mortgage 171 a. Judgment on foreclosure for payment or sale 171 b. Deficiency judgment (Instances when court cannot render deficiency judgment) 172 8. Partition 172 a. Matters to allege in the complaint for partition 9. Forcible entry and unlawful detainer 172 173 a. Definitions and distinction 173 b. How to stay the immediate execution of judgment 174 c. Summary procedure, prohibited pleadings 175 10. Contempt 176 a. Acts deemed punishable as indirect contempt 176 IV. Special Proceedings A. Settlement of estate of deceased persons, venue and process 178 1. Which court has jurisdiction 178 2. Venue in judicial settlement of estate 179 B. Summary settlement of estates 179 1. Extrajudicial settlement by agreement between heirs, when allowed 179 2. Summary settlement of estates of small value, when allowed 181 3. Remedies of aggrieved parties after extrajudicial settlement of estate 181 C. Production and probate of will 182 1. Nature of probate proceeding 182 2. Who may petition for probate; persons entitled to notice 182 D. Allowance or disallowance of will 183 1. Contents of petition for allowance of will 183 2. Grounds for disallowing a will 184 8 3. Effects of probate 184 E. Letters testamentary and of administration 186 1. When and to whom letters of administration granted 186 2. Opposition to issuance of letters testamentary; simultaneous filing of petition for administration 187 F. Claims against the estate 188 1. Claim of executor or administrator against the estate 188 G. Actions by and against executors and administrators 189 H. Distribution and Partition 189 I. Escheat 190 1. Remedy of respondent against petition; period for filing a claim J. Guardianship 190 191 1. Rule on guardianship over minor 191 K. Adoption 191 L. Writ of habeas corpus 192 1. Contents of the petition 192 2. Distinguish peremptory writ from preliminary citation 193 3. When writ disallowed/discharged 193 4. Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors (A.M. No. 03-04-04-SC) 194 M. Writ of Amparo (A.M. No. 07-9-12-SC) 196 1. Coverage 196 2. Distinguish from habeas corpus and habeas data 196 N. Writ of Habeas Data (A.M. No. 08-1-16-SC) 197 1. Scope of writ 197 O. Absentees 197 1. Purpose of the rule 197 2. Who may file; when to file 197 P. Cancellation or correction of entries in the Civil Registry 1. Entries subject to cancellation or correction under Rule 108, in relation to R.A. No. 9048 Q. Appeals in special proceedings 198 198 200 V. Criminal Procedure A. General matters 201 9 1. Distinguish jurisdiction over subject matter from jurisdiction over person of the accused 201 2. Jurisdiction of criminal courts 201 3. When injunction may be issued to restrain criminal prosecution 202 B. Prosecution of offenses 202 1. Criminal actions, how instituted 202 2. Who may file them, crimes that cannot be prosecuted de officio 203 3. Criminal actions, when enjoined 204 4. Control of prosecution 204 5. Designation of offense 204 6. Amendment or Substitution of complaint or information 205 7. Venue of criminal actions 208 8. Intervention of offended party 209 C. Prosecution of civil action 210 1. Rule on implied institution of civil action with criminal action 210 2. When separate civil action is suspended 212 3. Effect of death of the accused or convict on civil action 213 4. Prejudicial Question 214 5. Rule on filing fees in civil action deemed instituted with the criminal action 215 D. Preliminary investigation 217 1. Nature of right 217 2. Purposes of preliminary investigation 217 3. Resolution of investigation prosecutor 217 E. Arrest 218 1. Arrest, how made 218 2. Arrest without warrant, when lawful 218 3. Method of arrest (By officer with warrant, By officer without warrant, By private person) 220 F. Bail 220 1. Nature 220 2. When a matter of right; exceptions 222 3. When a matter of discretion 222 4. Hearing of application for bail in capital offenses 224 5. Guidelines in fixing amount of bail 226 6. Hold departure order & Bureau of Immigration watch list 226 10 G. Rights of the accused 227 1. Rights of accused at the trial 227 2. Rights of persons under custodial investigation 227 H. Arraignment and plea 235 1. Arraignment and plea, how made 235 2. When may accused enter a plea of guilty to a lesser offense 235 3. Accused pleads guilty to capital offense, what the court should do 236 4. Searching inquiry 237 I. Motion to quash 237 1. Grounds 237 2. Exception to the rule that sustaining the motion is not a bar to another prosecution 240 3. Double jeopardy 241 4. Provisional dismissal 245 J. Pre-trial 247 1. Pre-trial agreement 247 K. Trial 247 1. Trial in absentia 247 2. Remedy when accused is not brought to trial within the prescribed period 248 3. Requisites for discharge of accused to become a state witness 248 4. Effects of discharge of accused as state witness 249 5. Demurrer to evidence 250 L. Judgment 255 1. Promulgation of judgment; instances of promulgation of judgment in absentia M. New trial or reconsideration 255 256 1. Requisites before a new trial may be granted on ground of newlydiscovered evidence N. Appeal 256 257 1. Effect of appeal by any of several accused 257 2. Grounds for dismissal of appeal 257 O. Search and seizure 258 1. Nature of search warrant 258 2. Distinguish from warrant of arrest 258 3. Particularity of place to be searched and things to be seized 259 11 4. Personal property to be seized 259 5. Exceptions to search warrant requirement 260 a. Search incidental to lawful arrest 260 b. Plain view situation 261 c. Stop and frisk situation 261 VI. Evidence A. General principles 262 1. Admissibility of evidence 262 a. Relevance of evidence and collateral matters 265 2. Burden of proof and burden of evidence 266 3. Presumptions (Conclusive presumptions, Disputable presumptions) 266 4. Liberal construction of the rules of evidence 267 5. Quantum of evidence (weight and sufficiency of evidence) 267 a. Proof beyond reasonable doubt b. Preponderance of evidence c. Substantial evidence d. Clear and convincing evidence B. Judicial notice and judicial admissions 267 1. Matters of judicial notice (Mandatory, Discretionary) 267 2. Judicial admissions 268 a. How judicial admissions may be contradicted 3. Judicial notice of foreign laws, law of nations and municipal ordinance C. Object (real) evidence 268 268 271 1. Nature of object evidence 271 2. Rule on DNA Evidence (A.M. No. 06-11-5-SC) 271 a. Assessment of probative value of DNA evidence and admissibility D. Documentary evidence 271 272 1. Meaning of documentary evidence 272 2. Best Evidence Rule 272 a. Meaning of the rule 272 b. When applicable 273 c. Requisites for introduction of secondary evidence 273 3. Rules on Electronic Evidence (A.M. No. 01-7-01-SC) 12 375 a. Scope; coverage; meaning of electronic evidence; electronic data message 275 b. Probative value of electronic documents or evidentiary weight; method of proof 276 4. Parol Evidence Rule 276 a. Application of the parol evidence rule 5. Authentication and proof of documents 276 277 a. When evidence of authenticity of a private writing is not required (ancient documents) 277 b. Public documents as evidence; proof of official record 277 c. Proof of lack of record 278 E. Testimonial evidence 279 1. Qualifications of a witness 279 2. Competency versus Credibility of a witness 280 3. Disqualifications of witnesses 280 a. By reason of mental capacity or immaturity 280 b. By reason of marriage 280 c. By reason of death or insanity of adverse party 285 d. By reason of privileged communications 286 4. Examination of a witness 289 a. Order in the examination of an individual witness 289 i. Direct examination ii. Cross examination iii. Re-direct examination iv. Re-cross examination v. Recalling the witness b. How the witness is impeached by evidence of inconsistent statements (laying the predicate) 289 c. Evidence of the good character of a witness 290 d. Judicial Affidavit Rule (A.M. No. 12-8-8-SC) 290 5. Admissions and confessions 291 a. Res inter alios acta rule 291 b. Confessions 292 c. Similar acts as evidence 295 13 6. Hearsay Rule 295 a. Meaning of hearsay 295 b. Exceptions to the hearsay rule 298 i. Dying declaration 298 ii. Declaration against interest 303 iii. Family reputation or tradition regarding pedigree 303 iv. Part of the res gestae 304 7. Opinion rule 306 a. Opinion of expert witness 306 b. Opinion of ordinary witness 306 8. Character evidence 306 a. Criminal cases 306 9. Rule on Examination of a Child Witness (A.M. No. 004-07-SC) a. Live-link TV testimony of a child witness F. Offer and objection 307 307 307 1. Offer of evidence 307 2. When to make an offer 308 3. Objection 309 4. Tender of excluded evidence 310 VII. Revised Rules on Summary Procedure A. Cases covered by the rule 311 B. Effect of failure to answer 312 C. Preliminary conference and appearances of parties 312 VIII. Katarungang Pambarangay Law (P.D. No. 1508; R.A. 7610, as amended) A. Cases covered 313 B. Subject matter for amicable settlement 315 14 I. General Principles A. Concept of remedial law Q: What is the concept of remedial law? 2% (2006 Bar Question) SUGGESTED ANSWER: The concept of Remedial Law is that it is a branch of public law which prescribes the procedural rules to be observed in litigations, whether civil, criminal, or administrative, and in special proceedings, as well as the remedies or reliefs available in each case. Q: How are remedial laws implemented in our system of government? 2% (2006 Bar Question) SUGGESTED ANSWER: Remedial Laws are implemented in our system of government through the judicial system, including the prosecutory service, our courts and quasi-judicial agencies. B. Substantive law vis-á-vis remedial law Q: Distinguish between substantive law and remedial, law. 2% (2006 Bar Question) SUGGESTED...
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