Bar Examination 2005 Q&A
Bar Examination 2005 Q&A
Bar Examination 2005 Q&A
IN REMEDIAL LAW
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REMEDIAL LAW
- I -
Answer:
Article 1144 of the Civil Code which requires that an action upon
a judgment (though without distinction) must be brought within 10
years from the time the right of action accrues, does not apply to
an action filed in the Philippines to enforce a foreign judgment.
While we can say that where the law does not distinguish, we should
not distinguish, still the law does not evidently contemplate the
inclusion of foreign judgments. A local judgment may be enforced
by motion within five years and by action within the next five
years. (Rule 39) That is not the case with respect to foreign
judgments which cannot be enforced by mere motion.
Answer:
Answer:
Answer:
e) When may the trial court order that the testimony of a child be
taken by live-link television? Explain. (10%)
Answer:
- II -
(1.) While Marietta was in her place of work in Makati City, her
estranged husband Carlo barged into her house in Parañaque City,
abducted their six-year old son, Percival, and brought the child
to his hometown in Baguio City. Despite Marietta’s pleas, Carlo
refused to return their child. Marietta, through counsel, filed a
petition for habeas corpus against Carlo in the Court of Appeals
in Manila to compel him to produce their son before the court and
for her to regain custody. She alleged in the petition that despite
her efforts, she could no longer locate her son.
Answer:
(2.) Under Republic Act No. 8353, one may be charged with and found
guilty of qualified rape if he knew on or before the commission of
the crime that he is afflicted with Human Immuno-Deficiency Virus
(HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other
sexually transmissible disease and the virus or disease is
transmitted to the victim.
Under Section 17(a) of Republic Act No. 8504 the court may compel
the accused to submit himself to a blood test where blood samples
would be extracted from his veins to determine whether he has HIV.
Answer:
No. The court may compel the accused to submit himself to a blood
test to determine whether he has HIV under Sec. 17(a) of R.A. No,
8054. His rights to be presumed innocent of the crime charged, to
privacy and against self-incrimination are not violated by such
compulsory testing. In an action in which the physical condition
of a party is in controversy, the court may order the accused to
submit to a physical examination. (Sec. 1, Rule 28, 1997 Rules of
Civil Procedure)
(Look for citation of latest case, in 2004)
Answer:
Since the rights of the accused are not violated because the
compulsory testing is authorized by the Remedial Law Bar
Examination Q & A (1997-2006) law, the result of the testing cannot
be considered to be the fruit of a poisonous tree and can be
offered in evidence to prove the qualifying circumstance under the
information for qualified rape under R.A. No. 8353. The fruit, of
the poisonous tree doctrine refers to that rule of evidence that
excludes any evidence which may have been derived or acquired from
a tainted or polluted source. Such evidence is inadmissible for
having emanated from spurious origins. The doctrine, however, does
not apply to the results obtained pursuant to Sec. 1, Rule 28,
1997 Rules of Civil Procedure, as it does not contemplate a search
within the meaning of the law. (People v.
Montilla, G.R. No. 123872, January 30,1998)
III.
State with reasons whether it was proper for Ricky to join his
causes of action in his complaint for partition against Perry and
Marvin in the Regional Trial Court of Pasay City. (5%)
Answer:
It was not proper for Ricky to join his causes of action against
Perry in his complaint for partition against Perry and Marvin. The
causes of action may be between the same parties, Ricky and Perry,
with respect to the loan but not with respect to the partition
which includes Marvin. The joinder is between a partition and a
sum of money, but PARTITION is a special civil action under Rule
69, which cannot be joined with other causes of action. (See. 5[b],
Rule 2,) Also, the causes of action pertain to different venues
and jurisdictions. The case for a sum of money pertains to the
municipal court and cannot be filed in Pasay City because the
plaintiff is from Manila while Ricky and Marvin are from Batangas
City. (Sec. 5, Rule 2,)
IV.
Answer:
V.
(1.) After Lulu’s death, her heirs brought her last will to a
lawyer to obtain their respective shares in the estate. The lawyer
prepared a deed of partition distributing Lulu’s estate in
accordance with the terms of her will. Is the act of the lawyer
correct? Why? (2%)
Answer:
No. No will, shall pass either real or personal estate unless it
is proved and allowed in the proper court. (Sec. 1, Rule 75, Rules
of Court)
(2.) Nestor died intestate in 2003, leaving no debts. How may his
estate be settled by his heirs who are of legal age and have legal
capacity? Explain. (2%)
Answer:
If the decedent left no will and no debts, and the heirs are all
of age, the parties may, without securing letters of administration,
divide the estate among themselves by means of a public instrument
or by stipulation in a pending action for partition and shall file
a bond with the register of deeds in an amount equivalent to the
value of the personal property involved as certified to under oath
by the parties concerned. The fact of extra-judicial settlement
shall be published in a newspaper of general circulation once a
week for three consecutive weeks in the province. (Sec. 1, Rule
74, Rules of Court)
Answer:
VI
Answer:
VII
Within fifteen (15) days from service of the summons, Tyrone filed
a motion to dismiss and to dissolve the writ of preliminary
attachment on the following grounds: (i) the court did not acquire
jurisdiction over his person because the writ was served ahead of
the summons; (ii) the writ was improperly implemented; and (iii)
said writ was improvidently issued because the obligation in
question was already fully paid.
Answer:
(1) The fact that the writ of attachment was served ahead of the
summons did not affect the jurisdiction of the court over his
person. It makes the writ, unenforceable. (Sec. 5, Rule. 57)
However, all that is needed to be done is to re-serve the writ.
(Onate v.
VIII
Answer:
IX
Before the court could resolve the motion, the plaintiff, without
leave of court, amended his complaint to allege a new cause of
action consisting in the inclusion of an additional amount of
P200,000.00, thereby increasing his total claim to P450,000.00.
The plaintiff thereafter filed his opposition to the motion to
dismiss, claiming that the Regional Trial Court had jurisdiction
over his action.
Answer:
Answer:
XI
Answer:
XII
Answer:
No. The court can never lose jurisdiction so long as its decision
has not yet been fully implemented and satisfied. Finality of a
judgment cannot operate to divest a court of its jurisdiction. The
court retains an interest in seeing the proper execution and
implementation of its judgments, and to that extent, may issue
such orders necessary and appropriate for these purposes.
(Echegaray v. Secretary of Justice, G.R. No. 13205, January 19,
1999)
Answer:
To secure the proper and most expeditious release of Mariano from
the National Penitentiary, his counsel should file: (a) a petition
for habeas corpus for the illegal confinement of Mariano (Rule
102), or (b) a motion in the court which convicted him, to nullify
the execution of his sentence or the order of his commitment on
the ground that a supervening development had occurred (Melo v.
People, G.R. No. L-3580, March 22, 1950) despite the finality of
the judgment.
XIII.
Answer:
The ground for the motion to quash is that more than one offense
is charged in the information. (Sec. 3[f], Rule 117, 2000 Rules of
Criminal Procedure) Likewise, the RTC has no jurisdiction over the
second offense of possession of an unlicensed .32 caliber gun,
punishable by prision correctional in its maximum period and a
fine of not less than P15.000.00. It is the MTC that has exclusive
and original jurisdiction over all offenses punishable by
imprisonment not exceeding six years. (Sec. 2, R.A. No. 7691,
amending B.P. Blg.
XIV.
Police operatives of the Western Police District, Philippine
National Police, applied for a search warrant in the Regional Trial
Court for the search of the house of Juan Santos and the seizure
of an undetermined amount of shabu.
The team arrived at the house of Santos but failed to find him
there. Instead, the team found Roberto Co. The team conducted a
search in the house of Santos in the presence of Roberto Co and
barangay officials and found ten (10) grams of shabu. Roberto Co
was charged in court with illegal possession of ten grams of shabu.
(a) he was not the accused named in the search warrant; and
(b) the warrant does not describe the article to be seized with
sufficient particularity. Resolve the motion with reasons. (4%)
Answer:
XV.
For the multiple stab wounds sustained by the victim, Noel was
charged with frustrated homicide in the Regional Trial Court. Upon
arraignment, he entered a plea of guilty to said crime. Neither
the court nor the prosecution was aware that the victim had died
two days earlier on account of his stab wounds.
Answer:
XVI.
Dencio barged into the house of Marcela, tied her to a chair and
robbed her of assorted pieces of jewelry and money. Dencio then
brought Candida, Marcela’s maid, to a bedroom where he raped her.
Marcela could hear Candida crying and pleading: “Huwag! Maawa ka
sa akin!” After raping Candida, Dencio fled from the house with
the loot. Candida then untied Marcela and rushed to the police
station about a kilometer away and told Police Officer Roberto
Maawa that Dencio had barged into the house of Marcela, tied the
latter to a chair and robbed her of her jewelry and money. Candida
also related to the police officer that despite her pleas, Dencio
had raped her. The policeman noticed that Candida was hysterical
and on the verge of collapse. Dencio was charged with robbery with
rape. During the trial, Candida can no longer be located.
a) If the prosecution presents Police Officer Roberto Maawa to
testify on what Candida had told him, would such testimony of the
policeman be hearsay? Explain.
Answer:
Answer:
XVII.
Explain briefly whether the Regional Trial Court may, motu proprio,
take judicial notice of the following:
Answer:
The RTC may motu proprio take judicial notice of the street name
of methamphetamine hydrochloride is shabu, considering the
chemical composition of shabu. (People v. Macasling, GM, No. 90342,
May 27, 1993)
c) Foreign laws;
Answer:
The RTC may not generally take judicial notice of foreign laws (In
re Estate of Johnson, G.R. No. 12767, November 16, 1918; Fluemer
v. Hix, G.R. No. 32636, March 17, 1930), which must be proved like
any other matter of fact (Sy Joe Lieng v. Sy Quia, G.R. No. 4718,
March 19, 1910) except in a few instances, the court in the
exercise of its sound judicial discretion, may take notice of
foreign laws when Philippine courts are evidently familiar with
them, such as the Spanish Civil Code, which had taken effect in
the Philippines, and other allied legislation. (Pardo v. Republic,
G.R. No. L¬2248 January 23, 1950; Delgado v. Republic, G.R. No.
L¬2546, January .28, 1950)
d) Rules and Regulations issued by quasi-judicial bodies
implementing statutes;
Answer:
The RTC may take judicial notice of the fact that rape may be
committed even in public places. The "public setting" of the rape
is not an indication of consent. (People v. Tongson, G.R. No.
91261, February 18, 1991) The Supreme Court has taken judicial
notice of the fact that a man overcome by perversity and beastly
passion chooses neither the time, place, occasion nor victim.
(People v, Barcelona, G.R. No. 82589, October 31, 1990)
XVIII.
Answer: