PFR:The Effect and Application of Laws (Art. 1-18, CC) Flashcards
DIFFERENCES OF COMMON LAW VS. CIVIL LAW (History, Source, Role of Judges)
COMLAW HISTORY: Customs united in common law in England
CIVLAW HISTORY: Roman Law, Justinian Law
COMLAW SOURCE: Legal Precedents
CIVLAW SOURCE: Codified Laws
COMLAW JUDGES: Interprets the Law based on human experience
CIVLAW JUDGES: Interpret based on legal law. Acts as investigator, they apply laws created and formulated to others.
DEFINE HUMAN POSITIVE LAW
In general, human positive law is a reasonable rule of action, expressly or directly promulgated by competent human authority for the common good, and usually, but not necessarily, imposing a sanction in case of disobedience.
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(promulgated expressly or directly)
Essential Elements of Human Positive Law
(a) Reasonable rule of action.
(b) Due promulgation — for otherwise obedience can hardly be expected.
(c) Promulgation by competent authority.
(d) Generally, a sanction imposed for disobedience.
METHODS OF PROMULGATING THE UNIVERSAL CODE (6)
Schools
Churches
Different Places
Translations
Particular Codes
Laws concerning contracts
DEFINE NATURAL LAW
Promulgated impliedly in our conscience and body.
DEFINE CIVIL LAW
It is that branch of the law that generally treats of the personal and family relations of an individual, his property and successional rights, and the effects of his obligations and contracts.
IS THE PHILIPPINE LEGAL SYSTEM COMMON LAW OR CIVIL LAW ?
Both. Our laws are a mix of both common law and civil law.
See ruling under Re: Max Shoop
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(1)xxx
(2) In interpreting and applying the bulk of the written laws of this jurisdiction, and in rendering its decision in cases not covered by the letter of the written law, this court relies upon the theories and precedents of Anglo- American cases, subject to the limited exception of those instances where the remnants of the Spanish written law present well-defined civil law theories and of the few cases where such precedents are inconsistent with local customs and institutions.
(3) The jurisprudence of this jurisdiction is based upon the English Common Law in its present day form of Anglo-American Common Law to an almost exclusive extent.
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CIVIL LAW VS CIVIL CODE
While most of our civil laws are found in the Civil Code, still the Civil Code is not the only place where we can find our civil laws.
A Civil Code is a compilation of existing civil laws, scientifically arranged into books, titles, chapters, and subheads and promulgated by legislative authority.
A codification may be necessary to provide for simplicity, unity, order, and reform in legislation.
SOURCES OF THE CIVIL CODE (9)
HINT (S.C.L.R-D2-CT,G,CC)
(a) The Civil Code of Spain
(b) The Philippine Constitution of 1935
(c) Statutes or Laws (Philippine, American, European)
(d) Rules of Court (local and foreign)
(e) Decisions of local tribunals (particularly the Supreme Court)
(f) Decisions of foreign tribunals
(g) Customs and traditions of our people
(h) General principles of law and equity
(i) Ideas from the Code Commission itself
RECITE ART. 2 OF THE CIVIL CODE AS AMENDED BY E.O 200
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette or in any newspaper of general circulation in the Philippines, unless it is otherwise provided.
This Code shall take effect one year after such publication.
HOW DO YOU COUNT THE 15 DAY PERIOD
Exclude the first day and include the last day
WAYS A LAW CAN BE EFFECTIVE
- When the Law provides for its effectivity (it may be shorter or longer than 15 days)
2.If no such date is made, then after 15 days following the completion of its publication in the Official Gazette or in a newspaper of general circulation.
- Immediately- this means IMMEDIATELY AFTER PUBLICATION with the fifteen-day period being dispensed with.
WHAT DOES “IT IS OTHERWISE PROVIDED”?
It refers to PUBLICATION.
Publication is an indispensable requisite the absence of which will not render a law effective.
CAN PUBLICATION BE INDISPENSED WITH ALTOGETHER?
NO.
WHAT DOES IT MEAN TO PUBLISH A LAW IN FULL?
Publication must be in full or it is not publication at all since its purpose is to inform the public of its contents (Tañada v. Tuvera, 146 SCRA 446).
It cannot be just the title.
The content of the law must be complete in its details, every provision and details must be included in the publication.
WHAT LAWS NEED TO BE PUBLISHED? (8)
1-2. Presidential Decrees and Executive Orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature, or, at present, directly conferred by the Constitution. ;
- Laws which refer to all statutes, including local and private laws;
- Administrative Rules and Regulations where purpose is to enforce/implement existing law pursuant to a valid delegation;
- Charter of a City, notwithstanding that it only applies only to a portion of the national territory and directly affects only the inhabitants of that place;
- Circulars issued by the Monetary Board where purpose is not merely to interpret but to fill in the details of the Central Bank Act;
- Circulars and Regulations which prescribe a penalty for its violation
- Supreme Court Decisions
DOES ALL PRESIDENTIAL DECREES NEED TO BE PUBLISHED?
All presidential decrees must be published, including even say, those naming a public place after a favored individual or exempting him from certain prohibitions or requirements.
WHAT ARE THOSE DOES NOT NEED TO BE PUBLISHED?
- Interpretative regulations and those internal in nature, regulating only the personnel of the administrative agency.
- Letters of Instructions issued by administrative superiors on rules/guidelines to be followed by subordinates in the performance of their duties (Tañada vs. Tuvera)
DOES ARTICLE 2 COVER THE DATE OF EFFECTIVITY OF MUNICIPAL ORDINANCES?
NO.
The date of effectivity of Municipal Ordinances is NOT covered by this rule but by the Local Government Code.
RULE APPLIED TO EXECUTIVE ORDERS AND ADMINISTRATIVE RULES
(a) Must conform to standards of the law. (Tayug Rural Bank v. Central Bank, GR 46158, Nov. 28, 1986).
(b) Administrative Rules have the force of law. (Ibid.)
DATE OF EFFECTIVITY OF THE NEW CIVIL CODE (NCC)
AUGUST 30, 1950
RECITE ART. 3 OF THE NCC
Art. 3. Ignorance of the law excuses no one from compliance therewith
WHAT KINDS OF LAW IS THE MAXIM OF IGNORANCE OF LAW EXCUSES NO ONE APPLY TO?
Art. 3 applies to all kinds of domestic laws, whether civil or penal and whether substantive or remedial on grounds of expediency, policy, and necessity, i.e., to prevent evasion of the law.
However, the maxim refers only to mandatory or prohibitive laws, not to permissive or suppletory laws.
WHAT IS MISTAKE OF FACT?
Ignorance of the fact eliminates
criminal intent as long as there is no negligence.
DEFINE MANDATORY AND PROHIBITORY LAW
MANDATORY- Obligatory laws.
PROHIBITORY- Laws that impose a duty to refrain from doing a forbidden act.
DEFINE PERMISSIVE LAW
Laws that are not mandatory, its compliance being discretionary.
WHAT IS THE DOCTRINE OF PROCESSUAL PRESUMPTION?
Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law.
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Ignorance of foreign law is not ignorance of the law, but ignorance of the fact because foreign laws must be alleged and proved as matters of fact, there being no judicial notice of said
foreign laws.
RECITE ARTICLE 4 OF THE NCC
Article 4. Laws shall have no retroactive effect, unless the contrary is provided.
WHY IS THE LAW PROSPECTIVE AND NOT RETROACTIVE?
In general, laws are prospective, not retroactive.
The rule was that if laws were retroactive, grave injustice would
occur, for these laws would punish individuals for violations of laws not yet enacted.