Académique Documents
Professionnel Documents
Culture Documents
-2-
No.
The
contract,
its
label
notwithstanding, was not a trust receipt
transaction in legal contemplation or
within the purview of the Trust Receipts
Law such that its breach would render the
Spouses criminally liable for estafa.
Under Section 4 of the Trust Receipts
Law, the sale of goods by a person in the
business of selling goods for profit who,
at the outset of the transaction, has, as
against the buyer, general property rights
in such goods, or who sells the goods to
the buyer on credit, retaining title or
other interest as security for the payment
of the purchase price, does not constitute
a trust receipt transaction and is outside
the purview and coverage of the law. The
sale of goods, documents or instruments
by a person in the business of selling
goods, documents or instruments for
profit who, at the outset of the
transaction, has, as against the buyer,
general property rights in such goods,
documents or instruments, or who sells
the same to the buyer on credit, retaining
title or other interest as security for the
payment of the purchase price, does not
constitute a trust receipt transaction and
is outside the purview and coverage of
this Decree. When both parties enter into
an agreement knowing that the return of
the goods subject of the trust receipt is
not possible even without any fault on
the part of the trustee, it is not a trust
receipt transaction penalized under
Section 13 of P.D. 115; the only obligation
actually agreed upon by the parties
would be the return of the proceeds of
the sale transaction. This transaction
becomes a mere loan, where the
borrower is obligated to pay the bank the
amount spent for the purchase of the
goods. [Spouses Dela Cruz v. Planters
Starr Weigand 2014
Commercial Law
-3-
-4-
Corporation Law
1. What are the current rules on
principal
office
address
of
corporations and partnerships?
Previously,
the
SEC
had
allowed
corporations and partnerships to indicate
in their principal office address only the
name of the city, town, or municipality
where they conduct business, and
considered Metro Manila as a principal
office address. Thereafter, on 16 February
2006, the SEC issued Memorandum
Circular No. 3, series of 2006, directing
corporations and partnerships whose
articles of incorporation or partnership
still indicate a general address as their
principal office address, such as a city,
town or municipality, or Metro Manila,
to file, on or before 31 December 2014,
and amended articles of incorporation or
partnership, in order to specify their
complete addresses, such that it has a
street number, street name, barangay,
city or municipality, and if applicable, the
name of the building, the number of the
building, and the name or number of the
room or unit.
To ease the burden imposed on
corporations and partnership by SEC
Memorandum Circular No. 3, s. 2006, the
following guidelines should be observed
in the amendment of their articles in case
they transfer or move to another location:
1. In the event that a corporation
whose principal office address as
indicated in its articles is already
specific and complete, or fully
compliant with the Circulars, has
moved or moves to another
location within the same city or
municipality, the corporation is not
required to amend its articles. It
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2.
3.
4.
5.
-6-
-7-
Corporate
Every
2013 & 2014 Q and A|
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incurred
by
any
such
corporation,
stockholders,
members, directors, trustees,
or officers, shall be removed
or impaired either by the
subsequent dissolution of
said corporation or by any
subsequent amendment or
repeal of this Code or of any
part thereof. [Ibid.]
8. B Corp. was dissolved through
an amendment of its articles of
incorporation shortening and
terminating its corporate life. It
was issued a SEC certificate of
dissolution, and during such
time, it had deposit accounts
with BPI which were assigned
to E Insurance to serve as
security
for
surety
bonds
issued by the latter to guaranty
monetary
claims
of
a
complainant in the labor case
filed against B Corp. with the
NLRC.
NLRC
ordered
the
release and cancellation of the
bonds because the case was
terminated. The certificates of
deposit covering the deposits
with BPI were surrendered by E
Insurance
to
the
former
director
and
corporate
secretary of B Corp. Who can
act
as
trustees
of
the
corporation even after the
expiration
of
the
3
year
winding-up period for its final
liquidation?
The counsel of B Corp. during the labor
case before the NLRC can be considered
as a trustee of the corporation as to
matters related to the labor case.
Likewise, the former director and
corporate secretary can also act as
trustee-in-liquidation of B Corp.
2013 & 2014 Q and A|
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subsidiary
corporation
be
unjust,
fraudulent or wrongful. It examines the
relationship of the plaintiff to the
corporation. It recognizes that piercing is
appropriate only if the parent corporation
uses the subsidiary in a way that harms
the plaintiff creditor. As such, it requires a
showing of "an element of injustice or
fundamental unfairness."
The third prong is the "harm" test. This
test requires the plaintiff to show that the
defendants
control,
exerted
in
a
fraudulent, illegal or otherwise unfair
manner toward it, caused the harm
suffered. A causal connection between
the
fraudulent
conduct
committed
through the instrumentality of the
subsidiary and the injury suffered or the
damage incurred by the plaintiff should
be established. The plaintiff must prove
that, unless the corporate veil is pierced,
it will have been treated unjustly by the
defendants exercise of control and
improper use of the corporate form and,
thereby, suffer damages.
To summarize, piercing the corporate veil
based on the alter ego theory requires
the concurrence of three elements:
control of the corporation by the
stockholder or parent corporation, fraud
or fundamental unfairness imposed on
the plaintiff, and harm or damage caused
to the plaintiff by the fraudulent or unfair
act of the corporation. The absence of
any of these elements prevents piercing
the corporate veil.
In applying the alter ego doctrine, the
courts are concerned with reality and not
form, with how the corporation operated
and
the
individual
defendants
relationship to that operation. With
respect to the control element, it refers
not to paper or formal control by majority
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representation of T and U. To
pay for its purchases, AT gave
AP 82 postdated checks signed
T and U. the check were
dishonored for having been
drawn
against
insufficient
funds.
A
complaint
for
collection of sum of money was
filed AT, U, T, and its other
officers. Can AT be held liable?
Yes. The acts of T and U clearly bound the
corporation, and thus, it could be made
liable therefor under the doctrine of
apparent authority. The doctrine of
apparent authority provides that a
corporation will be estopped from
denying the agents authority if it
knowingly permits one of its officers or
any other agent to act within the scope of
an apparent authority, and it holds him
out to the public as possessing the power
to do those acts.
The doctrine of
apparent authority does not apply if the
principal did not commit any acts or
conduct which a third party knew and
relied upon in good faith as a result of the
exercise
of
reasonable
prudence.
Moreover, the agents acts or conduct
must have produced a change of position
to the third partys detriment.
Under Section 23 of the Corporation
Code, the power and responsibility to
decide whether the corporation should
enter into a contract that will bind the
corporation is lodged in the board,
subject to the articles of incorporation,
bylaws, or relevant provisions of law.
However, just as a natural person who
may authorize another to do certain acts
for and on his behalf, the board of
directors may validly delegate some of its
functions
and
powers
to
officers,
committees or agents. The authority of
such individuals to bind the corporation is
Starr Weigand 2014
Commercial Law
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the
loan
- 21 -
21.
C was a salesman of A,
engaged in the selling of
broadcasting equipment. When
A created B Corp. C was made
an Assistant Vice President
(AVP) for sales, while AA was
then appointed as VP for sales.
C
accused
AA
of
several
irregularities which were made
the subject of a memo sent to
A. Allegedly, C was asked by A
to tender his resignation, to
which he refused. He received a
memo, signed by A, charging
him with serious misconduct
and willful breach of trust. He
was later on barred from
entering company premises,
and allegedly suspended. Thus,
he filed a complaint for illegal
dismissal before the NLRC
against B Corp. and A. Does the
labor arbiter of the NLRC have
jurisdiction?
Also,
an
enabling
clause
in
a
corporations by-laws empowering its
board of directors to create additional
officers, even with the subsequent
passage of a board resolution to that
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is
cumulative
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35.
A mortgage his property
to Bank A, predecessor of Bank
B. However, A defaulted in his
payments, so the mortgage was
foreclosed and Bank B bought
the property. A offered to
repurchase the property, but no
agreement was reached. With A
insisting
that
a
purchase
agreement was reached, he
sold portions of the property
after being subdivided, and
offered to pay for the entire
property. Bank B however sold
the remaining portions of the
property to another person,
which prompted A to cause an
annotation of his adverse claim
on the title thereof. Thereafter,
the property was sold by Bank
B to other persons, without As
knowledge. Thus, A filed an
action for specific performance
against the bank. Was there a
perfected
repurchase
agreement between A and Bank
B, even if no acceptance was
made
by
Bank
Bs
representatives?
No. No such agreement was reached.
Section 23 of the Corporation Code
expressly provides that the corporate
powers of all corporations shall be
exercised by the board of directors. Just
as a natural person may authorize
another to do certain acts in his behalf,
so may the board of directors of a
corporation validly delegate some of its
functions to individual officers or agents
appointed by it. Thus, contracts or acts of
a corporation must be made either by the
board of directors or by a corporate agent
duly authorized by the board. Absent
such valid delegation/authorization, the
2013 & 2014 Q and A|
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corporations,
one
disappearing
or
dissolving and the other surviving. To put
it another way, merger is the absorption
of one or more corporations by another
existing corporation, which retains its
identity and takes over the rights,
privileges, franchises, properties, claims,
liabilities and obligations of the absorbed
corporation(s). The absorbing corporation
continues its existence while the life or
lives of the other corporation(s) is or are
terminated.
The Corporation
following
steps
consolidation:
Code
for
requires
merger
the
or
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articles
of
merger
o[r]
consolidation, by the corporate
officers
of
each
constituent
corporation. These take the place of
the articles of incorporation of the
consolidated corporation, or amend
the articles of incorporation of the
surviving corporation.
(4) Submission of said articles of
merger or consolidation to the SEC
for approval.
(5) If necessary, the SEC shall set a
hearing, notifying all corporations
concerned at least two weeks
before.
(6) Issuance of certificate of merger
or consolidation.
Indubitably, it is clear that no merger
took place between BOC and TRB as the
requirements and procedures for a
merger were absent. A merger does not
become
effective
upon
the
mere
agreement
of
the
constituent
corporations. All
the
requirements
specified in the law must be complied
with in order for merger to take effect.
Section 79 of the Corporation Code
further provides that the merger shall be
effective only upon the issuance by the
Securities and Exchange Commission
(SEC) of a certificate of merger.
Here, BOC and TRB remained separate
corporations with distinct corporate
personalities. What happened is that TRB
sold and BOC purchased identified
recorded assets of TRB in consideration of
BOCs assumption of identified recorded
liabilities of TRB including booked
contingent accounts. In strict sense, no
merger or consolidation took place as the
records do not show any plan or articles
Starr Weigand 2014
Commercial Law
of
merger
or
consolidation.
More
importantly, the SEC did not issue any
certificate of merger or consolidation.
[Bank of Commerce v. Radio Philippines
Network, Inc., et al., G.R. No. 195615,
April 21, 2014]
37.
KMBIs
by-laws
and
articles
of
incorporation
provide that its board of
trustees shall consist of 9
members to serve for one year.
But, due to resignation of five
of them, and the death of
another, only 3 members of the
board
remain.
Can
the
remaining 3 members continue
the regular business of the
corporation and fill up the
vacancies in the board?
The general rule is well-settled that the
power of the board is not suspended by
vacancies in the board unless the number
is reduced to below a quorum, the rule
being that the number necessary to
constitute a quorum under a by-law
which provides that a majority of the
directors shall be necessary and sufficient
to constitute a quorum, is a majority of
the entire board, notwithstanding that
there may be vacancies in the board at a
time. In the case of KMBI, the presence of
9 members would be required to
constitute a quorum. There being no
quorum with only 3 remaining members
of the board, then the board has no
authority to transact business. Also, they
do not have authority to fill-up vacancies
in the board. Not only is there no quorum,
but the circumstances are not one of
those which would allow the remaining
directors to fill in a vacancy. Based on 29
of the Corporation Code, the remaining
directors/trustees
can
fill-up
the
vacancies in the board when: (1) such
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39.
What is the current limit
on the shareholdings of an
Independent Director?
Paragraphs 2 and 6, Rule 38 of the
Amended IRR of the Securities Regulation
Code are the controlling provisions on the
definition,
qualification
and
disqualification
of
an
independent
director. In other words, a person is
qualified to be elected as an independent
director provided he is independent of
management and free from any business
or other relationship which could, or could
reasonably be perceived to, materially
interfere with his exercise of independent
judgment
in
carrying
out
his
responsibilities as a director in any
covered company, and includes, among
others, any person who does not own
more than 2% of the shares of the
covered company and/or its related
companies or any of its substantial
shareholders. The 10% limit on
beneficial ownership in the covered
company's equity security in which an
independent director is to be elected no
longer holds true. [SEC OGC Opinion No.
13-04, 18 April 2013; Emphasis supplied]
40.
M Corp. was engaged in
the business of selling medical
equipment, and has A as one of
its directors. A had a daughter,
B, who owns 80% of E Corp.,
also engaged in the selling of
medical equipment. Some of
the clients of M Corp. stopped
doing
business
with
it,
allegedly
due
to
the
intervention of A, in favor of his
daughters interest in E Corp. Is
there a conflict of interest on
the part of A, which would
disqualify him from continuing
to be a director in M Corp?
Starr Weigand 2014
Commercial Law
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"Corporate
layering"
is
admittedly
allowed by the FIA; but if it is used to
circumvent the Constitution and pertinent
laws, then it becomes illegal.
Sec. 2, Article XII of the Constitution
focuses on the State entering into
different types of agreements for the
exploration, development, and utilization
of natural resources with entities who are
deemed Filipino due to 60 percent
ownership of capital is pertinent to this
case, since the issues are centered on the
utilization of our countrys natural
resources or specifically, mining. Thus,
there is a need to ascertain the
nationality of petitioners since, as the
Constitution
so
provides,
such
agreements are only allowed corporations
or associations "at least 60 percent of
such capital is owned by such citizens."
Elementary in statutory construction is
when there is conflict between the
Constitution
and
a
statute,
the
Constitution will prevail. In this instance,
specifically pertaining to the provisions
under Art. XII of the Constitution on
National Economy and Patrimony, Sec. 3
of the FIA will have no place of
application. As decreed by the honorable
framers
of
our
Constitution,
the
grandfather rule prevails and must be
applied.
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of
the
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Transportation Laws
1. N Corp. shipped goods to UMC
from Japan to Manila. The
goods were insured by P
Insurance against all risks.
When they arrived in Manila, it
was found that one package
was in bad order. UMC declared
the damaged goods as a total
loss. P insurance paid UMC for
the loss, and filed a complaint
against
N
Corp.
and
the
brokers.
The
goods
were
delivered to UMC on May 12,
1995, and it filed a bad order
survey on that same day. The
action was filed by the insurer
on January 18, 1996. Has the
action prescribed?
No. The prescriptive period for filing an
action for the loss or damage of the
goods under the COGSA is found in
paragraph (6), Section 3, thus:
(6) Unless notice of loss or damage
and the general nature of such loss or
damage be given in writing to the
carrier or his agent at the port of
discharge before or at the time of the
removal of the goods into the custody
of the person entitled to delivery
thereof under the contract of carriage,
such removal shall be prima facie
evidence of the delivery by the carrier
of the goods as described in the bill of
lading. If the loss or damage is not
apparent, the notice must be given
within three days of the delivery.
Said notice of loss or damage maybe
endorsed upon the receipt for the goods
given by the person taking delivery
thereof.
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intended
purpose.
S
Corp
thereafter
shipped
another
batch of goods under similar
circumstances,
which
when
they arrived in Manila, were
also found to be in bad order.
Again, C Steel rejected the
goods. C Steel was paid by MS
Insurance for the damage to
the goods, and thus, MS
Insurance filed an action for
damages against E Shipping
and the stevedore. Can E
Shipping be held liable?
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Insurance Law
1. In a CBA, it was provided that
the employer will shoulder
hospitalization expenses of the
dependents
of
covered
employees subject to certain
limitations
and
restrictions.
Accordingly,
covered
employees pay part of the
hospitalization
insurance
premium
through
monthly
salary deductions while the
company, upon hospitalization
of the covered employees'
dependents,
shall
pay
the
hospitalization
expenses
incurred for the same. The
conflict arose when a portion of
the hospitalization expenses of
the
covered
employees'
dependents
were
paid/shouldered
by
the
dependent's
own
health
insurance. While the company
refused to pay the portion of
the hospital expenses already
shouldered by the dependents'
own health
insurance,
the
union insists that the covered
employees are entitled to the
whole
and
undiminished
amount
of
said
hospital
expenses. Decide.
The covered employees are not entitled
to full payment of the hospital expenses
incurred by their dependents, including
the amounts already paid by other health
insurance companies based on the theory
of collateral source rule.
As part of American personal injury law,
the collateral source rule was originally
applied to tort cases wherein the
defendant is prevented from benefiting
Starr Weigand 2014
Commercial Law
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a. The
amount
of
premiums,
contributions, fees or charges,
computed on a daily basis, does not
exceed 5% of the current daily
minimum wage rate for nonagricultural
workers
in
Metro
Manila; and
b. The maximum sum of guaranteed
benefits is not more than 500 times
the daily minimum wage rate for
non-agricultural workers in Metro
Manila.
All insurance companies, cooperative
insurance societies and mutual benefit
associations licensed by the Insurance
Commissioner
may
provide
microinsurrance products and services
following prescribed regulatory and
prudential
requirements.
[Insurance
Memorandum Circular No. 1-2010, 29
January 2010]
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tests to determine
likelihood of
confusion, namely: the dominancy test,
and the holistic test. The holistic test is
applicable here considering that the
herein criminal cases also involved
trademark infringement in relation to
jeans products. Accordingly, the jeans
trademarks of Levis and D must be
considered as a whole in determining the
likelihood of confusion between them.
The jeans made and sold by Levis, were
very popular in the Philippines. The
consuming public knew that the original
Levis jeans were under a foreign brand
and quite expensive. Such jeans could be
purchased only in malls or boutiques as
ready-to-wear items, and were not
available in tailoring shops like those of
Ds as well as not acquired on a madeto-order basis. Under the circumstances,
the consuming public could easily discern
if the jeans were original or fake Levis
jeans, or were manufactured by other
brands of jeans. D used the trademark
LS JEANS TAILORING for the jeans he
produced and sold in his tailoring shops.
His trademark was visually and aurally
different from the trademark LEVI
STRAUSS & CO appearing on the patch
of original jeans under the trademark
LEVIS. The word LS could not be
confused as a derivative from LEVI
STRAUSS by virtue of the LS being
connected to the word TAILORING,
thereby openly suggesting that the jeans
bearing the trademark LS JEANS
TAILORING came or were bought from
the tailoring shops of D, not from the
malls or boutiques selling original Levis
jeans to the consuming public. [Diaz v.
People, G.R. No. 180677, 18 February
2013]
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trademark
competition?
and
unfair
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Banking Laws
1. The BSP, through the Monetary
Board is granted the power and
authority to prescribe different
maximum rates of interest
which may be imposed for a
loan or renewal thereof or the
forbearance of any money,
goods or credits, provided that
the
changes
are
effected
gradually and announced in
advance. Thus, it issued CB
Circular No. 905, removing all
interest ceilings and suspended
the usury law. Did the BSP
commit
grave
abuse
of
discretion in issuing CB Circular
No. 905?
No. The BSP has the power to do so. It
has been held that CB Circular No. 905
did not repeal nor in anyway amend the
Usury Law but simply suspended the
latters effectivity; that a [CB] Circular
cannot repeal a law, [for] only a law can
repeal another law; that by virtue of CB
Circular No. 905, the Usury Law has been
rendered ineffective; and Usury has
been
legally
non-existent
in
our
jurisdiction. Interest can now be charged
as lender and borrower may agree upon.
The law creating the BSP covered only
loans extended by banks, whereas under
Section 1-a of the Usury Law, as
amended, the BSP-MB may prescribe the
maximum rate or rates of interest for all
loans or renewals thereof or the
forbearance of any money, goods or
credits, including those for loans of low
priority such as consumer loans, as well
as such loans made by pawnshops,
finance companies and similar credit
institutions. It even authorizes the BSPMB to prescribe different maximum rate
or rates for different types of borrowings,
Starr Weigand 2014
Commercial Law
including
deposits
and
deposit
substitutes,
or
loans
of
financial
intermediaries. By lifting the interest
ceiling, CB Circular No. 905 merely
upheld the parties freedom of contract to
agree freely on the rate of interest.
Article 1306 of the New Civil Code
provides that the contracting parties may
establish such stipulations, clauses, terms
and conditions as they may deem
convenient, provided they are not
contrary to law, morals, good customs,
public order, or public policy.
Nothing in CB Circular No. 905 grants
lenders a carte blanche authority to raise
interest rates to levels which will either
enslave their borrowers or lead to a
hemorrhaging of their assets. Stipulations
authorizing iniquitous or unconscionable
interests have been invariably struck
down for being contrary to morals, if not
against the law. Indeed, under Article
1409 of the Civil Code, these contracts
are deemed inexistent and void ab initio,
and therefore cannot be ratified, nor may
the right to set up their illegality as a
defense be waived. Nonetheless, the
nullity of the stipulation of usurious
interest does not affect the lenders right
to recover the principal of a loan, nor
affect
the
other
terms
thereof.
[Advocates for Truth in Lending v. Bangko
Sentral Monetary Board, G.R. No. 192986,
15 January 2013]
2. The late Mr. G deposited 2
million
pesos
with
PALI.
Conflicting
claims
of
his
relatives were presented to
PALI seeking the release of the
money
deposited.
Pending
investigation of the claims,
PALI deposited the money with
UCPB, in account which was in
trust for the heirs of Mr. G.
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of
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loan,
Chinabank
filed
and
action against the Spouses J for
collection of the remaining
balance. During the trial it was
found that the interest rate on
the loan changes every month
based on the prevailing market
rate and DBP allegedly notified
the spouses of the prevailing
rate by calling them monthly
before their account became
past due. DBP also alleged that
the spouses agreed to a
changing
interest
rate
by
signing the promissory note,
indicating that they agreed to
pay interest at the prevailing
rate. Can DBP subject the loan
of the spouses to a changing
rate of interest?
No. It is now settled that an escalation
clause is void where the creditor
unilaterally determines and imposes an
increase in the stipulated rate of interest
without the express conformity of the
debtor. Such unbridled right given to
creditors
to
adjust
the
interest
independently
and upwardly
would
completely take away from the debtors
the right to assent to an important
modification in their agreement and
would also negate the element of
mutuality in their contracts. While a
ceiling on interest rates under the Usury
Law was already lifted under Central
Bank Circular No. 905, nothing therein
"grants lenders carte blanche authority to
raise interest rates to levels which will
either enslave their borrowers or lead to a
hemorrhaging of their assets." The
provision in the promissory notes of the
Spouses J authorizing DBP to increase,
decrease or otherwise change from time
to time the rate of interest and/or bank
charges "without advance notice" to the
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subsequently
denied
this
motion. The Rules on Civil
Forfeiture
took
effect
and
stated that an extension of a
freeze order was only for a
maximum period of 6 months.
Thus, L asked the CA to
reconsider
its
resolution
denying his motion, insisting
that the freeze order should be
lifted
considering:
(a)
no
predicate
crime
has
been
proven to support the freeze
orders issuance; (b) the freeze
order expired six months after
it was issued; and (c) the freeze
order is provisional in character
and not intended to supplant a
case for money laundering.
Should
Ls
Motion
for
Reconsideration be granted?
Yes. A freeze order is an extraordinary
and interim relief issued by the CA to
prevent the dissipation, removal, or
disposal of properties that are suspected
to be the proceeds of, or related to,
unlawful activities as defined in Section
3(i) of RA No. 9160, as amended. The
primary objective of a freeze order is to
temporarily
preserve
monetary
instruments or property that are in any
way related to an unlawful activity or
money laundering, by preventing the
owner from utilizing them during the
duration of the freeze order. The relief is
pre-emptive in character, meant to
prevent the owner from disposing his
property and thwarting the States effort
in building its case and eventually filing
civil
forfeiture
proceedings
and/or
prosecuting the owner.
The Anti-Money Laundering Act of 2001,
as amended, from the point of view of the
freeze order that it authorizes, shows that
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