The final deadline granted by the Bureau of
Immigration to all registered aliens to replace
their paper-based ACRs with the hi-tech,
microchip-based ACR I-Card was last April 15,
2006.
In view, however, of numerous requests by
those who failed to apply by reason of
circumstances beyond their control, and to
achieve maximum compliance with the ACR I-Card
project the Bureau of Immigration decided to
grant all registered aliens an inextendible
grace period of 120 calendar days or
until August 13, 2006 to comply
with the ACR I-Card requirement. Thereafter, any
registered alien found in possession of a
paper-based ACR shall be deemed not properly
documented and subject to proceedings under
pertinent provisions of Immigration Act of 1940
and/or Alien Registration Act of 1950, as
amended (Memo Order No. AFF-06-007).
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Notice of
loss or damage of goods required within 24
hours
Article 366 of the Code of Commerce requires
that a claim of alleged damages suffered by the
goods while in transport must be filed with
respondent-carrier immediately or within twenty
four (24) hours from the time the goods were
received.
The purpose of said requirement is to compel
the consignee of goods entrusted to a carrier to
make prompt demand for settlement of alleged
damages so that the carrier will be able to
verify all such claims at the time of delivery
or within twenty-four hours thereafter, and if
necessary fix responsibility and secure evidence
as to the nature and extent of the alleged
damages to the goods. Thus, the carrier is
protected by affording it the opportunity to
investigate a claim while the matter is still
fresh so as to safeguard itself from false and
fraudulent claims.
Moreover, the time limitation actually
constitutes a condition precedent to the accrual
of a right of action against a carrier for loss
of, or damage to, the goods. The shipper or
consignee must allege and prove the fulfillment
of the condition i.e. that it filed its claim
with the carrier within 24 hours from the time
the goods were received. Otherwise, no right of
action against the carrier can accrue in favor
of the former (G.R. 136888, 6/29/05).
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Philippines IPO
launches pilot-testing program of TM Online
Filing System
The Intellectual Property Office of the
Philippines recently launched The Pilot Testing
Program of TM Online, or
Trademarks Online Filing System. As a part of
the eGovernment Program of the Philippines IPO,
TM Online is a web-based system that facilitates
the electronic filing of applications for the
registration of trademarks, service marks,
geographic indications and other marks of
ownership in the Philippines that is available
24 hours a day, 7 days a week.
Only two firms in the Philippines have been
allowed to participate in the Pilot Testing
Program of TM Online. All applications filed
during the pilot testing stage will be
considered as having been actually filed with
the Philippines IPO.
There are no changes in the applicable rules.
The Intellectual Property Code (Republic Act No.
8293) and the Trademark Rules will govern all
applications that are filed electronically. The
trademark applications will be likewise examined
in accordance with the rules and procedures that
govern applications that are personally filed by
applicants and/or trademark agents in the IPO.
Moreover, applications filed using TM Online
will benefit from the 20% reduction in Official
Filing Fees at the time of filing the trademark
application.
The new filing system is expected to attract
and encourage more trademark owners to file
applications in the Philippines. Over the years,
the total number of applications received by the
IPO has steadily increased:
2004 – 12,347 (5,405 foreign; 6,942
local)
2003 – 12,032 (5,077 foreign;
6,955 local)
2003 – 11,137 (4,814 foreign;
6,323 local)
2001 -- 9,904 (4,703 foreign;
5,291 local)
Further improvements on the examination
processes, streamlining of registration
procedures and continued modernization of
facilities are in the agenda of the Philippines
IPO.
Considering that only COMPLETE applications
will be accepted, IPO advises it is important
that information on the following items are
available upon
filing:
Name of application; country of
incorporation, if body corporate; principal
place of business;
Enumeration of goods and/or services to be
covered;
Colors to be claimed, if any;
Basis of application, which can be either
one of the following:
Intent-to-Use
Local Use
Foreign application or registration. If
priority is to be claimed, application number,
filing date and country filed;
Illustration of mark in jpg format
and with the following dimensions: 2” x 3”
The Power of Attorney should be filed by the
trademark agent within 60 days from filing date
of the application, while the certified true
copy of the foreign application from which
convention priority will be claimed should be
filed within 3 months from the filing date of
the application.
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Rules on enlistment of foreign retirees liberalized
In order to liberalize the requirements
governing the retirees’ program of the
Philippine Retirement Authority, the PRA Board
of Trustees recently promulgated amendments to
the rules and regulations for retiree enlistment
to make the program more attractive to foreign
retirees. Quoted hereunder are the changes in
the rules which took effect on 28 May 2006:
1. Special Reduced Deposit --
For principal applicants who are
applying for Special Resident Retiree (SRR) Visa
the minimum qualifying deposit is reduced as
follows:
35-49 yrs. Old. – From US$75,000 to
US$50,000
50 yrs. old and up
From US$50,000 to US$20,000
Holding Period – Retirees
enrolled under this program may be allowed to
withdraw their deposit for “conversion” into an
investment after a holding period of thirty (30)
days from the issuance date of SRR Visa.
Visitorial Fee – For every
conversion of the retiree’s deposit into an
investment, the concerned retiree will pay the
visitorial fee as follows:
Deposit: US$20,000
Annual Visitorial Fee: US$500or peso
equivalent
Deposit: US$50,000
Annual Visitorial Fee: US$750
or peso equivalent
Areas of Investment – The
areas of investments for visa holders under the
Special Reduced Deposit Scheme shall strictly be
limited to the following:
Purchase, acquisition and ownership of a
condominium unit;
Long-term lease of house and lot,
condominium or townhouse which should not be a
period shorter than 20 years;
Purchase, acquisition and ownership of golf
or country club share/s; or
Investment in shares of stocks of
corporations duly registered in the Philippine
Stock Exchange.
All applications for conversion of deposit
shall be submitted to the Board of Trustees for
its approval.
Applicability of the Program –
The program is an experimental project
for six (6) months and shall apply ONLY
to new applicants. Previous SRRV
holders CANNOT re-apply for
SRRV under this Program.
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Redundancy program requires
fair and reasonable
criteria
In an earlier case, the Supreme Court ruled
that redundancy exists when the work force is in
excess of what is reasonably needed to meet the
demands on the enterprise. A redundant position
is one rendered superfluous by such factors as
over-hiring of workers, decreased volume of
business, dropping out of a particular product
line or phasing out of a service activity
previously undertaken by the business.
The employer, said the Court, must also
comply with the following requisites to ensure
the validity of a redundancy program: (1) a
written notice to both the employees and the
DOLE at least one month prior to the effectivity
of the program;
(2) payment of separation pay of one-month
salary for every year of service; (3) good faith
in the abolition of the redundant positions; and
(4) a reasonable and fair criteria in
ascertaining what positions are to be declared
redundant and accordingly abolished.
The Court emphasized that it is imperative
for the employer to have a fair and reasonable
criteria in implementing its redundancy program
such as but not limited to (a) preferred status;
(b) efficiency; and (c) seniority (G.R. 148195,
5/16/05, citing Asian Alcohol vs. NLRC, Panlilio
vs. NLRC).
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Operating costs of
ECCD programs deductible
from taxable
income
A 8980, the law creating the ECCD (Early
Childhood Care and Development) System refers to
the full range of health, nutrition, early
education and social services programs that
provide for the “holistic needs of young
children from birth to age six (6) to promote
their optimum growth and development.”
These programs include among others: day care
service in public and private pre-schools,
kindergarten or school-based programs, early
childhood education programs initiated by NGOs,
churches, work-place related child-care
programs, health centers and other similar
projects.
In line with this policy of the state to
promote the rights of children to survival,
development and special protection, the BIR held
that operating costs incurred by employers or
corporations in supporting workplace-based or
related ECCD programs are deductible from their
taxable income. However, employers or
corporations participating in such ECCD programs
under RA 8980 are required to file under oath
stating their gross income and expenses incurred
during the year and a certificate showing the
manner of operation and activities as well as
sources of income to determine whether they
actually incurred operating costs in support of
their ECCD programs.
Books of accounts and other pertinent records
of grantees of tax incentives shall be subject
to examination by the BIR for purposes of
ascertaining compliance with the conditions
under which they have been granted tax
incentives, and their tax liabilities, if any
(BIR Ruling, 7/28/05).
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Compromise on civil status of persons
is null and void
A compromise agreement is a contract whereby
the parties make reciprocal concerns to avoid
litigation or to terminate one already
commenced. Like any other contract, the terms
and conditions of a compromise agreement must
not be contrary to law, morals, good customs,
public policy and public order. Any compromise
agreement which is contrary to law or public
policy is null and void, and vests no rights and
imposes no obligation or any party.
Article 2035 (1) of the Civil Code provides
that no compromise upon the civil status of
persons shall be valid. Paternity and filiation
or lack of the same, is a relationship that must
be judicially established and it is for the
court to determine its existence or absence. It
cannot be left to the will or agreement of the
parties (G.R. 141273, 05/17/05).
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Attorney’s fees may be disallowed
The discretion of the court to award
attorney’s fees under Article 2208 of the Civil
Code of the Philippines requires factual, legal
and equitable justification. Without such
justification, the award is a conclusion without
a premise and improperly left to speculation and
conjecture. The reason for the award must be
stated in the text of the court’s decision. If
the award is stated only in the dispositive
portion of the decision the same shall be
disallowed (G.R. 141311, citing Solidbank vs.
Court of Appeals).
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Contract is merely voidable
Lack of marital consent to the disposition of
conjugal property does not make the contract
void ab initio but merely voidable
(G.R. 141323, 6/8/05).
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SC encourages amicable settlements
Amicable settlement’s and compromises, the SC
declared are not only allowed but actually
encouraged in civil cases. A specific grant of
immunity from criminal prosecution has also been
sustained (207 SCRA 659).
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Certiorari as remedy
Even as the trial court’s order may merely be
interlocutory and non-appealable, certiorari
is the proper remedy when the same is
rendered with grave abuse of discretion
(Pefianco v. Moral).
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Requisite for valid compromise
settlement
The assistance of the Bureau of Labor
Relations or the Regional Office of the DOLE in
the execution of a compromise settlement is a
basic requirement without which the settlement
is invalid (G.R. 158753, 6/8/05)
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Error of jurisdiction cannot be
assailed by appeal under Rule 45
The petitioners invoked the appellate
jurisdiction of the Supreme Court under Rule 45
of the Rules of Court, assailing the orders of
the MTC (Metropolitan Trial Court) as having
been issued with grave abuse of discretion
amounting to lack of jurisdiction.
Constructive dismissal
To overturn a claim for constructive
dismissal, the employer has the burden of
proving that the transfer and demotion of an
employee are for just and valid grounds such as
a legitimate and genuine business necessity. The
employer must show that the transfer is not
unreasonable, inconvenient or prejudicial to the
employee (G.R. 149974, 6/15/05).
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To determine whether the recourse of the
petitioners is proper, the distinction should be
made between an error of judgment and an error
of jurisdiction. An error of
judgment is one which the court may
commit in the exercise of its jurisdiction, and
which error is reviewable only by an
appeal. An error of
jurisdiction is one where the act
complained of was issued by the court, officer,
or quasi-judicial body without or in excess of
jurisdiction or with grave abuse of discretion
tantamount to lack or in excess of jurisdiction.
This error is assailable only by the
extraordinary writ of
certiorari.
Considering that the petition assails the
jurisdiction of the court a quo to
issue the orders in question it falls within the
ambit of a special civil action for certiorari
under Rule 65 of the Rules of Court. However,
petitioners’ direct resort to the Supreme Court
disregarded the policy on hierarchy of courts.
Although the Supreme Court, the Court of
Appeals, and the RTCs share concurrent
jurisdiction to issue writs of certiorari,
mandamus, prohibition, quo warrants, habeas
corpus and injunction, such concurrence does not
provide the petitioner freedom of choice of
court forum. A direct invocation of the Supreme
Court’s original jurisdiction to issue these
writs is allowed only under special and
important reasons therefor, clearly and
specifically set out in the petition (G.R.
140959, 12/21/04).
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DNA testing does not violate right
against self-incrimination
Petitioner contends that obtaining samples
from him, i.e., from his body, for DNA testing
violates his right against self-incrimination,
citing Article 3 of the 1987 Constitution which
provides that “no person shall be compelled
to be a witness against himself.” The
petitioner, declared the Supreme Court, ignores
the Court’s earlier pronouncements that the
privilege is applicable only to
testimonial evidence.
As earlier ruled by the Court, the right
against self-incrimination is just a prohibition
on the use of physical or moral compulsion to
extort communication (testimonial evidence) from
a defendan--whether in a criminal case or
paternity case--not an exclusion of evidence
taken from his body when it may be material.
Thus, a defendant can be required to submit to a
test to extract virus from his body (People v.
Alvis, 154 SCRA 513); the substance emitting
from the body of the accused was received as
evidence for acts of lasciviousness (U.S. v. Tan
Feng, 23 Phil. 145); morphine forced out of the
mouth was received as proof (U.S. v. Ong Siu
Hong, 36 Phil. 735); and the court can compel a
woman accused of adultery to submit for
pregnancy test (Villaflor v. Summers, 41 Phil.
62), since the privilege applies only to
evidence that is “communicative” in essence
taken under duress (Herrera v. Alba, G.R.
148220,
6/15/2005)
