Gonzalez, Partners and Associates Law Firm

Gonzalez, Partners and Associates Law Firm Reprint of queries and legal advice of Atty. Axel V. Gonzalez in the DWBL Radio program he hosted in 2007 together with Ms. Lovely Rivero.

10/11/2016

Penal Code
Battered Woman Syndrome

Dear Atty. Axel,

Atty., I would like to ask your opinion regarding the problem of my aunt. Actually, my aunt is a battered wife. This fact was known not only within our family, but even within their neighborhood. Recently, a quarrel ensued between my aunt and her husband. Due to the physical pain suffered by my aunt due to my uncle’s consistent beating, my aunt accidentally killed her husband. Consequently, she was now charged with the crime of parricide. Atty., is there any way my aunt can be free criminally and civilly from being guilty of the crime of parricide?

Answer.

You mentioned that your aunt is a battered wife. Relatively, on March 27, 2004, RA 9262, otherwise known as “An Act Defining Violence Women and Children“ or the “Battered Woman Syndrome” took effect. Sec. 26 of the said RA stated:

“Victim-survivors who are found by the court to be suffering from battered women syndrome do not incur any criminal and civil liability, notwithstanding the absence of any of the elements for justifying circumstance of self-defense under the Revised Penal Code.

In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/psychologists.”

Thus, your aunt, to free her from criminal and civil liability can use this defense.

Be guided.
Atty. Axel V. Gonzalez

10/11/2016

Labor Law
Labor Organization

Dear Atty. Axel,

On behalf of our rank and file employees, their union filed a petition for certification election before the DOLE. Atty., what course of action can our company do to deny their petition considering that the union’s registration was based on fraud, falsification and misrepresentation?

Answer.

You mentioned that the union’s registration was based on fraud, falsification and misrepresentation. Thus, the best thing you can do is to file a Motion to Dismiss the petition alleging fraud, falsification and misrepresentation in the union’s registration and a petition for cancellation of the union’s registration. Since registration based on false and fraudulent statements and documents confer no legitimacy upon a labor organization irregularly recognized, which, at best, holds on to a mere scrap of paper. The labor organization, not being a legitimate labor organization, acquires no rights, particularly the right to ask for a certification election in a bargaining unit. (Progressive Development Corp. – Pizza Hut vs. Laguesma et al GR No. 115077, April 18, 1997)

Be guided.
Atty. Axel V. Gonzalez

10/11/2016

Equitable Mortgage
(Art. 1602 Civil Code)

Dar. Atty. Axel,

I executed deed of sale of land in favor of Ramon Gomez. In the Deed of Sale, it was stipulated that I have a right to repurchase the same within 5 years. It is also stipulated that during the repurchase period of 5 years, I will retain possession of the land as lessee and pay the land taxes thereon. The consideration of the sale is P 100,00.00 but the actual worth of my property is P 200,000.00.

I failed to purchase the land within the agreed period of five (5) years. Ramon Gomez applied to the court for the consolidation of my title.

I opposed the consolidation and invoked my right to repurchase my land.

Who has legal right?

Answer.

The contract entered by you and Ramon Gomez is not really a contract of sale but an equitable mortgage on the following grounds, to wit: You retained possession of your land after the signing of contract to sell; second, you are the one paying the taxes; third, the purchase price is inadequate. These are signs of equitable mortgage.

You still can insist on your right to repurchase for P 100,000.00 plus interest. (Art. 1602, CC).

However, should you fail to pay the repurchase price, Ramon can foreclose the property in the proper proceeding and sell the property to satisfy the obligation.

Judicial foreclosure is the proper remedy.

Be guided.
Atty. Axel V. Gonzalez

10/11/2016

Foreign vs Domestic Contract

Dear. Atty. Axel,

I was hired as a domestic helper in Australia by the Dragon Manpower Services, Ltd., through its loca l agent. I executed a standard employment contract designed by the Philippine Overseas Workers Administration (POEA) for Overseas Filipino Workers. My employment provides for one year at a salary of US $1000.00 a month. It was submitted to and approved by the POEA. However, when I arrived in Australia, I was asked to sign another contract by Dragon Manpower Services, Ltd., which reduced my salary to only US $600.00 a month. Having no other choice, I signed the contract but when I returned to the Philippines, I demanded payment of the salary differential of US $400.00 a month. Both Dragon Services and its local agent claimed that the second contract is valid under the laws of Australia, and therefore binding on me. Is their claim valid atty.?

Answer.

Their claim is not correct. Assuming that the second contract is binding under the law in Australia, such second contract is invalid under Philippine law, which recognizes as valid only the first contract. Since the case is being litigated in the Philippines, the Philippine court, as the forum, will not enforce any foreign claim obnoxious to the forum’s public policy. There is a strong public policy enshrined in our constitution on the protection of labor. Therefore, the second contract shall be disregarded and the first contract will be enforced.

Be guided.
Atty. Axel V. Gonzalez

10/11/2016

Civil Law – Torts and Damages (Sent)
Art. 21 of NCC

Dear Atty. Axel,

Good day Atty. For personal reasons, I cannot disclose my real name. I want to ask your legal advice regarding my problem.
Me and my boyfriend decided to get married and set.

November 20, 2007 as the big day. Two days before our wedding, my boyfriend left a note for me postponing the wedding on the ground that his mother ws opposed to the wedding. Thereafter, he was not heard from again. Atty., can I bring any action against my boyfriend? Please help me.

Answer.

Ordinarily, a mere breach of promise to marry is not an actionable wrong. But to formally set a wedding, and go through all the necessary preparations and publicity, only to walkout of it when the matrimony is about to be solemnize, is quite different. This is palpably and unjustifiably contrary to good customs, for which the erring promissor must be held answerable in damages in accordance with Art. 21 of NCC. (Art. 21 NCC – When the act constitutes a tort in the sense that it is willful and that it is contrary to morals, good customs or public policy, the aggrieved party can recover moral damages.)

Aside for an action for moral damages, you can also claim for exemplary damages and attorney’s fees.

Be guided.
Atty. Axel V. Gonzalez

10/11/2016

Civil Law – Torts and Damages
Art. 21 of NCC

Dear Atty. Axel,

Good day Atty. For personal reasons, I cannot disclose my real name. I want to ask your legal advice regarding my problem.
Me and my boyfriend decided to get married and set November 20, 2007 as the big day. Two days before our wedding, my boyfriend left a note for me postponing the wedding on the ground that his mother ws opposed to the wedding. Thereafter, he was not heard from again. Atty., can I bring any action against my boyfriend? Please help me.

Answer.

Ordinarily, a mere breach of promise to marry is not an actionable wrong. But to formally set a wedding, and go through all the necessary preparations and publicity, only to walkout of it when the matrimony is about to be solemnize, is quite different. This is palpably and unjustifiably contrary to good customs, for which the erring promissor must be held answerable in damages in accordance with Art. 21 of NCC. (Art. 21 NCC – When the act constitutes a tort in the sense that it is willful and that it is contrary to morals, good customs or public policy, the aggrieved party can recover moral damages.)

Aside for an action for moral damages, you can also claim for exemplary damages and attorney’s fees.

Be guided.
Atty. Axel V. Gonzalez

10/11/2016

Dear. Atty. Axel,

I am an employee of a duly licensed agency who was tasked to recruit and offer job placement abroad. I have a special power of attorney and certification issued by said agency.

I was accused of illegal recruitment in large scale I am not a licensed recruiter although I thought that recruiting in behalf of a licensed agency is sufficient.

ISSUE:

Can I be accused of illegal recruitment in large scale?

Answer.

You cannot escape liability by claiming that you are unaware that a prior registration to be licensed is necessary.

Illegal recruitment in large scale is MALUM PROHIBITUM, not MALA IN SE. Good faith is not a defense.

ILLEGAL RECRUITMENT IS COMMITTED WHEN TWO ELEMENTS OCCUR:

1. The offender has no valid license to lawfully engage in recruitment and placement of workers.

2. He undertakes any activity within the meaning of recruitment and placement, as any act of:
• Canvassing
• Enlisting
• Contracting

Be guided.
Atty. Axel V. Gonzalez

10/11/2016

Criminal Law
R**e (Date-R**e)

Dear Atty. Axel,
I don’t know what to do with my problem. I have no boyfriend and our common friend patched up a blind date for me last October 2005. Trusting my friend’s choice, I went for a date. Nagbar hopping kami and I was not able to notice naparami na ang nainom ko. All I can remember is that hinatid nya ako sa aking apartment and the rest wala na. Pag gising ko po ay wala na akong suot at alam ko nar**e ako. Attorney, hiyang hiya po ako at minsan binalak kong magpakamatay. Gusto ko pong magfile ng kaso kaya lang po narinig ko hindi raw pwede pag walang s***matozoa na narecover. Attorney, can I still file a case after 4 months and considering na walang s***m na nakuha. Salamat po at God bless.
Answer:
Yes, by all means you can file a case against that guy. The important consideration in r**e is not the presence of s***matozoa but the pe*******on of the female ge****ls by the male organ. The presence or absence of s***matozoa is immaterial in a prosecution for r**e. Even though you were unconscious, if you can prove that there is evidence of entry of male organ into the l***a of the pudendum, r**e is committed.

Be guided.
Atty. Axel V. Gonzalez

10/11/2016

Labor Law

Dear Att. Axel,
Atty., ako po ay kasalukuyang nagtatrabaho sa isang private company dito sa Laguna. Gusto ko lang pong malaman kung entitled ba ako sa maternity leave benefits kahit ako po ay isang dalagang ina.
Ans.
Opo. Ayon sa batas, ang isang babaeng nagdadalang tao at nagtatrabaho sa isang private company, kahit sya ay kasal o hindi, ay entitled sa maternity leave benefits.

Be guided.
Atty. Axel V. Gonzalez

22/08/2016

Labor Law (Discrimination)

Dear Atty. Axel,

Atty., our airlines paid year end bonus, in addition to the 13th month pay, to all its employees except to us pilots. Atty., is it lawful?
Ans.

There is no rational basis for withholding from you the benefit of a year end bonus in addition to the thirteenth month pay, while the same is being granted to the other rank and file employees of your airline. Your airline’s failure to extend same benefits to you as pilot is a blatant act of discrimination and is grossly unfair to you considering the heavy and delicate responsibility that you bear in the airline business, particularly ensuring the safety and comfort of thousands of passengers. They are the lifeblood of every airline company.

Be guided.

Atty. Axel V. Gonzalez

22/08/2016

Status of Marriage and Children

Dear Atty. Axel,

I worked in Malaysia and met my husband who is a Moslem. He proposed marriage and despite his first marriage, I accepted his offer we lived in Malaysia for six years. We had two children.

He was transferred by his company here in Manila and we relocated here. His first wife and their three children also accompanied him.

Insofar as Malaysian Law, the two marriages are valid and all the children of the first and second marriages are legitimate.

What is the status of my marriage with my husband?

Ans.

Under Shariah Law, which governs the personal relations of the Moslem in our country, you are considered a legitimate wife. As such, your children are legitimate and entitled to equal successional rights.

Be guided.

Atty. Axel V. Gonzalez

22/08/2016

Deportation

Dear Atty. Axel,

After five years of working in the USA, I decided to take my vacation in the Philippines. My American woman friend went with me and we stayed in Boracay for one month. During her stay in Boracay, she met a resort operator in Boracay who proposed marriage to her. She accepted the offer and they got married.

It was discovered later by the government authorities that my American friend was traveling using a fake passport. She was subjected to deportation proceedings.

She claimed she cannot be deported, she being married to a Filipino, hence, she is a Filipino citizen.

We want your advice on this.

Ans.
The American woman can still be subjected for deportation proceedings, because mere marriage to a Filipino does not automatically or necessarily make her a Filipino.

It is essential that she must not posses disqualification for naturalization. Here, entry in the Philippines on forged passport disqualifies her for naturalization.

Be guided.

Atty. Axel V. Gonzalez

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