Not So Bon Voyage « The Legally Inclined Blog Please go to thelegallyinclined.blogspot.com where all our posts are (old and new). We’re no longer updating this site. Thanks!

The Legally Inclined Blog Please go to thelegallyinclined.blogspot.com where all our posts are (old and new). We’re no longer updating this site. Thanks!

Written by lawyers for non-lawyers.

Not So Bon Voyage

October 4, 2008 at 9:52 am · Filed under Breach of Airline Contract of Carriage, Civil Code, Damages, Law and tagged: B

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FLAG DAYS
The period from May 28 to June 12 of each year is declared as Flag Days, during which period all offices, agencies and instrumentalities of government, business establishments, institutions of learning and private homes are enjoined to display the flag.
Source:
Sec. 26, R.A. 8491 ("Flag and Heraldic Code of the Philippines").

____________________

What are the just causes for termination of employment by the employer?

An employer may terminate an employment for any of the following causes:

a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
b) Gross and habitual neglect by the employee of his duties;
c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives;
e) Other causes analogous to the foregoing;
f) Termination pursuant to a union shop/closed shop agreement in a CBA;
g) Defiance of an employee of a Return-to-Work order; and
h) Failure to meet the standards set in a probationary contract of employment.

Sources:
ART. 282, Labor Code of the Philippines;
See also http://www.dole.gov.ph/faq/details.asp?id=F0000049)

____________________

What is treason?

Treason is committed by any Filipino citizen, or alien residing in the Philippines, who levies war against the Philippines or adheres to her enemies giving them aid or comfort within the Philippines or elsewhere.

Source:
Art. 114, R.A. 7659 “An Act To Impose The Death Penalty On Certain Heinous Crimes, Amending For That Purpose The Revised Penal Laws, And For Other Purposes”.

____________________

Regular and Special (non-working) Holidays for 2008

Regular Holidays:
Maundy Thursday - March 20
Good Friday - March 21
Araw ng Kagitingan - April 7 (in lieu of April 9)
Labor Day - May 1
Independence Day - June 9 (in lieu of June 12)
National Heroes' Day- August 25
Bonifacio day - December 1 (in lieu of November 30)
Christmas Day - December 25
Rizal Day - December 30
Eidul Fitr - TBA by the Office of Muslim Affairs

Special (non-working) Holidays:
February 25 - People Power celebration
Ninoy Aquino Day - August 18 (in lieu of August 21)
All Saints' Day - November 1
Additional Special (non-working) Holiday - December 26
Additional Special (non-working) Holiday - December 29
Last day of the year - December 31

Sources:
Proclamation Nos. 1462 and 1463 (2008)

____________________

Who are non-immigrants

Aliens departing from any place outside the Philippines who are otherwise admissible and who qualify within one of the following categories, may be admitted as non- immigrants:

(a) A temporary visitor for business, pleasure or health reasons;

(b) A person in transit;

(c) A seaman serving as such on a vessel arriving at a Philippine port;

(d) An alien entitled to enter the Philippines pursuant to the provisions of a treaty of commerce and navigation (1) to carry on substantial trade between the Philippines and his country or (2) to develop and direct the operations of an enterprise in which he has invested or of an enterprise in which he is actively in the process of investing, and his dependents;

(e) An accredited official of a foreign government, and his dependents;

(f) A student, having means for his education and support in the Philippines, at least 15 years and enters to take up a course of study higher than high school; and

(g) An alien coming to pre-arranged employment, and his dependents.

An alien who is admitted as a non-immigrant cannot remain in the Philippines permanently.

Source: Sec 9, COMMONWEALTH ACT NO. 613. (The Philippine Immigration Act of 1940").

____________________

Donor’s Tax rates –

Effective January 1, 1998: Maximum of P100,000.00 = exempt

Over 100,000.00 & up to 200,000.00 = 2% of the excess over 100,000.00

Over 200,000.00 & up to 500,000.00 = P2,000.00 + 4% of the excess over 200,000.00

Over 500,000.00 & up to 1,000,000.00 = 14,000.00 + 6% of the excess over 500,000.00

Over 1,000,000.00 & up to 3,000,000.00 = 44,000.00 + 8% of the excess over 1,000,000.00

Over 3,000,000.00 & up to 5,000,000.00 = 204,000.00 + 10% of the excess over 3,000,000.00

Over 5,000,000.00 & up to 10,000,000.00 = 404,000.00 + 12% of the excess over 5,000,000.00

Over 10,000,000.00 = 1,004,000.00 + 15%

Source:
Sec. 99, R.A. 8424, “The National Internal Revenue Code Of The Philippines” (1997).

____________________

Senior Citizens shall be entitled to the following:

a. 20% discount from all services in hotels and similar lodging establishment, restaurants and recreation centers, and purchase of medicines in all establishments for the exclusive use or enjoyment of senior citizens, including funeral and burial services for the death of senior citizens;

b. minimum 20% discount on admission fees by theaters, cinema houses and concert halls, circuses, carnivals, and other similar places of culture, leisure and amusement for the exclusive use or enjoyment of senior citizens;

c. exemption from individual income taxes: Provided, That their annual taxable income does not exceed the poverty level as determined by the NEDA for that year;

d. exemption from training fees for socioeconomic programs;

e. free medical and dental service, diagnostic and laboratory fees such as, but not limited to, x-rays, computerized tomography scans and blood tests, in all government facilities, subject to DOH guidelines issued in coordination with PHILHEALTH;

f. 20% discount on medical and dental services, and diagnostic and laboratory fees provided under Section 4(e), including professional fees of attending doctors in all private hospitals and medical facilities, Subject to DOH rules and regulations issued in coordination with PHILHEALTH;

g. 20% discount in fare for domestic air and sea travel for the exclusive use or enjoyment of senior citizens;

h. 20% discount in public railways, skyways and bus fare for the exclusive use and enjoyment of senior citizens;

i. educational assistance to senior citizens to pursue post secondary, tertiary, post tertiary, as well as vocational or technical education in both public and private schools through provision of scholarship, grants, financial aid subsidies and other incentives to qualified senior citizens, including support for books, learning materials, and uniform allowance, to the extent feasible: Provided, That senior citizens shall meet minimum admission requirement;

j. to the extent practicable and feasible, the continuance of the same benefits and privileges given by the GSIS, SSS and PAG-IBIG, as the case may be, as are enjoyed by those in actual service;

k. retirement benefits of retirees from both the government and private sector shall be regularly reviewed to ensure their continuing responsiveness and sustainability, and to the extent practicable and feasible, shall be upgraded to be at par with the current scale enjoyed by those in actual service;

l. to the extent possible, the government may grant special discounts in special programs for senior citizens on purchase of basic commodities, subject to the guidelines to be issued by the DTI and the DA; and

m. provision of express lanes for senior citizens in all commercial and government establishments; in the absence thereof, priority shall be given to them.

In the availment of the above privileges, the senior citizen may submit as proof of entitlement thereto any of the following:

a. ID issued by the city or municipal mayor or of the barangay captain of the place where the senior citizen resides;
b. passport; or
c. other documents that establish that the senior citizen is a citizen and is at least 60 years old.

Source:
Republic Act No. 9257 (Expanded Senior Citizens Act of 2003).

____________________

7th Regular Foreign Investment Negative List

The following areas/activities have foreign ownership limitations, to wit:

No foreign ownership
1. mass media except recording
2. practice of professions (engineering, medicine/allied professions, accountancy, architecture, criminology, chemistry, customs brokerage, environmental planning, forestry, geology, interior design, landscape architecture, law, librarianship, marine deck officers, marine engine officers, master plumbing, sugar technology, social work, teaching, agriculture, fisheries)
3. retail trade enterprises with paid-up of less than USD 2.5M
4. cooperatives
5. private security agencies
6. small-scale mining
7. utilization of marine resources in archipelagic waters, territorial sea, and exclusive economic zone as well as small-scale utilization of natural resources in rivers, lakes, bays and lagoons
8. ownership, operation and management of cockpits
9. manufacture, repair, stockpiling and/or distribution of nuclear weapons
10. manufacture, repair, stockpiling and/or distribution of biological, chemical and radiological weapons and anti-personnel mines
11. manufacture of firecrackers and other pyrotechnic devices

Up to 20% foreign ownership
1. private radio communications network

Up to 25% foreign ownership
1. private recruitment for local or overseas employment
2. contracts for the construction and repair of locally-funded public works (except infrastructure projects under R.A. 7718; and foreign-funded or assisted projects required to undergo international competitive bidding)
3. contracts for construction of defense-related structures

Up to 30% foreign ownership
1. advertising

Up to 40% foreign ownership
1. exploration, development and utilization of natural resources
2. ownership of private lands
3. operation and management of public utilities
4. ownership/establishment and administration of educational institutions
5. culture, production, milling, processing, trading, except retailing, of rice and corn and acquiring, rice and corn and their by-products
6. contracts for the supply of materials, goods and commodities to GOCCs, gov’t agencies or municipal corps.
7. project proponent and facility operator of a BOT project requiring public utility franchise
8. operation of deep sea commercial fishing vessels
9. adjustment companies
10. ownership of condo units where condo common areas are co-owned by owners of the separate units or by a corp.
11. manufacture, repair, storage and/or distribution of products/ingredients requiring PNP clearance
12. manufacture, repair, storage and/or distribution of products/ingredients requiring DND clearance

Up to 60% foreign ownership
1. SEC-regulated financing companies
2. SEC-regulated investment houses

Source:
E.O. 584, December 8, 2006.
____________________

Copyrighted Works:

The following works are protected from the time of their creation:

A. Literary & Artistic Works - original creations which include in particular:

a) Books, pamphlets, articles & other writings;

b) Periodicals & newspapers;

c) Lectures, sermons, addresses, dissertations prepared for oral delivery;

d) Letters;

e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;

f) Musical compositions;

g) Drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models/designs for works of art;

h) Ornamental designs/models for articles of manufacture, & other works of applied art;

i) Illustrations, maps, plans, sketches, charts & 3-dimensional works relative to geography, topography, architecture or science;

j) Drawings/plastic works of a scientific or technical character;

k) Photographic works including works produced by a process analogous to photography; lantern slides;

l) Audiovisual works & cinematographic works & works produced by a process analogous to cinematography or any process for making audio-visual recordings;

m) Pictorial illustrations & advertisements;

n) Computer programs; and

o) Other literary, scholarly, scientific & artistic works.

B. Derivative Works -

a) Dramatizations, translations, adaptations, abridgments, arrangements, & other alterations of literary or artistic works; and

b) Collections of literary, scholarly or artistic works, & compilations of data & other materials which are original by reason of the selection or coordination or arrangement of their contents.

C. Published Edition of Work - In addition to the right to publish granted by the author, his heirs/ assigns, the publisher shall have a copyright consisting of the right of reproduction of the typographical arrangement of the published edition of the work.

Source: Sec. 172 & 173, Republic Act No. 8293, (Intellectual Property Code of the Philippines). ____________________

Disallowed Wills

Wills shall be disallowed in any of the following instances:

1. non-compliance of legal formalities;

2. the testator was mentally incapable of making a will, at the time of its execution;

3. if it was executed through force or under duress, or the influence of fear, or threats;

4. if it was procured by undue and improper pressure and influence on the testator;

5. if testator’ signature was obtained by fraud; or

6. if the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of its execution.

Source:
Art. 839, New Civil Code. ____________________

Guidelines on Holiday Pay:

1. For regular holidays namely: New Year's Day (Jan1), Maundy Thursday, Good Friday, Araw ng Kagitingan (Monday nearest Apr9), Labor Day (Monday nearest May1), Independence Day (Monday nearest Jun12), National Heroes Day (Last Monday of Aug), Bonifacio Day (Monday nearest Nov30), Eidul Fitr (end of Ramadan), Christmas Day (Dec25), Rizal Day (Monday nearest Dec30), the following rules apply:

a. If it is an employee's regular workday
~ If unworked: 100%
~ If worked: 1st 8 hours - 200%. Excess of 8 hours - plus 30% of hourly rate
b. If it is an employee's rest day
~ If unworked: 100%
~ If worked: 1st 8 hours - plus 30% of 200%. Excess of 8 hours - plus 30% of hourly rate.

2. For declared special days such as Special Non-Working Day, Special Public Holiday, Special National Holiday, in addition to the 2 nationwide special days (Nov1 and Dec31), the following rules shall apply:

~ If unworked: No pay, unless there is a company policy/practice granting payment of wages on special days even if unworked.
~ If worked: 1st 8 hours - plus 30% of the daily rate of 100%. Excess of 8 hours - plus 30% of hourly rate on said day.
~ If falling on the employee's rest day and if worked: 1st 8 hours - plus 50% of the daily rate of 100%. Excess of 8 hours - plus 30% of hourly rate on said day.

3. For those declared as special working holidays, the following rules apply:
~ For work performed: employee is entitled only to his basic rate. No premium pay is required since work performed on said days is considered work on ordinary working days.

Sources:
1) DOLE Memorandum Circular No.01. March 8, 2004
2) Republic Act No. 9492 ____________________

Traffic Right of Way Rules are:

1) First Time Vehicle Rule -
At all intersections without "stop" or "yield" signs, slow down and prepare to stop. Yield to vehicles already in the intersection or about to enter it.

2) Same Time Vehicle Rule -
At all intersections without "stop" or "yield" signs (or with stops in all directions), yield to the vehicle on your right if it has reached the intersection at the same time as your vehicle.

3) Stop Signs -
Stop at any limit line or crosswalk. Yield to all approaching vehicles on the ‘through street’ (a street on which the through movement of traffic is given preference), go only when it is safe for you to cross. Approaching vehicles should slow down and allow you to get across safely.

4) Left Turn -
Signal left turn and yield to approaching traffic until it is completely safe to finish the turn.

5) Rotonda -
Vehicles around the rotunda have the right-of-way over vehicles which are just about to enter.

When entering a highway from a driveway, yield the right-of-way to traffic on the highway. Never insist on taking the right-of-way if other drivers are not following the rules, let them have the right-of-way even if it belongs to you to prevent possible accidents; however, do not always insist on others going ahead of you, slowing and stopping may delay the flow of traffic.

Sources:
1. Land Transportation Office. Taken from http://www.lto.gov.ph/defense2.html, accessed September 16, 2007.
2. Merriam-Webster Online Dictionary. Taken from http://www.m-w.com/cgi-bin/dictionary?va=through%20street, accessed September 16, 2007. ____________________

Price Tag Rules:

1. It shall be unlawful to offer any consumer product for retail sale to the public without an appropriate price tag, label or marking publicly displayed to indicate the price of each article and said products shall not be sold at a price higher than that stated therein and without discrimination to all buyers.

2. The price tag must be written clearly, indicating the price of the consumer product including Value Added Tax (VAT) whenever the consumer product is VATABLE. Service charge, if any, shall not be included in the price tag.

3. All retailers who honor/accept credit/ATM/debit cards for payment shall not require the cardholders to pay a surcharge, extra charge, or additional charge over and above the price tag on the consumer goods and services.

Sources:
Sec. 81, R.A.7394 (“Consumer Act of the Philippines”). April 13, 1992.
Sec 2 & 5, DTI - Department Administrative Order No. 10, Series of 2006. ____________________

Signs Of A Ponzi Scheme

Carlo Ponzi was a 1920s convicted American swindler who established a scheme promising extremely high returns for a short period. Ponzi was able to collect about $10M in investments from about 10,000 investors. As the scheme solely relied upon the investment of new investors to fund the high returns, the scheme soon collapsed when authorities stepped in and asked for a halt on new investments.

Basically, a Ponzi scheme is about 'robbing Peter to pay Paul'. Here are the SEC’s signs of a Ponzi scheme : :

• No SEC registration
• Investment in foreign currency, preferably in USD
• Offers or guarantees a huge profit in a very short period
• Utilizes a binary network (i.e. upline and downline) to earn commissions
• No paper trail (like contracts or receipts)
• Promises little or no financial risk
• Lock-up period where an investor can’t touch the investment
• Assures pay-off investments in a short time
• Uses high-pressure methods to convince investors to reinvest their earnings
• Unknown principal office
• Unknown founders, directors, officers
• Orientation seminars conducted informally

Be forewarned. And report any such or similar schemes to the SEC (Compliance and Enforcement Division).

Sources: SEC WARNING: BEWARE OF INTERNET-BASED PONZI INVESTMENT SCHEMES. July 2, 2007. Securities and Exchange Commission. http://www.sec.gov.ph/Ponzi%20Investment%20Schemes.pdf ____________________

Get to know the BMBE (Barangay Micro Business Enterprises)
What for? Only because it’s exempt from income tax & the Minimum Wage Law (!)

Who can register? Any business engaged in the production, processing or manufacturing of goods, trading & services, whose total assets - including those arising from loans but exclusive of the land on which the business office, plant & equipment are situated - are not more than P3M.

Requirements? Go to your LGU. Oh alright, since we’re here to help, here they are:
1. registration with the SEC(if corp.)/DTI(if sole prop)/CDA (if coop)
2. TIN
3. BIR registration
4. Business Permit
5. Sworn affidavit by the sole proprietor or the President of the enterprise that the enterprise is barangay-based & micro-business in nature and scope (a form is provided by the LGU)
6. Sworn Statement of Assets and Liabilities showing the values of assets owned and to be used in the business, supported by information such as date of acquisition, acquisition cost & depreciated value. In case of asset acquired during the year of registration, it shall be supported by any of the following: a) invoice, b) official receipt, or c) contract document or deed.
7. Pictures of the place of business & assets except cash, receivables & intangibles;
8. Copy of Loan Contract/s, duly-Notarized Certification of Amortization Payments on the Loan; and
9. duly filed ITR including attachments, if any.

Fees? There shouldn’t be any for 1st time applicants.

Every now and then, the government remembers the little ones and legislates in their favor. Seems like this is one of those rare times.

Sources: R.A. 9178 (An Act To Promote The Establishment Of Barangay Micro Business Enterprises (BMBEs), Providing Incentives And Benefits Therefor, And For Other Purposes); LGU list of requirements ____________________

More Or Less (or How To Compute For Damages In Case Of Wrongful Death)

In decided Supreme Court cases, the following damages have been commonly granted by the Supreme Court to the victims’ families in cases of wrongful death:

1. actual damages for related expenses (e.g. medical, funeral and burial expenses, transportation, food, phone calls, etc)
2. compensatory damages for loss of the victim’s earning capacity (computed below)
3. compensatory damages for wrongful death (now pegged at P100,000 per death; it was P50,0000 previously). This does not need proof other than the victim’s death.
4. moral damages (for “mental anguish”). This amount is at the court’s discretion.
5. exemplary damages (“by way of example or correction for the public good” hence, usually granted against common carriers). This amount is also at the court’s discretion.
6. attorney's fees.

It is the compensatory damages for loss of the victim’s earning capacity that is the tricky part. In the decided cases, the following computations were used:

X = amount of loss of the victim’s earning capacity
A = life expectancy
A = 2/3 x [(80 (years)) - (victim’s age)]. The capacity of the victim to earn even after retirement age is taken into account.
B = earning capacity
B = (gross annual pay) – (50% of gross annual pay). 50% is the assumed percentage of living expenses incurred out of one's pay.
X = A x B

Dealing with numbers following a tragedy for which these computations are to be used may seem cold but it is sincerely hoped that the above information will guide those concerned in getting redress.

Sources: Title XVIII-Damages, The Civil Code of the Philippines;
Villa Rey Transit, Inc. vs. Court Of Appeals, G.R. No. L-25499, February 18, 1970;
Negros Navigation Co., Inc. vs. Court of Appeals, G.R. No. 110398, November 7, 1997;
People Of The Philippines vs. Claudio Teehankee, G.R. Nos. 111206-08, October 6, 1995./

FYI

This blog is aimed at enlightening non-lawyers about the law (more or less) and making legal issues clear and interesting.
If you prefer pro bono legal service, please contact your nearest Public Attorneys’ Office (PAO).

PRODUCED IN THE PHILIPPINES.

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