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SUOO!S'T D ANSW!RS TO TH! 2010 BAR EXAMINATIONQUESTIONS IN MERCANTILE LAW

II-CRIMINAL LAW

XIX

Or. Nobel discovered a new method of treating Alzheimer's involving aspecial method of diagnosing thedisease, treating it with a new medicine that .has been discovered after long experimentation and field testing, and novel mental isometric .. exercises: He comes to you for advice on how he can have his discoveries protected . Can he legally protect his new method of diagnosis, the new medicine, and the new method of treatment? If no, why? If yes, how? (4%)

SUGGESTEDANSWER:

Dr. Nobel can be protected by a patent for the newmedicine as lt falls within the scope of Sec. 21 of the Intellectual Property Code (Rep. Act No. 8293, asamended). But no protection can be legally extended to him for the method of diagnosis and method of treatment which are expressly non-patentable (Sec.22, Intellectual Property Code).

NOTE:F_or any answer; the candidate should be given full credit as Bulk Sales Law hlzs not been in.eluded in the coverage of the examination in Commercial Law.

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PART II

An agonizing and protracted trial hl!.ving come to a close, the judge found A guilty beyond reasonable doubt of homicide and imposed on him a straight penalty of S X (6) YEARS and ONE ( 1) DAY of prision mayor. The public prosecutor objected fo the sentence on the ground that the proper penalty should have been 'IWELVE(12) YEARS and ONE (1) DAY of reclusion temporal.The defense - co1msel chimed in, ontending that application of the Indeterminate Sentence Law should leadto the imposition of a straight penalty of SIX (6) MONTHS and 0NE (1) DAY of prision correccional only. Who of the three is on the right track? Explain. (3%

Slll/EllllAl/IWEI:None of the contentions is correct because the Indeterminate Sentence Law (Act 4103,C1$ amended) has not been followed The imposition of penalty for the crime of homicide,which is penalized by imprisonment eceeding one (1) year and is divisible, i co,vered by the Iiideterminate Sentence Law.The said law requires t.hat.t tho aentenQe in this case should reflect a minimum tum for purposes ofparole, and a m@ldmum term flxbl.c the timit of theimprisonment. Imposing straight penalty is lo.correct.

II

A. Wha.t is the crime of qualified bribery? (2%)

SUGGESTEDAl/IWER:Qualified bribery is a crime cqnunltted by a public officer who is entrusted with law enlorce:s:nent aQ.d who, in

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II IISUGGESTED ANSWERS TO THE 2010 BAR EXAMINATIONQUESTIONS IN CRIMINAL LAW

SUGGESTED ANSWERS TO THE io10 BAR EXAMIN-ATIONQUESTIONS IN CRIMINAL LAW0"'127

conideration of any ofter, promise, cift or offer, refrains from arrestinc or proaeouti111 an offen4er who ha \. committed a crime punlabable by rofuton perpetua and/ or death (Art. 21lA, RPC).

B. May a judge be ch;:i.rged and prosecuted for such felony? How about a public prosecutor? A police officer? Explain. (5%)

SUGGESTEDANSWER:.No, ajudge may nt be charged of this felony because his official duty a a public officer is not law enforcement

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lu.ITEIMIWIR:Ye, a pvblio officer charged un.dor Sec. 3(b) of Rep. Act 3019 (ArdiGrc;ift and Corrupt Practhtt1 ct)may also be charged aimtaneously or succeHlvol1ft>r the crimeor direct bribery under Art. 210 of the Revised Penal Code, becaue the twQ crimes are eaaentlally different and are penall&ed nder distinct legal philosophies. Whereas violation of Sec. 3(b) of R.A. 3019 i a m'alum prohibitum, the c::rime under Art. 210 of the Code is a malum in se.

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but the determination of cases already filed in court. 'On the other hand, a public prosecutor may be prosecuted for this crime in respect -of the .bribery committed aside from dereliction of duty committed in. .violation of Art. 208 of the Revised Penal Code, should herefrain from prosecuting an offender who has committed a crime punishable by reclusion perpetua and/ or _death in consideration of'any offer, promise, gift or present.Meanwhile, a police officer who refrains frm arresting such offender foJ:the same consideration above. stated, may be prosecuted for this felony since he is apublic officer entrusted with law enforcement.

III

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Because of the barbarity and hideousness of the acts committed by the suspects/ respondents in cutting off their victims' appendages, stuffing their torsos, legs, body parts into oil drums and -bullet-riddled vehicles and later on burying these oil drums, vehicles with the use of backhoes and other earth-moving machinery, the Commission on Human Rights (CHR) investigating team recommended to the panel of public prosecutors that all respondents be charged with violation of the "Heinous Crimes I.aw." The prosecution panel agreed with the CHR. As the hief Prosecutor tasked with approving the filing of theInformation, how will you pass upon the recommendation? Explain. (5%)

May a public officer charged under Section 3(b) of Republic Act No. 3019 ["directly or indirectly requesting or receiving any gift, present, share, percentage or benefit, for himself or for . any other person, in connection with any contract or transaction between the government and any other party, wherein the public officer in his offieial capacity has to intervene u nder the law"] also be simultaneously or successively charged with direct bribery under Article 210 of the Revised Penal Code? Explain. (4%)

;'-SUGGESTEDANSWER:

The CHR 1-con-ectmdescribing the crimeacommitted as "heinous crimes", as defined in tlte pramble of the "Heinous Criines Law" (Rep. Act No. 76S9), de.pite thepassage of R!'p. Act No. 9346 prohibiting the bnposition of the death penalty.However, the "Heinous Crimes Law" does not define crimes; it is only an amendatory law increasing the penalty for the crimes specified therein as heinous, to a maximum of death. Thus, the heinous crimea committed

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shall be prosecuted under the penal law they are

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II SUGGESTED ANSWERS TO

THE 2010 BAR EXAMINATION

.SUG

IIGESTED ANSWERS TO THE 2010 BAR EXAMINATION

C7'128

QUESTIONS IN CRIMINAL LAW

QUESTIONS IN CRIM(NAL LAW.0>129

''respectively defined and penalized, aucb a the ReviHd\' VI

-- -Penal Code a the oase lliay be. The ral 1ymptoms',found in women living in battering relatlon-1blps as a

intent to gain.-

B. Did she incur civil liability? Explain. (2%)

SUGGESTEDANSWER:

result of cumulative abuae (Section 3[d], Rep. Act No 9262).

- - -Eva Marie may incur civil liability if the owner of the puppy would incur a loss due to non-restitution or rturn thereof to tlle ownet. Finding any property of value,legally regarded as lost prope.rty, would constitute theft

-.SUED ANSWERS TO THE 2010 BAR EXAMINATION

-SUGGESTED ANSWERS TO THE 2010 BAR EXAMINATION

C-142

QUES1'10NS IN CRIMINAi. I.AW

QVESTIONS IN CRIMINAi. t.AW0-143

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B. What are the three phases of the "Battered Woman Syndrome? (3

l/lllllEITEIAlllWER:The three (3) phases of the Battered Woman Syndrome" are: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving, or non-violent phase (People v. Genosa, G.R. No. 135981, January.l S, 2004}.

C. Woul the defense prosper despite the absence of any of the elements for justifying circumstances of self defense under the Revised Penal Code? Explain. (2%)

. SllGGESTEDANSWER:

Yes.Section 26 of Rep. Act No. 9262 provides that victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur . any criminal and civil liability notwithstanding the absence of any o the elements for justifying circumstances of self-defense under the Revised Penal Code.

IxxMatt was found guilty of drug trafficking while his younger brother Jeff was found guilty of p0ssession of equipment, instrument; apparatus and other paraphernalia for dangerous drugs under Section 12 of Republic Act No. 9165.Matt filed a petition for probation. Jeff appealed his. conviction during the pendency of which he also filed a petition for probation.The brothers' counsel argtied that they beig first time offenders, their petitions for probation should be granted. How would you resolve the brothers'petitfons for probation?Explain. (3%)

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SllllllEITllA/llWEI:Tho brothers' petltlon for probation abould both be deii!ed.Matt'petltlon for probation ahaU bo deed because.h e was convicted for drug-trafficking. $ectlon 24 of RA 9165 (Comprehensive Dangerous Drug Act of 2002) expressly provtde; "Any person convicted for drug trafficking orpush ing under thisAct, rega,rdless of the penalty imJ>osedbythecourt,cannot aucd tof theprivilege granted by the.Probation Law or Prellf.denttal Decree No.968, a.s cunended.".O n the other hand, Jeff's application for probationcannot also be entertained or gra11ted 'bocause he has already appealed his conviction by the trlal court (Section 4,P.D. 968, as amended}

XXI

Because peace negotiations on the Spratlys situation had failed, the People's Republic of China declard war against the Philippines. Myra, a Filipina who lives with he.r Italian expatriate boyfriend , discovered ema1l correspondence between him and a certain General TungKat Su of China, . .On March 12, 2010, Myra discovered tha on even dateher boyfriend had sent an e-mail to General Tung Kat in which he agreed to provide vital information.on the milit defense of the Philippines to the Chinese government m exchange for Pl million and his safe retum to Italy. Two weeks later, Myra decided to report the mtter to the proper authorities. Did Myra commit a crime? Explain. (3%)

SUGGESTEIAJISWElYes, Myra committed the crime of Misprision of Treason under Art, 116 of the Revised Penal Code, for failing to report or make known "u soon as possible" to the governor .ox- provincial fiscal or to the yor or fiscal

mIISUGGESTED ANSWERS TO THE 2010 BAR EXAMINATION

II II IISUGGESTED ANSWERS TO THE 2010 BAR EXAMINATION

0"'144.Q UESTIONS IN CRIMINAL LAW

QUESTION$ IN CRIMINAL t,AW0-145' '

of the City where he resides, tbe conapiraoy bttwten her Italia11 boyfrie11d and tho Chi11ese Geo.en.I to oommit treaao11 a1ainat the Philippine Governmeiat bi time of war. She decided to report the matter to the proper authorities only after two (2) weeks.A. What . crtme, if any, .did the four commit? Enumerate the elements of the crime. (2%1

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XXII,

Immediately after murdering Bob, Jake went to his m9ther to seek refuge. His mother told him to hide in the maid's quarters until she finds abetter place for him to hide. After two days, Jake transferred to his aunt's house. A week later, Jake was apprehended by the police. Can Jake's mother and aunt be made criminally liable as accessories to the crime of murder? Explain. (3 %) .

SUGGESTEDANSWER:

Obviously, Jake's mother was aware of her son's having committed a felony' such that heZ: act of harboring and concealing him renders her liable as an accessory. But being an ascendant of Jake, she is exempt from criminal liability by expressprovision of Article 20 of the . Revised Penal Code. , ,On the other hand, the crimirut.l liability of Jake's aunt depends on her knowledge of the felony committed by Jake. If she had knowledge of his commiHion of the fefony, her act of harboring and colicea1i11g Jake would . render her criminally liable as accessory to the crime of murder; otherwise without knowledge of Jake's commissit;>D of.the felony, she would not be liable.

XXIII

Christopher, John, Richard, and Luke are fraternity brothers. To protect themselves from rival fraternities, they all carry guns wherever they go. One night, after attending a party, they boarded a taxicab, 'held the driver.at gunpointa.nu taok the latter's earnings.

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The crime committed is robbery by a band since there were four (4) offenders acting in concert in committing the tobbery and alf the four were armed.The elementa of this cri:m.e are:1. unlawful taking of personal property belonging to another (the earnings of the tui-driver);2. . inteiat to gain in the taking (of the earnings which belong to the taxi-driver);3. violence against or intimidation of person or force upon things was employed in the taking; and4. there were more than three armed malefactorsta)Qng part in the com:m.ission f the robbery (Art. 296 in re.lation to Art. a94, Revised Penal Code)

B.Would your answer be the sa,me if they killed the driver? Explain. (2%)

SUGGESTEIANSWER:

asNo, the crime be.comes robbery witb hoxnicide and all the fraternity brothers are liable. The eldatence of a band . shall be appreciated . only as geiiedc accravating circumstance. Also, if the firearms used were unlicensed, the aame would only be taken as generic agcravating circumstanceprovided by the Rep. Act No. 8294 (Peoplev. Bolinget, G.R. Nos.137949-52, December ll, 2003).

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