Q: What are the punishable acts

USURPATION

ARTICLE 312 (Occupation of Real Property or Usurpation of Real Rights in Property)

Q: What are the punishable acts? A: 1. Taking possession of any real property belonging to another. 2. Usurping any real rights in property belonging to another.

Q: What are the elements of this crime?A: 1. Offender takes possession of any real property or usurps any real rights in property.

2. Real property or real rights belong to another. 3. Violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property. 4. There is intent to gain. Note: There is only civil liability if there is no violence or intimidation in taking possession of real property.

Usurpation under Article 312 is committed in the same way as robbery with violence or intimidation of persons. The main difference is that in robbery, personal property is involved; while in usurpation of real rights, it is real property.

If the accused is the owner of the property which he usurped from the possessor, he cannot be held liable for usurpation.

Considering that this is a crime against property, there must be intent to gain. In the absence of the intent to gain, the act may constitute coercion.

Q: Who are squatters? A: 1. Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway. 2. Also the persons who were awarded lots but sold or lease them out. 3. Intruders of lands reserved for socialized housing, preempting possession by occupying the same. (Urban Development and Housing Act) ARTICLE 313 (Altering Boundaries or Landmarks)Q: What are the elements of this crime? A:1. There are boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same. 2. Offender alters said boundary marks. Note: Intent to gain is not necessary. Mere act of altering or destruction of the boundary marks is sufficient.CULPABLE INSOLVENCY

ARTICLE 314 (Fraudulent Insolvency)Q: What are the elements of fraudulent insolvency? A:1. Offender is a debtor, that is, he has obligations due and payable.2. He absconds with his property.3. There be prejudice to his creditors.Q: What is the essence of this crime?A:The essence of the crime is that any property of the debtor is made to disappear for the purpose of evading the fulfillment of the obligations and liabilities contracted with one or more creditors to the prejudice of the latterNote: To abscond does not mean that the debtor should depart and physically conceal his propertyThe fraud must result to the prejudice of his creditors. If the accused concealed his property fraudulently but it turned out that he has some other property with which to satisfy his obligation, he is not liable under this article.

Being a merchant qualifies the crime as the penalty is increased.

If these acts are committed after the institution of insolvency proceeding, the Insolvency Law shall apply

SWINDLING AND OTHER DECEITSARTICLE 315 (Swindling/Estafa)Q: What are the elements of estafa in general?A:

1. Accused defrauded another by abuse of confidence or by means of deceit This covers the three different ways of committing estafa under Article 315; thus, estafa is committed: a. With unfaithfulness or abuse of confidence b. By means of false pretenses or fraudulent acts; or c. Through fraudulent means 2.Damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.Illustration: When the accused deceived the complainants into believing that there were indeed jobs waiting for them in Taiwan, and the latter sold their carabaos, mortgaged or sold their parcels of land and even contracted loans to raise the P40,000.00 placement fee required of them by the accused, the assurances given by the latter made the complainants part with whatever resources they had, clearly establishing deceit and damage which constitute the elements of Estafa (People v. Bautista, 214 SCRA 216). Under P.D. 115 (Trust Receipts Law), the failure of the entrustee to turn over the proceeds of the sale of the goods, documents, or instruments covered by a trust receipt, to the extent of the amount owing to the entruster, or as appearing in the trust receipt; or the failure to return said goods, documents, or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt constitute estafa.Q: What are the elements of estafa with unfaithfulness of abuse of confidence under Article 315 (1)?A:1. Under paragraph (a): a. Offender has an onerous obligation to deliver something of value b. He alters its substance, quantity, or quality c. Damage or prejudice is caused to another Illustration: Where the accused is bound by virtue of a contract of sale, payment having been received to deliver first class of rice (e.g. milagrosa) but delivered an inferior kind, or that he bound himself to deliver 1000 sacks but delivered less than 1000 because the other sacks were filled with different materials, he is guilty of estafa with unfaithfulness or abuse of confidence by altering the quantity or quality of anything of value by virtue of an obligation to do so.2. Under paragraph (b): a. Money, goods, or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same

b. There is misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt

c. Such misappropriation or conversion or denial is to the prejudice of another; and

d. There is a demand made by the offended party to the offender Note: The fourth element is not necessary when there is evidence of misappropriation of the goods by the defendant.

Illustration: Failure to return a dump truck which was delivered to the accused by virtue of a deed of lease after the expiration of the lease contract and despite demands would constitute Estafa by misappropriation or conversion by the accused of the subject of the obligation.

The accused received in trust the money from the complainants for the particular purpose of investing the same with the Philtrust Investment Corp. with the obligation to make delivery thereof upon demand but failed to return the same despite demands. It was admitted that she used the money for her business. Accused is guilty of Estafa through Misappropriation. (Fontanilla v. People, 258 SCRA 460) A money market transaction however partakes of the nature of a loan, and nonpayment thereof would not give rise to criminal liability for Estafa through misappropriation or conversion. In money market placements, the unpaid investor should institute against the middleman or dealer, before the ordinary courts, a simple action for recovery of the amount he had invested, and if theres allegation of fraud, the proper forum would be the SEC. (Sesbreno v. CA, 240 SCRA 606)3. Under paragraph (c): a. The paper with the signature of the offended party is in blank; b. Offended party delivered it to the offender; c. Above the signature of the offended party, a document is written by the offender without authority to do so; d. The document so written creates a liability of, or causes damage to, the offended party or any third person.Q: What are the elements of estafa by means of false pretenses or fraudulent acts under Article 315 (2)? A: 1. Under paragraph (a) a. Using fictitious name b. Falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or c. By means of other similar deceits 2. Under paragraph (b) Altering the quality, fineness, or weight of anything pertaining to his art or business. 3. Under paragraph (c) Pretending to have bribed any government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender. 4. Under paragraph (d) a. Offender postdated a check, or issued a check in payment of an obligation; b. Such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check.

Note: Art. 315 (2) (d) is also referred to as Issuing or postdating check without funds.

Q: When does Art. 315 (2) (d) apply? A: Only when:

1. Obligation is not preexisting 2. Check is drawn to enter into an obligation 3. Does not cover checks where the purpose of drawing the check is to guarantee a loan.

Note: The check must be genuine. If the check is falsified and is cashed with the bank or exchanged for cash, the crime is estafa thru falsification of a commercial document.

The check must be issued in payment of a simultaneous obligation, not one which is preexisting.Illustration: The accused must be able to obtain something from the offended party by means of the check he issued and delivered. Thus, if A issued a check in favor of B for a debt he has incurred a month or so ago, the dishonor of the check for insufficiency of funds in the bank does not constitute Estafa. But if A told B to deliver to him P10,000 and he (A) would issue in his favor a check in the sum of P11,000 as it was a Sunday and A needed the cash urgently, and B gave his P10,000 having in mind the profit of P1,000 when he encashes the check on Monday and the check bounced when deposited, A can be held liable for Estafa. In such case, it was clear that B would have not parted with his P10,000 were it not for the issuance of As check. It must not be promissory notes, or guaranties. Q: Is good faith a defense? A: Yes. The payees knowledge that the drawer has no sufficient funds to cover the postdated checks at the time of their issuance negates estafa.

Note: It is necessary that the offender knew that his check had no sufficient funds in the bank (his failure to cover the amount of the check within 3 days from notice creates a prima facie evidence of deceit).

If the checks were issued by the defendant and he received money for them, then stopped payment and did not return the money, and he had an intention to stop payment when he issued the check, there is estafa.

Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank.

Q: Can the fact that the accused was not the actual maker of the check be put up as a defense? A: No. In the case of People v. Isleta, et.al. (61 Phil. 332), and reiterated in the case of Zalgado v. CA (178 SCRA 146) it was held that the appellant who only negotiated directly and personally the check drawn by another is guilty of estafa because he had guilty knowledge that at the time he negotiated the check, the drawer has no sufficient funds.

In other words, whether the accused was charged under either paragraph 2(a) or 2(d) of Article 315 of the RPC, he would still be guilty of estafa because damage and deceit, which are essential elements of the offense, have been established with satisfactory proof. The fraudulent act was committed prior to or simultaneous with the issuance of the bad check. The guarantee and the simultaneous delivery of the checks by the accused were the enticement and the efficient cause of the defraudation committed against Apolonio who suffered damage amounting to P87,000.00 as a result of the fraud committed by Garcia in paying him underfunded checks drawn by three different persons. (Garcia v. People, G.R. No. 144785, Sept. 11, 2003) Q: Is the accuseds mere failure to turn over the thing delivered to him in trust despite demand and the duty to do so, constitute estafa under Art. 315 par 1 (b)? A: No. The essence of estafa under Art. 315 (1) (b) of the RPC is the appropriation or conversion of money or property received, to the prejudice of the owner thereof. It takes place when a person actually appropriates the property of another for his own benefit, use and enjoyment. The failure to account, upon demand, for funds or property held in trust is a mere circumstantial evidence of misappropriation. In other words, the demand for the return of the thing delivered in trust and the failure of the accused to account for it are circumstantial evidence of misappropriation. However, this presumption is rebuttable. If the accused is able to satisfactorily explain his failure to produce the thing delivered in trust, he may not be held liable for estafa. In the case at bar, however, since the medrep failed to explain his inability to produce the thing delivered to him in trust, the rule that the failure to account, upon demand, for funds or property held in trust is circumstantial evidence of misappropriation applies without doubt. (Filadams Pharma, Inc. v. CA, G.R. No. 132422, Mar. 30, 2004) Q: What are the elements of Estafa through fraudulent means under Article 315 (3)? A: 1. Under paragraph (a) a. Offender induced the offended party to sign a document. b. Deceit was employed to make him sign the document. c. Offended party personally signed the document. d. Prejudice was caused.

Illustration: A induced an illiterate owner who was desirous of mortgaging his property for a certain amount, to sign a document which he believed was only a power of attorney but in truth it was a deed of sale. A is guilty of Estafa under par.3(a) and the damage could consist at least in the disturbance in property rights. (U.S. vs. Malong, GR. No. L12597, Aug.30, 1917) 2 Under paragraph (b) Resorting to some fraudulent practice to insure success in a gambling game; 3 Under paragraph (c) a. Offender removed, concealed or destroyed. b. Any court record, office files, documents or any other papers. c. With intent to defraud another.

Illustration: When a lawyer, pretending to verify a certain pleading in a case pending before a court, borrows the folder of the case, and removes or destroys a document which constitutes evidence in the said case, said lawyer is guilty of estafa under par.3(c).

In partnership Partners are not liable for estafa of money or property received for the partnership when the business commenced and profits accrued.

Q: What are the distinctions between robbery, theft and estafa? A: ROBERYTHEFTESTAFA

Only personal prop is involved.Only personal prop is involved.Subject matter may be real property

Taking is by means of force upon things or violence against or intimidation of persons.Not soNot so

Penalty does not necessarily depend on the amount involved.Penalty depends on the amount involvedPenalty depends on the amount involved

Offender takes the property without the consent of the owner by using threats, intimidation or violenceOffender takes the property without the consent of the owner and without using threats, intimidation or violenceOffender receives the property

Note: The crime is theft even if the property was delivered to the offender by the owner or possessor, if the latter expects an immediate return of the property delivered, that is, he delivered only the physical or material possession of the property. (U.S. v. De Vera, 43 Phil. 1000) However, if what was delivered was juridical possession of the property, that is, a situation where the person to whom it was delivered can set off his right to possess even as against the owner, and the latter should not be expecting the immediate return of the property, the misappropriation or taking of that property is Estafa. (U.S. v. Figueroa, 22 Phil. 270)Q: What are the distinctions between estafa with abuse of confidence and malversation?

ESTAFA WITH ABUSE OF CONFIDENCEMALVERSATION

Funds or property are always private. Involves public funds or property.

Offender is a private individual or even a public officer who is not accountable for public funds or property. Offender who is usually a public officer is accountable for public funds or property.

Crime is committed by misappropriating, converting or denying having received money, goods or other personal property. Crime is committed by appropriating, taking or misappropriating or consenting, or, through abandonment or negligence, permitting any other person to take the public funds or property.

Offenders are entrusted with funds or property

Continuing offenses

Note: Estafa through false pretense made in writing is only a simple crime of estafa, not a complex crime of estafa through falsification.

Q: Alfredo is the corporate treasurer of Multimillion Insurance Company. As corporate treasurer, he would have in his possession an average of P5,000,000 at any given time. In 1984, when the money market rate of interest ranged from 35% to 50%, Alfredo placed P1,000,000 of the corporate funds in the money market in his name without the knowledge of any other corporate official of the company. Upon maturity of the money market placement, Alfredo returned the amount of P1,000,000 to the corporation, but kept to himself the interest income of P250,000. At the end of 1984, when audit examinations of his accounts were undertaken, the auditors found no shortage in his accountabilities. Did Alfredo commit any crime? A: Yes, Alfredo committed the crime of estafa thru abuse of confidence, even if he had no intention to permanently misappropriate the corporate funds for himself. The law on estafa is clear and does not make any distinctions between permanent and temporary misappropriations, for as long as damage is suffered by the offended party.

Damage was suffered by the corporation in this case because if the P1 million pesos had not been withdrawn from the corporate coffers it would have earned interest for the benefit of the company.

Estafa, and not qualified theft, is committed because as corporate treasurer, Alfredo has juridical possession of the P5 million in his custody.

This was in the nature of a trust fund entrusted to him for corporate purposes. While it is a general principle that misappropriation of trust funds for short periods does not always amount to estafa, it has been held that this principle cannot extend to cases where officers of corporations converted corporate funds to their own use, (U.S. vs. Sevilla, 43 Phil. 190). Fraudulent intent is not even necessary in such cases because the breach of confidence involved in the misappropriation or conversion of trust funds takes the place of fraudulent intent and is in itself sufficient. (1989 Bar Question) Q: Aurelia introduced Rosa to Victoria, a dealer in jewelry who does business in Timog, Quezon City. Rosa, a resident of Cebu City, agreed to sell a diamond ring and bracelet to Victoria on a commission basis, on condition that, if these items can not be sold, they may be returned to Victoria forthwith. Unable to sell the ring and bracelet, Rosa delivered both items to Aurelia in Cebu City with the understanding that Aurelia shall, in turn, return the items to Victoria in Timog, Quezon City. Aurelia dutifully returned the bracelet to Victoria but sold the ring, kept the cash proceeds thereof to herself, and issued a check to Victoria which bounced. Victoria sued Rosa for estafa under Article 315, RPC, Victoria insisting that delivery to a third person of the thing held in trust is not a defense in estafa. Is Rosa criminally liable for estafa under the circumstances? A: No, Rosa cannot be held criminally liable for estafa. Although she received the jewelry from Victoria under an obligation to return the same or deliver the proceeds thereof, she did not misappropriate it. In fact, she gave them to Aurelia specifically to be returned to Victoria. The misappropriation was done by Aurelia, and absent the showing of any conspiracy between Aurelia and Rosa, the latter cannot be held criminally liable for Aurelia's acts. Furthermore, as explained above, Rosa's negligence which may have allowed Aurelia to misappropriate the jewelry does not make her criminally liable for estafa. (1999 Bar Question)Q: Distinguish estafa and infidelity in the custody of document. A:ESTAFAINFIDELITY IN THE CUSTODY OF DOCUMENTS

Private individual was entrustedPublic officer entrusted

Intent to defraudNo intent to defraud

Q: Is demand a condition precedent to the existence of Estafa? A: GR: There must be a formal demand on the offender to comply with his obligation before he can be charged with estafa.

XPN: 1. When the offenders obligation to comply is subject to a period, and 2. When the accused cannot be located despite due diligence.ARTICLE 316 (Other Forms of Swindling)Q: What are the other forms of swindling?A: 1. Conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same

Elements: a. Thing be immovable b. Offender who is not the owner of said property should represent that he is the owner thereof c. Offender should have executed an act of ownership (selling, leasing, encumbering or mortgaging the real property) d. Act is made to the prejudice of the owner or of a third person.

2 Disposing real property knowing it to be encumbered even if the encumbrance be not recorded.

Elements: a. Thing disposed of be real property; b. Offender knew that the real property was encumbered, whether the encumbrance is recorded or not c. There must be express representation by the offender that the real property is free from encumbrance d. Act of disposing of the real property be made to the damage of another

3. Wrongful taking of personal property from its lawful possessor to the prejudice of the latter or a third person;

Elements: a. Offender is the owner of personal property b. Said personal property is in the lawful possession of another c. Offender wrongfully takes it from its lawful possessor d. Prejudice is thereby caused to the possessor or third person 4. Executing any fictitious contract to the prejudice of another.

5. Accepting any compensation given to him under the belief it was in payment of services or labor when he did not actually perform such services or labor. Selling, mortgaging or in any manner encumbering real property while being a surety in bond without express authority from the court or before being relieved from the obligation.

Elements: a. Offender is a surety in a bond given in a criminal or civil action b. He guaranteed the fulfillment of such obligation with his real property or properties c. He sells, mortgages, or, in any other manner encumbers said real property d. Such sale, mortgage or encumbrance is without express authority from the court, or made before the cancellation of his bond, or before being relieved from the obligation contracted by him ARTICLE 317 (Swindling a Minor)Q: What are the elements of this crime?A: 1. Offender takes advantage of the inexperience or emotions or feelings of a minor.2. He induces such minor to assume an obligation, or to give release, or to execute a transfer of any property right. 3. Consideration is some loan of money, credit or other personal property. 4. Transaction is to the detriment of such minor.

Q: Is actual proof of deceit or misrepresentation essential? A: No. It is sufficient that the offender takes advantage of the inexperience or emotions of the minor.

ARTICLE 318 (Other Deceits)Q: What are the other kinds of deceit under Art. 318? A: 1. Defrauding or damaging another by any other deceit not mentioned in the preceding articles. 2. Interpreting dreams, making forecasts, telling fortunes, or taking advantage of the credulity of the public in any other similar manner, for profit or gain.

Note: Deceits in this article include false pretenses and fraudulent acts.CHATTEL MORTGAGE

ARTICLE 319 (Removal, Sale or Pledge of Mortgaged Property)Q: What are the punishable acts?A: 1. Knowingly removing any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or assigns.

Elements: a. Personal property is mortgaged under the Chattel Mortgage Law b. Offender knows that such property is so mortgaged c. Offender removes such mortgaged personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage d. Removal is permanent e. There is no written consent of the mortgagee or his executors, administrators or assigns to such removal Note: Any person can be the offender.

2. Selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds of the province where such property is located.

Elements: a. Personal property is already pledged under the terms of the Chattel Mortgage Law b. Offender, who is the mortgagor of such property, sells or pledges the same or any part thereof c. There is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds.

Note: Chattel mortgage must be valid and subsisting. Removal of the mortgaged personal property must be coupled with intent to defraud.

Q: Distinguish chattel mortgage from estafa A: CHATTEL MORTGAGEESTAFA

The property involved is personal property The property involved is real property

Selling or pledging of personal property already pledged or mortgaged is committed by the mere failure to obtain the consent of the mortgagee in writing even if the offender should inform the purchaser that the thing sold is mortgaged To constitute estafa, it is sufficient that the real property mortgaged be sold as free, even though the vendor may have obtained the consent of the mortgagee in writing

The purpose of the law is to protect the mortgagee The purpose is to protect the purchaser, whether the first or the second