Criminal Law II

Fraudulent Insolvency

Any person who shall abscond with his property to the prejudice of his creditors

Penalty for Fraudulent Insolvency

Merchant: Prision Mayor
Not a merchant: Prision correccional, max, to prision mayor, med

Difference of Fraudulent Insolvency (Art. 314) from Insolvency Law

Insolvency Law: Requires that the criminal act should have been committed after the institution of insolvency proceedings.

Art. 314: There is no such requirement, and it is not necessary that the offender should have been adjudged, bankrupt, or insolvent.

Estafa Elements in General

1. The accused defrauded another (1) by abuse of confidence or (2) by means of deceit, and

2. Damage or prejudice capable of pecuniary estimation is caused to the offended party or third person

Kinds of Estafa

1. With unfaithfulness or abuse of confidence;

2. By means of false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud;

3. Through fraudulent means

Estafa with UGAC: Through Alteration — ELEMENTS

1. Offender has an onerous obligation to deliver something of value;

2. He alters its substance, quantity, or quality; and

3. Damage or prejudice is caused to another

Estafa with UGAC: Through Misappropriation or Conversion — ELEMENTS

1. Money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any obligation involving the duty to make delivery on or to return the same;

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

3. Damage or prejudice is caused to another

4. There is demand made by the offended party

Estafa with UGAC: By Taking Advantage of a Signature in Blank — ELEMENTS

1. The paper with the signature of the offended party be in blank.

2. The offended party should have delivered it to the offender

3. Above the signature of the offended party, a document is written by the offender without authority to do so

4. The document created culpability of, or caused damage to the offended party

Estafa by Means of Deceit — ELEMENTS

1. There must be a false pretense, fraudulent act, or fraudulent means;

2. Such false pretense, fraudulent act, or fraudulent means must be made or executed prior to or simultaneous with the commission of the fraud or deceit;

3. The offended party must have relied on the false pretenses, fraudulent acts, or fraudulent means employed by the offender which induced him to part with his money or valuables; and

4. That as a consequence, the offended party suffered damage/s.

Estafa by Means of Deceit: By Postdating a Check

1. The offender postdated a check, or issued a check in payment of an obligation.

2. 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.

BP Blg. 22 Par. 1

By making or drawing and issuing any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

BP Blg. 22 Par. 1 — ELEMENTS

1. That a person makes or draws and issues any check.

2. That the check is made or drawn and issued to apply on account or for value.

3. That the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment.

4. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

BP Blg. 22 Par. 2

1. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check.

2. That he fals to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon.

3. That the check is dishonored by the drawee bank.

BP Blg. 22 Par. 2 — ELEMENTS

1. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check.

2. That he fals to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon.

3. That the check is dishonored by the drawee bank.

Estafa through any of the ff means: (a)

1. That the offender induced the offended party to sign a document.

2. That deceit be employed to make him sign the document.

3. That the offended party personally signed the document.

4. That prejudice be caused.

Estafa through any of the ff means: (b)

1. That there be court record, office files, documents or any other papers.

2. That the offender removed, concealed or destroyed any of them.

3. That the offender had the intent to defraud another.

Other Forms of Swindling

1. Any person who, pretending to be the owner of any real property, shall convey, sell, encumber or mortgage the same.

2. Any person who, knowing that real property is encumbered, shall dispose of the same, although such encumbrance be not recorded.

3. The owner of any personal property who shall wrongfully take it from its lawful possessor, to the prejudice of the latter or any third person.

4. Any person who, to the prejudice of another, shall execute any fictitious contract.

5. Any person who shall accept any compensation given him under the belief that it was in payment of services rendered or labor performed by him, when in fact he did not actually perform such services or labor.

6. Any person who, while being a surety in a bond given in a criminal or civil action, without express authority from the court or before the cancellation of his bond or before being relieved from the obligation contracted by him, shall sell, mortgage, or, in any other manner, encumber the real property or properties with which he guaranteed the fulfillment of such obligation.

ELEMENTS — By conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same.

1. That the thing be immovable.

2. That the offender who is not the owner of said property should represent that he is the owner thereof.

3. That the offender should have executed an act of ownership (selling, leasing, encumbering or mortgaging the real property).

4. That the act be made to the prejudice of the owner or a third person.

ELEMENTS — By disposing of real property as free from encumbrance, although such encumbrance be not recorded.

1. That the thing disposed of be real property.

2. That the offender knew that the real property was encumbered, whether the encumbrance is recorded or not.

3. That there must be express representation by the offender that the real property is free from encumbrance.

4. That the act of disposing of the real property be made to the damage of another.

ELEMENTS — By wrongfully taking by the owner his personal property from its lawful possessor

1. That the offender is the owner of personal property.

2. That said personal property is in the lawful possession of another.

3. That the offender wrongfully takes it from its lawful possessor.

4. That prejudice is thereby caused to the possessor or third person.

ELEMENTS — By selling, mortgaging or encumbering real property or properties with which the offender guaranteed the fulfillment of his obligation as surety

1. That the offender is a surety in a bond given in a criminal or civil action.

2. That he guaranteed the fulfillment of such obligation with his real property or properties.

3. That he sells, mortgages, or, in any other manner encumbers said real property.

4. That such sale, mortgage or encumbrance is (a) without express authority from the court, or (b) made before the cancellation of his bond, or (c) before being relieved from the obligation contracted by him.

Swindling a Minor (Art. 317)

Any person who, taking advantage of the inexperience or emotions or feelings of a minor, to his detriment, shall induce him to assume any obligation or to give any release or execute a transfer of any property right in consideration of some loan of money, credit or other personal property, whether the loan clearly appears in the document or is shown in any other form.

Swindling a Minor (Art. 317) — ELEMENTS

1. That the offender takes advantage of the inexperience or emotions or feelings of a minor.

2. That he induces such minor (1) to assume an obligation,or (2) to give release, or (3) to execute a transfer of any property.

3. That the consideration is (1) some loan of money, (2) credit, or (3) other personal property.

4. That the transaction is to the detriment of such minor.

Malicious Mischief (Art. 327)

Any person who shall deliberately cause to the property of another any damage not falling within the terms of the next preceding chapter shall be guilty of malicious mischief.

Malicious Mischief (Art. 327) — ELEMENTS

1. That the offender deliberately caused damage to the property of another.

2. That such act does not constitute arson or other crimes involving destruction.

3. That the act of damaging another’s property be committed merely for the sake of damaging it.

Special Cases of Malicious Mischief (Article 328)

Any person who shall cause damage to obstruct the performance of public functions, or using any poisonous or corrosive substance; or spreading any infection or contagion among cattle; or who causes damage to the property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public.

Damages and Obstruction to Means of Communication (Article 330)

any person who shall damage any railway, telegraph or telephone

• Not applicable when the telegraph or telephone lines do not pertain to railways.

Destroying or Damaging Statues, Public Monuments or Paintings (Article 331)

Any person who shall destroy or damage statues or any other useful or ornamental public monument.

Persons exempt from Criminal Liability (Article 322)

No criminal, but only civil liability, shall result from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the following persons:

1. Spouses, ascendants and descendants, or relatives by affinity in the same line;

2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and

3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.

The exemption established by this article shall not be applicable to strangers participating in the commission of the crime.