rtyuiopasdfghCRIMINAL rtyuiopasdfghjklzxcvbnmqwerFor the 2011 Bar zxcvbnmqCRIMINALLAWREVIEWweELMER P. BRABANTEElmer P. BrabanteCRIMINAL LAW REVIEWfor the 2011 BarExamsPage 1

CRIMINAL LAWI. Revised Penal Code / Special Laws, Presidential Decrees, and Executive OrdersA. Book 1 (Articles 1-99, RPC, excluding provisions on civil liability), including relatedSpecial Laws1. FUNDAMENTAL PRINCIPLESDefinition of Criminal Law(1) Criminal law is that branch of municipal law which defines crimes, treats of their nature andprovides for their punishment.(2) It is that branch of public substantive law which defines offenses and prescribes their penalties. Itis substantive because it defines the state’s right to inflict punishment and the liability of theoffenders. It is public law because it deals with the relation of the individual with the state.DIFFERENCE BETWEEN MALA IN SE AND MALA PROHIBITAViolations of the Revised Penal Code are referredto as malum in se, which literally means, that theact is inherently evil or bad or per se wrongful. Onthe other hand, violations of special laws aregenerally referred to as malum prohibitum.Note, however, that not all violations of speciallaws are mala prohibita. While intentional feloniesare always mala in se, it does not follow thatprohibited acts done in violation of special laws arealways mala prohibita. Even if the crime ispunished under a special law, if the act punishedis one which is inherently wrong, the same ismalum in se, and, therefore, good faith and thelack of criminal intent is a valid defense; unless itis the product of criminal negligence or culpa.Likewise when the special laws requires that the1. As to moral trait of the offenderIn crimes punished under the RevisedPenal Code, the moral trait of the offenderis considered. This is why liability wouldonly arise when there is dolo or culpa inthe commission of the punishable act.In crimes punished under special laws, themoral trait of the offender is notconsidered; it is enough that the prohibitedact was voluntarily done.2. As to use of good faith as defenseIn crimes punished under the RevisedPenal Code, good faith or lack of criminalintent is a valid defense; unless the crimeis the result of culpaIn crimes punished under special laws,good faith is not a defense3. As to degree of accomplishment of theElmer P. Brabantepunished act be committed knowingly and willfully,criminal intent is required to be proved beforecriminal liability may arise.When the act penalized is not inherently wrong, itis wrong only because a law punishes the same.For example, Presidential Decree No. 532punishes piracy in Philippine waters and thespecial law punishing brigandage in the highways.These acts are inherently wrong and although theyare punished under special law, the actsthemselves are mala in se; thus, good faith or lackof criminal intent is a defense.Distinction between crimes punished under theRevised Penal Code and crimes punished underspecial lawscrimeIn crimes punished under the RevisedPenalCode,thedegreeofaccomplishment of the crime is taken intoaccount in punishing the offender; thus,there are attempted, frustrated, andconsummated stages in the commission ofthe crime.In crimes punished under special laws, theact gives rise to a crime only when it isconsummated; there are no attempted orfrustrated stages, unless the special lawexpressly penalize the mere attempt orfrustration of the crime.4. As to mitigating and aggravatingcircumstancesIn crimes punished under the RevisedPenal Code, mitigating and aggravatingCRIMINAL LAW REVIEWfor the 2011 BarExamsPage 2

circumstances are taken into account inimposing the penalty since the moral traitof the offender is considered.In crimes punished under special laws,mitigating and aggravating circumstancesare not taken into account in imposing thepenalty.5. As to degree of participationIn crimes punished under the RevisedPenal Code, when there is more than oneoffender, the degree of participation ofeach in the commission of the crime istaken into account in imposing the penalty;thus, offenders are classified as principal,accomplice and accessory.In crimes punished under special laws, thedegree of participation of the offenders isnot considered. All who perpetrated theprohibited act are penalized to the sameextent.There is no principal oraccomplice or accessory to consider.Mala in SeMala ProhibitaBasisMoral state of the offender; hence, goodfaith or lack of criminal intent is adefense.ModifyingcircumstancesTaken into account in imposing thepenalty on the offender preciselybecause his moral trait is the basis ofhis crime. Hence, greater perversitydeserves a higher penalty; whereas,lesser depravity deserves mitigation.Penalty is computed on the basis ofwhether the malefactor is a principaloffender, or merely an accomplice oraccessory.The penalty imposed depends onwhether the crime is consummated,frustrated or attempted.Voluntariness; hence, good faith or lackof criminal intent is not a defense, unlessintent is an element of the crime such asin Sec. 3[e] of RA 3019.Not considered because the law intendsto discourage the commission of the actspecially prohibited.Degree ofparticipationStage ofaccomplishmentMoral turpitudeLaw violatedGenerally involve moral turpitudelogically, so for its basis is the moralstate of the offender.Generally, the Revised Penal Code.The penalty on the offenders is the sameas they are all deemed principals.Violation of law is punished only whenaccomplished or consummated becauseintent is inherent in attempted orfrustrated stage and intent is not relevantin crimes mala prohibita.Not involved because the act would nothave been wrong if not for the prohibitionof law.Generally, special penal laws.SCOPE OF APPLICATIONArt. 2. Application of its provisions. — Except asprovided in the treaties and laws of preferentialapplication, the provisions of this Code shallbe enforced not only within the PhilippineArchipelago, including its atmosphere, itsinterior waters and maritime zone, but alsooutside of its jurisdiction, against those who:1. Should commit an offense while on aPhilippine ship or airship;2. Should forge or counterfeit any coin orcurrency note of the Philippine Islandsor obligations and securities issued bythe Government of the PhilippineIslands;3. Should be liable for acts connected withthe introduction into these islands of theElmer P. Brabanteobligations and securities mentioned inthe presiding number;4. While being public officers or employees,should commit an offense in theexercise of their functions; or5. Should commit any of the crimes againstnational security and the law of nations,defined in Title One of Book Two of thisCode.The provision in Article 2 embraces two scopes ofapplications:(1) Intraterritorial – refers to the application ofthe Revised Penal Code within thePhilippine territory;CRIMINAL LAW REVIEWfor the 2011 BarExamsPage 3

(2) Extraterritorial – refers to the application ofthe Revised Penal Code outside thePhilippine territory.Intraterritorial applicationIn the intraterritorial application of the RevisedPenal Code, Article 2 makes it clear that it doesnot refer only to Philippine archipelago but it alsoincludes the atmosphere, interior waters andmaritime zone. So whenever you use the wordterritory, do not limit this to land area only.As far as jurisdiction or application of the RevisedPenal Code over crimes committed on maritimezones or interior waters, the Archipelagic Ruleshall be observed. So the three-mile limit on ourshoreline has been modified by the rule. Anycrime committed in interior waters comprising thePhilippine archipelago shall be subject to our lawsalthough committed on board a foreign merchantvessel.Extraterritorial applicationExtraterritorial application of the Revised PenalCode on crime committed on board Philippine shipor airship refers only to a situation where thePhilippine ship or airship is not within the territorialwaters or atmosphere of a foreign country.Otherwise, it is the foreign country’s criminal lawthat will apply.However, there are two situations where theforeign country may not apply its criminal law evenif a crime was committed on board a vessel withinits territorial waters and these are:(1) When the crime is committed in a warvessel of a foreign country, because warvessels are part of the sovereignty of thecountry to whose naval force they belong;(3) When the foreign country in whoseterritorial waters the crime was committedadopts the French Rule, which appliesonly to merchant vessels, except when thecrime committed affects the nationalsecurity or public order of such foreigncountry.A vessel is considered a Philippine ship only whenit is registered in accordance with Philippine laws.Under international law, as long as such vessel isnot within the territorial waters of a foreign country,Philippine laws shall govern.CHARACTERISTICS OF THE PHILIPPINE CRIMINAL LAW1. Generality2. Territoriality3. ProspectivityGenerality(1) Penal laws and those of public securityand safety shall be obligatory upon all wholive or sojourn in the Philippine territory,subject to the principles of publicinternational law and to treaty stipulations(Art. 14, NCC).(2) The law is binding upon all persons whoreside or sojourn in the Philippines,irrespective of age, sex, color, creed, orpersonal circumstances.(3) Generality of criminal law means that thecriminal law of the country governs allpersons within the country regardless oftheir race, belief, sex, or creed. However,it is subject to certain exceptions broughtaboutbyinternationalagreement.Ambassadors, chiefs of states and otherdiplomatic officials are immune from theapplication of penal laws when they are inthe country where they are assigned. NoteElmer P. Brabantethat consuls are not diplomatic officers.This includes consul-general, vice-consulor any consul in a foreign country, who aretherefore, not immune to the operation orapplication of the penal law of the countrywhere they are assigned. Consuls aresubject to the penal laws of the countrywhere they are assigned.(4) It has no reference to territory. Wheneveryou are asked to explain this, it does notinclude territory. It refers to persons thatmay be governed by the penal law (DeanOrtega).Territoriality(1) The law is applicable to all crimescommitted within the limits of Philippineterritory, which includes its atmosphere,interior waters and maritime zone (Art. 2).(2) Territoriality means that the penal laws ofthe country have force and effect onlywithin its territory. It cannot penalizecrimes committed outside the same. Thisis subject to certain exceptions broughtabout by international agreements andCRIMINAL LAW REVIEWfor the 2011 BarExamsPage 4

practice. The territory of the country is notlimited to the land where its sovereigntyresides but includes also its maritime andinterior waters as well as its atmosphere.(3) Terrestrial jurisdiction is the jurisdictionexercised over land. Fluvial jurisdiction isthe jurisdiction exercised over maritimeand interior waters. Aerial jurisdiction isthe jurisdiction exercised over theatmosphere.The Archipelagic Rule(1) All bodies of water comprising themaritime zone and interior watersabounding different islands comprising thePhilippine Archipelago are part of thePhilippine territory regardless of theirbreadth, depth, width or dimension.(2) On the fluvial jurisdiction there is presentlyadeparturefromtheacceptedInternational Law Rule, because thePhilippines adopted the Archipelagic Rule.In the International Law Rule, when a straitwithin a country has a width of more than6 miles, the center lane in excess of the 3miles on both sides is consideredinternational waters.Three international law theories on aerialjurisdiction(1) The atmosphere over the country is freeand not subject to the jurisdiction of thesubjacent state, except for the protectionof its national security and public order.Under this theory, if a crime is committedon board a foreign aircraft at theatmosphere of a country, the law of thatcountry does not govern unless the crimeaffects the national security.(2) Relative Theory – The subjacent stateexercises jurisdiction over its atmosphereonly to the extent that it can effectivelyexercise control thereof. The RelativeTheoryUnder this theory, if a crime wascommitted on an aircraft which is alreadybeyond the control of the subjacent state,the criminal law of that state will notgovern anymore. But if the crime iscommitted in an aircraft within theatmosphere over a subjacent state whichexercises control, then its criminal law willgovern.above it subject only to innocent passageby aircraft of foreign country.Under this theory, if the crime is committedin an aircraft, no matter how high, as longas it can establish that it is within thePhilippine atmosphere, Philippine criminallaw will govern. This is the theory adoptedby the Philippines.Exceptions to the application of the Code:(1) The Philippine ship or airship must be dulyregistered under the Philippine laws. Suchvessel when beyond the maritime zone isconsidered as extension of Philippinenational territory. But if said Philippinevessel or aircraft within the territory of aforeign country when the crime iscommitted, the laws of that country willapply as a rule.(2) The reason for the exception in pars. 2and 3 is to preserve the financial creditand stability of the state.(3) The offense committed by a public officerabroad, like the disbursing official of aPhilippine Embassy, must refer to thedischarge of his functions, like