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    2010 BAR EXAMINATION QUESTIONSPOLITICAL LAW

    05 September 2010 8 A.M. 12 NN.

    INSTRUCTIONS

    This questionnaire is in TWO (2) PARTS: Part I with sixteen (16) questions (numberedI to XVI), contained in eight (8) pages; and Part II with eleven (11) questions(numbered XVII to XXVII), contained in four (4) pages, for a total number of twelve(12) pages.

    Write your answers to Part I and Part II in the corresponding portions indicated in thebooklet.

    Begin your answer to each numbered question on a separate page; an answer to asubquestion under the same number may be written continuously on the same page

    and succeeding pages until completed.

    Answer the question directly and concisely. Do not repeat the question. Write legibly.

    HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

    GOOD LUCK!

    _____________________________________CONCHITA CARPIO MORALES

    CHAIRPERSON2010 BAR EXAMINATIONS COMMITTEE

    PLEASE CHECK THAT THIS SET CONTAINS TWELVE (12)PAGES (INCLUDING THISPAGE).

    WARNING: NOT FOR SALE OR UNAUTHORIZED USE

    POLITICAL AND PUBLIC INTERNATIONAL LAW

    PART I

    I

    The dictatorial regime of President A of the Republic of Gordon was toppled by acombined force led by Gen. Abe, former royal guards and the secessionist GordonPeoples Army. The new government constituted a Truth and ReconciliationCommission to look into the serious crimes committed under President As regime.After the hearings, the Commission recommended that an amnesty law be passed tocover even those involved in mass killings of members of indigenous groups whoopposed President A. International human rights groups argued that the proposedamnesty law is contrary to international law. Decide with reasons. (4%)

    II

    Compare and contrast the jurisdiction of the International Criminal Court andInternational Court of Justice. (3%)

    III

    A, a British photojournalist, was covering the violent protests of the Thai Red-ShirtsMovement in Bangkok. Despite warnings given by the Thai Prime Minister toforeigners, specially journalists, A moved around the Thai capital. In the course of hiscoverage, he was killed with a stray bullet which was later identified as having comefrom the ranks of the Red-Shirts. The wife of A sought relief from Thai authorities but

    was refused assistance.

    a. Is there state responsibility on the part of Thailand? (2%)b. What is the appropriate remedy available to the victims family under

    international law? (3%)

    IV

    Choose the statement which appropriately completes the opening phrase:

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    conflict. d. both (a) and (b)e. none of the above.

    XII

    A witnessed two hooded men with baseball bats enter the house of their next doorneighbor B. After a few seconds, he heard B shouting, Huwag Pilo babayaran kitaagad. Then A saw the two hooded men hitting B until the latter fell lifeless. Theassailants escaped using a yellow motorcycle with a fireball sticker on it toward thedirection of an exclusive village nearby. A reported the incident to PO1 Nuval. Thefollowing day, PO1 Nuval saw the motorcycle parked in the garage of a house at Sta.Ines Street inside the exclusive village. He inquired with the caretaker as to whoowned the motorcycle. The caretaker named the brothers Pilo and Ramon Maradonawho were then outside the country. PO1 Nuval insisted on getting inside the garage.Out of fear, the caretaker allowed him. PO1 Nuval took 2 ski masks and 2 bats besidethe motorcycle. Was the search valid? What about the seizure? Decide with reasons.(4%)

    XIII

    True or False.

    a. A valid and definite offer to buy a property is a pre-requisite to expropriationinitiated by a local government unit. (0.5%)

    b. Re-classification of land by a local government unit may be done through aresolution. (0.5%)

    c. Boundary disputes between and among municipalities in the same provincemay be filed immediately with the Regional Trial Court. (0.5%)

    d. The Metropolitan Manila Development Authority is authorized to confiscate adrivers license in the enforcement of traffic regulations. (0.5%)

    XIV

    ABC operates an industrial waste processing plant within Laoag City. Occasionally,whenever fluid substances are released through a nearby creek, obnoxious odor isemitted causing dizziness among residents in Barangay La Paz. On complaint of thePunong Barangay, the City Mayor wrote ABC demanding that it abate the nuisance.This was ignored. An invitation to attend a hearing called by the SangguniangPanlungsod was also declined by the president of ABC. The city government thereuponissued a cease and desist order to stop the operations of the plant, prompting ABC tofile a petition for injunction before the Regional Trial Court, arguing that the citygovernment did not have any power to abate the alleged nuisance. Decide withreasons. (3%)

    XV

    True or False.

    a. A person who occupies an office that is defectively created is a de facto officer.(0.5%)

    b. The rule on nepotism does not apply to designations made in favor of arelative of the authority making a designation. (0.5%)

    c. A discretionary duty of a public officer is never delegable. (0.5%)d. Acquisition of civil service eligibility during tenure of a temporary appointee

    does not automatically translate to a permanent appointment. (0.5%)

    XVI

    Rudy Domingo, 38 years old, natural-born Filipino and a resident of the Philippinessince birth, is a Manila-based entrepreneur who runs KABAKA, a coalition of peoples organizations from fisherfolk communities. KABAKAs operations consist of empowering fisherfolk leaders through livelihood projects and trainings on goodgovernance. The Dutch Foundation for Global Initiatives, a private organizationregistered in The Netherlands, receives a huge subsidy from the Dutch ForeignMinistry, which, in turn is allocated worldwide to the Foundations partners likeKABAKA. Rudy seeks to register KABAKA as a party-list with himself as a nominee of the coalition. Will KABAKA and Rudy be qualified as a party-list and a nominee,respectively? Decide with reasons. (4%)

    PART II

    XVII

    During his campaign sortie in Barangay Salamanca, Mayor Galicia was arrested at aPNP checkpoint for carrying highpowered firearms in his car. He was charged andconvicted for violation of the COMELEC gun ban. He did not appeal his conviction andinstead applied for executive clemency. Acting on the favorable recommendation of the Board of Pardons and Parole, the President granted him pardon. Is he eligible torun again for an elective position? Explain briefly. (5%)

    XVIII

    The House Committee on Appropriations conducted an inquiry in aid of legislation intoalleged irregular and anomalous disbursements of the Countrywide Development Fund(CDF) and Congressional Initiative Allocation (CIA) of Congressmen as exposed by X,a Division Chief of the Department of Budget and Management (DBM). Implicated inthe questionable disbursements are high officials of the Palace. The House Committee

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    summoned X and the DBM Secretary to appear and testify. X refused to appear, whilethe Secretary appeared but refused to testify invoking executive privilege.

    a. May X be compelled to appear and testify? If yes, what sanction may beimposed on him? (2%)

    b. Is the Budget Secretary shielded by executive privilege from responding to theinquiries of the House Committee? Explain briefly. If the answer is no, is thereany sanction that may be imposed upon him? (3%)

    XIX

    To instill religious awareness in the students of Doa Trinidad High School, a publicschool in Bulacan, the Parent- Teachers Association of the school contributed funds forthe construction of a grotto and a chapel where ecumenical religious services andseminars are being held after school hours. The use of the school grounds for thesepurposes was questioned by a parent who does not belong to any religious group. Ashis complaint was not addressed by the school officials, he filed an administrativecomplaint against the principal before the DECS. Is the principal liable? Explain briefly.(5%)

    XX

    Define/explain the following:

    a. Doctrine of operative facts (1%)b. De facto municipal corporation (1%)c. Municipal corporation by estoppel (1%)d. Doctrine of necessary implication (1%)e. Principle of holdover (1%)

    XXI

    The Sangguniang Panlungsod of Pasay City passed an ordinance requiring all disco pubowners to have all their hospitality girls tested for the AIDS virus. Both disco pubowners and the hospitality girls assailed the validity of the ordinance for beingviolative of their constitutional rights to privacy and to freely choose a calling orbusiness. Is the ordinance valid? Explain. (5%)

    XXII

    Governor Diy was serving his third term when he lost his governorship in a recallelection.

    a. Who shall succeed Governor Diy in his office as Governor? (1%)b. Can Governor Diy run again as governor in the next election? (2%)c. Can Governor Diy refuse to run in the recall election and instead resign from

    his position as governor? (2%)

    XXIII

    A was a career Ambassador when he accepted an ad interim appointment as CabinetMember. The Commission on Appointments bypassed his ad interim appointment,however, and he was not re-appointed. Can he re-assume his position as careerAmbassador? (5%)

    XXIV

    Compare and contrast overbreadth doctrine from void-forvagueness doctrine.(5%)

    XXV

    a. What is the rotational scheme of appointments in the COMELEC? (2%)

    b. What are the two conditions for its workability? (2%)c. To what other constitutional offices does the rotational scheme of appointments apply? (2%)

    XXVI

    Distinguish between pocket veto and item veto. (2%)

    XXVII

    What is the concept of association under international law? (2%)

    NOTHING FOLLOWS.

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    2010 BAR EXAMINATION QUESTIONS

    LABOR LAW

    05 September 2010 2 P.M. 5 P.M.

    INSTRUCTIONS

    This questionnaire is in TWO (2) PARTS: Part I with thirteen (13) questions (numberedI to XIII), contained in seven (7) pages; and Part II with twelve (12) questions(numbered XIV-XXV), contained in six (6) pages, for a total number of thirteen (13)pages.

    Write your answers to Part I and Part II in the corresponding portions indicated in thebooklet.

    Begin your answer to each numbered question on a separate page; an answer to asubquestion under the same number may be written continuously on the same pageand succeeding pages until completed.

    Answer the question directly and concisely. Do not repeat the question. Write legibly.

    HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE.

    GOOD LUCK!

    _____________________________________CONCHITA CARPIO MORALES

    CHAIRPERSON2010 BAR EXAMINATIONS COMMITTEE

    PLEASE CHECK THAT THIS SET CONTAINS THIRTEEN (13) PAGES (INCLUDING THISPAGE).

    WARNING: NOT FOR SALE OR UNAUTHORIZED USE

    LABOR AND SOCIAL LEGISLATION

    PART I

    I

    TRUE OR FALSE . Explain your answer briefly.

    1. Deeds of release, waivers and quitclaims are always valid and binding. (2%)

    2. The relations between employer and employee are purely contractual in nature.(2%)

    3. As a general rule, direct hiring of Overseas Filipino Workers (OFWs) is not allowed.(2%)

    II

    a. Distinguish the terms conciliation, mediation and arbitration. (3%)b. Differentiate surface bargaining from blue-sky bargaining. (2%)

    III

    A, single, has been an active member of the Social Security System for the past 20months. She became pregnant out of wedlock and on her 7th month of pregnancy,she was informed that she would have to deliver the baby through caesarean sectionbecause of some complications. Can A claim maternity benefits? If yes, how manydays can she go on maternity leave? If not, why is she not entitled? (3%)

    IV

    A, a worker at ABC Company, was on leave with pay on March 31, 2010. He reportedfor work on April 1 and 2, Maundy Thursday and Good Friday, respectively, bothregular holidays. Is A entitled to holiday pay for the two successive holidays? Explain.

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    (3%)

    V

    Company XYZ has two recognized labor unions, one for its rank-and-file employees(RFLU), and one for supervisory employees (SELU). Of late, the company instituted arestructuring program by virtue of which A, a rank-and-file employee and officer of RFLU, was promoted to a supervisory position along with four (4) other colleagues,also active union members and/or officers. Labor Union KMJ, a rival labor unionseeking recognition as the rank-and-file bargaining agent, filed a petition for thecancellation of the registration of RFLU on the ground that A and her colleagues haveremained to be members of RFLU. Is the petition meritorious? Explain. (3%)

    VI

    A is a member of the labor union duly recognized as the sole bargaining representativeof his company. Due to a bargaining deadlock, 245 members of the 500-strong unionvoted on March 13, 2010 to stage a strike. A notice of strike was submitted to theNational Conciliation and Mediation Board on March 16, 2010. Seven days later or onMarch 23, 2010, the workers staged a strike in the course of which A had to leave andgo to the hospital where his wife had just delivered a baby. The union members laterintimidated and barred other employees from entering the work premises, thusparalyzing the business operations of the company.

    A was dismissed from employment as a consequence of the strike.

    a. Was the strike legal? Explain. (3%)b. Was As dismissal valid? Why or why not? (3%)

    VII

    A was an able seaman contracted by ABC Recruitment Agency for its foreign principal,

    Seaworthy Shipping Company (SSC). His employment contract provided that he wouldserve on board the Almieda II for eight (8) months with a monthly salary of US$450.In connection with his employment, he signed an undertaking to observe the drug andalcohol policy which bans possession or use of all alcoholic beverages, prohibitedsubstances and un-prescribed drugs on board the ship. The undertaking provided that:(1) disciplinary action including dismissal would be taken against anyone in possessionof the prohibited substances or who is impaired by the use of any of these substances,and (2) to enforce the policy, random test sampling would be done on all those onboard the ship.

    On his third month of service while the Almieda II was docked at a foreign port, a

    random drug test was conducted on all members of the crew and A tested positive formarijuana. He was given a copy of the drug test result. In compliance with thecompanys directive, he submitted his written explanation which the company did notfind satisfactory. A month later, he was repatriated to the Philippines.

    Upon arrival in the Philippines, A filed with the National Labor Relations Commission(NLRC) a complaint against the agency and the principal for illegal dismissal with aclaim for salaries for the unexpired portion of his contract.

    a. Was As dismissal valid? Explain. (3%)b. Is his claim for salaries for the unexpired portion of his contract tenable?

    Explain. (3%)

    VIII

    ABC company and U labor union have been negotiating for a new Collective BargainingAgreement (CBA) but failed to agree on certain economic provisions of the existingagreement. In the meantime, the existing CBA expired. The company thereafterrefused to pay the employees their midyear bonus, saying that the CBA whichprovided for the grant of midyear bonus to all company employees had alreadyexpired. Are the employees entitled to be paid their midyear bonus? Explain youranswer. (3%)

    IX

    A was working as a medical representative of RX pharmaceutical company when hemet and fell in love with B, a marketing strategist for Delta Drug Company, acompetitor of RX. On several occasions, the management of RX called As attention tothe stipulation in his employment contract that requires him to disclose anyrelationship by consanguinity or affinity with coemployees or employees of competingcompanies in light of a possible conflict of interest. A seeks your advice on the validityof the company policy. What would be your advice? (3%)

    X

    A, an employee of XYZ Cooperative, owns 500 shares in the cooperative. He has beenasked to join the XYZ Cooperative Employees Association. He seeks your advice onwhether he can join the association. What advice will you give him? (3%)

    XI

    Because of continuing financial constraints, XYZ, Inc. gave its employees the option tovoluntarily resign from the company. A was one of those who availed of the option. On

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    October 5, 2007, he was paid separation benefits equivalent to seven (7) months payfor his six (6) years and seven (7) months of service with the company and heexecuted a waiver and quitclaim.

    A week later, A filed against XYZ, Inc. a complaint for illegal dismissal. While headmitted that he was not forced to sign the quitclaim, he contended that he agreed totender his voluntary resignation on the belief that XYZ, Inc. was closing down itsbusiness. XYZ, Inc., however, continued its business under a different company name,he claimed.

    Rule on whether the quitclaim executed by A is valid or not. Explain. (3%)

    XII

    On December 12, 2008, A signed a contract to be part of the crew of ABC Cruises, Inc.through its Philippine manning agency XYZ. Under the standard employment contractof the Philippine Overseas Employment Administration (POEA), his employment was tocommence upon his actual departure from the port in the point of hire, Manila, fromwhere he would take a flight to the USA to join the cruise ship MS Carnegie. However, more than three months after A secured his exit clearance from the POEAfor his supposed departure on January 15, 2009, XYZ still had not deployed him for novalid reason.

    Is A entitled to relief? Explain. (3%)

    XIII

    A is employed by XYZ Company where XYZ Employees Union (XYZ-EU) is therecognized exclusive bargaining agent. Although A is a member of rival union XYR-MU,he receives the benefits under the CBA that XYZ-EU had negotiated with the company.

    XYZ-EU assessed A a fee equivalent to the dues and other fees paid by its members

    but A insists that he has no obligation to pay said dues and fees because he is not amember of XYZEU and he has not issued an authorization to allow the collection.Explain whether his claim is meritorious. (3%)

    PART II

    XIV

    After working from 10 a.m. to 5 p.m. on a Thursday as one of 5,000 employees in abeer factory, A hurried home to catch the early evening news and have dinner with hisfamily. At around 10 p.m. of the same day, the plant manager called and ordered A to

    fill in for C who missed the second shift.

    a. May A validly refuse the plant managers directive? Explain. (2%)b. Assuming that A was made to work from 11 p.m. on Thursday until 2 a.m. on

    Friday, may the company argue that, since he was two hours late in coming towork on Thursday morning, he should only be paid for work rendered from 1a.m. to 2 a.m.? Explain? (3%)

    XV

    Samahang Manggagawa ng Terracota, a union of supervisory employees at TerracotaInc., recently admitted a member of the companys managerial staff, A, into the unionranks.

    a. Should A be a member of the supervisory union? Explain. (2%)b. Assuming that A is ineligible to join the union, should the registration of

    Samahang Manggagawa ng Terracota be cancelled? Explain. (3%)

    XVI

    On the first day of collective bargaining negotiations between rank-and-file Union Aand B Bus Company, the former proposed a P45/day increase. The company insistedthat ground rules for negotiations should first be established, to which the unionagreed. After agreeing on ground rules on the second day, the union representativesreiterated their proposal for a wage increase. When company representativessuggested a discussion of political provisions in the Collective Bargaining Agreementas stipulated in the ground rules, union members went on mass leave the next day toparticipate in a whole-day prayer rally in front of the company building.

    a. The company filed a petition for assumption of jurisdiction with the Secretaryof Labor and Employment. The Union opposed the petition, arguing that it didnot intend to stage a strike. Should the petition be granted? Explain. (2%)

    b. The Union contended that assuming that the mass leave will be considered asa strike, the same was valid because of the refusal of the company to discussthe economic provisions of the CBA. Rule on the contention. (2%)

    c. Union member AA, a pastor who headed the prayer rally, was served a noticeof termination by management after it filed the petition for assumption of

    jurisdiction. May the company validly terminate AA? Explain. (2%)

    XVII

    A was hired to work in a sugar plantation performing such tasks as weeding, cuttingand loading canes, planting cane points, fertilizing and cleaning the drainage. Because

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    his daily presence in the field was not required, A also worked as a houseboy at thehouse of the plantation owner. For the next planting season, the owner decided not tohire A as a plantation worker but as a houseboy instead. Furious, A filed a case forillegal dismissal against the plantation owner. Decide with reason. (3%)

    XVIII

    Flight attendant A, five feet and six inches tall, weighing 170 pounds ended upweighing 220 pounds in two years. Pursuant to the long standing Cabin and CrewAdministration Manual of the employer airline that set a 147-pound limit for Asheight, management sent A a notice to shape up or ship out within 60 days. At theend of the 60-day period, A reduced her weight to 205 pounds. The company finallyserved her a Notice of Administration Charge for violation of company standards onweight requirements. Should A be dismissed? Explain. (3%)

    XIX

    Several employees and members of Union A were terminated by Western Phone Co.on the ground of redundancy. After complying with the necessary requirements, theUnion staged a strike and picketed the premises of the company. The managementthen filed a petition for the Secretary of Labor and Employment to assume jurisdictionover the dispute. Without the benefit of a hearing, the Secretary issued an Order toassume jurisdiction and for the parties to revert to the status quo ante litem.

    a. Was the order to assume jurisdiction legal? Explain. (2%)b. Under the same set of facts the Secretary instead issued an Order directing all

    striking workers to return to work within 24 hours, except those who wereterminated due to redundancy. Was the Order legal? Explain. (3%)

    XX

    A, a driver for a bus company, sued his employer for nonpayment of commutableservice incentive leave credits upon his resignation after five years of employment.The bus company argued that A was not entitled to service incentive leave since hewas considered a field personnel and was paid on commission basis and that, in anyevent, his claim had prescribed. If you were the Labor Arbiter, how would you rule?Explain. (6%)

    XXI

    A was approached for possible overseas deployment to Dubai by X, an interviewer of job applicants for Alpha Personnel Services, Inc., an overseas recruitment agency. Xrequired A to submit certain documents (passport, NBI clearance, medical certificate)

    and to pay P25,000 as processing fee. Upon payment of the said amount to theagency cashier, A was advised to wait for his visa. After five months, A visited theoffice of Alpha Personnel Services, Inc. during which X told him that he could nolonger be deployed for employment abroad. A was informed by the PhilippineOverseas Employment Administration (POEA) that while Alpha Personnel Services, Inc.was a licensed agency, X was not registered as its employee, contrary to POEA Rulesand Regulations. Under POEA Rules and Regulations, the obligation to registerpersonnel with the POEA belongs to the officers of a recruitment agency.

    a. May X be held criminally liable for illegal recruitment? Explain. (2%)b. May the officers having control, management or direction of Alpha Personnel

    Services, Inc. be held criminally liable for illegal recruitment? Explain. (3%)

    XXII

    A was recruited to work abroad by Speedy Recruitment Agency as a technician for aSaudi Arabian construction firm, with a monthly salary of $650.00. When she got tothe construction site, the employer compelled her to sign another contract thatreferred her to another employer for a salary of $350.00. She worked for the secondemployer and was paid $350.00 until her two-year contract expired. Upon her returnto the Philippines, she filed a case against the agency and the two employers. May the

    agency validly raise the defense that it was not privy to the transfer of A to the secondemployer? Explain. (3%)

    XXIII

    A worked as a roomboy in La Mallorca Hotel. He sued for underpayment of wagesbefore the NLRC, alleging that he was paid below the minimum wage. The employerdenied any underpayment, arguing that based on long standing, unwritten policy, theHotel provided food and lodging to its housekeeping employees, the costs of whichwere partly shouldered by it and the balance was charged to the employees. Theemployees corresponding share in the costs was thus deducted from their wages. Theemployer concluded that such valid deduction naturally resulted in the payment of

    wages below the prescribed minimum. If you were the Labor Arbiter, how would yourule? Explain. (3%)

    XXIV

    Rank-and-file workers from Peacock Feathers, a company with 120 employees,registered their independent labor organization with the Department of Labor andEmployment (DOLE) Regional Office. Management countered with a petition to cancelthe unions registration on the ground that the minutes of ratification of the unionconstitution and by-laws submitted to the DOLE were fraudulent. Specifically,management presented affidavits of ten (10) out of forty (40) individuals named in the

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    list of union members who participated in the ratification, alleging that they were notpresent at the supposed January 1, 2010 meeting held for the purpose. The unionargued that the stated date of the meeting should have read January 11, 2010, instead of January 1, 2010, and that, at any rate, the other thirty (30) unionmembers were enough to register a union. Decide with reason. (3%)

    XXV

    Company C, a toy manufacturer, decided to ban the use of cell phones in the factorypremises. In the pertinent Memorandum, management explained that too muchtexting and phone-calling by employees disrupted company operations. Twoemployeesmembers of Union X were terminated from employment due to violation of the memorandum-policy. The union countered with a prohibitory injunction case (withprayer for the issuance of a temporary restraining order) filed with the Regional TrialCourt, challenging the validity and constitutionality of the cell phone ban. Thecompany filed a motion to dismiss, arguing that the case should be referred to thegrievance machinery pursuant to an existing Collective Bargaining Agreement withUnion X, and eventually to Voluntary Arbitration. Is the company correct? Explain.(3%)

    NOTHING FOLLOWS.

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    2010 BAR EXAMINATION QUESTIONS

    CIVIL LAW

    12 September 2010 8 A.M. 12 NN.INSTRUCTIONS

    There is only one Examiner in Civil Law. Hence, the following questionnaire consistsof only ONE PART with sixteen (16) questions (numbered I to XVI), contained ineleven (11) pages.

    Begin your answer to each numbered question on a separate page; an answer to asub-question/s under the same number may be written continuously on the samepage and succeeding pages until completed.

    Answer the questions directly and concisely. Do not repeat the question. Writelegibly.

    HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

    GOOD LUCK!!!

    _____________________________________CONCHITA CARPIO MORALES

    CHAIRPERSON2010 BAR EXAMINATIONS COMMITTEE

    PLEASE CHECK THAT THIS SET CONTAINS ELEVEN (11) PAGES (INCLUDING THISPAGE).

    WARNING: NOT FOR SALE OR UNAUTHORIZED USE

    CIVIL LAW

    I

    True or False.

    a. Under Article 26 of the Family Code, when a foreign spouse divorces his/herFilipino spouse, the latter may re-marry by proving only that the foreignspouse has obtained a divorce against her or him abroad. (1%)

    b. X, a widower, died leaving a will stating that the house and lot where he livedcannot be partitioned for as long as the youngest of his four children desiresto stay there. As coheirs and co-owners, the other three may demandpartition anytime. (1%)

    II

    Multiple choice.

    a. A had a 4-storey building which was constructed by Engineer B. After fiveyears, the building developed cracks and its stairway eventually gave wayand collapsed, resulting to injuries to some lessees. Who should the lesseessue for damages? (1%)

    1. A, the owner2. B, the engineer3. both A & B

    b. O, owner of Lot A, learning that Japanese soldiers may have buried gold andother treasures at the adjoining vacant Lot B belonging to spouses X & Y,excavated in Lot B where she succeeded in unearthing gold and preciousstones. How will the treasures found by O be divided? (1%)

    1. 100% to O as finder2. 50% to O and 50% to the spouses X and Y3. 50% to O and 50% to the state4. None of the above

    c. A executed a Deed of Donation in favor of B, a bachelor, covering a parcel of land valued at P1 million. B was, however, out of the country at the time. Forthe donation to be valid, (1%)

    1. B may e-mail A accepting the donation.2. The donation may be accepted by Bs father with whom he lives.3. B can accept the donation anytime convenient to him.4. Bs mother who has a general power of attorney may accept the donationfor him.5. None of the above is sufficient to make Bs acceptance valid

    d. A executed a 5-page notarial will before a notary public and three witnesses.

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    All of them signed each and every page of the will.

    One of the witnesses was B, the father of one of the legatees to the will.What is the effect of B being a witness to the will? (1%)

    1. The will is invalidated2. The will is valid and effective3. The legacy given to Bs child is not valid

    III

    Define, Enumerate or Explain. (2% each)

    a. What is the difference between "guaranty" and "suretyship"?b. Define quasi tort . Who are the persons liable under quasi torts and what are

    the defenses available to them?c. Give at least two reasons why a court may assume jurisdiction over a conflict

    of laws case.

    IV

    Spouses B and G begot two offsprings. Albeit they had serious personalitydifferences, the spouses continued to live under one roof. B begot a son by anotherwoman. G also begot a daughter by another man.

    a. If G gives the surname of B to her daughter by another man, what can B doto protect their legitimate children's interests? Explain. (5%)

    b. If B acquiesces to the use of his surname by Gs daughter by another man,what is/are the consequence/s? Explain. (5%)

    V

    G filed on July 8, 2000 a petition for declaration of nullity of her marriage to B.

    During the pendency of the case, the couple entered into a compromise agreement todissolve their absolute community of property. B ceded his right to their house andlot and all his shares in two business firms to G and their two children, aged 18 and19.

    B also opened a bank account in the amount of P3 million in the name of the twochildren to answer for their educational expenses until they finish their collegedegrees.

    For her part, G undertook to shoulder the day-to-day living expenses and upkeep of

    the children. The Court approved the spouses agreement on September 8, 2000.

    a. Suppose the business firms suffered reverses, rendering G unable to supportherself and the children. Can G still ask for support pendente lite from B?Explain. (3%)

    b. Suppose in late 2004 the two children had squandered the P3 million fund fortheir education before they could obtain their college degrees, can they askfor more support from B? Explain. (3%)

    VI

    Gigolo entered into an agreement with Majorette for her to carry in her womb hisbaby via in vitro fertilization. Gigolo undertook to underwrite Majorettes pre-natalexpenses as well as those attendant to her delivery. Gigolo would thereafter payMajorette P2 million and, in return, she would give custody of the baby to him.

    After Majorette gives birth and delivers the baby to Gigolo following her receipt of P2million, she engages your services as her lawyer to regain custody of the baby.

    a. What legal action can you file on behalf of Majorette? Explain. (2.5%)b. Can Gigolo demand from Majorette the return of the P2 million if he returns

    the baby? Explain. (2.5%)c. Who of the two can exercise parental authority over the child? Explain.

    (2.5%)d. Is the child entitled to support and inheritance from Gigolo? Explain. (2.5%)

    VII

    G and B were married on July 3, 1989. On March 4, 2001, the marriage, which boreno offspring, was declared void ab initio under Article 36 of the Family Code. At thetime of the dissolution of the marriage, the couple possessed the followingproperties:

    a house and lot acquired by B on August 3, 1988, one third (1/3) of thepurchase price (representing downpayment) of which he paid; one third (1/3)was paid by G on February 14, 1990 out of a cash gift given to her by herparents on her graduation on April 6, 1989; and the balance was paid out of the spouses joint income; and

    an apartment unit donated to B by an uncle on June 19, 1987.

    a. Who owns the foregoing properties? Explain. (5%)b. If G and B had married on July 3, 1987 and their marriage was dissolved in

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    2007, who owns the properties? Explain. (5%)

    VIII

    Spouses Rex and Lea bore two children now aged 14 and 8. During the subsistence of their marriage, Rex begot a child by another woman. He is now 10 years of age.

    On Leas discovery of Rexs fathering a child by another woman, she filed a petitionfor legal separation which was granted.

    Rex now wants to adopt his illegitimate child.

    a. Whose consent is needed for Rexs adoption of his illegitimate child? (2.5%)b. If there was no legal separation, can Rex still adopt his illegitimate child?

    Explain. (2.5%)

    IX

    Eighteen-year old Filipina Patrice had a daughter out of wedlock whom she namedLaurie. At 26, Patrice married American citizen John who brought her to live with himin the United States of America. John at once signified his willingness to adopt Laurie.

    Can John file the petition for adoption? If yes, what are the requirements? If no,why? (5%)

    X

    In 1997, B and G started living together without the benefit of marriage. Therelationship produced one offspring, Venus. The couple acquired a residential lot inParaaque. After four (4) years or in 2001, G having completed her 4-year collegedegree as a fulltime student, she and B contracted marriage without a license.

    The marriage of B and G was, two years later, declared null and void due to the

    absence of a marriage license.

    a. If you were the judge who declared the nullity of the marriage, to whomwould you award the lot? Explain briefly. (3%)

    b. Is Venus legitimate, illegitimate, or legitimated? Explain briefly. (3%)

    XI

    The spouses Peter and Paula had three (3) children. Paula later obtained a judgmentof nullity of marriage. Their absolute community of property having been dissolved,they delivered P1 million to each of their 3 children as their presumptive legitimes.

    Peter later re-married and had two (2) children by his second wife Marie. Peter andMarie, having successfully engaged in business, acquired real properties. Peter laterdied intestate.

    a. Who are Peters legal heirs and how will his estate be divided among them?(5%)

    b. What is the effect of the receipt by Peters 3 children by his first marriage of their presumptive legitimes on their right to inherit following Peters death?(5%)

    XII

    On May 5, 1989, 16-year old Rozanno, who was issued a student permit, drove toschool a car, a gift from his parents. On even date, as his class was scheduled to goon a field trip, his teacher requested him to accommodate in his car, as he did, four(4) of his classmates because the van rented by the school was too crowded. On theway to a museum which the students were scheduled to visit, Rozanno made a wrongmaneuver, causing a collision with a jeepney. One of his classmates died. He and thethree (3) others were badly injured.

    a. Who is liable for the death of Rozannos classmate and the injuries sufferedby Rozanno and his 3 other classmates? Explain. (2%)

    b. How about the damage to the jeepney? Explain. (2%)c. Under the same facts, except the date of occurrence of the incident, this time

    in mid-1994, what would be your answer? Explain. (2%)

    XIII

    Franz was the owner of Lot E which was surrounded by four (4) lots one of which Lot C he also owned. He promised Ava that if she bought Lot E, he would give her aright of way in Lot C.

    Convinced, Ava bought Lot E and, as promised, Franz gave her a right of way in LotC.

    Ava cultivated Lot E and used the right of way granted by Franz.

    Ava later found gainful employment abroad. On her return after more than 10 years,the right of way was no longer available to her because Franz had in the meantimesold Lot C to Julia who had it fenced.

    a. Does Ava have a right to demand from Julia the activation of her right of way? Explain. (2.5%)

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    b. Assuming Ava opts to demand a right of way from any of the owners of LotsA, B, and D, can she do that? Explain. (2.5%)

    XIV

    Primo owns a pet iguana which he keeps in a man-made pond enclosed by a fencesituated in his residential lot. A typhoon knocked down the fence of the pond and theiguana crawled out of the gate of Primos residence. N, a neighbor who was passingby, started throwing stones at the iguana, drawing the iguana to move toward him. Npanicked and ran but tripped on something and suffered a broken leg.

    Is anyone liable for Ns injuries? Explain. (4%)

    XV

    A, B, and C entered into a partnership to operate a restaurant business. When therestaurant had gone past break-even stage and started to garner considerableprofits, C died. A and B continued the business without dissolving the partnership.They in fact opened a branch of the restaurant, incurring obligations in the process.Creditors started demanding for the payment of their obligations.

    a. Who are liable for the settlement of the partnerships obligations? Explain?(3%)

    b. What are the creditors recourse/s? Explain. (3%)

    XVI

    X was the owner of an unregistered parcel of land in Cabanatuan City. As she wasabroad, she advised her sister Y via overseas call to sell the land and sign a contractof sale on her behalf.

    Y thus sold the land to B1 on March 31, 2001 and executed a deed of absolute saleon behalf of X. B1 fully paid the purchase price.

    B2, unaware of the sale of the land to B1, signified to Y his interest to buy it butasked Y for her authority from X. Without informing X that she had sold the land toB1, Y sought X for a written authority to sell.

    X e-mailed Y an authority to sell the land. Y thereafter sold the land on May 1, 2001to B2 on monthly installment basis for two years, the first installment to be paid atthe end of May 2001.

    Who between B1 and B2 has a better right over the land? Explain. (5%)

    NOTHING FOLLOWS.

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    2010 BAR EXAMINATION QUESTIONS

    TAXATION LAW

    12 September 2010 2 P.M 5 P.M.

    INSTRUCTIONS

    This questionnaire is in TWO (2) PARTS: Part I with nine (9) questions (numbered I toIX), contained in five (5) pages; and Part II with nine (9) questions (numbered X toXVIII), contained in six (6) pages, for a total number of eleven (11) pages.

    Write your answers to Part I and Part II in the corresponding portions indicated in thebooklet.

    Begin your answer to each numbered question on a separate page; an answer to asub-question/s under the same number may be written continuously on the samepage and succeeding pages until completed.

    Answer the questions directly and concisely. Do not repeat the question. Write legibly.

    HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

    GOOD LUCK!!!

    _____________________________________CONCHITA CARPIO MORALES

    CHAIRPERSON2010 BAR EXAMINATIONS COMMITTEE

    PLEASE CHECK THAT THIS SET CONTAINS ELEVEN (11) PAGES (INCLUDING THISPAGE).

    WARNING: NOT FOR SALE OR UNAUTHORIZED USE

    CIVIL LAW

    PART I

    I

    True or False.

    a. In civil cases involving the collection of internal revenue taxes, prescription isconstrued strictly against the government and liberally in favor of thetaxpayer. (1%)

    b. In criminal cases involving tax offenses punishable under the National InternalRevenue Code (NIRC), prescription is construed strictly against thegovernment. (1%)

    c. In criminal cases where the Court of Tax Appeals (CTA) has exclusive original jurisdiction, the right to file a separate civil action for the recovery of taxesmay be reserved. (1%)

    d. Proceedings before the CTA in the exercise of its exclusive original jurisdiction

    are in the nature of trial de novo . (1%)e. Judgments, resolutions or orders of the Regional Trial Court in the exercise of its original jurisdiction involving criminal offenses arising from violations of theNIRC are appealable to the CTA, which shall hear the cases en banc . (1%)

    II

    a. What is the " all events test "? Explain briefly. (2%)b. What is the " immediacy test "? Explain briefly. (2%)c. What is the " rational basis " test? Explain briefly. (2%)d. What is the effect of the execution by a taxpayer of a "waiver of the statute of

    limitations" on his defense of prescription? (2%)

    e. What is the basis for the computation of business tax on contractors under theLocal Government Code? (2%)

    f. How are retiring businesses taxed under the Local Government Code? (2%)

    III

    Mirador, Inc., a domestic corporation, filed its Annual Income Tax Return for itstaxable year 2008 on April 15, 2009. In the Return, it reflected an income taxoverpayment of P1,000,000.00 and indicated its choice to carry-over the overpaymentas an automatic tax credit against its income tax liabilities in subsequent years.

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    On April 15, 2010, it filed its Annual Income Tax Return for its taxable year 2009reflecting a taxable loss and an income tax overpayment for the current year 2009 inthe amount of P500,000.00 and its income tax overpayment for the prior year 2008 of P1,000,000.00.

    In its 2009 Return, the corporation indicated its option to claim for refund the totalincome tax overpayment of P1,500,000.00

    Choose which of the following statements is correct.

    a. Mirador, Inc. may claim as refund the total income tax overpayment of P1,500,000.00 reflected in its income tax return for its taxable year 2009;

    b. It may claim as refund the amount of P500,000.00 representing its income taxoverpayment for its taxable year 2009; or

    c. No amount may be claimed as refund.Explain the basis of your answer. (5%)

    IV

    On March 10, 2010, Continental, Inc. received a preliminary assessment notice (PAN)dated March 1, 2010 issued by the Commissioner of Internal Revenue (CIR) fordeficiency income tax for its taxable year 2008. It failed to protest the PAN. The CIRthereupon issued a final assessment notice (FAN) with letter of demand on April 30,2010. The FAN was received by the corporation on May 10, 2010, following which oron May 25, 2010, it filed its protest against it.

    The CIR denied the protest on the ground that the assessment had already becomefinal and executory, the corporation having failed to protest the PAN.

    Is the CIR correct? Explain. (5%)

    V

    Does the Court of Appeals have the power to review compromise agreements forgedby the Commissioner of Internal Revenue and a taxpayer? Explain. (5%)

    VI

    Based on the Affidavit of the Commissioner of Internal Revenue (CIR), an Informationfor failure to file income tax return under Section 255 of the National Internal RevenueCode (NIRC) was filed by the Department of Justice (DOJ) with the Manila RegionalTrial Court (RTC) against XX, a Manila resident.

    XX moved to quash the Information on the ground that the RTC has no jurisdiction inview of the absence of a formal deficiency tax assessment issued by the CIR.

    Is a prior assessment necessary before an Information for violation of Section 255 of the NIRC could be filed in court? Explain. (4%)

    VII

    What are the conditions that must be complied with before the Court of Tax Appealsmay suspend the collection of national internal revenue taxes? (3%)

    VIII

    What is the rule on appeal from decisions of the Collector of Customs in protest andseizure cases? When is the decision of the Collector of Customs appealable to theCourt of Tax Appeals? Explain. (5%)

    IX

    On May 15, 2009, La Manga Trading Corporation received a deficiency business tax

    assessment of P1,500,000.00 from the Pasay City Treasurer. On June 30, 2009, thecorporation contested the assessment by filing a written protest with the CityTreasurer.

    On October 10, 2009, the corporation received a collection letter from the CityTreasurer, drawing it to file on October 25, 2009 an appeal against the assessmentbefore the Pasay Regional Trial Court (RTC).

    a. Was the protest of the corporation filed on time? Explain. (3%)b. Was the appeal with the Pasay RTC filed on time? Explain. (3%)

    PART II

    X

    True or False. (1% each)

    a. Gains realized by the investor upon redemption of shares of stock in a mutualfund company are exempt from income tax.

    b. A corporation can claim the optional standard deduction equivalent to 40% of its gross sales or receipts, as the case may be.

    c. Premium payment for health insurance of an individual who is an employee inan amount of P2,500 per year may be deducted from gross income if his gross

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    salary per year is not more than P250,000.d. The Tax Code allows an individual taxpayer to pay in two equal installments,

    the first installment to be paid at the time the return is filed, and the secondon or before July 15 of the same year, if his tax due exceeds P2,000.

    e. An individual taxpayer can adopt either the calendar or fiscal period forpurposes of filing his income tax return.

    f. The capitalization rules may be resorted to by the BIR in order to compelcorporate taxpayers to declare dividends to their stockholders regularly.

    g. Informers reward is subject to a final withholding tax of 10%.h. A non-resident alien who stays in the Philippines for less than 180 days during

    the calendar year shall be entitled to personal exemption not to exceed theamount allowed to citizens of the Philippines by the country of which he issubject or citizen.

    XI

    Are the following transactions subject to VAT? If yes, what is the applicable rate foreach transaction. State the relevant authority/ies for your answer.

    a. Construction by XYZ Construction Co. of concrete barriers for the AsianDevelopment Bank in Ortigas Center to prevent car bombs from ramming theADB gates along ADB Avenue in Mandaluyong City. (3%)

    b. Call Center operated by a domestic enterprise in Makati that handlesexclusively the reservations of a hotel chain which are all located in NorthAmerica. The services are paid for in US$ and duly accounted for withthe Bangko Sentral ng Pilipinas . (3%)

    c. Sale of orchids by a flower shop which raises its flowers in Tagaytay. (3%)

    XII

    Ferremaro, Inc., a manufacturer of handcrafted shoes, maintains its principal office inCubao, Quezon City. It has branches/sales offices in Cebu and Davao. Its factory islocated in Marikina City where most of its workers live. Its principal office in QuezonCity is also a sales office.

    Sales of finished products for calendar year 2009 in the amount of P10 million weremade at the following locations:

    i) Cebu branch 25%

    ii) Davao branch 15%

    iii) Quezon City branch 60%

    Total 100%

    Where should the applicable local taxes on the shoes be paid? Explain. (3%)

    XIII

    XYZ Shipping Corporation is a branch of an international shipping line with voyagesbetween Manila and the West Coast of the U.S. The companys vessels load andunload cargoes at the Port of Manila, albeit it does not have a branch or sales office inManila. All the bills of lading and invoices are issued by the branch office in Makatiwhich is also the companys principal office.

    The City of Manila enacted an ordinance levying a 2% tax on gross receipts of shippinglines using the Port of Manila.

    Can the City Government of Manila legally impose said levy on the corporation?Explain. (3%)

    XIV

    A inherited a two-storey building in Makati from his father, a real estate broker in the 60s. A group of Tibetan monks approached A and offered to lease the building inorder to use it as a venue for their Buddhist rituals and ceremonies. A accepted therental of P1 million for the whole year.

    The following year, the City Assessor issued an assessment against A for non-paymentof real property taxes.

    Is the assessor justified in assessing As deficiency real property taxes? Explain. (3%)

    XV

    Don Sebastian, single but head of the family, Filipino, and resident of Pasig City, diedintestate on November 15, 2009. He left the following properties and interests:

    House and lot (family home) in Pasig P 800,000

    Vacation house and lot in Florida, USA 1,500,000

    Agricultural land in Naic, Cavite which he inherited fromhis father 2,000,000

    Car which is being used by his brother in Cavi te 500,000

    Proceeds of life insurance where he named his estate asirrevocable beneficiary 1,000,000

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    Household furnitures and appliances 1,000,000

    Claims against a cousin who has assets of P10,000 andliabilities of P100,000 100,000

    Shares of stock in ABC Corp, a domestic enterprise 100,000

    The expenses and charges on the estate are as follows:

    Funeral Expenses P 250,000

    Legal fees for the settlement of the estate 500,000

    Medical expenses of last illness 600,000Claims against the estate 300,000

    The compulsory heirs of Don Sebastian approach you and seek your assistance in thesettlement of his estate for which they have agreed to the above-stated professionalfees. Specifically, they request you to explain and discuss with them the followingquestions. You oblige:

    a. What are the properties and interests that should be included in thecomputation of the gross estate of the decedent? Explain. (2.5%)

    b. What is the net taxable estate of the decedent? Explain. (2.5%)

    c. When is the due date for filing and payment of the applicable tax return andtax? Are these dates extendible? If so, under what conditions orrequirements? (2.5%)

    d. If X, one of the compulsory heirs, renounces his share in the inheritance infavor of the other co-heirs, is there any tax implication of Xs renunciation?What about the other coheirs? (2.5%)

    XVI

    A is a travelling salesman working full time for Nu Skin Products. He receives amonthly salary plus 3% commission on his sales in a Southern province where he isbased. He regularly uses his own car to maximize his visits even to far flung areas.

    One fine day a group of militants seized his car. He was notified the following day bythe police that the marines and the militants had a bloody encounter and his car wascompletely destroyed after a grenade hit it.

    A wants to file a claim for casualty loss. Explain the legal basis of your tax advice.(3%)

    XVII

    In 2009, Caruso, a resident Filipino citizen, received dividend income from a U.S.-based corporation which owns a chain of Filipino restaurants in the West Coast, U.S.A.

    The dividend remitted to Caruso is subject to U.S. withholding tax with respect to anon-resident alien like Caruso.

    a. What will be your advice to Caruso in order to lessen the impact of possibledouble taxation on the same income? (3%)

    b. Would your answer in A. be the same if Caruso became a U.S. immigrant in2008 and had become a non-resident Filipino citizen? Explain the difference intreatment for Philippine income tax purposes. (3%)

    XVIII

    ABC, a domestic corporation, entered into a software license agreement with XYZ, anon-resident foreign corporation based in the U.S. Under the agreement which theparties forged in the U.S., XYZ granted ABC the right to use a computer systemprogram and to avail of technical know-how relative to such program. In considerationfor such rights, ABC agreed to pay 5% of the revenues it receives from customers whowill use and apply the program in the Philippines.

    Discuss the tax implication of the transaction. (5%)

    NOTHING FOLLOWS.

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    property chosen by the BCO.

    a. Does this multi-level marketing scheme constitute an "investment contract"under the Securities Regulation Code? Define an "investment contract." (2%)

    b. What procedure must be followed under the Securities Regulation Code toauthorize the sale or offer for sale or distribution of an investment contract?(2%)

    c. What are the legal consequences of failure to follow this procedure? (2%)

    V

    Venezia is a famous international fashion chain with outlets in Makati, Ortigas, andManila. It has complied with the minimum capitalization required under the RetailTrade Nationalization Act and carries on retail business worth more than $3 million foreach of its outlets. As its Manila outlet is not doing very well, it decides to sell all of itsbusiness there consisting of remaining inventory, furniture and fixtures and otherassets to its competitor.

    a. Venezias Manila outlet constitutes one-third (1/3) of its total business. Shouldit comply with the requirements of the Bulk Sales Law? Why or why not? (2%)

    b. If instead of selling its Manila outlet, Venezia merely mortgages its assets

    there, would it need to comply with the requirements of the Bulk Sales Law?(2%)

    c. What are the legal consequences of a failure to comply with the requirementsof the Bulk Sales Law? (2%)

    VI

    a. What contractual stipulations are required in all technology transferagreements? (2%)

    b. Enumerate three (3) stipulations that are prohibited in technology transferagreements. (3%)

    c. Can an article of commerce serve as a trademark and at the same time enjoy

    patent and copyright protection? Explain and give an example. (2%)

    VII

    Union Mines, Inc. has total assets of P60 million with 210 stockholders holding at least100 shares each.

    The company has two principal stockholders, ABC which owns 60% of the shares of stock, and XYZ which owns 17%.

    ABC in turn is owned to the extent of 21.31% by Acme, Inc.; 29.69% by Golden Boy,Inc.; 9% by XYZ; and the rest by individual stockholders.

    None of the parties is a publicly-listed company.

    XYZ now proposes to buy Acmes and Golden Boys shares in ABC, which would give itdirect control of ABC and indirect control of Union Mines.

    Is the proposed acquisition by XYZ subject to the mandatory tender offer rule? Why orwhy not? What is a tender offer and when is it mandatory? (5%)

    VIII

    Marlon deposited with LYRIC Bank a money market placement of P1 million for a termof 31 days. On maturity date, one claiming to be Marlon called up the LYRIC Bankaccount officer and instructed him to give the managers check representing theproceeds of the money market placement to Marlons girlfriend Ingrid.

    The check, which bore the forged signature of Marlon, was deposited in Ingridsaccount with YAMAHA Bank. YAMAHA Bank stamped a guaranty on the check reading:"All prior endorsements and/or lack of endorsement guaranteed."

    Upon presentment of the check, LYRIC Bank funds the check. Days later, Marlon goesto LYRIC Bank to collect his money market placement and discovers the foregoingtransactions.

    Marlon thereupon sues LYRIC Bank which in turn files a third-party complaint againstYAMAHA Bank. Discuss the respective rights and liabilities of the two banks. (5%)

    IX

    Your client Dianne approaches you for legal advice on putting up a medium-sized

    restaurant business that will specialize in a novel type of cuisine. As Dianne feels thatthe business is a little risky, she wonders whether she should use a corporation as thebusiness vehicle, or just run it as a single proprietorship. She already has an existingcorporation that is producing meat products profitably and is also considering thealternative of simply setting up the restaurant as a branch office of the existingcorporation.

    a. Briefly explain to your client what you see as the legal advantages anddisadvantages of using a separate corporation, a single proprietorship, or abranch of an existing corporation for the proposed restaurant business. (3%)

    b. If you advise your client to use a corporation, what officer positions must the

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    corporation at least have? (2%)c. What particular qualifications, if any, are these officers legally required to

    possess under the Corporation Code? (2%)

    X

    To secure a loan of P10 million, Mario mortgaged his building to Armando. Inaccordance with the loan arrangements, Mario had the building insured with FirstInsurance Company for P10 million, designating Armando as the beneficiary.

    Armando also took an insurance on the building upon his own interest with SecondInsurance Company for P5 million.

    The building was totally destroyed by fire, a peril insured against under both insurancepolicies. It was subsequently determined that the fire had been intentionally started byMario and that in violation of the loan agreement, he had been storing inflammablematerials in the building.

    a. How much, if any, can Armando recover from either or both insurancecompanies? (2%)

    b. What happens to the P10 million debt of Mario to Armando? Explain. (3%)

    XI

    Enrique obtained from Seguro Insurance Company a comprehensive motor vehicleinsurance to cover his top of the line Aston Martin. The policy was issued on March 31,2010 and, on even date, Enrique paid the premium with a personal check postdatedApril 6, 2010.

    On April 5, 2010, the car was involved in an accident that resulted in its total loss.

    On April 10, 2010, the drawee bank returned Enriques check with the notation"Insufficient Funds." Upon notification, Enrique immediately deposited additional fundswith the bank and asked the insurer to redeposit the check.

    Enrique thereupon claimed indemnity from the insurer. Is the insurer liable under theinsurance coverage? Why or why not? (3%)

    XII

    AA entered into a contract with BB for the latter to transport ladies wear from Manilato France with transhipment via Taiwan. Somehow the goods were not loaded inTaiwan on time, hence, these arrived in France "off-season." AA was only paid for

    onehalf (1/2) the value by the buyer.

    AA claimed damages from BB. BB invoked prescription as a defense under theCarriage of Goods by Sea Act. Considering the "loss of value" of the ladies wear asclaimed by AA, is BBs defense tenable? Explain. (3%)

    XIII

    Paolo, the owner of an ocean-going vessel, offered to transport the logs of Constantinofrom Manila to Nagoya. Constantino accepted the offer, not knowing that the vesselwas manned by an irresponsible crew with deep-seated resentments against Paolo,their employer.

    Constantino insured the cargo of logs against both perils of the sea and barratry. Thelogs were improperly loaded on one side, thereby causing the vessel to tilt on oneside. On the way to Nagoya, the crew unbolted the sea valves of the vessel causingwater to flood the ship hold. The vessel sank.

    Constantino tried to collect from the insurance company which denied liability, giventhe unworthiness of both the vessel and its crew.

    Constantino countered that he was not the owner of the vessel and he could thereforenot be responsible for conditions about which he was innocent.

    a. Is the insurance company liable? Why or why not? (3%)b. What is "barratry" in marine insurance? (2%)

    XIV

    When OCCIDENTAL Bank folded up due to insolvency, Manuel had the followingseparate deposits in his name: P200,000 in savings deposit; P250,000 in time deposit;P50,000 in a current account; P1 million in a trust account; and P3 million in moneymarket placement. Under the Philippine Deposit Insurance Corporation Act, how muchcould Manuel recover? Explain. (2%)

    XV

    While vacationing in Boracay, Valentino surreptitiously took photographs of hisgirlfriend Monaliza in her skimpy bikini. Two weeks later, her photographs appeared inthe Internet and in a national celebrity magazine.

    Monaliza found out that Valentino had sold the photographs to the magazine and,

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    adding insult to injury, uploaded them to his personal blog on the Internet.

    a. Monaliza filed a complaint against Valentino for damages based on, amongother grounds, violation of her intellectual property rights. Does she have anycause of action? Explain. (2%)

    b. Valentinos friend Francesco stole the photographs and duplicated them andsold them to a magazine publication. Valentino sued Francesco forinfringement and damages. Does Valentino have any cause of action? Explain.(2%)

    c. Does Monaliza have any cause of action against Francesco? Explain. (2%)

    XVI

    An importer of Christmas toys loaded 100 boxes of Santa Claus talking dolls aboard aship in Korea bound for Manila. With the intention of smuggling one-half of his cargo,he took a bill of lading for only 50 boxes. On the voyage to Manila, 50 boxes were

    jettisoned to save the more precious cargo.

    a. Is the importer entitled to receive any indemnity for average? Explain. (2%)b. What are the types of averages in marine commerce? (3%)

    XVII

    The Supreme Court has held that fraud is an exception to the "independence principle"governing letters of credit. Explain this principle and give an example of how fraud canbe an exception. (3%)

    XVIII

    For years, Y has been engaged in the parallel importation of famous brands, includingshoes carrying the foreign brand MAGIC. Exclusive distributor X demands that Y ceaseimportation because of his appointment as exclusive distributor of MAGIC shoes in thePhilippines.

    Y counters that the trademark MAGIC is not registered with the Intellectual PropertyOffice as a trademark and therefore no one has the right to prevent its parallelimportation.

    a. Who is correct? Why? (2%)b. Suppose the shoes are covered by a Philippine patent issued to the brand

    owner, what would your answer be? Explain. (2%)

    XIX

    Dr. Nobel discovered a new method of treating Alzheimers involving a special methodof diagnosing the disease, treating it with a new medicine that has been discoveredafter long experimentation and field testing, and novel mental isometric exercises. Hecomes 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 newmethod of treatment? If no, why? If yes, how? (4%)

    NOTHING FOLLOWS.

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    2010 BAR EXAMINATION QUESTIONS

    CRIMINAL LAW

    12 September 2010 2 P.M. 5 P.M.

    INSTRUCTIONS

    This questionnaire is in TWO (2) PARTS: Part I with eleven (11) questions (numbered Ito XI), contained in five (5) pages; and Part II with twelve (12) questions (numberedXII to XXIII), contained in six (6) pages, for a total number of eleven (11) pages.

    Write your answers to Part I and Part II in the corresponding portions indicated in thebooklet.

    Begin your answer to each numbered question on a separate page; an answer to asub-question/s under the same number may be written continuously on the samepage and succeeding pages until completed.

    Answer the questions directly and concisely. Do not repeat the question. Write legibly.

    HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

    GOOD LUCK!!!

    _____________________________________CONCHITA CARPIO MORALES

    CHAIRPERSON2010 BAR EXAMINATIONS COMMITTEE

    PLEASE CHECK THAT THIS SET CONTAINS ELEVEN (11) PAGES (INCLUDING THISPAGE).

    WARNING: NOT FOR SALE OR UNAUTHORIZED USE

    CRIMINAL LAW

    PART I

    I

    An agonizing and protracted trial having come to a close, the judge found A guiltybeyond reasonable doubt of homicide and imposed on him a straight penalty of SIX(6) YEARS and ONE (1) DAY of prision mayor .

    The public prosecutor objected to the sentence on the ground that the proper penaltyshould have been TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal.

    The defense counsel chimed in, contending that application of the IndeterminateSentence Law should lead to the imposition of a straight penalty of SIX (6) MONTHSand ONE (1) DAY of prision correccional only. Who of the three is on the right track?Explain. (3%)

    II

    a. What is the crime of qualified bribery? (2%)b. May a judge be charged and prosecuted for such felony? How about a public

    prosecutor? A police officer? Explain. (5%)

    III

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

    IV

    Because of the barbarity and hideousness of the acts committed by thesuspects/respondents in cutting off their victims appendages, stuffing their torsos,legs, body parts into oil drums and bullet-riddled vehicles and later on burying theseoil drums, vehicles with the use of backhoes and other earth-moving machinery, theCommission on Human Rights (CHR) investigating team recommended to the panel of public prosecutors that all respondents be charged with violation of the "HeinousCrimes Law." The prosecution panel agreed with the CHR. As the Chief Prosecutortasked with approving the filing of the Information, how will you pass upon therecommendation? Explain. (5%)

    V

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    Arlene is engaged in the buy and sell of used garments, more popularly knownas "ukay-ukay." Among the items found by the police in a raid of her store in BaguioCity were brand-new Louie Feraud blazers.

    Arlene was charged with "fencing." Will the charge prosper? Why or why not? (5%)

    VI

    There being probable cause to believe that certain deposits and investments in a bankare related to an unlawful activity of smuggling by Alessandro as defined underRepublic Act (RA) No. 9160, as amended (Anti-Money Laundering Act) an applicationfor an order to allow inquiry into his deposit was filed with the Regional Trial Court.

    After hearing the application, the court granted the application and issued a freezeorder.

    Pass upon the correctness of the courts order. Explain. (3%)

    VII

    A widower of ten years, septuagenarian Canuto felt that he had license to engage invoyeurism. If not peeping into his neighbors rooms through his powerful single-cylinder telescope, he would trail young, shapely damsels along the hallways of shopping malls. While going up the escalator, he stayed a step behind a mini-skirtedone, and in a moment of excitement, put his hand on her left hip and massaged it.The damsel screamed and hollered for help. Canuto was apprehended and brought upon inquest. What charge/s, if any, may he be held responsible for? Explain. (5%)

    VIII

    A asked financial support from her showbiz friend B who accommodated her by issuingin her favor a postdated check in the sum of P90,000.00. Both of them knew that thecheck would not be honored because Bs account had just been closed. The two thenapproached trader C whom they asked to change the check with cash, even agreeingthat the exchange be discounted at P85,000.00 with the assurance that the checkshall be funded upon maturity. Upon Cs presentment of the check for payment on duedate, it was dishonored because the account had already been closed.

    What action/s may C commence against A and B to hold them to account for the lossof her P85,000.00? Explain. (5%)

    IX

    Proserfina, an assistant public high school principal, acted to facilitate the release of salary differentials and election duty per diem of classroom teachers with theagreement that they would reimburse her for her expenses.

    Did Proserfina commit a crime? Explain. (5%)

    X

    A, B and C are members of SFC Fraternity. While eating in a seaside restaurant, theywere attacked by X, Y and Z, members of a rival fraternity. A rumble ensued in whichthe abovenamed members of the two fraternities assaulted each other in a confusedand tumultuous manner resulting in the death of A. As it cannot be ascertained whoactually killed A, the members of the two fraternities who took part in the rumble werecharged for death caused in a tumultuous affray. Will the charge prosper? Explain.(4%)

    XI

    Angelina maintains a website where visitors can give their comments on the postedpictures of the goods she sells in her exclusive boutique. Bettina posted a commentthat the red Birkin bag shown in Angelinas website is fake and that Angelina is knownto sell counterfeit items.

    Angelina wants to file a case against Bettina. She seeks your advice. What advice willyou give her? (4%)

    PART II

    XII

    a. Define Money Laundering. What are the three (3) stages in money laundering?(3%)

    b. What is the doctrine of pro reo ? How does it relate to Article 48 of the RevisedPenal Code? (3%)

    XIII

    While his wife was on a 2-year scholarship abroad, Romeo was having an affair withhis maid Dulcinea. Realizing that the affair was going nowhere, Dulcinea told Romeothat she was going back to the province to marry her childhood sweetheart. Cloudedby anger and jealousy, Romeo strangled Dulcinea to death while she was sleeping inthe maids quarters.

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    The following day, Romeo was found catatonic inside the maids quarters. He wasbrought to the National Center for Mental Health (NCMH) where he was diagnosed tobe mentally unstable.

    Charged with murder, Romeo pleaded insanity as a defense.

    a. Will Romeos defense prosper? Explain. (2%)b. What is the effect of the diagnosis of the NCMH on the case? (2%)

    XIV

    Paul lives with his long-time girlfriend Joan in a ondominium in Makati. For more thana year, he has been secretly saving money in an envelope under their bed to buy heran engagement ring. One day, while Joan was cleaning their room, she found theenvelope, took the money, and left Paul. As prosecutor, what crime, if any, would youcharge Joan? Explain. (3%)

    XV

    Suspecting that her husband of twenty years was having an affair, Leilanie hired aprivate investigator to spy on him. After two weeks, the private investigator showedLeilanie a video of her husband having sexual intercourse with another woman in aroom of a five-star hotel. Based on what she saw on the video, Leilanie accused herhusband of concubinage.

    Will the case of concubinage prosper? Explain. (3%)

    XVI

    The president, treasurer, and secretary of ABC Corporation were charged withsyndicated estafa under the following Information:

    That on or about the 1st week of January 2010 or subsequent thereto in CebuCity and within the jurisdiction of this Honorable Court, the above-namedaccused, conspiring and confederating together and all of them mutuallyhelping and aiding one another in a syndicated manner, through a corporationregistered with the Securities and Exchange Commission (SEC), with intentionof carrying out the unlawful or illegal act, transaction, enterprise or scheme,with intent to gain and by means of fraud and deceit, did then and therewilfully, unlawfully, and feloniously defraud Virna, Lana, Deborah and severalother persons by falsely or fraudulently pretending or representing in atransaction or series of transactions, which they made with complainants andthe public in general, to the effect that they were in a legitimate business of

    foreign exchange trading successively or simultaneously operating under thename and style of ABC Corporation and DEF Management Philippines,Incorporated, induced and succeeded in inducing complainants and severalother persons to give and deliver to said accused the amount of at leastP20,000,000.00 on the strength of said manifestations and representations,the accused knowing fully well that the abovenamed corporations registeredwith the SEC are not licensed nor authorized to engage in foreign exchangetrading and that such manifestations and representations to transact in foreignexchange were false and fraudulent, that these resulted to the damage and

    prejudice of the complainants and other persons, and that the defraudationpertains to funds solicited from the public in general by suchcorporations/associations.

    Will the case for syndicated estafa prosper? Explain. (5%)

    XVII

    A killed his wife and buried her in their backyard. He immediately went into hiding inthe mountains.

    Three years later, the bones of As wife were discovered by X, the gardener. Since X

    had a standing warrant of arrest, he hid the bones in an old clay jar and kept quietabout it. After two years, Z, the caretaker, found the bones and reported the matter tothe police.

    After 15 years of hiding, A left the country but returned three years later to take careof his ailing sibling. Six years thereafter, he< was charged with parricide but raisedthe defense of prescription.

    a. Under the Revised Penal Code, when does the period of prescription of a crimecommence to run? (1%)

    b. When is it interrupted? (1%)c. Is As defense tenable? Explain. (3%)

    XVIII

    On her way home, Eva Marie saw an injured chow chow puppy behind a bush. Sincethe puppy did not have a collar, she brought it home so she could have it as a pet. Herson in fact begged Eva Marie to keep the puppy. The following day, Eva Marie boughta collar for the puppy and brought it to a veterinarian for treatment.

    a. Did Eva Marie incur criminal liability in bringing the puppy home as a pet?Explain. (2%)

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

    XIX

    Jack and Jill have been married for seven years. One night, Jack came home drunk.Finding no food on the table, Jack started hitting Jill only to apologize the followingday.

    A week later, the same episode occurred Jack came home drunk and started hittingJill.

    Fearing for her life, Jill left and stayed with her sister. To woo Jill back, Jack sent herfloral arrangements of spotted lilies and confectioneries. Two days later, Jill returnedhome and decided to give Jack another chance. After several days, however, Jackagain came home drunk. The following day, he was found dead.

    Jill was charged with parricide but raised the defense of "battered woman syndrome."

    a. Define "Battered Woman Syndrome." (2%)b. What are the three phases of the "Battered Woman Syndrome"? (3 %)c. Would the defense prosper despite the absence of any of the elements for

    justifying circumstances of self-defense under the Revised Penal Code?Explain. (2%)

    XX

    Matt was found guilty of drug trafficking while his younger brother Jeff was foundguilty of possession of equipment, instrument, apparatus and other paraphernalia fordangerous 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 argued that they being first time offenders, their petitions forprobation should be granted. How would you resolve the brothers petitions forprobation? Explain. (3%)

    XXI

    Because peace negotiations on the Spratlys situation had failed, the Peoples Republicof China declared war against the Philippines. Myra, a Filipina who lives with herItalian expatriate boyfriend, discovered e-mail correspondence between him and acertain General Tung Kat Su of China.

    On March 12, 2010, Myra discovered that on even date her boyfriend had sent an e-mail to General Tung Kat Su, in which he agreed to provide vital information on themilitary defense of the Philippines to the Chinese government in exchange for P1million and his safe return to Italy. Two weeks later, Myra decided to report the matterto the proper authorities.

    Did Myra commit a crime? Explain. (3%)

    XXII

    Immediately after murdering Bob, Jake went to his mother to seek refuge. His mothertold him to hide in the maids quarters until she finds a better place for him to hide.After two days, Jake transferred to his aunts house. A week later, Jake wasapprehended by the police. Can Jakes mother and aunt be made criminally liable asaccessories to the crime of murder? Explain. (3 %)

    XXIII

    Christopher, John, Richard, and Luke are fraternity brothers. To protect themselvesfrom rival fraternities, they all carry guns wherever they go. One night, after attendinga party, they boarded a taxicab, held the driver at gunpoint and took the lattersearnings.

    a. What crime, if any, did the four commit? Enumerate the elements of thecrime. (2%)

    b. Would your answer be the same if they killed the driver? Explain. (2%)

    NOTHING FOLLOWS.

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    2010 BAR EXAMINATION QUESTIONS

    REMEDIAL LAW

    26 September 2010 8 A.M. 12 NN.

    INSTRUCTIONS

    This questionnaire is in TWO (2) PARTS: Part I with seven (7) questions (numbered Ito VII), contained in seven (7) pages; and Part II with thirteen (13) questions(numbered VIII to XX), contained in six (6) pages, for a total number of thirteen (13)pages.

    Write your answers to Part I and Part II in the corresponding portions indicated in thebooklet.

    Begin your answer to each numbered question on a separate page; an answer to asub-question/s under the same number may be written continuously on the samepage and succeeding pages until completed.

    Answer the question directly and concisely. Do not repeat the question. Write legibly.

    HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

    GOOD LUCK!!!

    _____________________________________CONCHITA CARPIO MORALES

    CHAIRPERSON2010 BAR EXAMINATIONS COMMITTEE

    PLEASE CHECK THAT THIS SET CONTAINS THIRTEEN (13) PAGES (INCLUDING THISPAGE).

    WARNING: NOT FOR SALE OR UNAUTHORIZED USE

    REMEDIAL LAW

    PART I

    I

    On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio.

    To prove the qualifying circumstance of evident premeditation, the prosecutionintroduced on December 11, 2009 a text message, which Mabinis estranged wifeGregoria had sent to Emilio on the eve of his death, reading: "Honey, pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg ingat u bka ma tsugi k ."

    a. A subpoena ad testificandum was served on Gregoria for her to be presentedfor the purpose of identifying her cellphone and the text message. Mabiniobjected to her presentation on the ground of marital privilege. Resolve. (3%)

    b. Suppose Mabinis objection in question A was sustained. The prosecutionthereupon announced that it would be presenting Emilios wife Graciana toidentify Emilios cellphone bearing Gregorias text message. Mabini objectedagain. Rule on the objection. (2%)

    c. If Mabinis objection in question B was overruled, can he object to thepresentation of the text message on the ground that it is hearsay? (2%)

    d. Suppose that shortly before he expired, Emilio was able to send a text

    message to his wife Graciana reading " Nasaksak ako. D na me makahinga. Si Mabini ang may gawa ni2 ." Is this text message admissible as a dyingdeclaration? Explain. (3%)

    II

    On August 13, 2008, A, as shipper and consignee, loaded on the M/V Atlantis inLegaspi City 100,000 pieces of century eggs. The shipment arrived in Manila totallydamaged on August 14, 2008. A filed before the Metropolitan Trial Court (MeTC) of Manila a complaint against B Super Lines, Inc. (B Lines), owner of the M/V Atlantis , forrecovery of damages amounting to P167,899. He attached to the complaint the Bill of Lading.

    a. B Lines filed a Motion to Dismiss upon the ground that the Regional Trial Courthas exclusive original jurisdiction over "all actions in admiralty and maritime"claims. In his Reply, A contended that while the action is indeed "admiraltyand maritime" in nature, it is the amount of the claim, not the nature of theaction, that governs jurisdiction. Pass on the Motion to Dismiss. (3%)

    b. The MeTC denied the Motion in question A. B Lines thus filed an Answerraising the defense that under the Bill of Lading it issued to A, its liability waslimited to P10,000.

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    Antique dealer Mercedes borrowed P1,000,000 from antique collector Benjamin.Mercedes issued a postdated check in the same amount to Benjamin to cover thedebt.

    On the due date of the check, Benjamin deposited it but it was dishonored. As despitedemands, Mercedes failed to make good the check, Benjamin filed in January 2009 acomplaint for collection of sum of money before the RTC of Davao.

    Mercedes filed in February 2009 her Answer with Counterclaim, alleging that before

    the filing of the case, she and Benjamin had entered into a dacion en pago agreementin which her vintage P1,000,000 Rolex watch which was taken by Benjamin for sale oncommission was applied to settle her indebtedness; and that she incurred expenses indefending what she termed a "frivolous lawsuit." She accordingly prayed for P50,000damages.

    a. Benjamin soon after moved for the dismissal of the case. The trial courtaccordingly dismissed the complaint. And it also dismissed the Counterclaim.

    Mercedes moved for a reconsideration of the dismissal of the Counterclaim.Pass upon Mercedes motion. (3%)

    b. Suppose there was no Counterclaim and Benjamins complaint was notdismissed, and judgment was rendered against Mercedes for P1,000,000. The

    judgment became final and executory and a writ of execution wascorrespondingly issued.

    Since Mercedes did not have cash to settle the judgment debt, she offered herToyota Camry model 2008 valued at P1.2 million. The Sheriff, however, onrequest of Benjamin, seized Mercedes 17th century ivory image of the LaSagrada Familia estimated to be worth over P1,000,000.

    Was the Sheriffs action in order? (3%)

    VII

    As Cicero was walking down a dark alley one midnight, he saw an "owner-type jeepney" approaching him. Sensing that the occupants of the vehicle were up to nogood, he darted into a corner and ran. The occupants of the vehicle elements fromthe Western Police District gave chase and apprehended him.

    The police apprehended Cicero, frisked him and found a sachet of 0.09 gramof shabu tucked in his waist and a Swiss knife in his secret pocket, and detained him

    thereafter. Is the arrest and body-search legal? (3%)

    PART II

    VIII

    Dominique was accused of committing a violation of the Human Security Act. He wasdetained incommunicado, deprived of sleep, and subjected to water torture. He laterallegedly confessed his guilt via an affidavit.

    After trial, he was acquitted on the ground that his confession was obtained throughtorture, hence, inadmissible as evidence.

    In a subsequent criminal case for torture against those who deprived him of sleep andsubjected him to water torture, Dominique was asked to testify and to, among otherthings, identify his above-said affidavit of confession. As he was about to identify theaffidavit, the defense counsel objected on the ground that the affidavit is a fruit of apoisonous tree. Can the objection be sustained? Explain. (3%)

    IX

    In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA) evidenceshowing that the semen found in the private part of the victim was not identical withthat of the accuseds. As private prosecutor, how will you dispute the veracity andaccuracy of the results of the DNA evidence? (3%)

    X

    Marinella is a junior officer of the Armed Forces of the Philippines who claims to havepersonally witnessed the malversation of funds given by US authorities in connectionwith the Balikatan exercises.

    Marinella alleges that as a result of her expos, there are operatives within themilitary who are out to kill her. She files a petition for the issuance of a writ of amparoagainst, among others, the Chief of Staff but without alleging that the latter orderedthat she be killed.

    Atty. Daro, counsel for the Chief of Staff, moves for the dismissal of the Petition forfailure to allege that his client issued any order to kill or harm Marinella. Rule on Atty.Daros motion. Explain. (3%)

    XI

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    X was arrested for the alleged murder of a 6-year old lad. He was readhis Miranda rights immediately upon being apprehended.

    In the course of his detention, X was subjected to three hours of non-stopinterrogation. He remained quiet until, on the 3rd hour, he answered "yes" to thequestion of whether "he prayed for forgiveness for shooting down the boy." The trialcourt, interpreting Xs answer as an admission of guilt, convicted him.

    On appeal, Xs counsel faulted the trial court in its interpretation of his clients answer,

    arguing that X invoked his Miranda rights when he remained quiet for the first twohours of questioning. Rule on the assignment of error. (3%)

    XII

    In a prosecution for murder, the prosecutor asks accused Darwin if he had beenpreviously arrested for violation of the Anti- Graft and Corrupt Practices Act. Asdefense counsel, you object. The trial court asks you on what ground/s. Respond.(3%)

    XIII

    Policemen brought Lorenzo to the Philippine General Hospital (PGH) and requested oneof its surgeons to immediately perform surgery on him to retrieve a packet of 10grams of shabu which they alleged was swallowed by Lorenzo.

    Suppose the PGH agreed to, and did perform the surgery, is the packageof shabu admissible in evidence? Explain. (3%)

    XIV

    Czarina died single. She left all her properties by will to her friend Duqueza. In thewill, Czarina stated that she did not recognize Marco as an adopted son because of hisdisrespectful conduct towards her.

    Duqueza soon instituted an action for probate of Czarinas will. Marco, on the otherhand, instituted intestate proceedings. Both actions were consolidated before the RTCof Pasig. On motion of Marco, Duquezas petition was ordered dismissed on the groun