Chapter III ILLEGAL ASSEMBLIES
DIRECT BRIBERY INDIRECT BRIBERY
Public Official.
Art. 211: Indirect bribery
Elements:
1. That the offender is a public officer. 2. That he accepts gifts.
3. That the said gifts are offered to him by reason of his office. -No attempted or frustrated stage
Art 212: Corruption of public officials
Elements:
1. That the offender makes offers or promises or gives gifts or presents to a public officer.
2. That the offers or promises are made or the gifts or present given to a public officer, under circumstances that will make the public officer liable for direct bribery or indirect bribery.
Art. 213: Frauds against the public treasury and similar offenses
Punishable Acts:
1. Entering into an agreement with any interested party or speculator or making use of any other scheme, to defraud the Government, in dealing with any person
DIRECT BRIBERY INDIRECT BRIBERY Public officer receives a gift Public officer receives a gift There is an agreement between the public officer and the giver of the gift or present Usually no such agreement The offender agrees to perform or performs an act or refrains from doing something because of the gift or promise
Not necessary that the officer would do any particular act or even promise to do an act, as it is enough that he accepts gifts offered to him by reason of his office
with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds.
2. Demanding, directly or indirectly, the payment of sums different from or larger that those authorized by law, in the collection of taxes, licenses, fees, and other imposts.
3. Failing voluntarily to issue a receipt as provided by law, for any sum of money collected by him officially, in the collection of taxes, licenses, fees, and other imposts.
4. Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law, in the collection of taxes, licenses, fees, and other imposts.
Elements of frauds against public treasury (par. 1): 1. That the offender be a public officer.
2. That he should have taken advantage of his office, that is, he intervened in the transaction in his official capacity.
3. That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to (1) furnishing supplies (2) the making of contracts, or (3) the adjustment or settlement of accounts relating to public property or funds.
4. That the accused had intent to defraud the Government.
• Crime of frauds against public treasury is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any other scheme to defraud the Government.
Elements of illegal exactions:
1. The offender is a public officer entrusted with the collection of taxes, licenses, fees, and other imposts.
2. He commits any of the following acts:
a. Demanding, directly or indirectly, the payment of sums different from or larger that those authorized by law;
b. Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially; or
c. Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law.
• Mere demand for larger or different amount is sufficient to consummate the crime.
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When there is deceit in demanding greater fees than those prescribed, the crime is ESTAFA and NOT ILLEGAL EXACTION.• Officers or employees of the Bureau of Internal Revenue or Bureau of Customs not covered by this article. The National Internal Revenue Code or the Administrative Code applies.
• The essence of the crime is not misappropriation of any of the amounts but the improper making of the collection which would prejudice the accounting of collected amounts by the Government.
• First form: shall demand an amount different from what the law provides payable to the Government.
• In this form, mere demand will consummate the crime, even if the taxpayer shall refuse to come across with the amount being demanded. That will not affect the consummation of the crime.
Second form: Shall collect payment due the government without issuing an official receipt or receipt prescribed by law.
The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which means official receipt.
Third form: shall accept by way of payment due to the government that which is not in the form prescribed by law.
Under the rules and regulations of the government, payment of checks not belonging to the taxpayer but that of checks of other persons, should not be accepted to settle the obligation of that person.
Art. 214: Other frauds
Elements:
1. That the offender is a public officer.
2. That he takes advantage of his official position.
Art. 215: Prohibited transactions Elements:
1. That the offender is an appointive public officer.
2. That he becomes interested, directly or indirectly, in any transaction of exchange or speculation.
3. That the transaction takes place within the territory subject to his jurisdiction. 4. That he becomes interested in the transaction during his incumbency.
• It is sufficient under this article that the appointive officer has an interest in any transaction of exchange or speculation, such as, buying and selling stocks, commodities, land, etc., hoping to take advantage of an expected rise or fall in price.
Art. 216: Possession of prohibited interest by a public officer
Persons liable:
1. Public officer who, directly or indirectly, became interested in any contract or business which it was his official duty to intervene.
2. Experts, arbitrators, and private accountants who, in like manner, took part in any contract or transaction connected with the estate or property in the appraisal, distribution or adjudication of which they had acted.
3. Guardians and executors with respect to the property belonging to their wards or the estate.
• Actual fraud is not necessary.
• Intervention must be by virtue of the public office held.
• Correlate with Art. VI Sec. 14 of the 1987 Constitution; Art. VII Sec. 13 and Art. IX-A Sec. 2.
CRIMES CALLED MALVERSATION OF PUBLIC FUNDS OR PROPERTY (Arts. 217- 221)
Art. 217: Malversation of public funds or property
Punishable Acts:
1. Appropriating public funds or property 2. Taking or misappropriating the same
3. Consenting or through abandonment or negligence, by permitting any other person to take such public funds or property
4. Being otherwise guilty of the misappropriation or malversation of such funds or property
Common elements:
1. That the offender is a public officer who has:
a. official custody of public funds or property or the duty to collect or receive funds due to the Government
b.the obligation to account for them to the Government.
2. That he had the custody or control of funds or property by reason of the duties of his office.
3. That those funds or property were public funds or property for which he was accountable.
4. That he appropriated, took, misappropriated or consented or through abandonment or negligence, permitted another person to take them.
Malversation may be committed by private individuals in the following cases: 1. Those in conspiracy with public officers guilty of malversation;
2. Those who are accessory or accomplice to a public officer; 3. Custodian of public funds or property in whatever capacity; 4. Depositary or administrator of public funds or property. • Damage not necessary to the Government.
• The crime bears a relation between the offender and the funds or property involved, for the crime can be committed only by an officer accountable for the funds or property which is appropriated.
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Accountable officer does not refer only to cashier, disbursing officers, property custodian. It is the nature of the duties, not the relatively important name given tothe office, which is the controlling factor in determining whether or not the accused is an accou4ntable public officer.
• A public officer having only a qualified charge of government property without authority to part with physical possession of it, unless, upon order from his immediate superior, cannot be held liable for malversation.
• If the offender is not the one accountable but somebody else, the crime committed is theft. It will be qualified theft if there is abuse of confidence.
• When private property is attached or seized by public authority and the public officer accountable therefor misappropriates the same, malversation is also committed. • Any overage or excess in the collection of an accountable public officer should not be
extracted by him and it is commingled with the public funds.
• Malversation may be committed by abandonment or negligence. The measure of negligence is the standard of care commensurate with the occasion, and then endeavor to ascertain how far short of this standard falls the act or omission in question.
• When an accountable public officer makes a wrong payment through honest mistake as to the law or to the facts concerning his duties, he is not liable for malversation. He is only civilly liable.
• Lack of criminal intent or good faith is a defense in malversation not committed through negligence.
• Presumption of misappropriation- when a demand is made upon an accountable officer and he cannot produce the fund or property involved, there is prima facie presumption that he had converted the same to his own use.
• Presumption arises only if at the time the demand to produce the public funds was made, the accountability of the accused is already determined and liquidated. There can be presumption unless and until the amount of his accountability is already known.
Art. 218: Failure of accountable officer to render accounts
Elements:
1. That the offender is a public officer, whether in the service or separated therefrom.
2. That he must be an accountable officer for public funds or property.
3. That he is required by law or regulation to render accounts to the Commission on Audit, or to a provincial auditor.
4. That he fails to do so for a period of 2 mos. After such accounts should be rendered.
• Misappropriation is not necessary.
• Demand for accounting is not necessary. It is sufficient that there is a law or regulation requiring him to render account.
Art. 219: Failure of a responsible public officer to render accounts before
leaving the country Elements:
1. That the offender is a public officer.
2. That he must be an accountable public officer for public funds or property.
3. That he unlawfully left (or be on the point of leaving) the Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled.
• The act of leaving the country must be unauthorized or not permitted by law. • When an accountable officer leaves the country without first settling his
accountability or otherwise securing a clearance from the COA regarding such accountability, the implication is that he left the country because he has misappropriated the funds under his accountability.
Art. 220: Illegal use of public funds or property
This crime is known as technical malversation because the fund or property is already earmarked or appropriated for a certain public purpose.
Elements:
1. That the offender is a public officer.
2. there is public fund or property under his administration.
3. That such public fund or property has been appropriated by law or ordinance. 4. That he applies the same to a public use other than that for which such fund or
Art. 221: Failure to make delivery of public funds or property Punishable Acts: 1. Failing to make payment by a public officer who is under obligation to make such payment from Government funds in his possession.
2. Refusing to make delivery by public officer who has been ordered by competent authority to deliver any property in his custody or under his administration. (Refusal must be malicious)
Art. 222: Officers included in the provisions
Private individuals who may be liable under Arts. 217-221:
1. Private individuals who, in any capacity whatever, have charge of any national, provincial or municipal funds, revenue, or property.
2. Administrator or depository of funds or property, attached, seized, or deposited by public authority even if such property belongs to a private individual.
Art. 223: Conniving with or consenting to evasion
Elements:
1. That the offender is a public officer.
2. That he had in his custody or charge, a prisoner, either detention prisoner or prisoner by final judgment.
3. That such prisoner escaped from his custody.
4. That he was in connivance with the prisoner in the latter's escape.
• The crime is infidelity in the custody of prisoners if the offender involved is the custodian of the prisoner.
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When a chief of police released a detention prisoner/s, because he could not file a complaint against them within the time fixed in Art. 125, he is not guilty of infidelity in the custody of prisoners.• There is real and actual evasion of service of a sentence when the custodian permits the prisoner to obtain a relaxation of his imprisonment and to escape the punishment of being deprived of his liberty, thus making the penalty ineffectual, although the convict may not have fled.
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If the jail guard who allowed the prisoner to escape is already off-duty at that time and he is no longer the custodian of the prisoner, the crime committed by him is delivering prisoners from jail.• The crime can be committed also by a private person if the custody of the prisoner has been confided to a private person.
Art. 224: Evasion through negligence
Elements:
1. That the offender is a public officer.
2. That he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment.
3. That such prisoner escapes through negligence.
• What is punished under this is such a definite laxity as all but amounts to deliberate non-performance of duty on the part of the guard.
• The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation.
Art. 225: Escape of prisoner under the custody of a person not a public officer
Elements:
1. That the offender is a private person.
2. That the conveyance or custody of a prisoner or person under arrest is confided to him.
3. That the prisoner or person under arrest escapes.
4. That the offender consents to the escape of the prisoner or person under arrest, or that the escape takes place through his negligence.
MALVERSATION ILLEGAL USE