The Origin Of The Civil Law Of The Philippines International Law Essay

The legal power of my essay is my place state Philippines which is known as the Pearl of the Orient. It is a democratic state, regulation of the people by the people. Life without jurisprudence would be non orderly as everyone should hold some apprehension of jurisprudence and detect it for common good regardless of citizenship.

The conclusive given of cognition of jurisprudence is presumed to cognize the jurisprudence as “ ignorance of jurisprudence excuses no 1 from conformity therewith ”[ 1 ].

Q1 The Philippines comes from a mixture of civil and common jurisprudence traditions. The beginning of the civil jurisprudence is from Spain which colonized the Philippines for three centuries. After the Spanish regulation, for the following 40 old ages the Philippines belonged to United States where it common jurisprudence tradition came from. The 3rd portion of our tradition is the post American epoch of the Philippines Republic.

The civil tradition of Spain is extremely influenced by Roman jurisprudence. The jurisprudence is being recorded in long codifications. The law of the Philippines is derived from Spanish jurisprudence. Partially upon the jurisprudence of the United States of America which is common jurisprudence and based upon the construct of justice made jurisprudence. The tradition came to the USA from the United Kingdom which was colonized North America.

On June 12, 1898, Republic of Philippines became independent[ 2 ]. The new fundamental law was ratified by bulk of ballots cast in plebiscite of Constitutional Commission of 1986 on February 2, 1987. It contains measure of rights really parallel to measure of rights United States fundamental law and it delegates maps of authorities to three subdivisions, viz. , legislative assembly, executive, and judicial[ 3 ]. Legislative power is vested in Congress of Philippines which consists of Senate and House of Representatives, members of which are elected straight by people[ 4 ]. Executive power is vested in President of Philippines who is elected by direct ballot of people for term of six old ages. Judicial power is vested in one Supreme Court and in such lower tribunals as may be established by jurisprudence. Members of Supreme Court and Judgess of lower tribunals are appointed by President[ 5 ].

The two primary beginnings of jurisprudence are statues or statutory jurisprudence and law or instance jurisprudence. Constitution and legislative passages are the two types of legislative acts. In the Philippines ‘ statutory jurisprudence includes fundamental law, pacts, statutes proper or legislative passages, municipal charters, municipal statute law, tribunal regulations, administrative regulations and orders, legislative regulations and presidential issue.

The new Civil Code and some legislative acts, such as the Copyright Law, the Patent Law, the Law of Waters, and assorted labour Torahs and societal statute law are the immediate beginnings of Philippine civil instance jurisprudence. It took seven months to finish the codification of civil codification of the Philippines. In 1940 President Manuel L. Quezon taken the first measure towards codification of private jurisprudence in the Philippines and created a Code Committee headed by Supreme Court Chief Justice Ramon Avancena, with his members viz. Justice Jose P. Laurel, Justice Antonio Villareal, Dr. Jorge Bocobo, and Dr. Pedro Ylagan to explicate a civil codification for the Philippines. Justice Alex Reyes and Justice Mariano A. Albert were appointed as extra members in June 1941. Later on they assigned Department of Justice, severally as General Consultants to the Committee once Judge Roberto Concepcion now retired Chief Justice every bit good as once First Assistant Solicitor General Jose B.L. Reyes now Associate Justice of the Supreme Court.

The Code Committee was retained as an office in the Japanese-sponsored authorities during the military business of the Philippines. August 10, 1942 increased the rank to ten. As they begun their work of codification but unluckily destroyed in the conflict for the release of Manila in 1945. President Manuel A. Roxas created a new Code Commission on March 20, 1947 which composed of five members, in position of the “ demand for immediate alteration of all bing substantial Torahs of the Philippines and of codifying them in conformance with the imposts, traditions and foibles of the Filipino people and with modern tendencies in statute law and the progressive rules of jurisprudence ” ( Executive Order No. 48 ) and finally approved on June 18, 1949, as Republic Act No. 386 as codification of the Philippines[ 6 ].

REGIONALIZATION

As can be seen from the above the Philippines have been a topic to many globalising forces in term of jurisprudence. The Spanish conquers was the first influence and distribute their jurisprudence across the universes through the conquistadors to South America, Caribbean, Central America such as Mexico. The following globalising force was that of USA as they expanded their influence to the Pacific. The Americans followed by the Nipponese during the WWII. Regionalisation began as the Filipino people took on as different portion of the civil jurisprudence and common jurisprudence tradition which is rather alone. Since independency there is farther regionalisation as the jurisprudence made by the Philippine parliament which is no longer hold any connexion with USA and Spain.

The flag of the Philippines have three stars which symbolize the 3 major parts viz. Luzon, Visayas and Mindanao[ 7 ]. The largest among the 3 part is Luzon, Portuguese were the first European adventurers who recorded it in their charts as Luconia or Lucon and dwellers were called Lucoes. The Mindanao part or Autonomous Region in Muslim Mindanao “ consists of states, metropoliss, municipalities, and geographical countries sharing common and typical historical and cultural heritage, economic and societal constructions, and other relevant features within the model of the fundamental law ”[ 8 ]. It is a part where most Muslim people live. Philippines recognised Shariah jurisprudence which primary beginnings are Quran, Sunnah, Ijma, and Qiyas.

The territorial and political subdivisions of the Philippines are the independent parts, states, bomber states, metropoliss, municipalities and barangays[ 9 ]. Government of the Republic of the Philippines refers as “ corporate governmental entity through which the maps of authorities are exercised throughout the Philippines, including, salvage as the contrary appears from the context, the assorted weaponries through which political authorization is made effectual in the Philippines, whether refering to the independent parts, the provincial, metropolis, municipal or barangays subdivisions or other signifiers of local authorities ”[ 10 ]. On October 10, 1991 Republic Act No. 7160 Section 41 ( B ) and Section 43 as amended by RA 8553 declared the policy of the State that the territorial and political subdivisions of the State shall bask echt and meaningful local liberty to enable them to achieve their fullest development as autonomous communities and do them more effectual spouses in the attainment of national ends. Toward this terminal, the State shall supply for a more antiphonal and accountable local authorities construction instituted through a system of decentalisation whereby local authorities units shall be given more powers, authorization, duties, and resources. The procedure of decentalisation shall continue from the national authorities to the local authorities units.

Diaspora

The word diaspora means scattering. Originally it referred to the Jews after they disperse from Palestine by the Romans that were 2000 old ages ago. The Judaic diaspora was all around the universe including the Europe and Middle East and subsequently the USA. The word diaspora now refers to other group go forthing as minority and following a somewhat different tradition from the bulk. In the Philippines there are important diasporas including the Chinese and Muslims. The bulk population is Roman Catholic and the other Christian and of Malay background.

The construct of cultural and cultural minorities resulted in the formation of Presidential Assistance on National Minorities ( PANAMIN ) who dealt with minorities from supplying direct assistance and seeking to incorporate them in mainstream society to sheltering others to assist continue their civilizations. Minorities in Philippines are peoples who successfully resisted assimilation into the Spanish and American civilizations. Whereas, they maintained their civilizations, maintain their heroic poems, vocals, dances and manner of dressing[ 11 ]. But during the Marcos authorities it was focused to implement crudeness which refuses to supply even the smallest engineerings that are indispensable for the minorities to be self-sufficing because of being crude it will take to popular tourer attractive force[ 12 ].

The Chinese

The Chinese came to the Philippines from 1368 before the reaching of Spaniards and they did non get down to settle and blend to other local population until Manila was taken by Miguel Lopez de Legazpi of Spain. Sangleys are craftsmen and merchandisers who provide labor for Spanish.

Historically, they have been significantly involved in the economic and societal personal businesss of the Philippines. China and Philippines direct contact existed from ( 960-1279 ) AD the period of Sung Dynasty and ( 1368-1644 ) by Ming period with the tung-yang Chen Lu or the eastern path of Chinese debris trading system Barter trading and go throughing through the western side of the Philippines enroute from South China to Mindanao peculiarly in Sulu, Borneo and Moluccas. Through this debris trade many parts of the Philippines enjoyed commercial and cultural contacts with the Chinese[ 13 ].

Many Chinese merchandisers have on occasion settled in assorted parts of the Philippines at least for a impermanent footing. An of import trading centre for the natural merchandises was located at Jolo in the Archipelago of Sulu, where Chinese pier and lodging quarters were established. On China ‘s southeasterly seashore, ship having merchandisers realized the economic potency of the developing Manila Galleon trade between the Philippines and Mexico, by that the manner was unfastened for Chinese vas to transport goods from China to Manila and there to be loaded for markets in Mexico. The Manila galleon trade open up chances non merely on merchandisers but besides on Chinese craftsmans, fishermen and market nurserymans due to the demands of Spaniards colony[ 14 ].

Chinese had achieved a practical monopoly in the retail commercial and industrial of the Spaniards colony. Chinese were traveling in the same way in the other parts of the archipelago where the Spaniards established themselves. The colony of Spaniards and in-migration of Chinese resulted in the development of non merely one but three economic system in the Philippines[ 15 ]. The plurality in economic life was paralleled by cultural pluralism. Formal societal differentiation between and among these cultural groups were built into administrative construction by the Spaniards[ 16 ]. The Chinese besides have revenue enhancements and assorted part to authorities involvements and to private persons and establishments. The Spain ‘s Chinese policy took signifier the three major elements were revenue enhancement, control and convertion. All the dwellers of the Philippines was mandated to Catholicize and hispanize, but the Chinese can non be easy converted or hispanizsed.

Chinese are preponderantly non-Christians and largely Buddhist they non tended to absorb by inter-marriage and maintain their ain tradition and linguistic communication. Chinese schools, newspaper and life manners have separated and marked as Chinese immigrants. Today they are commanding much of the commercialism in Philippines[ 17 ].

The Muslims

The Philippines was named after the Spaniards arrived and claimed the Philippine archipelago as archipelago for Spain. The Negritos are believed to hold migrated to Philippines 30,000 old ages ago from Borneo, Sumatra and Malaya. The Malayan civilization which seemingly survived among certain groups called Igorots. Arab bargainers from Malay and Borneo introduced Islam in to the Philippines southern portion or the Mindanao part.

The “ Propagation of Islam ” began in the Sulu Islands and Mindanao, where Islam remains the major faith and spread as far north as Luzon. Tausug from Jolo, Maranao in Lake Lanao, Maguindanao of Cotabato, Samal in Tawi – Tawi and Badjao was the five major groups make up the Muslim minorities who successfully maintained their ain individuality and continue to claim the part as their ain through the formation of Autonomous Region of Muslim Mindanao for ego regulation[ 18 ].

During the Spanish epoch the Spaniards consolidate their control in northern island converted people into Christianity and name up them into their wars against Muslims in the South. Most Muslims give in to American military because their power is more resolutely than Spaniards. The American policy of integrating was indirectly a menace but stimulated the intuitions of many Muslims.

Most Filipino Muslims known as Moro or Bangsamoro which is literally means the Moro state are most of the Malay people of Southeast Asia. Today the population of Muslim is five per centum of the entire figure of Filipino people[ 19 ].

Q2

I was advised as a Marketing Manager of Information Technology Corporation to sketch the issues need to be considered in water-tight pro-forma binding contracts of our company to Singapore.

Foreword

Duty AND CONTRACTS IN RELATION TO CONFLICT OF LAWS

The jurisprudence of the Philippine is a merger of civil and common jurisprudence rules as it was colonized by Spain and United States of America. In August 30, 1950 the Torahs regulating gross revenues were found in the old Philippine Civil codification ( Spanish Civil Code of 1889 ) and the Philippine Code of Commerce ( Spanish Code of Commerce 1888 ) . The present civil codification adopted many commissariats from United States Uniform Gross saless[ 20 ].

Duty

Duty comes from the Latin word obligatio which means binding that are recognized by jurisprudence in virtuousness of one is bound in a favor of another to render something and this may dwell giving a thing, making a certain act or non making certain act. Article 1156 of the civil codification gives the significance of the duty as “ a juridical necessity to give, to make or non to make ” . Court of Justice may could upon by the aggrieved party to implement fulfillment in instance of disobedience and in default of the proper instance the economic value that its represents where the debitor or obligor may besides be made apt to give compensation for the amendss in misdemeanor of the rights of creditor or oblige[ 21 ].

Contract

Contract jurisprudence in Singapore is a signifier of judge-made regulations and chiefly from the common jurisprudence of contract in England that have been modified by specific legislative acts[ 22 ]. The right to come in into a contract is one of the autonomies guaranteed to the person by the Fundamental law[ 23 ]It does non hold absolute right to into any sort of contract as it is non contrary to jurisprudence. A contract is an understanding or meeting of heads between two or more parties where there is offer made by one party and is accepted by the other, the footings of which have an consequence on their several rights and duties which are enforceable at jurisprudence[ 24 ]. The individual doing the offer may qualify the clip, topographic point and the mode of credence. Cause or consideration in common jurisprudence is the critical intent which undertaking parties have in position at the clip of come ining to contract. Interpretation of contract determined the significance of the footings or words used by the parties in their contract. It should carry through harmonizing to the actual sense of their judicial admissions, if the footings of a contract are clear and univocal. The inquiry is non what existed in the heads of the parties but what purpose is expressed in the linguistic communication used[ 25 ].

PHILIPPINES IT CORPORATION TARGET MARKET COUNTRY IS SINGAPORE

The authorities of Singapore is presently reforming the economic system by opening up protected sectors such as fiscal services to hike overall efficiency and by backing higher-value-added activities in line with a “ knowledge-based ” economic system ( see Appendix A ) . Assorted bilateral free-trade understandings are besides being negotiated to better market entree and promote foreign investing influxs[ 26 ].

The Philippines is a freshly industrialized state with an economic system anchored with significant parts from fabrication ( see Appendix B ) . Historically, during the Spanish epoch its economic system has mostly been anchored on the Manila Galleon Trade and bilateral trade the United States during the American epoch. Over the past old ages trade with its Asiatic neighbors like Singapore has been increasing and it is one of the top trading spouses including electronics as one of the top exportation merchandises[ 27 ].

( 1. ) In the civil codification, the contract will be governed by the Torahs of the state in which they are executed it[ 28 ]; makes annulment done outside Philippines valid harmonizing to jurisprudence of the topographic point where will was made or lex domicilii[ 29 ]and prohibits Filipinos from doing joint volitions even if valid in foreign state[ 30 ]. In common jurisprudence of Singapore a pick of the parties ‘ legal power will regulate the international gross revenues dealing[ 31 ].

Private INTERNATIONAL Law

( 2. ) Private international jurisprudence or is more accurately known as struggle of Torahs which is international in character is a contact with some system of jurisprudence other than the domestic system. Cross-border minutess have ever attracted legal issues. In the common jurisprudence systems like Singapore the cardinal issues are pick of legal power. Whether a tribunal in State A has legal power to cover with a instance holding a foreign component, and pick of jurisprudence and the ordinary regulations of jurisprudence of State A shall use to the instance, or whether some other system of jurisprudence shall use[ 32 ]. The three phases to find the jurisprudence of contract are foremost the parties expressly chosen a jurisprudence to regulate the contract unless the pick was non made in good religion, 2nd if the parties have non made any express choice, the tribunal may deduce a pick from a pick from the contract and environing event state of affairss at the clip doing the contract and in conclusion the proper jurisprudence is of the state with existent connexion with the dealing[ 33 ].The direct beginnings of struggle of jurisprudence are fundamental laws, codifications, particular Torahs, international imposts, treatises and international conventions and judicial determinations.

Mediation

Philippines a non-litigious in nature and its ensuing antipathy to adversarial brushs, farther intensified by the dearly-won and slow procedure of judicial proceeding, most differences in the Philippines are resolved through dialogue[ 34 ]. Mediation as frequently the most effectual agencies for deciding differences in a broad scope of commercial and governmental countries is one of the replacement processs for the declaration of differences. The independent 3rd party Mediator assists the dialogue procedure. He will assist to size up the difference issues, assess realistic results, explore options and happen solutions for the parties. The aim of the go-between is able to ease communicating and dialogue between the parties in making a voluntary colony. Despite the fact that he can non enforce a determination upon the parties, the go-between is often able to help because of his specialist legal or proficient apprehension in the country of the difference. Mediation should be considered as it is likely to be quicker and more cost-efficient than the more formal procedures of arbitration or judicial proceeding but should be considered every bit early as possible after a difference has arisen. It is preponderantly suited where a difference involves complex issues and/or multiple parties. Mediation can be put into pattern prior to, or in concurrency with, other signifiers of difference declaration such as arbitration or tribunal proceedings. While the parties must be in understanding to partake in a mediation, that can be achieved by manner of separate understanding or by a difference declaration clause bing included in the contract between the parties.

It is a affair of election by each party whether they will be lawfully represented as the parties have absolute control over the mediation process they get. Numerous parties prefer non to be lawfully represented in mediations and it is non a mandatory demand of the process. Some mediation understandings specifically reject attorneies, while in other mediations, the taking portion of specialist legal representation is indispensable for a successful result. As mediation is non an adversarial process, traditional legal procedures such as the hearing of grounds and the cross-examination of informants do non transpirate. In a high proportion of instances the result experience with mediation procedures showed and a colony of the difference is obtained in a comparatively short period. Mediators besides endow with an chance to achieve more flexible consequences in a declaration, appropriate to a party ‘s state of affairs, instead than the blunt instrument of a compelled pecuniary award. The bulk parties who have experience mediation acknowledge the added advantages of finding their difference in non-adversarial fortunes and preserving or even heightening commercial understanding or other relationships.

Arbitration

Another difference declaration procedure is arbitration which is formal and whereby two or more parties pass on their difference to an independent 3rd individual who is the arbiter for finding. The jurisprudence applicable to arbitration is the Model Law which endow with the parties are free to be in agreement on the process to be followed by the arbitrational court in carry oning the proceedings. A figure of developing states have sought after to follow the Model Law as a manner of promoting international parties to carry on international arbitrations in their legal power. One of the Asiatic states that have adopted the Model Law includes Singapore while Philippines have non. The 1958 New York Convention and United Nations Commission on International Trade Law ( UNCITRAL ) have been cardinal factors in the disposition towards common international arbitration patterns. Philippines and Singapore made a reserve on which States may do with respect to reciprocality as it declare that it will merely use the Convention to the acknowledgment and enforcement of awards done in the district of another undertaking State.

Arbitration should be chosen as the preferable procedure for difference declaration when parties oblige processs similar to that available in tribunal but without the holds, public entree or formality. It besides permits the difference to be sited in judgement upon by a tribunal familiar with the professional or proficient background of the affairs in dissension. The arbitration system is transporting out in conformity with the rules of natural justness but may demo a disagreement depending upon the nature and complexness of the affair. In most instances there will be a judicial manner of hearing but in others the finding can be made on the footing of documental entries. This procedure analogue to judicial proceeding in respects to formal claims and defense mechanisms are lodged, grounds is presented by each party, normally tested by cross-examination, with a binding and enforceable determination ensuing.

Unlike to judicial proceeding, parties have the advantage of doing their ain timetable, executing their hearing in private, with an arbiter of their pick and utilising simpler processs. When utilizing arbitration as the procedure for deciding a difference, parties are able to choose an arbiter with peculiar expertness and commercial experience in the country under treatment of the difference. This provides a professional court which facilitates a more efficient, effectual and acceptable process and result. The mixture of arbitration as a difference declaration process is a question which parties and their legal representatives should turn to at the clip of come ining into commercial contracts, so that proper understanding can be taken into history of footings of the contract. On the other manus, an understanding to set frontward disputes to arbitration can be completed by the parties after a difference has occurred[ 35 ].

Recommendation

Based on the above study, I suggest to the board that the contract should be executed in Philippines and both parties agreed the pick of legal power in order to regulate it by the jurisprudence of the Philippines. Because Singapore is more on the consumers ‘ benefits consequently it is better for the company to utilize the jurisprudence of the state. Singapore jurisprudence of contract purely implemented the Fair Trading Act for consumer ‘s protection like safety demands, monetary value control act and Consumers Association of Singapore publicises black book of bargainers who do non conform with demands of just trading. Beneath the Unfair Contract Footings Act this legal duty can merely be excluded or restricted if the exclusion or limitation is sensible while decease or personal hurt ensuing from carelessness can non be restricted at all. All statutory redresss are merely available against the direct marketer but manufacturer and distributer of the sold goods might besides be apt if they act with carelessness. Even though the jurisprudence of the Philippines governed the contract under Article 3010 of the Philippine jurisprudence of contracts the finding shall non be obligatory if it is obviously unjust. In such instance, the tribunals shall make up one’s mind what is just under the fortunes. In struggles of jurisprudence dialogue is more suited in Philippines instead than arbitration.

Q3

CORPORATION CODE

Fundamental law protects the corporation. My chosen legal power is Philippines which recognises corporation with a separate legal individuality to stockholders. The corporation can action and be sued under the name of the company itself, consequently under the Corporations jurisprudence of Philippines which is likewise in general common jurisprudence systems limited liability[ 36 ]. In Section 2 of General Provisions states It is described as an “ unreal homo being created by operation of jurisprudence holding the right of sequence and the powers, properties and belongingss expressly authorized by jurisprudence or incident to its being ”[ 37 ].The stockholders have no personal liability in instance of debt of the company. It is merely limited to their portions to the corporation. Corporation codification applies merely to private corporations. The two signifiers of private corporations are stock or non-stock corporations[ 38 ]. In Stock corporations, which capital stock divided into portions and authorized to administer to holders of portions dividends or allocations of excess net incomes based on portions held while are corporations without portions or stocks and hence non authorized to administer dividends. The corporate term in Philippines incorporation and organisation of private corporations states that “ no extension can be made earlier than five old ages with freedom to allowable grounds for an earlier extensions as may be determined by Securities and Exchange Commission ” some of the freedom is rational belongings[ 39 ]. Unlike in common jurisprudence states like Australia has no specified old ages of restriction in corporate term.

The minimal portion properties of 60 % capital owned by Filipino citizens shall be considered as Philippine Nationality Corporation but if the per centum is less than 60 % of Filipino ownership in the corporation or partnership merely the figure of portions matching to such per centum shall be counted as of Philippine nationality. The ideological point of mention of the political systems of the states creates an environment in which corporations tend to execute more expeditiously and are more orientated to maximising stockholder value which is normally patterns by common jurisprudence states than in civil jurisprudence states like Philippines with their heavy load of revenue enhancements and ordinance.

ULTRA VIRES

Both Singapore and Philippines Corporations can put to death powers merely in decidedly granted or those incidental or natural every bit good as implied powers. Ultra vires Acts of the Apostless are capable to invalidate, that is, legal but may be annulled by order of a competent tribunal. If the extremist vires contract is done on both sides, the same shall non be mandated. The act must be consummated or executed, and non executory ; No creditors are prejudiced or that they have given their consent to the act ; the rights of the populace or the State are non involved ; and all the shareholders must give their consent in order to authorise a valid extremist vires act[ 40 ]. Some common jurisprudence states like Australia abolished this jurisprudence.