THE ACADEMICS COMMITTEE: CHAIRPERSON: KAREN FELIZ G. SUPNAD
VICE CHAIRPERSON FOR ACADEMICS: MA. IRENE I. SANTOS
U N I V E R S I T Y O F S A N T O T O M A S
F a c u l t a d d e D e r e c h o C i v i l
property in the appraisal, distribution oradjudication of which they had acted.
3. Guardians and executors with respect to the property belonging to their wards or the estate.
Note: The mere violation of the prohibition is punished
although no actual fraud occurs therefrom. The act is punished because of the possibility that fraud may be committed or that the officer may place his own interest above that of the Government or of the party which he represents. (U.S. v. Udarbe, 28 Phil. 383) Q: Does this article apply only to appointive public officials? A: No. Article 216 includes not only appointive but also elective public officials. In fact, under the second paragraph of the said article, even private individuals can be held liable.
Q: What are the Constitutional provisions prohibiting interests?
A:
1. Sec. 14 , Article VI - Members of Congress cannot personally appear as counsel; cannot be interested financially in any franchise or special privilege granted by government; cannot intervene in any matter before office of Government;
2. Sec 13 , Article VII -The President, Vice- President, the Members of the Cabinet and their deputies or assistant shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office
3. Section 2, Article IX-A - No member of a Constitutional Commission shall, during his tenure, hold any office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the government, or any of its subdivisions, agencies, or instrumentalities, including
government-owned or controlled corporations or their subsidiaries.
MALVERSATION OF PUBLIC FUNDS OR PROPERTY
Q: What are the crimes called malversation of public funds or property?
A:
1. Malversation by appropriating, misappropriating or permitting any other person to take public funds or property. (Art. 217)
2. Failure of an accountable officer to render accounts. (Art. 218)
3. Failure of a responsible public officer to render accounts before leaving the country. (Art. 219) 4. Illegal use of public funds or property. (Art.
220)
5. Failure to make delivery of public funds or property (Art. 221) Malversation of Public Funds or Property – Presumption of Malversation Art. 217 Q: What are the punishable acts? A: 1. Appropriating public funds or property 2. Taking or misappropriating the same
3. Consenting, or through abandonment or negligence, 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. Note: The nature of the duties of the public officer and not the name of the office controls. (People v. Reyes, SB Case No. 26892, Aug. 15, 2006)
Q: What are the common elements to all acts of malversation?
A:
1. Offender is a public officer
2. He had the custody or control of funds or property by reason of the duties of his office 3. Those funds or property were public funds or
property for which he was accountable 4. He appropriated, took, misappropriated or
consented, or through abandonment negligence, permitted another person to take them
Q: Is it necessary that the offender actually misappropriated the funds?
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ACRIMINALDVISER: JUDGE LAW RICO TEAM SEBASTIAN D. LIWANAG; SUBJECT HEAD: ALJON D. DE GUZMANASST. SUBJECT HEADS: JEFFREY D. ARZAGA, JEREMAE R. NADONGA; MEMBERS: EILYN E. MEDINA, VINCENT TITO B. ABUCEJO, PAULINE BREISSEE GAYLE D.
ALCARAZ, CONSTANZA B. BRILLANTES, ARWIN V. CABANTING, GIRLIE VENUS E. DE LEON, MARIA JAMYKA S. FAMA, ANNIEBEL D. GUYO, LAWRENCE P.
HOLANDAY, ANDRES JOSE, JR., BIENVENIDO L. MABULAC II, LARIA CARISA C. OLIVIA, IRISH ROSSANE M. PULLANTE, MARICHIE B. ALARAS
A: No, somebody else may have misappropriated the funds in question. It is enough that he has violated the trust reposed on him in connection with the property.
Note: Malversation is predicated on the relationship of
the offender to the property or funds involved. His being remiss in the duty of safekeeping public funds violates the trust reposed by reason of the duties of his office. Q: Who is an accountable public officer? A: An accountable public officer, within the purview of Article 217 of the Revised Penal Code, is one who has custody or control of public funds or property by reason of the duties of his office. The nature of the duties of the public officer or employee, the fact that as part of his duties he received public money for which he is bound to account and failed to account for it, is the factor which determines whether or not malversation is committed by the accused public officer or employee. (Torres v.
People, G.R. No. 175074, August 31, 2011)
Q: When a public officer has no authority to receive the money for the Government, and upon receipt of the same, he misappropriated it, can he be held liable for malversation?
A: No. If the public officer has no authority to receive the money for the Government, the crime committed is estafa, not malversation. (US v. Solis,
7 Phil 195)
Q: What constitutes as a prima facie evidence of malversation?
A: The failure of a public officer to have duly forthcoming any public fund or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie
evidence that he has put such missing funds or property to personal uses. (Candao v. People, G.R.
Nos. 186659-710, October 19, 2011)
Q: Does the law require that a written demand be formally made to constitute a prima facie presumption of malversation?
A: No. In US. v. Kalingo, 46 Phil 651, it was held that the failure of the accused who had custody of public funds to refund the shortage upon demand by the duly authorized offices constitutes prima
facie evidence of malversation, notwithstanding the
fact that such demand had been merely made verbally.
Note: Demand itself is not indispensable to constitute
malversation. It merely raises a prima facie presumption that missing funds have been put to personal use. (Morong Water District v. Office of the Deputy Ombudsman, March 17, 2000 citing Nizurtada v. Sandiganbayan)
Q: How can the presumption be rebutted?
A: The presumption could be overcome by satisfactory evidence of loss or robbery committed by a person other than the accused. (US. v. Kalingo,
46 Phil 651)
Q: A revenue collection agent of BIR admitted his cash shortage on his collections to get even with the BIR which failed to promote him. A special arrangement was made between the BIR and the agent wherein the BIR would withhold the salary of the latter and apply the same to the shortage incurred until full payment was made. Is the collection agent guilty of the crime of malversation of funds?
A: Yes. An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his accounts which he has not been able to satisfactorily explain. In the present case, considering that the shortage was duly proven, retaliation against the BIR for not promoting him does not constitute a satisfactory or reasonable explanation of his failure to account for the missing amount. (Cua vs. People, G.R. No.
166847, November 16, 2011)
Q: Is damage to the government necessary to constitute malversation?
A: No. It is not an element of the offense. The penalty for malversation is based on the amount involved, not on the amount of the damage caused to the Government. (Reyes, 2008)
Q: Is deceit required to be proved in malversation?
A: No. Malversation may be committed either through a positive act of misappropriation of public funds or property, or passively through negligence. To sustain a charge of malversation, there must either be criminal intent or criminal negligence, and while the prevailing facts of a case may not show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence because both are equally punishable under Article 217 of the Revised Penal Code. (Torres v. People,
G.R. No. 175074, August 31, 2011)
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THE ACADEMICS COMMITTEE: CHAIRPERSON: KAREN FELIZ G. SUPNAD
VICE CHAIRPERSON FOR ACADEMICS: MA. IRENE I. SANTOS
U N I V E R S I T Y O F S A N T O T O M A S
F a c u l t a d d e D e r e c h o C i v i l
Q: When a municipal officer who, in good faith paid out public funds persons in accordance with the resolution of the municipal council but the payments were turned out to be in violation of the law, is there criminal liability?
A: None. When an accountable public officer, in good faith 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. (People v. Elvina, 24 Phil 230)
Q: What should be proved in order to convict an accused of malversation
A: All that is necessary to prove is that the defendant received in his possession public funds, that he could not account for them and did not have them in his possession and that he could not give a reasonable excuse for the disappearance of the same. (De Guzman v. People, 119 SCRA 337) Note: The return of the money malversed is merely a mitigating circumstance. It cannot exempt the accused from criminal liability. (People v. Velasquez, 72 Phil 98)
Q: When can the public officer be not liable for malversation
A: When the accountable officer is obliged to go out of his office and borrow the sum alleged to be the shortage and later the missing amount is found in some unaccustomed place in his office, he is not liable for malversation. (US v. Pascual, 26 Phil 234)
Q: May a private person commit the crime of malversation?
A: Yes, a private person may also commit malversation under the following situations:
1. A private person conspiring with an accountable public officer in committing malversation is also guilty of malversation
(People v. Sendaydiego, G.R. No. L-33254 & G.R. No. L-33253, January 20, 1978)
2. When he has become an accomplice or accessory to a public officer who commits malversation
3. When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and misappropriates the same
4. When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual
Q: A private property was attached or levied by the sheriff, can it be a subject of the crime of malversation?
A: Yes, though the property belonged to a private person, the levy or attachment of the property impressed it with the character of being part of the public property it being in custodia legis.
Q: If falsification of documents was resorted to for the purpose of concealing malversation, is a complex crime committed?
A: No, for complex crimes require that one crime is used to commit another. If the falsification is resorted to for the purpose of hiding the malversation, the falsification and malversation are separate offenses. (People v. Sendaydiego)
Q: What are the distinctions between malversation and estafa? A: Malversation Estafa Committed by an accountable public officer.
Committed by a private person or even a public officer who acts in a private capacity. Deals with public funds
or property.
Deals with private property.
May be committed without personal misappropriation, as when the accountable officer allows another to misappropriate the same.
Committed by personal misappropriation only. Failure of Accountable Officer to Render Accounts Art. 218 Q: What are the elements of this crime? A:
1. Offender is a public officer, whether in the service or separated therefrom
2. He must be an accountable officer for public funds or property
3. He is required by law or regulation to render accounts to the Commission on Audit, or to a provincial Auditor
4. He fails to do so for a period of two months after such accounts should be rendered
Q: Is it necessary that there be first a demand for accounting?
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ACRIMINALDVISER: JUDGE LAW RICO TEAM SEBASTIAN D. LIWANAG; SUBJECT HEAD: ALJON D. DE GUZMANASST. SUBJECT HEADS: JEFFREY D. ARZAGA, JEREMAE R. NADONGA; MEMBERS: EILYN E. MEDINA, VINCENT TITO B. ABUCEJO, PAULINE BREISSEE GAYLE D.
ALCARAZ, CONSTANZA B. BRILLANTES, ARWIN V. CABANTING, GIRLIE VENUS E. DE LEON, MARIA JAMYKA S. FAMA, ANNIEBEL D. GUYO, LAWRENCE P.
HOLANDAY, ANDRES JOSE, JR., BIENVENIDO L. MABULAC II, LARIA CARISA C. OLIVIA, IRISH ROSSANE M. PULLANTE, MARICHIE B. ALARAS
A: No. The article does not require that there be a demand that the public officer should render an account. It is sufficient that there is a law or regulation requiring him to render account. (Reyes,
2008)
Q: Does the accused need to commit misappropriation to be liable under this Article?
A: No. It is not essential that there be misappropriation. If there is misappropriation, he would also be liable for malversation under Art 217. (Reyes, 2008) Failure of a Responsible Public Officer to Render Accounts Before Leaving the Country Art. 219 Q: What are the elements of this crime? A: 1. Offender is a public officer
2. He must be an accountable officer for public funds or property 3. He must have unlawfully left (or be on point of leaving) the Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled Q: If the act of leaving the country is authorized by law, can the public officer be convicted under this Article?
A: No. The act of leaving the Philippines must not be authorized or permitted by law to be liable under this Article. (Reyes, 2008) Illegal Use of Public Funds or Property Art. 220 Q: What are the elements of this crime? A: 1. Offender is a public officer
2. There is public fund or property under his administration
3. Such public fund or property has been appropriated by law or ordinance
4. He applies the same to a public use other than that for which such fund or property has been appropriated by law or ordinance
Note: Illegal use of public funds or property is also
known as technical malversation.
Q: How is technical malversation committed?
A: Instead of applying it to the public purpose for which the fund or property was already appropriated by law, the public officer applied it to another purpose.
Note: In the absence of a law or ordinance
appropriating the public fund allegedly technically malversed, the use thereof for another public purpose will not make the accused guilty of violation of Art 220 of the RPC. (Abdulla v. People, April 6, 2005)
Q: X appropriated the salary differentials of secondary school teachers of the Sulu State College contrary to the authorization issued by the DBM. Can X be held liable for technical malversation?
A: No. The third element is lacking. The authorization given by DBM is not an ordinance or law contemplated in Art. 220. (Abdulla v. People,
G.R. No. 150129, April 6, 2005)
Q: Suppose the application made proved to be more beneficial to the public than the original purpose for which the amount or property is appropriated, is there technical malversation? A: Yes, because damage is not an essential element of technical malversation. Q: Suppose the funds had been appropriated for a particular public purpose, but the same was applied to private purpose, what is the crime committed?
A: The crime committed is simple malversation only.
Q: What are the distinctions between technical malversation and malversation? A: Technical Malversation Malversation Offenders are accountable public officers in both crimes. Offender derives no personal gain or benefit.
Generally, the offender derives personal benefit.
Public fund or property is diverted to another public use other than that provided for in the law.
Conversion is for the personal interest of the offender or of another person. Failure to Make Delivery of Public Funds or Property Art. 221
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THE ACADEMICS COMMITTEE: CHAIRPERSON: KAREN FELIZ G. SUPNAD
VICE CHAIRPERSON FOR ACADEMICS: MA. IRENE I. SANTOS
U N I V E R S I T Y O F S A N T O T O M A S
F a c u l t a d d e D e r e c h o C i v i l
Q: What are the punishable acts?
A:
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 a public officer
who has been ordered by competent authority to deliver any property in his custody or under his administration Q: What are the elements of this crime? A:
1. That the public officer has government funds in his possession 2. That he is under obligation to make payments from such funds 3. That he fails to make payment maliciously Officers Included in the Preceding Provisions Art. 222
Q: Who are the private individuals who may be liable under Art.217-221?
A:
1. Private individual who in any capacity whatsoever, have charge of any national, provincial or municipal funds, revenue or property
2. Administrator, depository of funds or property attached, seized or deposited by public authority even if such property belongs to a private individual
3. Those who acted in conspiracy in malversation 4. Accomplice and accessories to malversation
Q: Does the word administrator include a judicial administrator?
A: No. The word administrator used does not include judicial administrator appointed to administer the estate of a deceased person because he is not in charge of any property attached, impounded or placed in deposit by public authority. Conversion of effects in his trust makes him liable for estafa.
Q: AA was designated custodian of the distrained property of JJ by the BIR. He assumed the specific undertakings which included the promise that he will preserve the equipment. Subsequently, he reported to the BIR that JJ surreptitiously took the distrained property. Did AA become a public officer by virtue of his designation as custodian of distrained property by the BIR?
A: No. To be a public officer, one must:
1. Take part in the performance of public functions in the government, or in performing in said government or in any of its branches public duties as an employee, agent or subordinate official, or any rank or class; and
2. That his authority to take part in the performance of public functions or to perform public duties must be by: a. Direct provision of the law, or b. Popular election, or
c. Appointment by competent
authority. (Azarcon v. Sandiganbayan, G.R. No. 116033, February 26, 1997) INFIDELITY OF PUBLIC OFFICERS Conniving with or Consenting to Evasion Art. 223 Q: What are the elements of this crime? A: 1. Offender is a public officer
2. He has in his custody or charge a prisoner, either detention prisoner or prisoner by final judgment
3. Such prisoner escaped from his custody 4. That he was in connivance with the prisoner in
the latter’s escape (U.S. v. Bandino, 29 Phil
459)
Q: Is there a need that the convict has actually fled for the public officer to be liable under this Article?
A: No. there is real and actual evasion of service of sentence when the custodian permits the prisoner to obtain 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. (US v.
Bandino, ibid.)
Q. Does releasing a prisoner for failure to comply within the time provided by Art. 125 exculpate liability under this Article?
A. Yes. Where the chief of police released the detention prisoners because he could not file a complaint against them within the time fixed by Art. 125 due to the absence of the justice of the peace, he is not guilty of infidelity in the custody of