Documento de Ensayos

What is a trust receipt transaction?

• A trust receipt transaction is a transaction between parties known as an entruster and an entrustee whereby the entruster, who owns or hold absolute title or security interests over certain specified goods, documents or instruments, releases the same to the possession of the entrustee upon the latter’s execution and delivery to the entruster of a trust receipt wherein the entrustee binds himself to hold the specified goods, documents or instruments in trust for the entruster and to sell or otherwise dispose of the goods, documents or instruments with the obligation to turn over to the entruster the proceeds thereof to the extent of the amount owing to the entruster, or the goods, documents or instruments themselves if they are unsold or not otherwise disposed of.

What are the two basic obligations?

Commercial Law

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Prepared by: Atty. Renato Rondez

 There are two basic obligations that define a trust receipt transaction. The first is covered by a provision that refers to money under the obligation to deliver it (entregarla) to the owner of the merchandise sold. The second is covered by the provision referring to the merchandise received under the obligation to return it (devolvera) to the owner.

 Thus, under the Trust Receipts Law, intent to defraud is presumed when (1) the entrustee fails to turn over the proceeds of the sale of the goods covered by the trust receipt; or (2) when the entrustee fails to return the goods under trust, if they are not disposed of in accordance with the terms of the trust receipt.

What is the effect of the absence of an obligation?

 In the case of Land Bank of the Philippines v. Lamberto C. Perez, et.al., G.R. No. 166884, 672 SCRA 117, June 13, 2012, in all trust receipt transactions, both obligations on the part of the (en)trustee exist in the alternative- the return of the proceeds of the sale or the return or recovery of the goods, whether raw or processed. When both parties enter into an agreement knowing that the return of the goods subject of the trust receipt is not possible even without any fault on the part of the trustee, it is not a trust receipt transaction;

the only obligation actually agreed upon by the parties would be the return of the proceeds of the sale transaction. This transaction becomes a mere loan, where the borrower is obligated to pay the bank the amount spent for the purchase of the goods.

What are the loan and security features of a trust receipt?

 The loan feature of a trust receipt transaction lies in the manner it

facilitates the importation or purchase of merchandise by the extension of credit.

 The security feature of a trust receipt lies in the fact that the

imported or purchased

merchandise will serve as collateral for the credit extended and that the obligation of the entrustee is to deliver the proceeds of their sale or return them if not sold.

What is meant by “security interest”?

 A Security Interest means a property interest in goods, documents or instruments to secure performance of some obligations of the entrustee or of some third persons to the entruster and includes title, whether or not expressed to be absolute, whenever such title is in substance taken or retained for security only.

What are some of the principal obligations of the entrustee ?

• To hold the goods in trust for the entruster and to dispose of them strictly in accordance with the terms of the trust receipt;

• To receive the proceeds of the sale of the goods in trust for the entruster and to turn over the same to the entruster to the extent of the amount owing to the entruster;

• To insure the goods for their total value against loss from fire, theft, pilferage or other casualties;

• To return the goods to the entruster in case they could not be sold or upon demand of the entruster.

• AMLA

What is money laundering?

• Money Laundering is the process by which a person conceals the existence of unlawfully obtained money and makes it appear to have originated from lawful sources.

Commercial Law

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Prepared by: Atty. Renato Rondez

• There are now 34 predicate offenses.

Can there be simultaneous prosecutions for laundering and the predicate offense?

• It is now provided that any person may be charged with and convicted of both the offense of money laundering and the unlawful activity and that the prosecution for money laundering shall proceed independently of the proceeding relating to the unlawful activity.

How is money laundering committed?

• The offense of money laundering may be committed by any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity:

(a) Transacts said monetary instrument or property., (b) Converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property, (c) Conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property, (d) Attempting to or conspiring to commit money laundering offenses. (e)Aiding, abetting, assisting in or counsels the commission of money laundering, and (f) Performs or fails to perform any act as a result of which he facilitates the offense of money laundering.

• It is also committed by any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council (AMLC) fails to do so.

Who is a covered person?

A Covered Person, natural or juridical, refers to:

 Banks, Non-Banks, Quasi-Banks, Trust Entities, and all other institutions and their subsidiaries and affiliates supervised by the BSP

 Insurance Companies, Pre-Need Companies and all other institutions supervised by the Insurance Commission

 Security Dealers, brokers, salesmen, investment houses and other similar entities managing securities or rendering services as an investment agent, advisor, or consultant, Mutual funds, closed end investment companies, common trust funds, and other similar persons, and ) other entities administering or otherwise dealing in currency, commodities, or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by the SEC

Who are other covered persons?

• Jewelry dealers in precious stones, who, as a business, trade in precious metals, for transactions in excess of One Million Pesos (PHP 1,000,000.00)

 Company service providers which, as a business, provide any of the following services to third parties:

(a) acting as a formation agent of juridical persons, (b) acting or arranging for another person to act as a director, corporate secretary of a company, a partner of a partnership or similar position in relation to other juridical persons, (c) providing a registered office, business address or accommodation, correspondence or administrative address for a company, partnership or other legal person or arrangement, and (d) acting as or arranging for another person to act as nominee shareholder for another person

 Persons who provide the following services: (a) managing client

Commercial Law

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Prepared by: Atty. Renato Rondez money, securities or other assets,

(b) management of bank, savings and securities accounts, (c) organization of contributions for the creation, operation and management of companies, and (d) creation, operation or management of juridical persons or arrangements, and buying and selling business entities.

Who are excluded from covered persons?

• The term “covered person” shall exclude lawyers and accountants

acting as independent

professionals in relation to information concerning their clients or where disclosure of information would compromise client confidences or the attorney-client relationship: Provided that these lawyers and accountants are authorized to practice in the Philippines and shall be subject to their respective codes of conduct and/or professional responsibility.

How is the law implemented?

• Establish and record, and maintain a system of verifying, the true identifies of clients, including the legal existence and organizational structure of a corporate client, and their representatives, based on official documents.

• Keeping the records for five (5) years.

• Requiring the report covered transactions and suspicious transactions to AMLC, within five (5) working days from occurrence.

What is a covered transaction?

• A covered transaction is a transaction in cash or other equivalent monetary instrument involving a total amount in excess of Five Hundred Thousand Pesos (PHP500,000.00) within one (1) banking day.

What is a suspicious transaction?

• It is a transaction with a covered institution, regardless of the amounts involved, where any of the following circumstances exist:

(a)There is no underlying legal or trade obligation, purpose or economic justification; (b)The client is not properly identified; (c) The amount involved is not commensurate with the business or financial capacity of the client;

(d)Taking into account all known circumstances, it may be perceived that the client’s transaction is structured in order to avoid being the subject of reporting requirements under the Act; (e)Any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the client’s past transactions with the covered institution; (f)The transaction is in any way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or (g) Any similar or analogous transaction.

What rules apply to the freezing of accounts?

• The freezing of a monetary instrument or property is upon a verified petition by the AMLC to the CA after a determination that probable cause exists that it is related to an unlawful activity.

• This issues immediately and will be valid for a period not exceeding 6 months depending on the circumstances of the case.

Provided that if there is no case filed against a person whose account has been frozen, the freeze order shall be deemed ipso facto lifted.

• The remedy is a motion to lift a freeze order which should be resolved before the freeze order expires. No TRO or injunction shall issue against a freeze order unless issued by the Supreme Court

Commercial Law

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Prepared by: Atty. Renato Rondez

INTELLECTUAL PROPERTY