EN BANC
[ G.R. No. 102942, April 18, 1997 ]
AMADO F. CABAERO AND CARMEN C. PEREZ, PETITIONERS, VS. HON. ALFREDO C. CANTOS IN HIS CAPACITY AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MANILA, BR. VII, AND EPIFANIO CERALDE, RESPONDENTS.
Separate Opinion
VITUG, J., concurring:
When the civil action for the recovery of civil liability arising from the offense charged is not reserved by the offended party, it is deemed impliedly instituted with the criminal case.1 On this thesis, the Court, in Javier vs. IAC2 which involved the crime of estafa under B.P. Blg. 22 and where the civil case was not reserved, held that a counterclaim by the accused-defendant for malicious prosecution, being compulsory in nature, should be filed in the same criminal action.
Of late, some members of the Court have expressed reservations on the viability of Javier due to resultant difficulties in its sequential observance.ℒαwρhi৷ There is an obscurity in the Rules of Court on how the civil action should proceed hand-in-hand with the criminal case. The matter of bringing into the criminal case the pertinent rules on civil actions, could prove to be unwieldy and unmanageable. A number of these problems have appropriately been pointed out in the ponencia itself.
I join those who call upon the Court to take a second look at Javier. It might, indeed, be best to maintain what not a few have perceived to be the old rule, i.e., that it is only the civil action belonging to the private offended party that, if not reserved, is deemed instituted with the criminal case. The rationale of the provision, I believe, is merely to allow the criminal court, in case it adjudges the accused to be guilty to likewise award in favor of the offended party, minus the usual cumbersome procedural technicalities that go with ordinary civil cases, damages arising from the commission of the offense upon the premise that a person criminally liable is also civilly liable. The rule, in fine, should be confined to the civil liability of the accused for the offense and not the other way around that would allow the accused to, in turn, go after the offended party. Substantive law appears to be consistent with this view. For instance, Article 1288 of the Civil Code disallows compensation, a mode for extinguishing an obligation, "if one of the debts consists in civil liability arising from a penal offense." The Court, I might add, has continued to sanction the filing of a civil case for malicious prosecution by the accused, whether reserved or not, against a complainant even when, as so held in Javier, this action partakes of a "compulsory counterclaim."
Personally, I am convinced that the Javier ruling should be re-examined.
For the above reasons, as well as because of prematurity, I vote to sustain the dismissal of the counterclaim filed by the accused.
Footnotes
1 The pertinent provision is Rule 111, Section of the Rules of Court, reading in part as follows:
"When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action to the criminal action.
"Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Article 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused."
2 171 SCRA 605.
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