Foreigner in a Corporation Philippines

Rights of a Foreigner in Winding Up a Corporation to Acquire Real Estate in the Philippines

Question:

In case a foreigner decides to create a corporation to acquire real estate property, during the winding up of the corporation, up to what extent is the right of the foreigner?

Answer:

Legal Framework:

1. Foreign Ownership Limitations: In the Philippines, foreign individuals or corporations cannot own more than 40% of the corporation's capital stock when the corporation owns land.

2. Corporate Existence: The corporation is a separate legal entity, and its assets, including real estate, are not directly owned by the shareholders.

3. Winding Up: The process of winding up involves settling the corporation's affairs, paying its debts, and distributing the remaining assets to shareholders in accordance with their shareholdings.

Rights of the Foreign Shareholder:

1. Asset Distribution: Upon winding up, the foreign shareholder has the right to receive assets or their equivalent value in proportion to their ownership in the corporation, limited to the 40% foreign ownership cap.

2. Due Process: A foreign shareholder has the right to due process during winding up, including notice of meetings and the opportunity to participate in decisions.

3. Liquidation Preference: If specified in the Articles of Incorporation or bylaws, certain shareholders might have a "liquidation preference," which would be honored during the winding-up process.

4. Inspection of Records: A shareholder has the right to inspect the corporate records relevant to winding up.

5. Challenge Decisions: The foreign shareholder has the right to challenge any corporate decisions related to winding up if they believe these are not in accordance with Philippine corporate law or are prejudicial to minority shareholders.

6. Legal Recourse: In cases of disputes, the foreign shareholder may resort to legal action to protect their rights.

Conclusion:

The foreigner's rights during the winding up of the corporation mainly depend on their percentage of ownership, subject to the 40% limit on foreign ownership in land-holding corporations in the Philippines. The foreign shareholder is entitled to due process, asset distribution, and other rights as specified by Philippine law and the corporate bylaws.

Disclaimer:

This article is intended for informational purposes only and should not be construed as legal advice. Consultation with a qualified attorney is recommended for personalized legal guidance.

Mortgaged Property After Death Philippines

Legal Obligations for a Mortgaged Property After the Death of Both Parties

Question:

My mother-in-law mortgaged a lot to her friend for P500,000. Both are now deceased, and it has been 25 years. The property is still under my mother-in-law's name. The lender's husband now asks for P1,500,000. What should we do? How much should we pay?

Answer:

Legal Framework:

1. Prescription: In Philippine law, actions to enforce a written contract must be brought within 10 years from the time the right of action accrues. After 25 years, the claim may have prescribed, rendering it unenforceable.

2. Interest Rates: If the mortgage agreement specified interest rates, they should be observed, but only up to a point where it doesn't become unlawfully high.

3. Personal Obligation: If the loan was between individuals and not with the lending company, this may limit the lender’s estate’s ability to claim it was a business transaction subject to different rules.

What to Do:

1. Check Documentation: Scrutinize any mortgage agreement, promissory notes, or other documents to understand the terms.

2. Legal Advice: Consult an attorney to determine the enforceability of the debt, especially considering the lapse of time.

3. Negotiation: If the debt is still enforceable, negotiate with the lender's estate, possibly bringing the amount down or structuring it in a more manageable way.

4. Mediation: If negotiation fails, consider alternative dispute resolution methods like mediation.

5. Court: As a last resort, legal action may be required either to assert that the claim has prescribed or to otherwise resolve the dispute.

How Much to Pay:

1. Principal Amount: Legally, you may only be obliged to pay the principal amount if the claim has not yet prescribed.

2. Interest: Any interest should be as per the agreement but should not be unlawfully high.

3. Prescription: If the debt has prescribed, you may not be legally required to pay anything.

Conclusion:

Given the 25-year lapse, it's likely that the claim has prescribed, and you may not be legally required to pay anything. However, it's essential to consult an attorney to evaluate the specific circumstances of your case, as exceptions may apply.

Disclaimer:

This article is intended for informational purposes only and should not be construed as legal advice. Consultation with a qualified attorney is recommended for personalized legal guidance.

Sale of Property After Death - Philippines

Rights of Children in the Sale of Conjugal Property After the Death of a Parent

Question:

My father died and left a piece of land. We, his children, do not have a great relationship with our mother, who wants to sell the land. They were married. She has not included us in the process. Do we have any say in this? Do we have rights over the land?

Answer:

Legal Framework:

1. Conjugal or Community Property: In Philippine law, property acquired during the marriage is generally considered either conjugal or community property, unless otherwise specified.

2. Rights of Heirs: Upon death, the deceased's share in any conjugal or community property is transmitted to his or her heirs, which includes the surviving spouse and children.

Inheritance Rights:

1. Surviving Spouse's Share: The surviving spouse (in this case, the mother) has a share in the conjugal property equal to that of each legitimate child.

2. Legitimate Children's Share: Legitimate children also have an equal share in the deceased parent's portion of the conjugal or community property.

3. Participation: You and your siblings have a right to participate in decisions concerning the property, including its sale, as you have inherited a portion of it.

Process:

1. Extra-Judicial Settlement: If all parties are in agreement, an extra-judicial settlement can be made to divide the property.

2. Judicial Settlement: If there is disagreement, a judicial settlement may be necessary, where the court will partition the property.

3. Sale: In the case of a sale, proceeds must be distributed according to the shares of each heir.

Legal Recourse:

1. Objecting the Sale: If your mother attempts to sell the property without your consent, you may object and take legal action.

2. Legal Consultation: You should consult with a lawyer to explore all your options, which could include preventing the sale or ensuring you receive your fair share of the sale proceeds.

Conclusion:

Yes, you do have a say in the matter and share rights over the land with your mother. Your mother cannot unilaterally decide to sell the property without considering your inheritance rights.

Disclaimer:

This article is intended for informational purposes only and should not be construed as legal advice. Consultation with a qualified attorney is recommended for personalized legal guidance.

Parole or Pardon in Drugs Philippines

Possibility of Parole or Pardon for Violation of Republic Act 9165 (Comprehensive Dangerous Drugs Act of 2002)

Question:

Is there a possibility that a person can apply or petition for parole or pardon if they are in prison for violating Republic Act 9165 (Comprehensive Dangerous Drugs Act of 2002)?

Answer:

Understanding RA 9165:

1. Severity: Republic Act 9165 imposes severe penalties for drug-related offenses. Conviction may include life imprisonment, depending on the nature and extent of the offense.

2. Non-Parole: The Act explicitly states that if a person is convicted and sentenced to life imprisonment, they shall not be eligible for parole.

Parole:

1. Ineligibility: Given the stringent nature of RA 9165, parole is generally not available for those serving life sentences for violations of this Act.

2. Other Sentences: If the sentence is less than life imprisonment, parole could be considered, but this depends on various factors like good behavior, completion of a portion of the sentence, and others.

Executive Clemency:

1. Presidential Pardon: The President has the discretionary power to grant pardons. However, these are very rare and typically depend on many variables like public sentiment, severity of the crime, and more.

2. Requirements: Even if the President is considering a pardon, the usual route involves various levels of reviews and recommendations, including from the Board of Pardons and Parole.

3. Conditional Pardon: In extraordinary cases, a conditional pardon might be given, but it comes with its set of rules and obligations that the convict must adhere to.

Conclusion:

While parole is generally not an option for those convicted under Republic Act 9165 and sentenced to life imprisonment, the possibility of a presidential pardon exists, though it is rare and discretionary. For those serving sentences less than life imprisonment, parole could be considered based on several factors.

Disclaimer:

This article is intended for informational purposes only and should not be construed as legal advice. Consultation with a qualified attorney is recommended for personalized legal guidance.

Foreigner Impregnating a Filipina Minor

Legal Implications of a Foreigner Impregnating a Filipina Minor: Deportation and Other Consequences

Question:

A foreigner got a Filipina minor pregnant. Will he be deported instantly for this crime?

Answer:

Criminal Offense:

1. Statutory Rape: Under the Revised Penal Code of the Philippines, sexual intercourse with a minor below a certain age is considered statutory rape. If the minor is older, consent may be taken into account, but it still may be considered rape under certain circumstances.

2. Other Offenses: Depending on the specifics, charges like child abuse under Republic Act 7610 (Child Protection Law) might also be applicable.

Deportation Process:

1. Immediate Deportation: Instant deportation is not automatic. Due process must be followed.

2. Legal Proceedings: The foreigner would typically undergo a criminal trial first. If convicted, the Bureau of Immigration can then initiate deportation proceedings.

3. Completion of Sentence: Deportation usually occurs after serving any prison sentence mandated by the court.

Consequences for the Foreigner:

1. Imprisonment: Conviction may result in imprisonment, and thereafter, deportation.

2. Blacklisting: Once deported, re-entry into the Philippines could be disallowed.

3. Civil Liabilities: Apart from criminal penalties, civil liabilities like child support may also be levied.

Immigration Rules:

1. Undesirable Alien: If the crime is proven, the foreigner could be classified as an "undesirable alien," making them subject to deportation.

2. Visa Cancellation: Visas may also be revoked or canceled as a result of criminal activities.

Conclusion:

The deportation of a foreigner for impregnating a Filipina minor is not immediate but can be a subsequent consequence following legal proceedings and a criminal conviction. Due process will be observed, and various penalties, including imprisonment and civil liabilities, can be applied.

Disclaimer:

This article is intended for informational purposes only and should not be considered as legal advice. Consult a qualified attorney for advice tailored to your specific situation.