Transfer of Shares of Stocks (Unpaid Subscription)

            Corporate shares may be transferred through donation, sale, assignment, and such other contracts conveying properties to another.  No transfer shall be valid, except as between the parties, until the transfer is recorded in the books of the corporation showing the names of the parties to the transaction, the date of the transfer, the number of the certificate or certificates and the number of shares transferred.  However, no shares of stock against which the corporation holds any unpaid claim shall be transferable in the books of the corporation.[1]  In this case, 64,750.5 shares have been paid by the majority stockholder.  He could transfer the same through donation, sale or assignment. 

            Article 63 of the Corporation Code provides thus:

Certificate of stock and transfer of shares. - The capital stock of stock corporations shall be divided into shares for which certificates signed by the president or vice president, countersigned by the secretary or assistant secretary, and sealed with the seal of the corporation shall be issued in accordance with the by-laws. Shares of stock so issued are personal property and may be transferred by delivery of the certificate or certificates endorsed by the owner or his attorney-in-fact or other person legally authorized to make the transfer. No transfer, however, shall be valid, except as between the parties, until the transfer is recorded in the books of the corporation showing the names of the parties to the transaction, the date of the transfer, the number of the certificate or certificates and the number of shares transferred.

            The usual practice is for the stockholder to sign the form on the back of the stock certificate. The certificate may thereafter be transferred from one person to another. If the holder of the certificate desires to assume the legal rights of a shareholder to enable him to vote at corporate elections and to receive dividends, he fills up the blanks in the form by inserting his own name as transferee. Then he delivers the certificate to the secretary of the corporation so that the transfer may be entered in the corporation’s books. The certificate is then surrendered and a new one issued to the transferee.

            That procedure cannot be followed in the instant case because the stockholder has not paid the full value of his subscription.  Article 64 of the Corporation Code states that no certificate of stock shall be issued to a subscriber until the full amount of his subscription together with interest and expenses (in case of delinquent shares), if any is due, has been paid.  Hence, the stockholder has not been issued the certificate of stock corresponding to his shares. While it is true that holders of subscribed shares not fully paid which are not delinquent shall have all the rights of a stockholder,[2] without a stock certificate, which is the evidence of ownership of corporate stock, the assignment of corporate shares is effective only between the parties to the transaction. The delivery of the stock certificate, which represents the shares to be alienated, is essential for the protection of both the corporation and its stockholders.

            Nevertheless, the stockholder is not left without recourse.  The majority stockholder may execute a trust agreement for the purpose of conferring upon the other stockholders the rights pertaining to the stocks even without the certificate of stocks.  Under Section 59 of the new Corporation Code which expressly recognizes voting trust agreements, a more definitive meaning may be gathered. The said provision partly reads:

One or more stockholders of a stock corporation may create a voting trust  for the purpose of conferring upon a trustee or trustees the right to vote and other rights pertaining to the shares for a period not exceeding five (5) years at any time: Provided, That in the case of a voting trust  specifically required as a condition in a loan agreement, said voting trust  may be for a period exceeding five (5) years but shall automatically expire upon full payment of the loan. A voting trust agreement must be in writing and notarized, and shall specify the terms and conditions thereof. A certified copy of such agreement shall be filed with the corporation and with the Securities and Exchange Commission; otherwise, said agreement is ineffective and unenforceable. The certificate or certificates of stock covered by the voting trust  agreement shall be canceled and new ones shall be issued in the name of the trustee or trustees stating that they are issued pursuant to said agreement. In the books of the corporation, it shall be noted that the transfer in the name of the trustee or trustees is made pursuant to said voting trust  agreement.

            The law simply provides that a voting trust agreement is an agreement in writing whereby one or more stockholders of a corporation consent to transfer his or their shares to a trustee in order to vest in the latter voting or other rights pertaining to said shares for a period not exceeding five years upon the fulfillment of statutory conditions and such other terms and conditions specified in the agreement. The five year-period may be extended in cases where the voting trust is executed pursuant to a loan agreement whereby the period is made contingent upon full payment of the loan.

            A voting trust agreement may confer upon a trustee not only the stockholder’s voting rights but also other rights pertaining to his shares as long as the voting trust agreement is not entered “for the purpose of circumventing the law against monopolies and illegal combinations in restraint of trade or used for purposes of fraud.” (section 59, 5th paragraph of the Corporation Code) Thus, the traditional concept of a voting trust agreement primarily intended to single out a stockholder’s right to vote from his other rights as such and made irrevocable for a limited duration may in practice become a legal device whereby a transfer of the stockholder’s shares is effected subject to the specific provision of the voting trust agreement.  The execution of a voting trust agreement, therefore, may create a dichotomy between the equitable or beneficial ownership of the corporate shares of a stockholder, on the one hand, and the legal title thereto on the other hand. [3]

SSS REtirement Benefits

A member who is separated from his previous employment may claim for retirement benefits if he is already 60 years old at the time of separation and has paid at least one hundred twenty (120) monthly contributions prior to the semester of retirement.

            The Social Security System issued Circular No. 39-P addressed to all SSS Members regarding the payment of benefit on the date of technical retirement.  The circular states that the SSS shall pay the retirement benefits on the date when a member turns 65 years old or 60 years old for underground mineworkers (technical retirement), provided qualified members have submitted the necessary documents which have been verified and validated by SSS at least six (6) months before the actual date of retirement.

            The employee did not opt to claim the payment of benefit on the day of his technical requirement and he is not yet 65 years old.  Hence, the employee in this case is not covered by the requirements of the Circular, which was issued for the guidance of those members who intend to receive the benefit on the date of their technical retirement or the date when the member turns 65 years old.  Given that the member did not intend to receive payment of benefits on the date of his retirement and he is not yet 65 years old, the member need not submit the necessary documents before he resigned or retired.

            The SSS Act[1]  is clear in saying that to be qualified for the claim, the member should be (1) 60 years old at the time of separation and (2) has paid 120 monthly contributions prior to retirement.  Hence, if the employee has paid 120 monthly contributions, he may already claim for the benefits.  The fact that he is only claiming for the benefits after more than a year is immaterial given that the SSS Act does not provide for a prescriptive period for filing the claim.

            The documents needed in filing for retirement benefits are:

1.      Retirement claim application (SSS Form DDR-1);

2.      DDR Savings Account form;

3.      Certificate of Separation from last employer (for members less than 65 years old);

4.      Passbook (if pension);

5.      Certified true copies of birth or baptismal certificate of dependent children;

6.      Certificate of cessation of business or practice of profession (for self-employed less than 65 years old);

7.      Certified true copy of Marriage certificate (if with dependent children)

8.      Proofs of filiation for illegitimate dependent children; and

9.      SSS digitized or E-6 (acknowledgement stub) with two valid IDs, one of which with recent photo.

            The employee should comply with the said requirements to be able to validly claim for the benefits.

            A pensioner who retires more than once shall be entitled to the higher of:

1.      the monthly pension computed for the first retirement claim; or

2.      the re-computed monthly pension for the new claim.

            Retirement benefit is a cash benefit either in monthly pension or lump sum paid to a member who can no longer work due to old age.

            A member who is separated from his previous employment may claim for retirement benefits if he is already 60 years old at the time of separation.  A member, whether or not employed, may claim for retirement benefits upon reaching the age of 65.  However, the member should have paid at least 120 monthly contributions prior to the semester of retirement to be qualified to claim for retirement benefits.  The retiree may claim the monthly pension or the lump sum amount.  The monthly pension is a lifetime cash benefit paid to a retiree who has paid at least 120 monthly contributions to the SSS prior to the semester of retirement while the lump sum amount is granted to a retiree who has not paid the required 120 monthly contributions. The lump sum amount is equal to the total contributions paid by the member and by the employer including interest.

            The monthly pension depends on the member’s paid contributions, including the credited years of service (CYS) and the number of dependent minor children but not to exceed five. The amount of monthly pension will be the highest of:

1.      the sum of P300 plus 20 percent of the average monthly salary credit plus 2 per cent of the average monthly salary credit for each accredited year of service (CYS) in excess of ten years; or

2.      40 per cent of the average monthly salary credit; or

3.      P1,200, provided that the credited years of service (CYS) is at least 10 or more but less than 20 or P2,000, if the CYS is 20 or more. The monthly pension is paid for not less than 60 months.

            A retiree has the option to receive the first 18 monthly pension in lump sum discounted at a preferential rate of interest to be determined by the SSS. The option should be exercised upon filing of the first retirement claim. Only advance payments shall be discounted on the date of the payment. The dependents’ pension and 13th month pensions are excluded from the 18 months lump sum pension.  The member will receive the monthly pension on the 19th month and every month thereafter.

            When the retirement pensioner resumes employment, the monthly pension shall be suspended upon the re-employment or resumption of self-employment of a retired member who is less than 65 years old. The member shall again be subjected to compulsory coverage. A 65 year old member, whether employed or not, can already claim for retirement benefits.

            The monthly pension of a member who retires after the age of 60 and who has contributed the required 120 monthly contributions shall be the higher of the following:

1.      the monthly pension computed at the earliest time the member could have retired or had been separated from self-employment or ceased to be self-employed plus all adjustments thereto; or

2.      the monthly pension computed at the time when the member actually retires.

            Aside from the retirement benefits, the retiree is entitled to a 13th month pension payable every December. All retiree pensioners prior to the effectivity of RA 7875 on March 4, 1995 are automatically considered members of PhilHealth and he and his legal dependents are entitled to its hospitalization benefits. On the other hand, retirees effective March 4,1995 up to the present will be entitled to hospitalization benefits under PhilHealth only if they have contributed 120 monthly Medicare contributions. The counting of 120 monthly contributions shall start in 1972, when the Medical Care Act of 1969 started implementation.  A copy of DDR print-out indicating the type of claim is retirement in nature and the effectivity date of pensioner in its absence a copy of retiree-pensioner certification issued by SSS shall be required. They need to register under Philhealth for the issuance of a Philhealth ID card.

            The legitimate, legitimated, or legally adopted and illegitimate children, conceive on or before the date of retirement of a retiree will each receive dependents’ pension equivalent to 10 per cent of the member’s monthly pension or P250, whichever is higher.  Only five minor children, beginning from the youngest, are entitled to the dependents’ pension. No substitution is allowed.  If there are more than five dependents, the legitimate, legitimated or legally adopted children shall be preferred.

            The dependents’ pension stops when the child reaches 21 years old, gets married, gets employed or dies. However, the dependents’ pension is granted for life for children who are over 21 years old, provided they are incapacitated and incapable of self-support due to physical or mental defect which is congenital or acquired during minority.

Change of Name

RA 9048[1] now governs the change of first name. It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied. It likewise lays down the corresponding venue, form and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial.[2]

            RA 9048 authorizes the city or municipal civil registrar or the consul general to change the first name or nickname in the civil register without need of a judicial order. RA 9048 amends Articles 376 and 412 of the Civil Code of the Philippines, which prohibit the change of name or surname of a person without a judicial order.   

Grounds for Change of Name

            (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

            (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or,

            (3) The change will avoid confusion.

Who may file the Petition

            The petition may be filed by a person of legal age who must have a direct and personal interest in the change of first name in the civil register.

            Only the following persons are considered to have a direct and personal interest in the correction of clerical error or change of first name:

1. Owner of the record that contains the first name to be changed

1. Owner’s spouse, children, parents, brothers, sisters, grandparents, guardian, or any other person duly authorized by law or by the owner of the document sought to be corrected.

Formal Requirements

            The petition for a change of first name should be accomplished properly and in the prescribed form. Section 5 of RA 9048 and Rule 8 of Administrative Order No. 1, S. 2001 require that the petition should be in the form of an affidavit, hence, it should be subscribed and sworn to before a person authorized to administer oath.

            The petition must contain the following facts or information:

• Merits of the petition
• Competency of the petitioner
• First name to be changed and the proposed new first name

            No petition for change of first name shall be accepted unless the petitioner submits the required supporting papers, as follows:

1. Certified machine copy of the certificate containing the alleged erroneous entry or entries

1. Not less than 2 public or private documents upon which the correction shall be based. Examples of these documents are the following: baptismal certificate, voter’s affidavit, employment record, GSIS/SSS record, medical record, school record, business record, driver’s license, insurance, land titles, certificate of land transfer, bank passbook, NBI/police clearance, civil registry records of ascendants, and others.

1. Notice and Certificate of Posting

1. Certified machine copy of the Official Receipt of the filing fee
    
2. Other documents as may be required by the City/Municipal Civil Registrar (C/MCR)

1. Clearance from authorities such as clearance from employer, if employed; the National Bureau of Investigation; the Philippine National Police; and other clearances as may be required by the concerned C/MCR.
    
2. Proof of Publication. An affidavit of publication from the publisher and copy of the newspaper clippings should be attached.

            The C/MCR and the District/Circuit Registrar (D/CR) are authorized to collect from every petitioner the following rates of filing fees:

• Three thousand pesos (P3,000.00) for the change of first name

            In the case of a petition filed with the Consul General (CG), the fees are the same for all Philippine Consulates. The fees are the following:

• One hundred fifty U.S. dollars ($150.00) for the change of first name

            A migrant petitioner shall pay an additional service fee to the Petition Receiving Civil Registrar (PRCR).

• One thousand pesos (P1,000.00) for change of first name

            The general rule is that petition shall be filed with the Local Civil Registry Office (LCRO) where the record containing the first name to be changed is kept. Included in this general rule is the case of the Office of the Clerk of Shari’a Court where records of divorces, revocations of divorces, conversions to Islam are kept and where some Muslim marriages are registered.

            However, in case the petitioner is a migrant within or outside the Philippines, meaning his present residence or domicile is different from where his civil registry record or records are registered, he may file the petition in the nearest LCRO in his area. His petition will be treated as a migrant petition.

Effects

            When the petition for a change of first name is approved by the C/MCR or CG or D/CR and such decision has not been impugned by the CRG, the change shall be reflected in the birth certificate by way of marginal annotation. In case there are other civil registry records of the same person which are affected by such change, the decision of approving the change of first name in the birth certificate, upon becoming final and executory, shall be sufficient to be used as basis in changing the first name of the same person in his other affected records without need for filing a similar petition. In such a case, the successful petitioner shall file a request in writing with the concerned C/MCR, CG or D/CR to make such marginal annotation, attaching thereto a copy of the decision.

            Where the petition is not granted by the C/MCR, CG or D/CR, as the case may be, the petitioner may either appeal the decision to the CRG within ten (10) working days from receipt of the decision, or file the appropriate petition with the proper court. In case the petitioner opts to appeal the decision to the CRG, the latter shall render decision within thirty (30) calendar days after receipt of the appeal. The CRG shall furnish the C/MCR, CG or D/CR a copy of the decision not later than ten (10) working days after the date of the decision.

Appeal

            When the petition is denied by the C/MCR, the petitioner may appeal the decision to the CRG, in which case, the following guidelines shall be observed:

            The adversely affected petitioner shall file the notice of appeal to the concerned C/MCR within ten (10) working days after the receipt of the latter’s decision.  The C/MCR shall, within five (5) working days after the receipt of the notice of appeal from the petitioner, submit the petition and all supporting documents to the CRG.  The CRG shall render decision on the appeal within thirty (30) calendar days after receipt thereof. The decision of the CRG shall be transmitted to the concerned C/MCR within ten (10) working days after the date of the decision. Within ten (10) working days after receipt of the decision, the C/MCR shall notify the petitioner and shall carry out the decision.

            When the petitioner fails to seasonably file the appeal, the decision of the C/MCR disapproving the petition shall become final and executory, and the only option left for the petitioner shall be to file the appropriate petition with the proper court.

            The petitioner may file the appeal to the CRG on any of the following grounds:

1.   A new evidence is discovered, which when presented, shall materially affect, alter, modify or reverse the decision of the C/MCR.

2.   The denial of the C/MCR is erroneous or not supported with evidence.

3.   The denial of the C/MCR is done with grave abuse of authority or discretion.

 
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Exceptions to the rule

Exceptions to the rule that the filing of Motion for Reconsideration is a condition sine qua non to the filing of a Petition for Certiorari under Rule 65

There are several exceptions where a petition for certiorari will lie without the prior filing of a motion for reconsideration, to wit:

a. where the order is a patent nullity, as where the court a quo has no jurisdiction;

b. where the questions raised in the certiorari proceeding have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;

c. where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the government or the petitioner or the subject matter of the action is perishable;

d. where, under the circumstances, a motion for reconsideration would be useless;

e. where petitioner was deprived of due process and there is extreme urgency for relief;

f. where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;

g. where the proceedings in the lower court are a nullity for lack of due process;

h. where the proceedings was ex parte or in which the petitioner had no opportunity to object; and

i. where the issue raised is one purely of law or where public interest is involved.[1]

from urbandictionary.com