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Defintion

Modes to Commit and Elements

I. PLUNDER (RA 7080, ANTI-PLUNDER ACT)

Sec. 2. Definition of the Crime of Plunder; Penalties. - Any public officer who, by
himself or in connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt
criminal acts as described in Section 1 (d) hereof in the aggregate amount or total
value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In the imposition
of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be
considered by the court. The court shall declare any and all ill-gotten wealth and
their interests and other incomes and assets including the properties and shares of
stocks derived from the deposit or investment thereof forfeited in favor of the State.
(as Amended by Sec. 12, RA 7659, decreasing the amount from P75M to P50M and
increasing the penalty from life imprisonment to reclusion perpetua)

The Anti-Plunder Law more than adequately answers the


question What is the violation? Indeed, to answer this
question, any law student -- using basic knowledge of
criminal law -- will refer to the elements of the crime,
which in this case are plainly and certainly spelled out in
a straightforward manner in Sections 2 and 1(d) thereof.
Those elements are:

1. The offender is a public officer acting by himself or in


connivance with members of his family, relatives by
affinity or consanguinity, business associates,
subordinates or other persons.
2. The offender amasses, accumulates or acquires illgotten wealth.
3. The aggregate amount or total value of the ill-gotten
wealth so amassed, accumulated or acquired is at least
fifty million pesos (P50,000,000).

Sec 1(d) Definition of Terms


d) "Ill-gotten wealth" means any asset, property, business enterprise or material
possession of any person within the purview of Section Two (2) hereof, acquired by

4. Such ill-gotten wealth -- defined as any asset, property,


business enterprise or material possession of any of the
aforesaid persons (the persons within the purview of
Section 2, RA 7080) -- has been acquired directly or
indirectly through dummies, nominees, agents,

him directly or indirectly through dummies, nominees, agents, subordinates and or


business associates by any combination or series of the following means or similar
schemes.
1) Through misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury;

2) By receiving, directly or indirectly, any commission, gift, share, percentage,


kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer concerned;

subordinates and/or business associates by any


combination or series of the following means or similar
schemes:
(i) through misappropriation, conversion, misuse or
malversation of public funds or raids on the public
treasury;

(ii) by receiving, directly or indirectly, any


commission, gift, share, percentage, kickbacks or
any other form of pecuniary benefit from any person
and/or entity in connection with any government
contract or project or by reason of the office or
position of the public officer concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the


National Government or any of its subdivisions, agencies or instrumentalities or
government-owned or -controlled corporations and their subsidiaries;

4) By obtaining, receiving or accepting directly or indirectly any shares of stock,


equity or any other form of interest or participation including promise of future
employment in any business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other


combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or

(iii)
by the illegal or fraudulent conveyance or
disposition of assets belonging to the national
government or any of its subdivisions, agencies or
instrumentalities or government-owned or controlled
corporations and their subsidiaries;

(iv)
by obtaining, receiving or accepting
directly or indirectly any shares of stock, equity or
any other form of interest or participation including
the promise of future employment in any business
enterprise or undertaking;

6) By taking undue advantage of official position, authority, relationship, connection


or influence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the Philippines.

(v) by establishing agricultural, industrial or


commercial monopolies or other combination and/or
implementation of decrees and orders intended to
benefit particular persons or special interests; or

(vi)
by taking undue advantage of official
position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.
(Estrada v Sandiganbayan, Panganiban,J. Concurring)

II. MALVERSATION OF FUNDS (Under Revised Penal Code)

Article 217. Malversation of public funds or property; Presumption of malversation. Any public officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same or shall take or misappropriate or shall
consent, through abandonment or negligence, shall permit any other person to take
such public funds, or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:

Mode 1. Appropriating public funds or property;


Mode 2. Taking or misappropriating the same;
Mode 3. Consenting, or through abandonment or
negligence, permitting any other person to take such
public funds or property; and
Mode 4. Being otherwise guilty of the
misappropriation or malversation of such funds or
property.

1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two
hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the
amount involved is more than two hundred pesos but does not exceed six
thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal
in its minimum period, if the amount involved is more than six thousand
pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum periods, if
the amount involved is more than twelve thousand pesos but is less than
twenty-two thousand pesos. If the amount exceeds the latter, the penalty
shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or
equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds 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 use.
(As amended by RA 1060).

Case Law:

Elements:
(a) That the offender be a public officer
(b) That be had custody or control of funds or
property by reason of the duties of his office
(c) That those funds or property were public funds or
propeprt for which he was accountable.
(d) That he appropriated, took, misappropriated or
consented or, through abandonment or negligence,
permitted another person to take them.

A private person may also commit malversation under the


following situations:
(1) Conspiracy with a public officer in committing
malversation;
(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 he
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

The public officer must have official custody or the duty to collect or receive
funds due the government, or the obligation to account for them.

It is not necessary that the offender profited for as long as the accountable officer
was remiss in his duty of safekeeping public funds or property.

He is liable for malversation if such funds were lost or otherwise misappropriated


by another.

It can be committed either with malice or through negligence or imprudence. This


is one crime in the Revised Penal Code where the penalty is the same whether
committed with dolo or through culpa.

The nature of the duties of the public officer, not the name of the office, is
controlling.

The funds or property must be received in an official capacity. Otherwise, the


crime committed is estafa.

Malversation may thus be committed either through a positive act of


misappropriation of public funds or property of passively through negligence by
allowing another to commit such misappropriation. Nonetheless, all that is necessary
to prove in both acts are the following:
(a) that the defendant received in his possession public funds or property
(b) that he could not account for them and did not have them in his possession when
audited; and
(c) that he could not give a satisfactory or reasonable excuse for the disappearance

of said funds or property. An accountable officer may thus be convicted of


malversation even if there is no direct evidence of misappropriation and the only
evidence is that there is a shortage in the officer's accounts which he has not been
able to explain satisfactorily (Cabello v Sandiganbayan May 1991)

III. BRIBERY (Under Revised Penal Code)

Article 210. Direct bribery. - Any public officer who shall agree to perform an act
constituting a crime, in connection with the performance of this official duties, in
consideration of any offer, promise, gift or present received by such officer,
personally or through the mediation of another, shall suffer the penalty of prision
mayor in its medium and maximum periods and a fine of not less than the value of
the gift and] not less than three times the value of the gift in addition to the penalty
corresponding to the crime agreed upon, if the same shall have been committed.
If the gift was accepted by the officer in consideration of the execution of an act
which does not constitute a crime, and the officer executed said act, he shall suffer
the same penalty provided in the preceding paragraph; and if said act shall not have
been accomplished, the officer shall suffer the penalties of prision correccional, in its
medium period and a fine of not less than twice the value of such gift.

If the object for which the gift was received or promised was to make the public
officer refrain from doing something which it was his official duty to do, he shall suffer
the penalties of prision correccional in its maximum period and a fine of not less than
the value of the gift and not less than three times the value of such gift.

Mode 1. Agreeing to perform, or performing, in


consideration of any offer, promise, gift or present;
an act constituting a crime, in connection with the
performance of his official duties;
Mode 2. Accepting a gift in consideration of the
execution of an act which does not constitute a
crime, in connection with the performance of his
official duty;
Mode 3. Agreeing to refrain, or by refraining, from
doing something which is his official duty to do, in
consideration of gift or promise.
Elements:
(1) Offender is a public officer within the scope of Article
203;
(2) Offender accepts an offer or a promise or receives a
gift or present by himself or through another;
(3) Such offer or promise be accepted, or gift or present
received by the public officer
(a) With a view to committing some crime; or
(b) In consideration of the execution of an act which does
not constitute a crime, but the act must be unjust; or
(c) To refrain from doing something which it is his official
duty to do.
(4) The act which offender agrees to perform or which he
executes be connected with the performance of his

official duties.
In addition to the penalties provided in the preceding paragraphs, the culprit shall
suffer the penalty of special temporary disqualification.
The provisions contained in the preceding paragraphs shall be made applicable to
assessors, arbitrators, appraisal and claim commissioners, experts or any other
persons performing public duties. (As amended by Batas Pambansa Blg. 871,
approved May 29, 1985).

In the FIRST MODE of bribery, actual receipt of the gift is


not necessary. An accepted offer or promise of a gift is
sufficient. However, if the offer is not accepted, only the
person offering the gift is liable for attempted corruption of
a public officer.
In the SECOND MODE of bribery, the gift must be
accepted by the public officer. The GIFT must have a
value or capable of pecuniary estimation. It could be in
the form of money, property or services. It cannot consist
of a mere offer or promise of a gift. If the act required of
the public officer amounts to a crime and he commits it,
he shall be liable for the penalty corresponding to the
crime.
The THIRD MODE of bribery and prevaricacion (art 208)
are similar offenses, both consisting of omission of an act
required to be performed. In direct bribery however, a gift
or promise is given in consideration of the omission. This
is not necessary in prevaricacion.

Article 211. Indirect bribery. - The penalties of prision correccional in its medium and
maximum periods, and public censure shall be imposed upon any public officer who
shall accept gifts offered to him by reason of his office. (As amended by Batas
Pambansa Blg. 871, approved May 29, 1985).

Case Law:
The principal distinction between direct and indirect bribery is that in the former,
the officer agrees to perform or refrain from doing an act in consideration of the gift
or promise. In the latter case, it is not necessary that the officer do any act. It is

Elements:
(1) Offender is a public officer;
(2) He accepts gifts;
(3) The gifts are offered to him by reason of his office.

sufficient that he accepts the gift offered by reason of his office. If after receiving the
gift, the officer does any act in favor of the giver which is unfair to the others, the
crime continues to be indirect bribery.

Article 211-A. Qualified bribery. - If any public officer is entrusted with law
enforcement and he refrains from arresting or prosecuting an offender who has
committed a crime punishable by reclusion perpetua and/or death in consideration of
any offer, promise, gift or present, he shall suffer the penalty for the offense which
was not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall suffer the
penalty of death. (As added by Sec. 4, RA No. 7659).

Article 212. Corruption of public officials. - The same penalties imposed upon the
officer corrupted, except those of disqualification and suspension, shall be imposed
upon any person who shall have made the offers or promises or given the gifts or
presents as described in the preceding articles

IV. GRAFT AND CORRUPT PRACTICES

Elements:
(1) Offender is a public officer entrusted with law
enforcement;
(2) He refrains from arresting or prosecuting an offender
who has committed a crime punishable by reclusion
perpetua and/or death;
(3) Offender refrains from arresting or prosecuting in
consideration of any offer, promise, gift, or present.
The crime of qualified bribery may be committed only by
public officers entrusted with enforcement (those
whose official duties authorize them to arrest or
prosecute offenders). The penalty is qualified if the public
officer is the one who asks or demands such present.

Elements:
(1) Offender makes offers or promises or gives gifts or
presents to a public officer;
(2) The offers or promises are made or the gifts or
presents given to a public officer, under circumstances
that will make the public officer liable for direct bribery or
indirect bribery.

(RA 3019 Anti-Graft and Corrupt Practices Act)

Section 3. Corrupt practices of public officers. In addition to acts or omissions of


public officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public officer to perform an act
constituting a violation of rules and regulations duly promulgated by competent
authority or an offense in connection with the official duties of the latter, or allowing
himself to be persuaded, induced, or influenced to commit such violation or
offense.

To be convicted of violation of Section 3(b), the


prosecution has the burden of proving the following
elements:
1) the offender is a public officer;
2) who requested or received a gift, a present, a share, a
percentage, or benefit;
3) on behalf of the offender or any other person;

(b) Directly or indirectly requesting or receiving any gift, present, share,


percentage, or benefit, for himself or for any other person, in connection with any
contract or transaction between the Government and any other part, wherein the
public officer in his official capacity has to intervene under the law.

(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary
or material benefit, for himself or for another, from any person for whom the public
officer, in any manner or capacity, has secured or obtained, or will secure or
obtain, any Government permit or license, in consideration for the help given or to
be given, without prejudice to Section thirteen of this Act.

(d) Accepting or having any member of his family accept employment in a private
enterprise which has pending official business with him during the pendency

4) in connection with a contract or transaction with the


government;
5) in which the public officer, in an official capacity under
the law, has the right to intervene. (Garcia v.
Sandiganbayan, G.R. No. 155574, November 20, 2006)

To be convicted of Section 3(c) the following elements


must concur:
(1) The accused is a public officer;
(2) That in any manner or capacity he secured or
obtained, or would secure or obtain, for a person any
government permit or license;

thereof or within one year after its termination.

(3) That he directly or indirectly requested or received


from said person any gift, present or other pecuniary or
material benefit for himself or for another; and

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge
of his official administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.

(4) That he requested or received the gift, present or


other pecuniary or material benefit in consideration for the
help given or to be given. (Tecson v Sandiganbayan Nov
1999)

(f) Neglecting or refusing, after due demand or request, without sufficient


justification, to act within a reasonable time on any matter pending before him for
the purpose of obtaining, directly or indirectly, from any person interested in the
matter some pecuniary or material benefit or advantage, or for the purpose of
favoring his own interest or giving undue advantage in favor of or discriminating
against any other interested party.

In Dela Chica v. Sandiganbayan (2003) the Court


enumerated the essential elements of Section 3(e) of RA
3019, as amended.

(g) Entering, on behalf of the Government, into any contract or transaction


manifestly and grossly disadvantageous to the same, whether or not the public
officer profited or will profit thereby.

(h) Director or indirectly having financing or pecuniary interest in any business,


contract or transaction in connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the Constitution or by any law from
having any interest.

1. That the accused are public officers or private persons


charged in conspiracy with them;
2. That said public officers committed the prohibited acts
during the performance of their official duties or in relation
to their public positions;
3. That they caused undue injury to any party, whether
the Government or a private party;
4. That such injury was caused by giving unwarranted
benefits, advantage or preference to such parties; and
5. That the public officers acted with manifest partiality,
evident bad faith or gross inexusable negligence.

(i) Directly or indirectly becoming interested, for personal gain, or having a material
interest in any transaction or act requiring the approval of a board, panel or group
of which he is a member, and which exercises discretion in such approval, even if
he votes against the same or does not participate in the action of the board,
committee, panel or group.
Interest for personal gain shall be presumed against those public officers
responsible for the approval of manifestly unlawful, inequitable, or irregular
transaction or acts by the board, panel or group to which they belong.

(j) Knowingly approving or granting any license, permit, privilege or benefit in favor
of any person not qualified for or not legally entitled to such license, permit,
privilege or advantage, or of a mere representative or dummy of one who is not so
qualified or entitled.

(k) Divulging valuable information of a confidential character, acquired by his office


or by him on account of his official position to unauthorized persons, or releasing
such information in advance of its authorized release date.

The person giving the gift, present, share, percentage or benefit referred to in
subparagraphs (b) and (c); or offering or giving to the public officer the employment
mentioned in subparagraph (d); or urging the divulging or untimely release of the
confidential information referred to in subparagraph (k) of this section shall, together
with the offending public officer, be punished under Section nine of this Act and shall
be permanently or temporarily disqualified in the discretion of the Court, from

Under settled jurisprudence, the following elements need


to prove violation of Section 3(h) of RA No. 3019:
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary
interest in any business, contract, or transaction; and
3. He either (a) intervenes or takes part in his official
capacity in connection with such interest, or (b) is
prohibited from having such interest by the Constitution
or by any law.

transacting business in any form with the Government.

Section 4. Prohibition on private individuals.


a) It shall be unlawful for any person having family or close personal relation with
any public official to capitalize or exploit or take advantage of such family or close
personal relation by directly or indirectly requesting or receiving any present, gift or
material or pecuniary advantage from any other person having some business,
transaction, application, request or contract with the government, in which such
public official has to intervene. Family relation shall include the spouse or relatives
by consanguinity or affinity in the third civil degree. The word "close personal
relation" shall include close personal friendship, social and fraternal connections,
and professional employment all giving rise to intimacy which assures free access to
such public officer.
(b) It shall be unlawful for any person knowingly to induce or cause any public official
to commit any of the offenses defined in Section 3 hereof.