| Whereas,
the State recognizes that an effective intellectual and industrial
property system is vital to the development of domestic creativity,
facilitates transfer of technology, attracts foreign investments and
ensures market access for our products;
Whereas,
the State recognizes that the use of intellectual property bears a social
function and to this end, the State shall promote the diffusion of
knowledge and information for the promotion of national development and
progress and the common good;
Whereas,
it is the policy of the State to enhance the enforcement of intellectual
property rights in the country and to protect and secure the exclusive
rights of scientists, inventors, artists and other gifted citizens to
their intellectual property and creations, particularly when beneficial to
the people;
Whereas,
it is the policy of the State to enhance the enforcement of intellectual
property rights in the Philippines;
Now, therefore, pursuant to the provisions of Republic Act No.
8293, otherwise known as the Intellectual Property Code of the
Philippines, the following rules and regulations on administrative
complaints for violation of laws involving intellectual property rights
are hereby promulgated :
RULE
1
DEFINITIONS,
INTERPRETATION; RULES OF COURT
Section
1. Definition of Terms – Unless otherwise indicated, the following
terms shall be understood as follows:
(a) “Answer “ means a pleading in which the adverse party sets forth the negative
and affirmative defenses upon which he relies;
(b) “Bonds” and “Counterbonds” shall refer to cash bonds and cash counterbonds in the form of
cash, cashiers check or manager’s check, excluding surety bonds and
surety counterbonds;
(c) “Bureau”
means the Bureau of Legal Affairs of the Intellectual Property Office;
(d) “Chief
Hearing Officer” means the officer within the Bureau who exercises
immediate supervision over any Hearing Officer. His title or official designation may differ from the words
“Chief Hearing Officer” depending on the structure of the Office;
(e) “Complaint”
means a concise statement of the ultimate facts constituting the
complainant’s cause or causes of action. It shall specify the relief sought, but it may add a general prayer
for such further or other relief as may be just and equitable;
(f) “Court”
means a court of general jurisdiction such as Regional Trial Court;
(g) “Director
General” means the head of the Intellectual Property Office;
(h) “Director”
means the Director of the Bureau of Legal Affairs;
(i) “False
Designation of Origin” means the act of any person who, on or in
connection with any goods or services, or any container for goods, uses in
commerce any word, term, name, symbol, or device, or any combination
thereof, or any false designation of origin, false or misleading
description of fact, or false or misleading representation of fact, which: (i) is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of such person
with another person, or as to the origin, sponsorship, or approval of his
or her goods, services, or commercial activities by another person; or (ii) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or her or
another person’s goods, services or commercial activities, shall be
liable to a civil action for damages and injunction provided in Sections
156 and 157 of the IP Code by any person who believes that he or she is
likely to be damaged by such act.
(j) “False or
Fraudulent Declaration” means the act of any person who shall procure
registration in the Office of a mark by a false or fraudulent declaration
or representation, whether oral or writing, or by any false means;
(k) “Hearing
Officer” means the officer within the Bureau authorized to exercise the
functions of “Hearing Officer” in these Regulations. The title or official designation of such officers may differ from
the words “Hearing Officer” depending on the structure of the Office;
(l) “Infringement of Copyright and Related Rights” means any violation of the rights provided under Part IV of the IP
Code and/or the applicable IP Law, including the act of any person who at
the time when copyright subsists in a work has in his possession an
article which he knows, or ought to know, to be an infringing copy of the
work for the purpose of: (i) selling, letting for hire, or by way of trade offering or exposing
for sale, or hire, the article; (ii) distributing the article for purpose of trade, or for any other
purpose to an extent that will prejudice the rights of the copyright owner
in the work; or (iii) trade
exhibit of the article in public.
(m) “Infringement
of Patent” means any violation of any of the rights of patentees and
holders of utility model patents and industrial design registrations under
Part II of the IP Code and/or the applicable IP Law, including the act of
making, using, offering for sale, selling, or importing a patented product
or a product obtained directly or indirectly from a patented process, or
the use of a patented process without the authorization of the patentee;
(n) “Infringement
of mark” means any violation of any of the rights of the registered
owner under Part III of the IP Code and/or the applicable IP Law,
including the act of any person who shall, without the consent of the
owner of the registered mark, and regardless of whether there is actual
sale of goods or services using the infringing material:
(i) use in commerce any reproduction, counterfeit, copy, or colorable
imitation of a registered mark or the same container or a dominant feature
thereof in connection with the sale, offering for sale, distribution,
advertising of any goods or services including other preparatory steps
necessary to carry out the sale of any goods or services on or in
connection with which such use is likely to cause confusion, or to cause
mistake, or to deceive; or
(ii) reproduce, counterfeit, copy or colorably imitate a registered mark
or a dominant feature thereof and apply such reproduction, counterfeit,
copy or colorable imitation to labels, signs, prints, packages, wrappers,
receptacles or advertisements intended to be used in commerce upon or in
connection with the sale, offering for sale, distribution, or advertising of goods or services or in connection
with which such use is likely to cause confusion, or to cause mistake, or
to deceive;
(o) “Intellectual property rights” include:
(i) Copyright and Related Rights;
(ii) Trademarks and Service Marks;
(iii) Geographic Indications;
(iv) Industrial Designs;
(v) Patents;
(vi) Layout-Designs (Topographies) of Integrated Circuits; and
(vii) Undisclosed Information
(p) “IP Code”
means Republic Act No. 8293 otherwise known as the Intellectual Property
Code of the Philippines;
(q) “IP Law”
means any law, in addition to the IP Code, involving intellectual property
rights;
(r) “Office”
means the Intellectual Property Office;
(s) “Regulations”
means this set of rules and regulations and such Regulations as may be
formulated by the Director of Bureau of Legal Affairs and approved by the
Director General.
(t) “Unfair
Competition” means the act of any person who shall employ deception or
any other means contrary to good faith by which he shall pass off the
goods manufactured by him or in which he deals, or his business, or
services for those of the one having established such goodwill, or who
shall commit any acts calculated to produce said result.
The
following shall likewise constitute unfair competition:
(i) the act of selling one’s goods and giving them the general
appearance of goods of another manufacturer or dealer, either as to the
goods themselves or in the wrapping of the packages in which they are
contained, or the devices or words thereon, or in any other feature of
their appearance, which would be likely to influence purchasers to believe
that the goods offered are those of a manufacturer or dealer, or the act
of clothing the goods with such appearance as shall deceive the public and
defraud another of his legitimate trade, or the act of reselling the goods
by any subsequent vendor with a like purpose.
(ii) the act of employing any other means, by artifice or device,
calculated to induce the false belief that a person is offering the
services of another who has identified such services in the mind of the
public.
(iii) the act of making any false statement in the course of trade or any
act contrary to good faith of a nature calculated to discredit the goods,
business or services of another.
(u) “Violation of
laws involving intellectual property rights mentioned in Rule 2 Section
2” means violation of any law relating to the intellectual property
rights enumerated under Section 4 of Republic Act No. 8293.
Section
2. Interpretation – These Regulations shall be liberally construed to carry out the
objectives of the IP Code and IP Laws and to assist the parties in
obtaining just and expeditious settlement or disposition of administrative
cases filed before the Office.
Section
3. Suppletory
Application of the Rules of Court – These Regulations shall primarily govern in the prosecution of
administrative complaints in the Bureau. The provisions of the Rules of Court, however, shall apply in a
suppletory character.
RULE
2
COMMENCEMENT
OF ACTION
Section
1. Complaint, When and to Whom Filed - All administrative complaints for violation of the IP Code or
IP Laws shall be commenced by filing a verified complaint with the Bureau
within four (4) years from the date of commission of the violation, or if
the date be unknown, from the date of discovery of the violation. A complaint is verified by an affidavit that the affiant has
read the pleading and that the allegations therein are true and correct of
his knowledge and belief.
A
pleading required to be verified which contains a verification based on
“information and belief” or upon “knowledge, information, and
belief” or lacks proper verification, shall be treated as an unsigned
pleading.
The
complaint shall include a certification that the party commencing the
action has not filed any other action or proceeding involving the same
issue or issues before any tribunal or agency nor such action or
proceeding is pending in other quasi-judicial bodies; Provided, however,
that if any such action is pending, the status of the same must be stated,
and should knowledge thereof be acquired after the filing of the
complaint, the party concerned undertakes to notify the Bureau within five
(5) days from such knowledge. Failure
to comply with the foregoing requirements shall not be curable by mere
amendment of the complaint or other initiatory pleading but shall be cause
for dismissal of the case without prejudice. The submission of a false certification or non-compliance with any
of the undertakings therein shall constitute indirect contempt, without
prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct contempt.
Section
2. Original Jurisdiction – (a) The Bureau shall have
original jurisdiction in administrative actions for violations of laws
involving intellectual property rights where the total damages claimed are
not less than two hundred thousand pesos (
The commencement of the action under these Rules and Regulations is independent and without prejudice to the filing of
any action with the regular courts.
Section
3. Venue of Hearings.
– All hearings on actions covered by these regulations shall be held
within the premises of the Office.
Section
4. Formal Requirement. – The Complaint shall be typewritten and
addressed to the Bureau, and shall contain the names and residences of the
parties and a concise statement of the ultimate facts constituting the
complainant’s cause or causes of action. It shall specify the relief/s sought, but it may add a general
prayer for such further or other relief/s as may be deemed just or
equitable. Every pleading
filed shall likewise contain a caption setting forth the name of the
Office and the Bureau, the title of the case, the case number, and the
designation of the pleading.
No pleading shall be accepted by the Bureau unless it conforms to
the formal requirements provided by these Regulations and accompanied by
the required filing fee.
Section
5. Partners, Named Individually. – When two or more persons
associated in any business, transact such business under a common name,
the associates may be sued under such common name.
The associates of the business who are sued under a common name may
be named individually in the Answer filed by them or on their behalf with
their respective postal addresses.
Section
6. Payment of Filing Fee and Docketing. - The
complaint shall be filed in triplicate with the Bureau, which shall issue
an order for the payment of the required fee.
Upon
payment of the required fee, the complainant, his counsel, or
representative shall submit to the Bureau a copy of the official receipt
and present the original copy thereof for comparison. Immediately after the receipt of proof of payment of the required
fee, the Records Officer or any authorized officer of the Bureau shall
acknowledge receipt of the papers by assigning the Administrative
Complaint Number, docket the same, and raffle the case to any of the
Hearing Officers.
Section
7. Representation and Confidentiality of Records. – (a) The complaint may be prosecuted by the complainant by himself or
through counsel. The
complainant and his counsel are required to conduct their business with
politeness, decorum and courtesy.
(b) It is strictly and absolutely forbidden for the Director, and other
employees of the Office to discuss the case or any phase thereof with
either counsel of record in the absence of the other or with any third
person not having any interest or legal standing before the Bureau.
Section
8. Summons - (a) Within three (3) days from receipt of the complaint, the Staff
Clerk shall prepare, and the Process Server shall serve, the Summons or
Notice to Answer together with a copy of the complaint to the Respondent
by mail or by personal service. If
the service is done through registered mail, the return card shall be
attached to the documents as evidence of receipt. The proof of service of a summons shall be made in writing by the
server and shall set forth the manner, place and date of service; shall
specify any papers which have been served with the process and the name of
the person who received the same; and shall be sworn to when made by a
person other than a sheriff or his deputy.
(b) If service
cannot be made under the preceding paragraph, the office and place of
residence of the party being unknown, service may be made by publication
in a newspaper of general circulation, once a week for three (3)
consecutive weeks and at the expense of the complainant. When a party summoned by publication failed to appear in the
action, final orders or judgments against him shall be served upon him
also by publication at the expense of the prevailing party. If the service has been made by publication, service may be proved
by the affidavit of the printer, his foreman or principal clerk, or of the
editor, business or advertising manager, to which affidavit a copy of the
publication shall be attached, and by an affidavit showing the deposit of
a copy of the summons and order for publication in the post office,
postage prepaid, directed to the party by registered mail to his last
known address.
(c) Any application
for leave to effect service by way of publication shall be made by motion
in writing, supported by affidavit of the complainant or some person on
his behalf, setting forth the grounds for the application.
(d) When the
service has been completed, the server shall within five (5) days
therefrom, serve a copy of the return, personally or by registered mail,
to the plaintiff’s counsel, and shall return the summons to the Hearing
Officer who issued it, accompanied by proof of service.
Section
9. Answer - (a) The
summons shall require respondent to answer the complaint within ten (10)
days from receipt thereof. The respondent shall answer the complaint in
writing, by either specifically denying the material allegations of the
complaint or alleging any affirmative defense.
If
the respondent fails to answer within the time allowed therefor, the
Hearing Officer shall, motu proprio or upon motion of the complainant with notice to the
respondent, and proof of such failure, declare the respondent in default. Thereupon, the Hearing Officer shall proceed to render judgment
granting the complainant such relief as his pleading may warrant, unless
the Hearing Officer in his discretion requires the complainant to submit
evidence. All such decisions
or orders shall comply with Rule 11 of these Regulations.
(b) A party declared in default may, at any time after notice thereof
and before judgment, file a motion under oath to set aside the order of
default upon proper showing that his failure to answer was due to fraud,
accident, mistake or excusable negligence and that he has a meritorious
defense. In such a case, the
order of default may be set aside on such terms and conditions as the
Hearing Officer may impose in the interest of justice.
(c) A party in default shall not be entitled to notice of subsequent
proceedings, unless he files a motion to lift or set aside the order of
default.
Section
10. Answer
to Amended Complaint. – If the complaint is amended, the time fixed for the filing and service
of the answer shall, unless otherwise ordered, run from the service of
such amended complaint. The
original answer shall be considered as answer to the amended complaint
unless a new answer is filed within ten (10) days from receipt or service
of the amended complaint.
Section
11. Motion
to Dismiss Not Allowed. – No motion to dismiss on any of the grounds mentioned in the Rules of
Court and in any other law shall be allowed except on the ground of
prescription. Such grounds
other than prescription shall instead be pleaded as affirmative defenses,
the resolution of which shall be made in the decision on the merits. The Hearing Officer may, for good cause shown, conduct a
preliminary hearing on any of the affirmative defenses if this will
expedite the resolution of the case.
Section
12. Pre-trial - Upon joinder of issues, the pre-trial conference shall be set
immediately by the Hearing Officer. The
notice of said pre-trial shall be delivered by the Process Server within
three (3) days from receipt of the answer or last pleading. The notice of pre-trial shall require the parties to submit a
pre-trial brief containing the following:
(a) A brief statement of the parties’ claims
and defenses;
(b) Suggestions,
if any, for simplification of issues;
(c) A list of documents they intend to produce as evidence, together
with appropriate markings as exhibits as well as the identification of
witnesses and a statement of the substance and purpose of their testimony
during the hearing on the merits. The
originals of these documents must be produced for comparison during the
pre-trial conference without prejudice to the presentation of additional
documents during the trial if the party was prevented from producing the
same during the pre-trial on account of fraud, accident, mistake,
excusable negligence or such other reason which the Director or Hearing
Officer deems justifiable in the interest of justice and fair play;
(d) A statement whether they can stipulate on facts not covered by
admissions in their pleadings. If
so, they should come up with drafts of matters they are ready to stipulate
on;
(e) The limitation on the number of witnesses;
(f) A statement whether they are open to the possibility of an amicable
settlement; and
(g) Such other matters as may aid in the prompt disposition of the
action.
Section
13. Effect of Failure to File Pre-Trial Brief or to Appear. – The
failure of the complainant to submit the Pre-Trial Brief within the
prescribed period or to appear at the pre-trial pursuant to these
Regulations shall be cause for dismissal of the action with prejudice motu
proprio or upon motion. A
similar failure on the part of the respondent shall be cause to declare
respondent as in default motu proprio or upon motion and to allow
the complainant to present his evidence ex-parte and the office to
render judgment on the basis thereof.
Section
14. Appearance
of the Parties - It shall be the duty of the parties and their counsel to appear at
the pre-trial. The
non-appearance of a party may be excused only if a valid cause is shown
therefor or if a representative shall appear on his behalf fully
authorized in writing to enter into an amicable settlement and to enter
into stipulations or admissions of facts and of documents.
Section
15. Effect
of Failure to File Pre-trial Brief or to Appear in the Pre-trial
Conference - The failure of the complainant to submit the Pre-trial Brief within the
prescribed period or to appear at the pre-trial pursuant to these
Regulations shall be cause for dismissal of the action with prejudice motu proprio or upon motion. A
similar failure on the part of the respondent shall be cause to allow the
complainant to present his evidence ex-parte and the Bureau to
render judgment on the basis thereof.
Section
16. Record of Pre-Trial Results. – After the Pre-Trial, the Hearing
Officer shall make an order which recites the action taken at the
conference, the amendments allowed to the pleadings, and the agreements
made by the parties as to any of the matters considered. Such order shall limit the issues for trial to those not disposed
of by admissions or agreements of counsel and when entered, controls the
subsequent course of the action, unless modified before trial to prevent
manifest injustice.
Section
17. Pre-Trial Calendar. –
The Hearing Officer shall cause to be prepared a pre-trial calendar of
cases for consideration as above provided. After preparing Notice of Pre-Trial, it shall be the duty of the
designated clerk of the Bureau to place such case in the pre-trial
calendar.
RULE
3
POWERS
OF HEARING OFFICERS
Section
1. Powers of Hearing Officers. – (a) A Hearing Officer conducting the hearing and investigations shall
be empowered to administer oaths and affirmations; issue subpoena and
subpoena duces tecum to compel attendance of parties and witnesses
and the production of any book, paper, document, correspondence and other
records which are material to the case; grant provisional remedies in accordance with these Regulations and
the Rules of Court; and make preliminary rulings on questions raised at
the hearings, with the ultimate decision on the merits of all the issues
involved being left to the Director.
(b) Furthermore, a Hearing Officer as alter ego of the Director, shall
have the power to cite a party or counsel or any person in contempt in accordance with these Regulations.
(c) The
Hearing Officer shall likewise have the power to pass upon and approve
bonds and counterbonds that may be posted by the parties; the bond or
counterbond shall be in the form of cash, cashier’s or manager’s check
issued in the name of the Intellectual Property Office.
Section
2. Service of Subpoena. Service
of Subpoena shall be made at least three (3) calendar days before the
scheduled hearing so as to allow the witness reasonable time for
preparation and travel to the place of attendance.
Section
3. Quashing
a Subpoena Duces Tecum. The
Hearing Officer, upon motion made before the time specified in a subpoena duces
tecum for compliance therewith, may quash the subpoena if it is
unreasonable or the relevance of the books, papers, documents,
correspondence and other records does not appear, or if the person on
whose behalf the subpoena is issued fails to advance the reasonable cost
of the production thereof.
RULE
4
PRELIMINARY
ATTACHMENT
Section
1. Grounds Upon Which Attachment May Issue. – At the commencement of
the action or at any time before entry of judgment, a complainant or any
proper party may have the property of the adverse party attached as
security for the satisfaction of any judgment that may be recovered in the
following cases:
(a) In an action
against a party who has been guilty of fraud in procuring the registration
of a mark in the Office by false or fraudulent declaration or
representation, whether oral or in writing, or by any false means;
(b) In an action
against a party who has employed deception or any other means contrary to
good faith by which he shall pass off the goods manufactured by him or in
which he deals or his business or services for those of the one having
established such goodwill, or who shall commit any act calculated to produce said result whether or
not a mark is involved;
(c) In an action
against a party who does not reside and is not found in the Philippines,
or on whom summons may be served by publication;
(d) In an action
for the recovery of a specified amount of money or damages on a cause of
action arising from a violation of the IP Code against a party who is
about to depart from the Philippines with intent to evade the execution of
judgment; or
(e) In an action
against a party who has removed or disposed of his property, or is about
to do so, with intent to defraud the aggrieved party.
Section
2. Issuance and Contents of Order. – An order of attachment may be
issued either ex-parte or upon motion with notice and hearing
conducted by the Hearing Officer. The
Hearing Officer shall determine whether the attachment sought is
meritorious or not. Should an
order of attachment be issued by the Hearing Officer, he shall sign and
forward the order to the Director who shall direct, without delay, the
officer or such other designated employee of the Bureau to attach so much
of the property in the Philippines of the party against whom it is issued,
not exempt from execution, as may be sufficient to satisfy the
applicant’s demand, unless such party makes deposit or gives a bond as
hereinafter provided in an amount equal to that fixed in the order, which
may be the amount sufficient to satisfy the applicant’s demand or the
value of the property to be attached as stated by the applicant, exclusive
of costs.
Section
3. Affidavit and Bond Required. – An order of attachment shall be
granted only when it appears by the affidavit of the applicant, or of some
other person who personally knows the facts, that a sufficient cause of
action exists, that the case is one of those mentioned in Section 1
hereof, that there is no other sufficient security for the claim sought to
be enforced by the action, and that the amount due to the applicant, or
the value of the property the possession of which he is entitled to
recover, is as much as the sum for which the order is granted above all
legal counterclaims. The
affidavit and the receipt evidencing payment of the bond must be duly
filed with the Hearing Officer and forwarded to the Office of the Director
before the order issues.
Section
4. Condition of Applicant’s Bond – The party applying for the order
must give a bond
executed to the adverse party in the amount fixed by the Hearing Officer
in his order granting the issuance of the writ, conditioned that the
applicant will pay all the costs which may be adjudged to the adverse
party and all damages which he may sustain by reason of the attachment, if
the Hearing Officer shall finally adjudge that the applicant was not
entitled thereto.
Section
5. Manner of Attaching Property. – The officer enforcing the writ
shall, without delay and with all reasonable diligence, attach, to await
judgment and execution in the action, only so much of the property in the
Philippines of the party against whom the writ is issued, not exempt from
execution, as may be sufficient to satisfy the applicant’s demand,
unless the former files a counterbond, in an amount equal to the bond
fixed by the Hearing Officer in the order of attachment or to the value of
the property to be attached, exclusive of costs. No levy on attachment pursuant to the writ shall be enforced unless
it is preceded, or accompanied by service of summons, together with a copy
of the complaint, the application for attachment, the applicant’s
affidavit and bond, and the order and writ of attachment on the defendant
within the Philippines.
The
requirement of prior or contemporaneous service of summons shall not apply
where the summons could not be served personally or by substituted service
despite diligent efforts, or the defendant is a resident of the
Philippines temporarily absent therefrom, or the defendant is a
non-resident of the Philippines.
Section
6. Sheriff’s Return.
– (a) After enforcing the writ, the sheriff must likewise,
without delay, make a return thereon to the Hearing Officer from whom the
writ issued, with a full statement of his proceedings under the writ and a
complete inventory of the property attached, together with any counterbond
given by the party against whom attachment is issued, and serve copies
thereof on the applicant.
(b) The sheriff shall submit a report to the Hearing Officer on the
action taken on all writs and processes assigned to them within twenty
(20) days from receipt of said process or writ. Said report shall form part of the records of the case.
(c) At the end of every month, said Hearing Officer shall submit
a report to the Director indicating therein the number of writs and
processes issued and served, as well as the number of writs and processes
unserved during the month and the names of the sheriffs who executed each
writ. Unserved writs and processes shall be explained in the
report.
Section
7. What
May be the Subject of Attachment and the Manner of Executing the Same. – The following properties may be the subject of attachment:
(a) Real Properties – Real properties, or the machineries that may be found inside the
premises belonging to the party against whom the writ is issued, or any
interest therein, by filing with the Registry of Deeds a copy of the
order, together with a description of the property attached, and a notice
that it is attached, and by leaving a copy of such order, description, and
notice with the occupant of the property, if any, or with such other
person or his agent if found within the city or province where the
property is located. The Registrar of Deeds must index attachments filed under
this section in the name of the applicant, the adverse party, or the
person by whom the property is held or in whose name it stands in the
records. If the attachment is
not claimed on the entire area of the land covered by the certificate of
title, a description sufficiently accurate for the identification of the
land or interest to be affected shall be included in the registration of
such attachment.
(b) Personal Properties. – Those personal properties capable of manual delivery, by taking such
properties after issuing the corresponding receipt therefore. The sheriff shall thereafter deliver the attached properties to the
complainant or proper party who shall be responsible for the custody,
safekeeping, preservation, and the inventory and return of said properties
to the other party or proper party upon termination of the case.
(c) Shares of Stocks – Shares
of stocks or an
interest in shares of stocks of any corporation or company, by leaving with the president or managing
agent thereof ,a copy of the writ, and a notice stating that the stock or
interest of the party against whom the attachment is issued is attached in
pursuance of such writ.
Section
8. When Attached Property May Be Sold After Levy on Attachment and Before
Entry of Judgment. – Whenever it shall be made to appear to the
Hearing Officer, upon hearing with notice to both parties, that the
property attached is perishable, or that the interests of all the parties
to the action will be subserved by the sale thereof, the Hearing Officer
may order such property to be sold at public auction in such manner as he
may direct, and the proceeds of such sale to be deposited as the Director
may prescribe to await the judgment in the action.
Section
9. Discharge of Attachment Upon Giving Counterbond. – After a writ of
attachment has been enforced, the party whose property has been attached,
or the person appearing on his behalf, may move for the discharge of the
attachment wholly or in part on the security given. The Hearing Officer shall, after due notice and hearing,
order the discharge of the attachment if the movant makes a cash deposit,
or files a counterbond with the Office of the Director in an amount equal
to that fixed by the Hearing Officer in the order of attachment, exclusive
of costs. But if the
attachment sought to be discharged is with respect to a particular
property, the counterbond shall be equal to the value of that property as
determined by the Hearing Officer. The
cash deposit or the counterbond shall secure the payment of any judgment
that the attaching party may recover in the action. A notice of the deposit shall forthwith be served on the attaching
party. Upon the discharge of
an attachment in accordance with the provisions of this section, the
property attached, or the proceeds of any sale thereof, shall be delivered
to the party making the deposit or filing the counterbond, or to the
person appearing on his behalf, the deposit or counterbond aforesaid
standing in place of the property so released. Should such counterbond for any reason be found to be or become
insufficient, and the party furnishing the same fails to file an
additional counterbond, the attaching party may apply for a new order of
attachment.
Section
10. Discharge
of Attachment on Other Grounds - The
party whose property has been ordered attached may file a motion with the
Hearing Officer before whom the case is pending, before or after levy or
even after release of the attached property, for an order to set aside or
discharge the attachment on the ground that the same was improperly or
irregularly issued or enforced, or that the bond is insufficient, or that
the property being attached is exempt from execution. If the attachment is excessive, the discharge shall be limited to
the excess. If said motion be
made on an affidavit, the attaching party may oppose the same by a
counter-affidavit or other evidence in addition to that on which the
attachment was made. After due notice and hearing, the Hearing Officer shall order
the setting aside or the discharge of the attachment if it appears that it
was improperly or irregularly issued or enforced, or that the bond is
insufficient, or that the attachment is excessive, and the defect is not
cured forthwith, or the property being attached is exempt from execution.
Section
11. When the Property Attached is Claimed by Third Person. – If the
property attached is claimed by a person not a party to the proceeding,
and such person makes an affidavit of his title thereto, or right to the
possession thereof, and serves such affidavit upon the sheriff and a copy
thereof upon the attaching party, the sheriff shall not be bound to keep
the property under attachment unless the attaching party or his agent, on
demand of the sheriff shall file a bond approved by the Hearing Officer to
indemnify the third party claimant in a sum not less than the value of the
property levied upon. In case
of disagreement as to such value, the same shall be decided by the
Director. No claim for
damages for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within sixty (60) days from
the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or
keeping of such property, to any such third party claimant, if such bond
shall be filed. Nothing
herein contained shall prevent such claimant or any third person from
vindicating his claim to the property, or prevent the attaching party from
claiming damages against a third party claimant who filed a frivolous or
plainly spurious claim, in the same or in a separate action.
Section
12. Satisfaction of Judgment out of Property Attached; Sheriff’s Return. – If judgment be recovered by the attaching party and execution issue
thereon, the sheriff may cause the judgment to be satisfied out of the
property attached, if it be sufficient for that purpose in the following
manner:
(a) By paying to
the judgment obligee the proceeds of all sales of perishable or other
property sold in pursuance of the order of the Bureau, or so much as shall
be necessary to satisfy the judgment;
(b) If any balance
remains due, by selling so much of the property, real or personal, as may
be necessary to satisfy the balance, if enough property remain in the
sheriff’s hands for that purpose, or in those of the Office of the
Director.
The
sheriff shall forthwith make a return to the Hearing Officer of his
proceedings under this Section and furnish the parties with copies
thereof.
Section
13. Balance Due Collected Upon an Execution; Excess Delivered to Judgment
Obligor. – If after realizing upon all the property attached, and
applying the proceeds to the satisfaction of the judgment, less the
expenses of proceedings upon the judgment, any balance shall remain due,
the sheriff must proceed to collect such balance as upon ordinary
execution. Whenever the
judgment shall have been paid, the sheriff, upon reasonable demand, must
return to the judgment obligor the attached property remaining in his
hands, and any proceeds of the sale of the property attached not applied
to the judgment.
Section
14. Disposition of Money
Deposited - Where the party against whom attachment had been issued has
deposited money, it shall be applied under the direction of the Director
to the satisfaction of any judgment rendered in favor of the attaching
party, and after satisfying the judgment the balance shall be refunded to
the depositor or his assignee. If
the judgment is in favor of the party against whom attachment was issued,
the whole sum deposited must be refunded to him or his assignee.
Section
15. Disposition of Attached Property Where Judgment is for Party Against
Whom Attachment was Issued. – If judgment be rendered against the
attaching party, all the proceeds of sales and money collected or received
by the sheriff, under the order of attachment and all property attached
remaining in such officer’s hands, shall be delivered to the party
against whom attachment was issued, and the order of attachment
discharged.
Section
16. Claim for Damages on Account of Improper, Irregular or Excessive
Attachment. – An
application for damages on account of improper, irregular or excessive
attachment must be filed with the Director before the trial or before
appeal is perfected or before the judgment becomes executory, with due
notice to the attaching party, setting forth the facts showing his right
to damages and the amount thereof. Such
damages may be awarded only after proper hearing and shall be included in
the judgment on the main case.
If, on appeal, the judgment of the Director-General be favorable to
the party against whom the attachment was issued, the latter may claim
damages sustained during the pendency of the appeal by filing an
application in the Office of the Director-General, with notice to the
party in whose favor the attachment was issued, before the judgment of the
Director-General becomes executory. The
Director-General may remand the application to the Bureau for hearing and
decision.
Nothing herein contained shall prevent the party against whom the
attachment was issued from recovering in the same action the damages
awarded to him from any property of the attaching party not exempt from
execution should the bond or deposit given by the latter be insufficient
or fail to fully satisfy the award.
RULE
5
PRELIMINARY
INJUNCTION
Section
1. Preliminary injunction defined; who may grant. - preliminary
injunction is an order granted at any stage of an action or proceeding
prior to the judgment or final order, requiring a party to an
administrative case or any third person to refrain from a particular act
or acts. It may also require
the performance of a particular act or acts, in which case it shall be
known as a preliminary mandatory injunction.
A
preliminary injunction may be granted by the Hearing Officer who is
hearing the case but no such power can be exercised as against a
concurrent court or other Office which has already acquired jurisdiction
over the subject matter.
Section
2. Grounds for Issuance of Preliminary Injunction. – A preliminary
injunction may be granted when it is established:
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