Legal basis and covered crimes
- Republic Act No. 5436 is an amendment to Title XI of Commonwealth Act No. 466.
- SEC. 352-A applies “in addition to the penalty imposed” for violations of specified provisions under Title IV, Title V, Title VIII, and relevant Chapters.
- The added confiscation forfeiture is tied to violations of: Title IV, Sections 184, 185, 185-A, 185-B, and the first paragraph of Section 186 of Title V, and Chapter V and Chapter VII of Title VIII of the National Internal Revenue Code.
Policy and operative rule
- SEC. 352-A mandates confiscation and forfeiture in favor of the government “in addition to the penalty” for covered offenses.
- For covered crimes, the government is entitled to confiscation and forfeiture of the proceeds of the crime.
- SEC. 352-A also authorizes forfeiture of the value of the goods involved.
- SEC. 352-A requires forfeiture of the instruments or tools with which the crime was committed.
Forfeiture where the instrument belongs to third parties
- SEC. 352-A provides that if the instruments or tools used in the illicit act belong to a third person, confiscation and forfeiture occur only after due notice and hearing.
- SEC. 352-A directs that third-party forfeiture must be conducted in a separate proceeding “in favor of the government.”
- SEC. 352-A makes third-person forfeiture available when the third person leased, let, chartered, or otherwise entrusted the instruments or tools to the offender.
- SEC. 352-A further provides that when the lessee subleased, or the borrower charterer or trustee allowed the use to the offender, the instruments or tools shall likewise be confiscated and forfeited.
Special rule for common carriers and destruction of prohibited goods
- SEC. 352-A provides a protection for property of common carriers: common carrier property shall not be forfeited when used in the transaction of the common carrier’s business as such.
- SEC. 352-A creates an exception to the common-carrier protection: forfeiture applies if, at the time of the illegal act, the owner or operator was a consenting party or privy to the illegal act.
- SEC. 352-A preserves the owner’s right of recovery against the offender through a civil or criminal action.
- SEC. 352-A requires that articles which are not subject of lawful commerce shall be destroyed.