If the convict has no property with which to meet the fine
mentioned in the paragraph 3 of the next preceding article, he
shall be subject to a subsidiary personal liability at the rate
of one day for each eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision correccional or
arresto and fine, he shall remain under confinement until his
fine referred to in the preceding paragraph is satisfied, but
his subsidiary imprisonment shall not exceed one-third of the
term of the sentence, and in no case shall it continue for
more than one year, and no fraction or part of a day shall
be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the
subsidiary imprisonment shall not exceed six months, if the
culprit shall have been prosecuted for a grave or less grave
felony, and shall not exceed fifteen days, if for a light felony.
3. When the principal imposed is higher than prision correccional,
no subsidiary imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by
confinement in a penal institution, but such penalty is of
fixed duration, the convict, during the period of time
established in the preceding rules, shall continue to suffer
the same deprivations as those of which the principal penalty
5. The subsidiary personal liability which the convict may have
suffered by reason of his insolvency shall not relieve him,
from the fine in case his financial circumstances should
improve. (As amended by RA 5465, April 21, 1969).
When the penalty prescribed is imprisonment, it is the penalty
actually imposed by the Court, not the penalty provided for by
the Code, which should be considered in determining whether or
not subsidiary penalty should be imposed.
There is no subsidiary penalty for non-payment of reparation,
indemnification and costs in par 1, 2 and 4 of Art 38. It is
only for fines.
Art 39 applies only when the convict has no property with which
to meet the fine in par 3 of art 38. Thus, a convict who has non-
exempt property enough to meet the fine cannot choose to serve
the subsidiary penalty instead of payment of the fine.
Subsidiary imprisonment is not an accessory penalty. It is
covered by Arts. 40-45 of this Code. Accessory penalties are
deemed imposed even when not mentioned, while subsidiary
imprisonment must be expressly imposed.
RULES AS TO SUBSIDIARY PENALTY
1. If the penalty imposed is prisión correccional or arresto
and fine – subsidiary imprisonment is not to exceed 1/3 of
the term of the sentence, and in no case to continue for
more than one year. Fraction or part of a day, not counted.
2. When the penalty imposed is fine only – subsidiary
- not to exceed 6 months – if the culprit is prosecuted
for grave or less grave felony, and
- not to exceed 15 days – if prosecuted for light felony.
3. When the penalty imposed is higher than prisión correccional
– no subsidiary imprisonment.
4. If the penalty imposed is not to be executed by confinement,
but of fixed duration – subsidiary penalty shall consist in
the same deprivations as those of the principal penalty,
under the same rules as nos. 1, 2 and 3 above.
5. In case the financial circumstances of the convict should
improve, he shall pay the fine, notwithstanding the fact
that the convict suffered subsidiary personal liability
WHERE NO SUBSIDIARY PENALTY SHALL BE
1. The penalty imposed is higher than prisión correccional or
2. For non-payment of reparation or indemnification,
3. For non-payment of costs, and
4. Where the penalty imposed is a fine and another penalty
without fixed duration, like censure.
There is no subsidiary penalty for non-payment of civil liability.