Subsidiary Penalty
On Criminal Law
Subsidiary Penalty
Art. 39
If the convict has no property with which to meet the fine mentioned in 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:
NOTES:
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 arrest 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 imprisonment is:
- 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 therefor.
WHERE NO SUBSIDIARY PENALTY SHALL BE IMPOSED:
1. The penalty imposed is higher than prisión correccional or 6 years,
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.
Bar Exam Question (2005)
Penalties: Fine or Imprisonment vs. Subsidiary Imprisonment
E and M are convicted of a penal law that imposes a penalty of fine or imprisonment or
both fine and imprisonment. The judge sentenced them to pay the fine, jointly and severally, with subsidiary imprisonment in case of insolvency.
Is the penalty proper? Explain.
Suggested Answer:
The penalty is not proper. The two accused must separately pay the fine, which is their penalty.
Solidary liability applies only to civil liabilities.
Alternative Answer:
No. because in penal law when there are several offenders, the court in the exercise of its
discretion shall determine what shall be the share of each offender depending upon the degree of participation, as principal, accomplice, or accessory. If within each class of offender,'
there are more of them, such as more than one principal or more than one accomplice or accessory, the liability in each class of offender shall be subsidiary. Anyone of them may be required to pay
the civil liability pertaining to such an offender without prejudice to recovery from those whose share has been paid by another.
May the judge impose an alternative penalty of fine or imprisonment? Explain.
Suggested Answer:
No. A fine, whether imposed as a single or as an alternative penalty, should not and cannot be reduced or converted into a prison term. There is no rule for the transmutation of the amount of a fine into a term of imprisonment. ( People vs. Dacuycuiy, G.R. No. L-45127 May 5, 1989)
Art. 39
If the convict has no property with which to meet the fine mentioned in 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:
- 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.
- 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.
- When the principal imposed is higher than prision correctional, no subsidiary imprisonment shall be imposed upon the culprit.
- 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 consists.
- 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).
NOTES:
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 arrest 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 imprisonment is:
- 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 therefor.
WHERE NO SUBSIDIARY PENALTY SHALL BE IMPOSED:
1. The penalty imposed is higher than prisión correccional or 6 years,
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.
Bar Exam Question (2005)
Penalties: Fine or Imprisonment vs. Subsidiary Imprisonment
E and M are convicted of a penal law that imposes a penalty of fine or imprisonment or
both fine and imprisonment. The judge sentenced them to pay the fine, jointly and severally, with subsidiary imprisonment in case of insolvency.
Is the penalty proper? Explain.
Suggested Answer:
The penalty is not proper. The two accused must separately pay the fine, which is their penalty.
Solidary liability applies only to civil liabilities.
Alternative Answer:
No. because in penal law when there are several offenders, the court in the exercise of its
discretion shall determine what shall be the share of each offender depending upon the degree of participation, as principal, accomplice, or accessory. If within each class of offender,'
there are more of them, such as more than one principal or more than one accomplice or accessory, the liability in each class of offender shall be subsidiary. Anyone of them may be required to pay
the civil liability pertaining to such an offender without prejudice to recovery from those whose share has been paid by another.
May the judge impose an alternative penalty of fine or imprisonment? Explain.
Suggested Answer:
No. A fine, whether imposed as a single or as an alternative penalty, should not and cannot be reduced or converted into a prison term. There is no rule for the transmutation of the amount of a fine into a term of imprisonment. ( People vs. Dacuycuiy, G.R. No. L-45127 May 5, 1989)
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