RULE 127 PROVISIONAL REMEDIES IN CRIMINAL CASES
Provisional remedies may be availed of in
connection with the civil action.
The civil action must be one arising from the
offense charged and which is instituted in the
said criminal action.
Provisional remedies available:
1. Preliminary attachment
2. Preliminary injunction
3. Receivership
4. Replevin
5. Support pendente lite
Accused, during trial, may prove not only his
defense but also the damages he may have
sustained arising from the issuance of a
provisional remedy in the case.
When it is available:
When the civil action is properly
instituted in the criminal action
In the following cases:
a. When accused is about to abscond
from the Philippines
b. When criminal action is based on a
claim for money or property
embezzled or fraudulently
misapplied or converted to the use
of the accused who is a public
officer, officer of a corporation,
attorney, factor, broker, agent or
clerk, in the course of his
employment as such, or by any
other person in a fiduciary
capacity, or for a willful violation of
duty
*No need to show that accused has
concealed/ removed/ disposed property.
Instead, show:
That the criminal case is founded upon
a claim that money or property was
embezzled, fraudulently misapplied or
converted to the use of the accused,
AND
That accused occupies any of the
positions mentioned OR that he
committed a willful violation of duty
c. When accused has concealed,
removed, or disposed of his
property, or is about to do so
d. When accused resides outside the
Philippines
No notice to the adverse party, or hearing on
the application is required before a writ of
preliminary attachment may issue (can be
issued ex parte).
The only requisites for issuance of a writ of
preliminary attachment are:
Affidavit
Bond of applicant
The trial court has unlimited power to issue
the writ upon commencement of the action
even before it acquires jurisdiction over the
person of the defendant BUT enforcement
thereof can only be validly done after it shall
have acquired jurisdiction.
WRIT OF ATTACHMENT
Can be issued ex=parte
Cannot be implemented if trial court
has not acquired jurisdiction over the
person of the defendant (arrested/
surrendered voluntarily to the court)
When accused resides outside the Philippines:
Notwithstanding the fact that he is still
at-large abroad, writ of attachment
may be issued and implemented to
prevent alienation of his property
o Accused can execute necessary
contract before the appropriate
Philippine Consulate
OR
o A lien/ encumbrance in the title
of the property may be
annotated to prevent any
disposition
Who may apply for preliminary attachment:
Aggrieved party
Prosecutor
*Court has no authority to issue motu proprio
writs of preliminary attachment if it does, it
acts in excess of jurisdiction, remediable by
certiorari