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Section 1. Article 39 of Act No.

3815, as amended, is hereby further amended to read as follows:

"Art. 39. Subsidiary Penalty. – 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 amount equivalent to the highest minimum wage rate prevailing in the
Philippines at the time of the rendition of judgment of conviction by the trial court, subject to the
following rules:

"1. If the principal penalty imposed be prision correctional or arresto and fine, he shall remain under
confinement until his fine referred 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 fight felony.

"3. When the principal penalty imposed is higher than prision correctional, 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 consists.

"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 Republic Act No. 5465, which lapsed into law on April 21, 1969.)

When is subsidiary penalty served?

Subsidiary penalty is served if the penalty imposed upon the convict includes fine but he cannot pay
the same because of insolvency.

How is subsidiary penalty computed?

It is computed at one day for each P8.00 of fine but in no case to exceed one year at the most. If the
penalty is:

1. Purely a fine and the felony committed is grave or less grave, the subsidiary
imprisonment shall not exceed 6 months; if light felony, not more than 15 days.

Example: Fine of P4,000 + less grave. P4,000/P8 = 500 days. Since the felony is
less grave, the subsidiary imprisonment will be limited to only 6 months or 180 days.

2. Fine and imprisonment of not more than prision correccional (6 years), the subsidiary
imprisonment is computed at 1/3 of the principal penalty or the quotient of fine divided by
P8.00 or 1 year, whichever of these three is least.
Example: Fine of P4,000 + 6 years of prision correccional. P4,000/P8 = 500 days.
One-third of 6 years is 2 years. The period of 500 days is less than 1/3 of the
principal penalty. But the offender is to serve 365 days only of the 500 days because
the law provides that subsidiary imprisonment shall not continue longer than 1 year
or 365 days.

3. Fine and Destierro which must be of a fixed duration: destierro also in accordance
with the above rules. The same goes with fine and suspension.

When is subsidiary penalty not proper?

It is not proper when:

1. The principal penalty imposed is more than prision correccional (more than 6 years);
2. The principal penalty is not to be served by confinement and is not of fixed
duration (ex. fine not exceeding P200 and censure);
3. Subsidiary penalty is not expressly stated in the sentence to take the place of fine in
case of insolvency;
4. The sentence imposed does not include fine; and
5. If convict has the means to pay the fine.

■ The additional penalty for habitual delinquency is included in determining whether the subsidiary
penalty is to be imposed. So, if even if the principal penalty is less than prison correccional and fine
but there is an additional penalty of 12 years and 1 day because the offender is a habitual delinquent,
there is no subsidiary imprisonment. (People vs. Concepcion, G.R. No. 46652, September 23, 1939)

■ If the offender has been sentenced to several penalties, the aggregate penalties should be
considered in bulk, not separately. So if the aggregate penalty exceeds 6 years, there is no subsidiary
imprisonment. (Toledo vs. Supt. of the Correctional Institution for Women, No. L-16311, Jan. 25,
1962)

May the offender be made to undergo the subsidiary imprisonment if it is not expressly
provided in the judgment?

No. The court must expressly state that subsidiary penalty shall be served in case of insolvency
because this is not an accessory penalty that follows the principal penalty as a matter of course.

May the convict choose to serve the subsidiary imprisonment in lieu of paying the fine?

No. If the convict has properties, he has no option to serve the subsidiary imprisonment because
subsidiary imprisonment is applied only in case of insolvency.
Does subsidiary penalty apply to criminal negligence?

Yes.

May an accused found guilty of violations of Batas Pambansa Blg. 22 be made to suffer
subsidiary imprisonment in case he fails to pay the fines imposed by the trial court for such
violations (notwithstanding that it is a special law and does not contain a provision for
subsidiary imprisonment)?

■ Yes. The provisions on subsidiary imprisonment can be applied suppletorily to Batas Pambansa
Blg. 22 pursuant to Article 10 of the RPC.

On February 14, 2001, we issued Administrative Circular No. 13-2001 clarifying the imposition of
imprisonment for violations of Batas Pambansa Blg. 22 and subsidiary imprisonment upon the
accused found guilty but is unable to pay the fine he is sentenced to pay. In clarifying the imposition
of subsidiary imprisonment, the Circular states that if the accused is unable to pay the fine imposed
by the trial court, there is no legal obstacle to the application of the Revised Penal Code provisions
on subsidiary imprisonment. (Jao Yu vs. People, G.R. No. 134172. September 20, 2004)

■ The Supreme Court has, on several occasions, imposed subsidiary imprisonment in case of
insolvency to pay the fine for violation of special laws, notwithstanding the absence of such
provision in said laws. In Llamado v. Court of Appeals, the SC imposed subsidiary imprisonment on
petitioner who was convicted of violating B.P. Blg. 22. (Diongson vs. CA, G.R. No. 114823,
December 23, 1999)

When after the culprit had served subsidiary penalty, he became solvent, is he still liable to pay
the fine?

Yes. Subsidiary imprisonment does not extinguish the non-payment of fine. Article 39 of the RPC
provides that 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.

Does subsidiary imprisonment violate the constitutional prohibition imprisonment for non-
payment of debt?

No. The debt intended to be covered by the constitutional provisions must be a debt arising
exclusively from actions ex contractu, and was never meant to include damages arising in actions ex
delicto, or fines, penalties, and other impositions imposed by the courts in criminal proceedings as
punishments for crimes committed against the common or statute law. (US vs. Cara, 41, Phil 828)