Theft of Intangibles: Laurel vs. Judge Abrogar (Supreme Court, 2009)

Intellectual property is an intangible property. Electric voice signals and pulses are intangibles too. Can these be subject of theft under the Revised Penal Code?

If I were to answer the question in 2008, I would have said that theft under Article 308 of the Revised Penal Code is only committed in relation to tangible property. I would have argued that the element “asportacion” or taking, refers only to physical taking of tangible personal property. Since you cannot physically hold or take intangible personal property, then there is no taking to speak of.

If you answered this way, you might have scored full points for a bar question on the matter. After all, the weight of authority based on pre-2009 jurisprudence is that theft can only be committed against tangible personal property.

As of 13 January 2009 however, the weight of authority has shifted. The Supreme Court in an EN BANC RESOLUTION declared:

Prior to the passage of the Revised Penal Code on December 8, 1930, the definition of the term "personal property" in the penal code provision on theft had been established in Philippine jurisprudence. This Court, in United States v. Genato, United States v. Carlos, and United States v. Tambunting, consistently ruled that any personal property, tangible or intangible, corporeal or incorporeal, capable of appropriation can be the object of theft.


Moreover, since the passage of the Revised Penal Code on December 8, 1930, the term "personal property" has had a generally accepted definition in civil law. In Article 335 of the Civil Code of Spain, "personal property" is defined as "anything susceptible of appropriation and not included in the foregoing chapter (not real property)." Thus, the term "personal property" in the Revised Penal Code should be interpreted in the context of the Civil Code provisions in accordance with the rule on statutory construction that where words have been long used in a technical sense and have been judicially construed to have a certain meaning, and have been adopted by the legislature as having a certain meaning prior to a particular statute, in which they are used, the words used in such statute should be construed according to the sense in which they have been previously used. In fact, this Court used the Civil Code definition of "personal property" in interpreting the theft provision of the penal code in United States v. Carlos.

Cognizant of the definition given by jurisprudence and the Civil Code of Spain to the term "personal property" at the time the old Penal Code was being revised, still the legislature did not limit or qualify the definition of "personal property" in the Revised Penal Code. Neither did it provide a restrictive definition or an exclusive enumeration of "personal property" in the Revised Penal Code, thereby showing its intent to retain for the term an extensive and unqualified interpretation. Consequently, any property which is not included in the enumeration of real properties under the Civil Code and capable of appropriation can be the subject of theft under the Revised Penal Code


In finally tilting the weight of authority, did the Supreme Court not engage in judicial legislation? After all, the basic canon in criminal law is strict interpretation. The canon has its roots in criminal due process. By adopting the civil law definition of personal property (which includes intangibles), the Supreme Court violated the doctrine of strict construction.

The implications are great indeed. The current Intellectual Property Code, for instance, does not provide for immediate criminal action against patent infringers unless the violator had first been found liable in the civil case for infringement. With its decision, is the Supreme Court now implying that a criminal prosecution for theft of any intellectual property is immediately available? Will this not violate the intent of the legislature in enacting the Intellectual Property Code?

By implication, there can be THEFT OF cyber materials or any material of value in the internet.

I submit that it is within the province of the legislature to define our criminal laws. Unduly expanding the original legislative intent through judicial interpretation violates criminal due process (right to be informed of the nature and cause of accusation, due notice of what acts are prohibited, among others). The liberal interpretation afforded to civil and administrative cases should not be extended to criminal cases where the life and liberty of an individual is at stake.

Some say that it is theft whether committed in the real world or in the internet. For me, this logic of EVOLVING LAW albeit an attractive proposition in civil and commercial law, should not be applied to criminal law. Otherwise, NULLUM CRIMEN SINE POENA SINE LEGE is rendered meaningless

ENTRY NO. 11


BRYAN A. SAN JUAN