RA 8042 (Migrant Workers and Overseas Filipinos Act of 1995, as

amended by RA 10042)

Nakasaad sa Article 13, paragraph (b) ng Labor Code ang

depenisyon at mga gawain na bumubuo sa tinatawag na recruitment and
placement.

Pinalawak ng R.A. 8042, kilala rin sa tawag na Migrant Workers and

Overseas Filipinos Act of 1995, ang konsepto ng illegal recruitment at
naglagay ng mas mahigpit na mga kaparuhasan, lalo na pagdating sa
economic sabotage, halimbawa ay ang illegal recruitment in large scale at
illegal recruitment na isinagawa ng isang sindikato.

Ano ang nature ng isang criminal case na illegal recruitment?

Ang kriminal na kasong illegal recruitment ay itinuturing na malum

prohibitum. Ibig sabihin, ang criminal intent ng isang akusado ay hindi na
mahalagang patunayan pa ng Prosecution. Sapat ng patunayan na ginawa
ng akusado ang mga acts ng illegal recruitment na nakasaad sa batas.
Kaya hindi pwedeng gawing depensa ng akusado na hindi niya alam ang
illegal nature ng recruitment business ng kanyang kapwa akusado o wala
talaga siyang intensyon na mag-recruit.

Nakasaad sa Section 6 ng R.A. 8042 ang mga sumusunod:

SEC. 6. Definition. - For purposes of this Act, illegal

recruitment shall mean any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring, or procuring
(P E T C H U C) workers and includes referring, contract
services, promising or advertising for employment
abroad, whether for profit or not, when undertaken by
non-licensee or non-holder of authority contemplated
under Article 13 (f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the
Philippines: Provided, That any such non-licensee or
non-holder who, in any manner, offers or promises for a
fee employment abroad to two or more persons shall be
deemed so engaged. It shall likewise include the following

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acts, whether committed by any person, whether a non-
licensee, non-holder, licensee or holder of authority:

(a) To charge or accept directly or indirectly

any amount greater than that specified in the
schedule of allowable fees prescribed by the
Secretary of Labor and Employment, or to make a
worker pay or acknowledge any amount greater
than that actually received by him as a loan or
advance;

(b) To furnish or publish any false notice or

information or document in relation to recruitment
or employment;

(c) To give any false notice, testimony,

information or document or commit any act of
misrepresentation for the purpose of securing a
license or authority under the Labor Code, or for the
purpose of documenting hired workers with the
POEA, which include the act of reprocessing
workers through a job order that pertains to
nonexistent work, work different from the actual
overseas work, or work with a different employer
whether registered or not with the POEA;

(d) To induce or attempt to induce a worker

already employed to quit his employment in order to
offer him another unless the transfer is designed to
liberate a worker from oppressive terms and
conditions of employment;

(e) To influence or attempt to influence any

person or entity not to employ any worker who has
not applied for employment through his agency or
who has formed, joined or supported, or has
contacted or is supported by any union or workers'
organization;

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 (f) To engage in the recruitment or placement
of workers in jobs harmful to public health or
morality or to the dignity of the Republic of the
Philippines;

(h) To fail to submit reports on the status of

employment, placement vacancies, remittance of
foreign exchange earnings, separation from jobs,
departures and such other matters or information
as may be required by the Secretary of Labor and
Employment;

(i) To substitute or alter to the prejudice of the

worker, employment contracts approved and verified
by the Department of Labor and Employment from
the time of actual signing thereof by the parties up
to and including the period of the expiration of the
same without the approval of the Department of
Labor and Employment;

(j) For an officer or agent of a recruitment or

placement agency to become an officer or member of
the Board of any corporation engaged in travel
agency or to be engaged directly or indirectly in the
management of travel agency;

(k) To withhold or deny travel documents from

applicant workers before departure for monetary or
financial considerations, or for any other reasons,
other than those authorized under the Labor Code
and its implementing rules and regulations;

(l) Failure to actually deploy a contracted

worker without valid reason as determined by the
Department of Labor and Employment;

(m) Failure to reimburse expenses incurred by

the worker in connection with his documentation
and processing for purposes of deployment, in cases

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 where the deployment does not actually take place
without the worker's fault. Illegal recruitment when
committed by a syndicate or in large scale shall be
considered an offense involving economic sabotage;
and

(n) To allow a non-Filipino citizen to head or

manage a licensed recruitment/manning agency.

In addition to the acts enumerated above, it shall

also be unlawful for any person or entity to commit the
following prohibited acts:

(1) Grant a loan to an overseas Filipino worker

with interest exceeding eight percent (8%) per
annum, which will be used for payment of legal and
allowable placement fees and make the migrant
worker issue, either personally or through a
guarantor or accommodation party, postdated
checks in relation to the said loan;

(2) Impose a compulsory and exclusive

arrangement whereby an overseas Filipino worker is
required to avail of a loan only from specifically
designated institutions, entities or persons;

(3) Refuse to condone or renegotiate a loan

incurred by an overseas Filipino worker after the
latter's employment contract has been prematurely
terminated through no fault of his or her own;

(4) Impose a compulsory and exclusive

arrangement whereby an overseas Filipino worker is
required to undergo health examinations only from
specifically designated medical clinics, institutions,
entities or persons, except in the case of a seafarer

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 whose medical examination cost is shouldered by
the principal/shipowner;

(5) Impose a compulsory and exclusive

arrangement whereby an overseas Filipino worker is
required to undergo training, seminar, instruction
or schooling of any kind only from specifically
designated institutions, entities or persons, except
f0r recommendatory trainings mandated by
principals/shipowners where the latter shoulder the
cost of such trainings;

(6) For a suspended recruitment/manning

agency to engage in any kind of recruitment activity
including the processing of pending workers'
applications; and

(7) For a recruitment/manning agency or a

foreign principal/employer to pass on the overseas
Filipino worker or deduct from his or her salary the
payment of the cost of insurance fees, premium or
other insurance related charges, as provided under
the compulsory worker's insurance coverage.

Revised POEA Rules and Regulations Governing the Recruitment

and Employment of Landbased Overseas Filipino Workers of 2016
provides:

RULE X
Illegal Recruitment

SECTION 76. Acts Constituting Illegal Recruitment.

— Illegal Recruitment shall mean any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or
procuring workers and includes referrals, contract
services, promising or advertising for employment
abroad, whether for profit or not, when undertaken by a
non-licensee or non-holder of authority contemplated

5
under Article 13(f) of Presidential Decree No. 442, as
amended, otherwise known as the Labor Code of the
Philippines: Provided, that any such non-licensee or non-
holder who, in any manner, offers or promises for a fee
employment abroad to two or more persons shall be
deemed so engaged.

It shall likewise include the following prohibited acts

committed by any person whether or not a licensee or a
holder of authority:

a. To charge or accept directly or indirectly any

amount greater than that specified in the schedule of
allowable fees prescribed by the Secretary or to make a
worker pay the recruiter or its agents or acknowledge any
amount greater than that actually loaned or advanced to
him;

b. To furnish or publish any false notice or

information or document in relation to recruitment or
employment;

c. To give any false notice, testimony, information or

document or commit any act of misrepresentation for the
purpose of securing a license or authority under the
Labor Code;

d. To give any false notice, testimony, information or

document or commit any act of misrepresentation for the
purpose of documenting hired workers with the POEA,
which include the act of reprocessing workers through a
job order that pertains to non-existent work, work
different from the actual overseas work, or work with a
different employer whether registered or not with the
POEA;

e. To induce or attempt to induce a worker already

employed to quit his/her employment in order to offer
him another unless the transfer is designed to liberate a

6
worker from oppressive terms and conditions of
employment;

f. To influence or attempt to influence any person or

entity not to employ any worker who has not applied for
employment through his/her agency or who has formed,
joined or supported, or has contacted or is supported by
any union or workers’ organization;

g. To engage in the recruitment or placement of

workers in jobs harmful to public health or morality or to
the dignity of the Republic of the Philippines as may be
prohibited by law or duly constituted authority;

h. To obstruct or attempt to obstruct inspection by

the Secretary or by his/her duly authorized
representative;

i. To fail to submit reports on the status of

employment, placement vacancies, remittance of foreign
exchange earnings, separation from jobs, departures and
such other matters or information as may be required by
the Secretary under penalty of law;

j. To substitute or alter to the prejudice of the

worker, employment contract approved and verified by
the DOLE from the time of actual signing thereof by the
parties up to and including the period of the expiration of
the same without the approval of the DOLE;

k. For an officer or agent of a recruitment or

placement agency to become an officer or member of the
Board of any corporation engaged in travel agency or
insurance agency or to be engaged directly or indirectly
in the management of a travel agency or insurance
agency;

l. To withhold or deny travel documents from

applicant workers before departure for monetary or

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financial considerations, or for any other reasons, other
than those authorized under the Labor Code and its
implementing rules and regulations;

m. To fail to actually deploy a contracted worker

without valid reason as determined by the DOLE;

n. To fail to reimburse expenses incurred by the

worker in connection with his/her documentation and
processing for purposes of deployment, in cases where
the deployment does not actually take place without the
worker's fault;

o. To allow a non-Filipino citizen to head or manage

a recruitment agency;

p. To arrange, facilitate or grant a loan to an

Overseas Filipino Worker with interest exceeding eight
percent (8%) per annum, which will be used for payment
of legal and allowable placement fees and make the
migrant worker issue, either personally or through a
guarantor or accommodation party, postdated checks in
relation to the said loan;

q. To impose a compulsory and exclusive

arrangement whereby an Overseas Filipino Worker is
required to avail of a loan only from specifically
designated institutions, entities or persons;

r. To refuse to condone or renegotiate a loan

incurred by an Overseas Filipino Worker after the latter’s
employment contract has been prematurely terminated
through no fault of his/her own;

s. To impose a compulsory and exclusive

arrangement whereby an Overseas Filipino Worker is
required to undergo health examinations only from
specifically designated medical clinics, institutions,

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 entities or persons, except in the case of a worker whose
medical examination cost is shouldered by the principal;

t. To impose a compulsory and exclusive

arrangement whereby an Overseas Filipino Worker is
required to undergo training, seminar, instruction or
schooling of any kind only from specifically designated
institutions, entities or persons, except for
recommendatory trainings mandated by principals where
the latter shoulder the cost of such trainings;

u. For a suspended recruitment agency to engage in

any kind of recruitment activity including the processing
of pending workers’ applications; and

v. For a recruitment agency or a foreign

principal/employer to pass on to the Overseas Filipino
Worker or deduct from his/her salary the payment of the
cost of insurance fees, premium or other insurance
related charges, as provided under the compulsory
worker’s insurance coverage.

Mga uri o klase ng illegal recruitment:

(a) Illegal recruitment by a person who is neither a licensee nor a

holder of authority
(b) Illegal recruitment by a licensee or holder of authority
(c) Large scale illegal recruitment
(d) Illegal recruitment committed by a syndicate

Elements ng illegal recruitment ng isang non-licensee o non-holder of

authority:

(a) The offender has no valid license or authority required by law to

enable one to lawfully engage in recruitment and placement of workers.

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 (b) The offender undertakes any activity within the meaning of
recruitment and placement under Section 6 or any of the prohibited
activities enumerated therein.

Kinakailangan bang naningil ng kabayaran o nakatanggap ng bayad

ang isang recruiter kapalit ng pangakong employment sa abroad bago siya
mahatulan ng illegal recruitment? Maari bang maging depensa ng recruiter
na wala siyang natanggap na kabayaran kapalit ng pangakong
employment abroad? Hindi. Sapagkat nakasaad sa batas na ang illegal
recruitment ay maaaring ma-commit maging ito may ay “for profit or not”.

Subalit kung, sa anumang paraan, ang isang non-licensee o non-

holder of authority ay mag-aalok o mangangako, kapalit ng kabayaran, ng
trabaho sa ibang bansa sa tatlo o higit pang tao, magkakaroon ng
presumption ng illegal recruitment.

Ano ba ang kahalagahan nitong presumption na ito? Ang general rule

kasi ay ang isang akusado ay presumed innocent until the contrary is
proven. Kaya mahalaga ang presumption na ito sapagkat kapag
napatunayan ng prosecution ang mga facts na pwedeng mag-create ng
presumption, ang burden na para patunayang walang illegal recruitment ay
mapupunta na sa akusado.

"License" means a document issued by the Department of Labor

authorizing a person or entity to operate a private employment agency.

“Authority” means a document issued by the Department of Labor

authorizing a person or association to engage in recruitment and placement
activities as a private recruitment entity. (Sec. 13 [f], Labor Code)

“Referring” is the act of passing along or forwarding after an initial

interview of a selected applicant for employment to a selected employer,
placement officer or bureau. (People vs. Ong, G.R. No. 119594, Jan. 18,
2000)

People vs. Ong, G.R. No. 119594, Jan. 18, 2000:

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Facts:

Accused-appellant represented himself to complainants

as one capable of deploying workers abroad and even quoted
the alleged salary rates of factory and construction workers in
Taiwan. He advised Bacasnot to accept a job as a factory
worker first because it would be then easier for him to transfer
jobs once he got to Taiwan. Accused-appellant said his mother,
who was based in Taiwan, could help Bacasnot. Bacasnot paid
accused-appellant an initial placement fee agreeing to pay the
balance through salary deductions once he was employed.
Accused-appellant also promised jobs to Eliw and the other
complainants. He accompanied them to Manila so that they
could be interviewed and physically examined at the Steadfast
Recruitment Agency with which accused-appellant represented
he was connected.

Ruling:

To prove illegal recruitment, it must be shown that the

accused-appellant gave complainants the distinct impression
that he had the power or ability to send complainants abroad for
work such that the latter were convinced to part with their
money in order to be employed.

These acts of accused-appellant created the distinct

impression on the eight complainants that he was a recruiter for
overseas employment. There is no question that he was neither
licensed nor authorized to recruit workers for overseas
employment. Nor is there any question that he dealt with
complainants. What he claims is that he merely "suggested" to
complainants to apply at the Steadfast Recruitment Agency,
which is a recruitment agency.

Even if accused-appellant did no more than "suggest" to

complainants where they could apply for overseas employment,
his act constituted "referral" within the meaning of Art. 13 (b) of
the Labor Code. Indeed, the testimonial and documentary
11
 evidence in the record shows that accused-appellant did more
than just make referrals. The evidence shows that he made
misrepresentations to them concerning his authority to recruit
for overseas employment and collected various amounts from
them for placement fees. Clearly, accused-appellant committed
acts constitutive of large scale illegal recruitment.

People vs. Ocden (G.R. No. 173198, June 1, 2011)

Facts:

It was proved during trial that Ocden committed the

following acts:

(1) Ocden informed Mana-a, Ferrer, and Golidan about

the job opportunity in Italy and the list of necessary
requirements for application;
(2) Ocden required Mana-a, Ferrer, and Golidans sons,
Jeffries and Howard, to attend the seminar conducted by
Ramos at Ocdens house in Baguio City;
(3) Ocden received the job applications, pictures, bio-
data, passports, and the certificates of previous employment
(which was also issued by Ocden upon payment of P500.00), of
Mana-a, Ferrer, and Golidans sons, Jeffries and Howard;
(4) Ocden personally accompanied Mana-a, Ferrer,
and Golidans sons, Jeffries and Howard, for their medical
examinations in Manila;
(5) Ocden received money paid as placement fees by
Mana-a, Ferrer, and Golidans sons, Jeffries and Howard, and
even issued receipts for the same; and
(6) Ocden assured Mana-a, Ferrer, and Golidans sons,
Jeffries and Howard, that they would be deployed to Italy.
(7) Ocden failed to reimburse/refund to Mana-a, Ferrer,
and Golidans two sons the amounts they had paid when they
were not able to leave for Italy, through no fault of their own.

Ocden’s defense is that the prosecution failed to prove

beyond reasonable doubt that she is guilty of the crime of illegal
recruitment in large scale. According to her, other than the bare
12
 allegations of the prosecution witnesses, no evidence was
adduced to prove that she was a non-licensee or non-holder of
authority to lawfully engage in the recruitment and placement of
workers. She added that no certification attesting to this fact
was formally offered in evidence by the prosecution.

Ruling:

Ocden’s aforementioned contentions are without merit.

Ocden is guilty of illegal recruitment because she gave

complainants the distinct impression that he had the power or
ability to send complainants abroad for work such that the latter
were convinced to part with their money in order to be
employed.

It is not necessary for the prosecution to present a

certification that Ocden is a non-licensee or non-holder of
authority to lawfully engage in the recruitment and placement of
workers. Section 6 of Republic Act No. 8042 enumerates
particular acts which would constitute illegal
recruitment whether committed by any person, whether a non-
licensee, non-holder, licensee or holder of authority. Among
such acts, under Section 6(m) of Republic Act No. 8042, is the
[f]ailure to reimburse expenses incurred by the worker in
connection with his documentation and processing for purposes
of deployment, in cases where the deployment does not
actually take place without the workers fault.

Since illegal recruitment under Section 6(m) can be

committed by any person, even by a licensed recruiter, a
certification on whether Ocden had a license to recruit or not, is
inconsequential. Ocden committed illegal recruitment as
described in said provision by receiving placement fees from
Mana-a, Ferrer, and Golidans two sons, Jeffries and Howard,
evidenced by receipts Ocden herself issued; and failing to
reimburse/refund to Mana-a, Ferrer, and Golidans two sons the
amounts they had paid when they were not able to leave for
Italy, through no fault of their own.

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 Elemento ng illegal recruitment ng isang licensee o holder of
authority:

(a) The offender has a valid license or authority required by law to

enable one to lawfully engage in recruitment and placement of workers.
(b) The offender undertakes any of the prohibited activities
enumerated under Section 6 of RA 8042.

Kailan maituturing na ang illegal recruitment ay isinagawa ng isang

sindikato?

Illegal recruitment is deemed committed by a

syndicate if carried out by a group of three (3) or more
persons conspiring or confederating with one another.
(Sec. 6, RA 8042)

Kailan naman ito maituturing na large scale?

It is deemed committed in large scale if committed

against three (3) or more persons individually or as a
group. (Sec. 6, RA 8042)

Tatlong elemento ng large scale illegal recruitment:

(a) The offender has no valid license or authority

required by law to enable him to lawfully engage in recruitment
and placement of workers; 
(b) The offender undertakes any of the activities within
the meaning of “recruitment and placement” under Section 6 of
Republic Act No. 8042; and
(c) The offender committed the same against three or
more persons, individually or as a group.

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 Sino ang mga taong may kriminal na pananagutan pagdating sa
illegal recruitment:

The persons criminally liable for the above offenses

are the principals, accomplices and accessories.

Sa batas, ang isang korporasyon ay itinuturing ding parang isang tao.

Iyon nga lang, sila ay tinatawag na artificial person o juridical person
sapagkat sila ay hindi talaga natural na tao kundi itinuturing lamang na tao
sa mata ng batas. At dahil hindi sila tao, sila ay makakakilos lamang sa
pamamagitan ng kanilang mga human agents.

Ngayon, sa ating civil code ay mayroong law on agency na kung

saan itinuturing na ang mga ginawa ng isang agent within the limits of his
authority ay ginawa talaga ng kanyang principal. Kaya’t kung may
pagkakamali man dito, ang dapat na managot ay ang kanyang principal.
Ang tanong ay, maari bang gawing depensa ng isang akusado na bilang
empleyado ng korporasyon, siya ay human agent lamang nito kaya’t ang
dapat na managot talaga sa kanyang mga ginawa ay ang korporasyon
mismo at hindi siya? In other words, maari bang gamiting depensa ang civil
law on agency sa kaso ng illegal recruitment?

Sinagot ng Supreme Court ang tanong na ito sa kaso ng People v.

Chowdury (G.R. No. 129577, Feb. 15, 2000) kung saan ay sinabi nito na:

An employee of a company or corporation engaged

in illegal recruitment may be held liable as principal,
together with his employer if it is shown that he actively
and consciously participated in illegal recruitment. It
has been held that the existence of the corporate entity
does not shield from prosecution the corporate agent who
knowingly and intentionally causes the corporation to
commit a crime. The corporation obviously acts, and can
act, only by and through its human agents, and it is their
conduct which the law must deter. The employee or agent
of a corporation engaged in unlawful business naturally
aids and abets in the carrying on of such business and
will be prosecuted as principal if, with knowledge of the

15
 business, its purpose and effect, he consciously
contributes his efforts to its conduct and promotion,
however slight his contribution may be. The law of
agency, as applied in civil cases, has no application in
criminal cases, and no man can escape punishment
when he participates in the commission of a crime upon
the ground that he simply acted as an agent of any
party. The culpability of the employee therefore hinges on
his knowledge of the offense and his active participation
in its commission. Where it is shown that the employee
was merely acting under the direction of his superiors
and was unaware that his acts constituted a crime, he
may not be held criminally liable for an act done for and
in behalf of his employer.

Isa pa, sa ating batas ay mga natural persons lamang ang pwedeng
ikulong. At dahil ang korporasyon ay isang artificial person lamang, hindi ito
pwedeng makulong. Kaya nga ayon sa Section 6 ng RA 8042, kung ang
sangkot sa kaso ay isang korporasyon or juridical person, ang mga
sumusunod na tao ang maaaring managot:

In case of juridical persons, the officers having

ownership, control, management or direction of their
business who are responsible for the commission of the
offense and the responsible employees/agents thereof
shall be liable.

Kaugnay ng Chowdury case, napatunayan na si Chowdury ay na-

employ bilang interviewer ng Craftrade na noo’y nag-ooperate sa ilalim ng
temporary authority na ibinigay ng POEA habang under renewal ang
lisensya nito. Hinatulan si Chowdury ng guilty ng RTC dahil napatunayan
na siya ay hindi naka-register sa POEA bilang empleyado ng Craftrade.
Hindi rin siya, sa personal niyang kapasidad, lisensyado na mag-recruit ng
overseas workers. Sinasabi kasi sa Section 10, Rule II ng POEA Rules and
Regulations Regulating Overseas Employment of Land-Based Overseas
Workers na: Section 10.  Change of Other Officers and Personnel. - Every
change or termination of appointment of officers, representatives and

16
personnel shall be registered with the Administration within thirty (30)
calendar days from the date of such change.

Pero siya ay pinawalang sala ng Supreme Court:

We find that the prosecution failed to prove that

accused-appellant was aware of Craftrade's failure to
register his name with the POEA and that he actively
engaged in recruitment despite this knowledge. The
obligation to register its personnel with the POEA belongs
to the officers of the agency. A mere employee of the
agency cannot be expected to know the legal
requirements for its operation. The evidence at hand
shows that accused-appellant carried out his duties as
interviewer of Craftrade believing that the agency was
duly licensed by the POEA and he, in turn, was duly
authorized by his agency to deal with the applicants in
its behalf. Accused-appellant in fact confined his actions
to his job description. He merely interviewed the
applicants and informed them of the requirements for
deployment but he never received money from them.
Their payments were received by the agency's cashier,
Josephine Ong. Furthermore, he performed his tasks
under the supervision of its president and managing
director. Hence, we hold that the prosecution failed to
prove beyond reasonable doubt accused-appellant's
conscious and active participation in the commission of
the crime of illegal recruitment. His conviction, therefore,
is without basis.

Sino ang mga taong maaaring magsampa ng kasong illegal

recruitment?

1. Any aggrieved person.

2. The Secretary of Labor and Employment, the POEA
Administrator or their duly authorized representatives. For this purpose, the
affidavits and testimonies of operatives or personnel from the Department
of Labor and Employment, POEA and other law enforcement agencies who

17
witnessed the acts constituting the offense shall be sufficient to prosecute
the accused. (Sec. 6, RA 8042)

Maaari bang sampahan ng iba pang kaso ang isang tao na

sinampahan na ng kasong illegal recruitment sa ilalim ng RA 8042?

Maaari ito dahil ayon sa R.A. 8042:

The filing of an offense punishable under this Act

shall be without prejudice to the filing of cases
punishable under other existing laws, rules or
regulations.

Sa kaso ng People v. Ocden, kung saan ay sinampahan at hinatulan

si Ocden sa kasong illegal recruitment at estafa, sinabi ng Supreme Court
na:

We are likewise affirming the conviction of Ocden for

the crime of estafa. The very same evidence proving
Ocdens liability for illegal recruitment also established
her liability for estafa.
 
It is settled that a person may be charged and
convicted separately of illegal recruitment under Republic
Act No. 8042 in relation to the Labor Code, and estafa
under Article 315, paragraph 2(a) of the Revised Penal
Code. We explicated in People v. Yabut that:
 
In this jurisdiction, it is settled that a
person who commits illegal recruitment may
be charged and convicted separately of illegal
recruitment under the Labor Code and estafa
under par. 2(a) of Art. 315 of the Revised Penal
Code. The offense of illegal recruitment
is malum prohibitum where the criminal intent
of the accused is not necessary for conviction,
while estafa is malum in se where the criminal

18
 intent of the accused is crucial for
conviction. Conviction for offenses under the
Labor Code does not bar conviction for
offenses punishable by other laws.Conversely,
conviction for estafa under par. 2(a) of Art. 315
of the Revised Penal Code does not bar a
conviction for illegal recruitment under the
Labor Code. It follows that ones acquittal of
the crime of estafa will not necessarily result in
his acquittal of the crime of illegal recruitment
in large scale, and vice versa.

People vs. Lalli (G.R. No. 195419, 12  Oct 2011)

Aringoy, Relampagos and Lalli were convicted of syndicated illegal

recruitment for recruiting Lolita to become a prostitute in Malaysia.

But they were also charged with trafficking in persons.  In his
defense, Aringoy claims that he cannot be convicted of the crime of
Trafficking in Persons because he was not part of the group that
transported Lolita from the Philippines to Malaysia.

But the SC did not listen to Aringoy’s defense. According to the SC:

“Trafficking in Persons under Sections 3 (a) and 4 of

RA 9208 is not only limited to transportation of victims,
but also includes the act of recruitment of victims for
trafficking. In this case, since it has been sufficiently
proven beyond reasonable doubt, as discussed in
Criminal Case No. 21930, that all the three accused
(Aringoy, Lalli and Relampagos) conspired and
confederated with one another to illegally recruit Lolita to
become a prostitute in Malaysia, it follows that they are
also guilty beyond reasonable doubt of the crime of
Qualified Trafficking in Persons committed by a syndicate
under RA 9208 because the crime of recruitment for
prostitution also constitutes trafficking.

19
 But can they claim double jeopardy? The SC said NO. According to
the SC:

“When an act or acts violate two or more different

laws and constitute two different offenses, a prosecution
under one will not bar a prosecution under the
other. The constitutional right against double jeopardy
only applies to risk of punishment twice for the same
offense.

================

People vs. Romero (G.R. No. 103385-88, July 26, 1993)

Romero was Accused of illegally recruiting 3 persons (Dapnit,

Salazar and Quillope). All of the 3 Complainants testified against Romero.
However, Salazar and Quillope later on had a change of heart and
executed an affidavit of desistance.

The trial court convicted Romero of large scale illegal recruitment. He

appealed to the SC claiming that he cannot be convicted of large scale
illegal recruitment because Salazar and Quillope already executed an
affidavit of desistance. However, the SC affirmed the conviction and said:

The fact that complainants Bernardo Salazar and

Richard Quillope executed a Joint Affidavit of Desistance
does not serve to exculpate accused-appellant from
criminal liability insofar as the case for illegal
recruitment is concerned since the Court looks with
disfavor the dropping of criminal complaints upon mere
affidavit of desistance of the complainant, particularly
where the commission of the offense, as is in this case, is
duly supported by documentary evidence.

Generally, the Court attaches no persuasive value to

affidavits of desistance, especially when it is executed as
an afterthought. It would be a dangerous rule for courts
to reject testimonies solemnly taken before the courts of
justice simply because the witnesses who had given

20
 them, later on, changed their mind for one reason or
another; for such rule would make solemn trial a
mockery and place the investigation of truth at the mercy
of unscrupulous witness.

Complainants Bernardo Salazar and Richard

Quillope may have a change of heart insofar as the
offense wrought on their person is concerned when they
executed their joint affidavit of desistance but this will
not affect the public prosecution of the offense itself. It is
relevant to note that "the right of prosecution and
punishment for a crime is one of the attributes that by a
natural law belongs to the sovereign power instinctly
charged by the common will of the members of society to
look after, guard and defend the interests of the
community, the individual and social rights and the
liberties of every citizen and the guaranty of the exercise
of his rights." This cardinal principle which states that to
the State belongs the power to prosecute and punish
crimes should not be overlooked since a criminal offense
is an outrage to the sovereign State. As provided by the
Civil Code of the Philippines:

Art. 2034. There may be a compromise

upon the civil liability arising from an offense;
but such compromise shall not extinguish the
public action for the imposition of the legal
penalty.

The trial court had correctly found accused-

appellant ELMA ROMERO guilty beyond reasonable
doubt of the crime of ILLEGAL RECRUITMENT
COMMITTED IN LARGE SCALE.

Lesson: Don’t let the witness testify. If you will settle, do so before the presentation
of the witness. After the witness is presented, the remedy is to have him retract his
testimony. Or if he has not yet been cross-examined, tell him not to attend the

21
scheduled cross-examination so that you can move that his direct testimony be
stricken out from the records.

REMEDIES

Ang isang biktima ng illegal recruitment ay maaaring magsampa ng 2

uri ng kaso: Administrative at criminal. Administrative action may proceed
independently of the criminal action.

Criminal action:

1. May be filed directly with the Prosecutor’s Office of the province

or city where the offense was committed or where the offended party
actually resides at the same time of the commission of the offense.

2. Fiscal shall conduct preliminary investigation. Subpoena and

require the respondent to file counter-affidavit.

3. Resolve the case. If there is probable cause, he shall file it with

the RTC. If no probable cause, dismiss the case.

SEC. 11. MANDATORY PERIODS FOR RESOLUTION OF

ILLEGAL RECRUITMENT CASES. – The preliminary investigations
of cases under this Act shall be terminated within a period of thirty
(30) calendar days from the date of their filing. Where the
preliminary investigation is conducted by a prosecution officer and
a prima facie case is established, the corresponding information
shall be filed in court within twenty-four (24) hours from the
termination of the investigation. If the preliminary investigation is
conducted by a judge and a prima facie case is found to exist,
prosecution officer within forty-eight (48) hours from the date of
receipt of the records of the case.

4. But if accused was arrested without warrant during entrapment

operation, the procedure is inquest. Fiscal will resolve the case only based
on the evidence gathered during the warrantless arrest. If there is probable
cause, then he will file an information with the court. If none, then he will
recommend that the case be for further investigation.

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 5. If the case is filed in court after an inquest proceedings, the
remedy of the accused is to file a motion with the court for preliminary
investigation.

6. In case of non-bailable offense, like syndicated illegal

recruitment or large scale illegal recruitment, accused may file a motion for
determination of probable cause immediately upon learning of the filing of
information and before the issuance of a warrant of arrest. Purpose of this
is to prevent the issuance of warrant. If a warrant had already been issued
and accused was already arrested, the remedy is petition for bail. Here,
accused must show that the evidence for the prosecution is weak or not
strong.

7. The filing of a complaint may also be done with the DOLE or

the POEA or their regional offices and not directly with the Prosecutor’s
office. If, upon investigation, the DOLE or POEA sees that there is a case
of illegal recruitment, it may initiate the filing of a complaint with the
prosecutor’s office for preliminary investigation.

The institution of criminal action is without prejudice to any

administrative action against the licensee or holder of authority cognizable
by the Administration, which could proceed independently of the criminal
action.

SEC. 12. PRESCRIPTIVE PERIODS. – Illegal recruitment cases

under this Act shall prescribe in five (5) years: Provided, however,
That illegal recruitment cases involving economic sabotage as
defined herein shall prescribe in twenty (20) years. (RA 8042)

Administrative:

After the filing of a report or complaint by the aggrieved party and the
POEA determines during preliminary examination of the complainant and
his witnesses or during the conduct of a surveillance operation that an
illegal recruitment is on-going, it may issue a closure order against
respondent.

RULE I
Jurisdiction
23
 SECTION 138. Jurisdiction. — The POEA shall exercise original
and exclusive jurisdiction to hear and decide all cases which are
administrative in character, involving or arising out of violations of
recruitment rules and regulations, including refund of fees collected from
Overseas Filipino Workers and any violation of the conditions for the
issuance of the license to recruit Overseas Filipino Workers.

The Administration shall likewise exercise original and exclusive

jurisdiction to hear and decide disciplinary action cases against Overseas
Filipino Workers and principals/employers that are administrative in
character, excluding money claims.

Cases that may be filed against OFW:

RULE V
Disciplinary Action Against Overseas Filipino Workers

SECTION 145. Grounds for Disciplinary Action and their Penalties.

— Commission by an Overseas Filipino Worker of any of the offenses
enumerated below shall be a ground for disciplinary action for which the
corresponding penalties shall be imposed:

I. SERIOUS OFFENSES:

A. Pre-Employment Offenses

a. Submitting, furnishing or using false information or documents or

any form of misrepresentation for the purpose of job application or
employment.

b. Unjustified refusal to continue his/her application after signing an

employment contract, or to depart for the worksite after all employment and
travel documents have been duly approved by the appropriate government
agencies.

B. Offenses during Employment

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 a. Commission of a felony, or crime punishable by the laws of the
Philippines or by the host country, committed during employment.

b. Assaulting a fellow worker, the principal/employer or any member

of his/her family, or any of the directors, officers, managerial or
supervisorial staff of the principal/employer.

c. Grave abuse of authority by an officer exercising supervision over

other employees.

d. Possession or use of prohibited drugs, contraband, alcohol or

pornographic materials in violation of company policy or laws of the host
country.

e. Unjustified refusal to be repatriated in case of mandatory

repatriation in accordance with the declaration of the Philippine
government.

II. LESS SERIOUS OFFENSES

f. Unjustified breach of employment contract.

g. Embezzlement of company funds or monies and/or properties of

a fellow worker entrusted for delivery to kin or relatives in the Philippines.

h. Violation of the religious and cultural practices of the host country.

i. Violation of company policies and regulations.

j. Insubordination or refusal to obey a lawful order of the employer or

the duly authorized representative.

k. Failure to refund the cost of his/her repatriation advanced by the

principal or recruitment agency, where termination of employment was due
to his/her own fault as determined by final judgment.

l. Violation of the Code of Discipline for Overseas Filipino Workers.

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 SECTION 150. Venue. — Any complaint against a licensed
recruitment agency arising out of a recruitment violation or violation of the
conditions of the license, or complaint against an Overseas Filipino Worker
or a principal/employer for disciplinary action may be filed with the
Adjudication Office, or with the POEA Regional Centers/Extension Units
having jurisdiction over the place where the complainant was recruited or
resides, at the option of the complainant. The Office where the complaint
was first filed shall take cognizance of the case.

RULE II
Conciliation of Complaints

SECTION 139. Mandatory Conciliation of Complaints. — Before

docketing, the Administration or the POLO, shall mandatorily conciliate any
complaint involving an Overseas Filipino Worker, licensed recruitment
agency, or principal/employer relating to overseas employment.

In case of money claims, the same will also be conciliated in

accordance with the Single-Entry Approach (SEnA). The failure to arrive
with a settlement shall cause the endorsement of the complaint to the
appropriate office. In cases falling under Section 143 (g) and (h) herein, the
settlement shall be for the return of the full amount excessively/illegally
collected. (Charging and collecting of placement fee for deployment to
countries where the prevailing system, either by law, policy or practice does
not allow the charging and collection of placement and recruitment fees as
determined by the Administration, AND charging and accepting directly or
indirectly any amount greater than that specified in the schedule of
allowable placement fees, or when such charging or collection is prohibited
by any law, rules or policy, or making a worker pay or acknowledge any
amount greater than that actually received by him/her as loan or advance)

However, the following cases are not subject to SEnA:

a. Cases referred by the POLO or any other government agency;

b. Cases initiated by the Administration; and

26
 c. Cases involving acts of misrepresentation for the purpose of
securing a license.

SECTION 140. Conciliation Proceedings. — Within five (5) days

upon receipt of the complaint, the Administration shall notify the respondent
and schedule a conference between the parties to discuss the possibility of
arriving at an amicable settlement.

Where an amicable settlement is reached, the Administration shall

approve the same and the settlement shall be final and binding upon the
parties.

Where efforts for amicable settlement fail, the conciliation

proceedings shall be terminated and the complaint shall be referred to the
appropriate office immediately.

SECTION 141. Administrative Sanction. — Unjustified failure by the

licensed recruitment agencies, principal/employer or an Overseas Filipino
Worker to abide by the terms of the approved settlement shall warrant
suspension from participation in the overseas employment program, until
compliance with or satisfaction of the approved settlement.

In case of failure of any party to comply with terms of the approved

settlement despite the lapse of thirty (30) days from date of imposition of
suspension from participation in the overseas employment program, the
Administration shall, upon motion of the aggrieved party or on its own
initiative, issue a Writ of Execution for the enforcement of the settlement
award.

SECTION 142.Confidentiality of the Conciliation Proceeding. — The

proceeding for conciliation is confidential in nature. No evidence or
testimony introduced therein shall be admissible as evidence in any other
proceedings.

RULE V Action upon Complaint/Report

SECTION 153. Issuance and Service of Show Cause

Order/Summons and Filing of Answer. — Upon receipt of the duly docketed
complaint/report, the Administration shall issue a Show Cause
27
Order/Summons directing the respondent to file a verified Answer and not a
motion to dismiss within ten (10) calendar days from receipt, attaching
proof that a copy was sent to the complainant. The Show Cause
Order/Summons including a copy of the complaint/report and its supporting
documents shall be served upon the respondent.

SECTION 154. Failure to File Answer. — In case the respondent

recruitment agency fails to file an Answer, the assigned Overseas
Employment Adjudicator (OEA) shall proceed with the investigation/hearing
of the case.

An Answer filed out of time shall not be admitted except on

meritorious grounds and upon motion.

In case the respondent principal/employer or the Overseas Filipino

Worker fails to file the required Answer, the case shall be archived and the
respondent shall be temporarily disqualified from participating in the
overseas employment program until the respondent files an Answer.

SECTION 155. Motion for Extension. — Only one motion for

extension of time to file Answer shall be allowed. The OEA, upon receipt of
such motion may, upon meritorious grounds, grant a non-extendible period
of ten (10) calendar days. However, if the allegations in the
complaint/report refer to facts or circumstances which occurred abroad,
thereby making it necessary to verify with the concerned
principal/employer, a longer period not exceeding fifteen (15) days may be
granted. A ruling on the motion made by the OEA shall be entered into the
minutes, or sent by personal service or by registered mail.

SECTION 156. Proof and Completeness of Service. — The

contents of the return shall be proof of the facts stated therein. Service by
registered mail or through courier is complete upon receipt by the
addressee or agent, but if the addressee fails to claim the mail from the
postmaster, service shall take effect a day after the date of the last notice.
Service made at the last known address shall be sufficient in case the
office of the licensed recruitment agency is closed and no notice of change
of address or cessation of operation has been filed.

Personal service made in any registered office or officer or personnel

of the licensed recruitment agency shall likewise be sufficient. For this
28
purpose, in case the office of the licensed recruitment agency is closed and
no notice of change of address or cessation of operation has been filed,
service to the last known address shall be deemed completed.

SECTION 157. Nature of Proceedings. — The proceedings shall

comply with the requirements of due process without strictly adhering to the
technical rules of procedure and evidence applicable to judicial
proceedings. The OEA may avail himself of all reasonable means to
ascertain the facts of the case.

SECTION 158. Preliminary Hearing. — The OEA may conduct a

preliminary hearing with due notice to the parties, for the purpose of:

a. The possibility of an amicable settlement;

b. The simplification of the issues;
c. The possibility of obtaining stipulations or admissions of facts and
of documents to avoid unnecessary proof;
d. The names and number of witnesses to be presented;
e. The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground exist; and
f. Such other matters that may aid in the prompt disposition of the
action.

SECTION 159.Non-Appearance of Parties. — The OEA shall

schedule a maximum of two (2) hearings. If the complainant fails to appear
in all of the scheduled hearings despite notice, the complaint shall be
dismissed without prejudice to the re-filing of the complaint within the
prescriptive period.

If the respondent fails to appear in all of the scheduled hearings

despite notice, the complaint shall be resolved based on the evidence on
record.

Non-appearance of both parties in all scheduled hearings will result in

outright dismissal of the complaint without prejudice. If the case is re-filed
and dismissed again due to non-appearance of the complainant, the
dismissal shall already be with prejudice.

SECTION 160. Clarificatory Questions. — At any stage of the

proceedings and before the case is submitted for resolution, the OEA may
29
ask clarificatory questions to the parties or their witnesses to further elicit
relevant facts or information.

The OEA may set a hearing where the parties shall be given an
opportunity to be present but without right to examine or cross-examine. If
the parties so desire, they may submit questions to the OEA who may ask
the parties or witnesses concerned.

SECTION 161. Service of Order to Appear/to Produce Documents. —

The Administration may issue an Order to appear/to produce documents
specified in the Order.

The process server who personally served the Order to

appear/produce documents, notice of order, resolution or decision shall
submit his/her return within five (5) calendar days from the date of his/her
service thereof, stating legibly in the return his/her name, the mode of
service, the name of the other person to whom it was served and the date
of receipt. If no service was effected, the serving officer shall state the
reason. The return shall form part of the records of the case.

SECTION 162. Failure or Refusal to Obey Order to Appear/to

Produce Documents. — The failure of the officers or employers of the
licensed recruitment agency to comply with an Order to appear/to produce
documents without justifiable reason shall be deemed a waiver of their right
to present evidence, and the case shall be decided in accordance with
available evidence and without prejudice to the filing of a case for non-
compliance.

SECTION 163. Summary Judgment. — Should the OEA find, motu

proprio or upon motion that a resolution/decision may be rendered on the
basis of the complaint, answer and evidence submitted, the case shall be
deemed submitted and a summary judgment shall be issued.

SECTION 164. Effects of Withdrawal of Complaint/Desistance. —

The withdrawal of complaint/desistance shall not bar the Administration
from proceeding with the investigation of the recruitment violation. The
Administration shall resolve the case on the merits, if there is evidence
warranting the imposition of appropriate penalties.

30
 SECTION 165. Resolution of the Case. — The OEA shall submit
his/her findings and recommendations in the form of a draft Order within six
(6) months from the date of filing of the complaint. The Administrator shall
render a decision within two (2) months from receipt of the findings and
recommendations.

SECTION 167. Issuance of Order of Preventive Suspension. —

Pending investigation of the recruitment violation or a disciplinary action
case, the license of the respondent recruitment agency or the accreditation
of the principal/employer, or the processing of documents of the Overseas
Filipino Worker, may be suspended for a period not exceeding the
imposable penalties under the schedule of penalties.

SECTION 168.Grounds for the Issuance of Order of Preventive

Suspension.—

(1) For the recruitment agency:

a. There exist reasonable grounds to believe that the continued

operation of the licensed recruitment agency will lead to further violation or
exploitation of workers being recruited or will adversely affect friendly
relations with any country or will prejudice national interest; and
b. The evidence of guilt is strong that there is a case for violation of
the pertinent provisions of the Labor Code, its implementing rules and
regulations, and POEA Rules and Regulations pertaining to serious or less
serious offenses as described in these Rules or any issuance of the
Administration.

(2) For a Foreign Principal/Employer:

a. When the evidence of guilt is strong; and

b. There is reasonable ground to believe that the continued
deployment to the principal will result in further violation or exploitation of
Overseas Filipino Workers.

(3) For a Migrant Worker:

a. When the evidence of guilt is strong; and

b. The charge involves a serious offense.
31
SECTION 169.Imposition of Preventive Suspension. —

A) After submission of the Answer in accordance with Section 153 or

after the lapse of the period within which to file an Answer and after the
conduct of a hearing, the Administrator may issue an Order of Preventive
Suspension in accordance with Section 168.

B) The Administration may, upon docketing of a recruitment violation

case and without prior notice and hearing, issue an Order of Preventive
Suspension when the worker is a minor at the time of deployment.

C) The Administration may likewise issue an Order of Preventive

Suspension upon recommendation of the embassy/POLO, or when
recommended by any government agencies who are members of the Inter-
Agency Council Against Trafficking (IACAT) or the Presidential Task Force
Against Illegal Recruitment (PTFAIR), supported by a detailed report,
sworn statement/s of worker/s, and other evidence; Provided that, the
concerned party shall be given a period of five (5) days from receipt of the
Show Cause Order within which to file an Answer/Explanation. Failure to
file such Answer/Explanation within the prescribed period may result in the
imposition of Order of Preventive Suspension on the agency concerned. No
Motion for Extension to file an Answer/Explanation shall be allowed.

On the other hand, the Administration may, upon docketing of the

case against a principal or employer, issue an Order of Preventive
Suspension in the following instances:

a. When there are five (5) or more complainants and the nature of the
offense involves serious or less serious offense;

b. When the worker involved is an underage migrant worker;

c. When the worker dies or suffers severe physical/psychological

maltreatment or sexual abuse in the course of the employment; or

d. When recommended by the embassy/POLO supported by a

detailed report and sworn statement/s of workers.

32
 In case of a foreign placement agency, an Order of Preventive
Suspension shall be issued on the basis of direct or indirect participation in
the above-mentioned circumstances.

The Administrator shall render a decision within ninety (90) days from
the date of receipt of the Order of Preventive Suspension. Otherwise, the
suspension shall be deemed lifted without prejudice to the outcome of the
investigation.

SECTION 172. Mitigating, Aggravating or Alternative

Circumstances. — In the determination of the penalties to be imposed
against a licensed recruitment agency, the following mitigating, aggravating
and alternative circumstances attendant to the commission of the offense
shall be considered:

a. First offender;
b. Admission of guilt and voluntary restitution, where applicable;
c. Good faith;
d. Exemplary performance;
e. Habitual offender;
f. Prejudice to the worker;
g. Gross negligence; or
h. Other analogous circumstances.

The party must invoke in the complaint or Answer/Explanation the

existence of any of the above enumerated circumstances. However, when
the imposable penalty is cancellation of license, the attendant
circumstances shall not be applied.

SECTION 174. Penalty When a Case Involves Five or More

Workers. — The penalty of cancellation of license shall be imposed upon a
respondent agency found liable for committing a less serious or light
offense against five (5) or more workers in a single case.

SECTION 175.Exempting Circumstances. — The following are

considered as legitimate reasons for an Overseas Filipino Worker not to
depart for the worksite, or to abandon or withdraw from employment:

a. Exposure to hazardous or demeaning working and living

conditions;
33
 b. Refusal of the principal to grant, release or remit wages and
other benefits due the worker;
c. War, plague or other calamities or other dangerous situations at
the worksite as determined by the POEA Governing Board; and
d. Violation by the principal/employer of labor laws of the
Philippines, the host country or international labor laws.

RA. 8042, AS AMENDED

SEC. 10. Money Claims. - Notwithstanding any provision of

law to the contrary, the Labor Arbiters of the National Labor
Relations Commission (NLRC) shall have the original and exclusive
jurisdiction to hear and decide, within ninety (90) calendar days
after the filing of the complaint, the claims arising out of an
employer-employee relationship or by virtue of any law or contract
involving Filipino workers for overseas deployment including claims
for actual, moral, exemplary and other forms of damage. Consistent
with this mandate, the NLRC shall endeavor to update and keep
abreast with the developments in the global services industry.

The liability of the principal/employer and the

recruitment/placement agency for any and all claims under this
section shall be joint and several. This provision shall be
incorporated in the contract for overseas employment and shall be a
condition precedent for its approval. The performance bond to de
filed by the recruitment/placement agency, as provided by law,
shall be answerable for all money claims or damages that may be
awarded to the workers. If the recruitment/placement agency is a
juridical being, the corporate officers and directors and partners as
the case may be, shall themselves be jointly and solidarily liable
with the corporation or partnership for the aforesaid claims and
damages.

Such liabilities shall continue during the entire period or

duration of the employment contract and shall not be affected by
any substitution, amendment or modification made locally or in a
foreign country of the said contract.

34
 Any compromise/amicable settlement or voluntary agreement
on money claims inclusive of damages under this section shall be
paid within thirty (30) days from approval of the settlement by the
appropriate authority.

In case of termination of overseas employment without just,

valid or authorized cause as defined by law or contract, or any
unauthorized deductions from the migrant worker's salary, the
worker shall be entitled to the full reimbursement if his placement
fee and the deductions made with interest at twelve percent (12%)
per annum, plus his salaries for the unexpired portion of his
employment contract or for three (3) months for every year of the
unexpired term, whichever is less.

In case of a final and executory judgement against a foreign

employer/principal, it shall be automatically disqualified, without
further proceedings, from participating in the Philippine Overseas
Employment Program and from recruiting and hiring Filipino
workers until and unless it fully satisfies the judgement award.

Noncompliance with the mandatory periods for resolutions of

case provided under this section shall subject the responsible
officials to any or all of the following penalties:

(a) The salary of any such official who fails to render his
decision or resolution within the prescribed period shall be, or
caused to be, withheld until the said official complies therewith;

(b) Suspension for not more than ninety (90) days; or

(c) Dismissal from the service with disqualification to hold any

appointive public office for five (5) years.

Provided, however, That the penalties herein provided shall be

without prejudice to any liability which any such official may have
incurred under other existing laws or rules and regulations as a
consequence of violating the provisions of this paragraph.

35