Article 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 correccional** 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 light felony.

3. When the principal penalty imposed is higher than prision correccional, 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 RA
5465, April 21, 1969, Republic Act No. 10159, [April 10, 2012])

*Per Wage Order No. NCR-23 (Effective: 04 June 2022)

New Minimum Wage Rate ₱570.00

When is Subsidiary Penalty Applicable:

- When the convict is unable to pay the fine, one of the pecuniary liabilities in paragraph 3 of
Article 38. So as stated, this is not applicable to the other pecuniary liabilities in paragraph 1 The
reparation of the damage caused, 2 Indemnification of consequential damages, and 4 The cost of
the proceedings, why because this obligations are civil in nature, a debt, and imposing a penalty
for non-payment of debt will be unconstitutional under Section 20 of the 1987 Constitution that
no person shall be imprisoned for non-payment of debt, fine however, if a penalty is provided
under Art. 25, such that in lieu thereof when the convict is insolvent, the state may impose
another penalty which is in Article 39 Subsidiary Penalties.
- Application of Subsidiary Penalty is not presumed, it should be expressly provided in the decision
convicting the accused, otherwise, the imposition will not be valid or illegal.
- highest minimum wage rate* as amended from ₱8.oo before, and again, this is applicable on
when convict is unable to pay the fine, and he cannot chose to be imprisoned if he has the
capacity to pay as cited in People vs. Dacuycuy .”There is no rule for transmutation of the
amount of a fine into a term of imprisonment.”
1. If the principal penalty imposed be prision correccional** 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.

** prision correccional ( 6 months and 1 day – 6 years), since max is 6 years, rule 1 is applicable only to
prision correccional and those lower penalties
***arresto ( 1 month and 1 day – 6 months )

Example: (book)
A is convicted of falsification by private individual (Art. 172) and sentenced to 4 years, 9 months and 10
days of prision correccional, as the maximum term of the indeterminate penalty, and to pay a fine of
P4,000.00.

4 years x 365 days = 1,460 days 1,740 days/3 = 580 days

9 months x 30 days = 270 days ₱ 4,000.00 / ₱570.00 = 7.017 days
10 days 0.017 is equivalent to zero
TOTAL: 1,740 days

In Article 26, the maximum penalty for prision correccional is ₱ 1,200,000.00 xxx /₱570.00 = 2,107 days
*Note: No subsidiary imprisonment if the fine is less than the highest minimum wage rate.

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 light felony.

3. When the principal penalty imposed is higher than prision correccional, no subsidiary imprisonment
shall be imposed upon the culprit.
-Subsidiary Penalty can be imposed only if the penalty is:
1. Prision Correccional
2. Arresto Mayor
3. Arresto Menor
4. Suspension
5. Destierro
6. Fine only
What if penalty penalty imposed is 6 years and 1 day?
Subsidiary penalty will not be applicable because when one day is added to 6 years, it raises the
prison sentence from prision correccional to prision mayor; hence, no subsidiary imprisonment.
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.
If the principal penalty imposed is not imprisonment and if without duration subsidiary penalty
cannot be applied. Yet, if the principal penalty imposed is not imprisonment but with a fixed
duration subsidiary penalty, subsidiary penalty can be imposed and will be the same as those
imposed on the principal penalty. (example Destierro, limiting or restriction of freedom)

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
RA 5465, April 21, 1969, Republic Act No. 10159, [April 10, 2012])

No subsidiary penalties on:

1. When penalty imposed is higher than prision correccional
2. Failure to pay pecuniary liabilities as stated in par. 1,2 & 4, the reparation of the damage caused,
indemnification of consequential damages, and the cost of the proceedings, respectively.
3. When the penalty imposed is fine and a penalty not to be executed by confinement in a penal
institution and which has no fixed duration.

Subsidiary imprisonment under Special Laws:

pursuant to Article 10, offenses not subject to provisions of this code which are or in the future may be
punishable under special laws are then subject to the provisions of this code, this code shall be
supplementary to such laws unless the latter should specially provide the contrary, thus unless the
special law provides the subsidiary imprisonment shall not be imposed, the subsidiary imprisonment can
be imposed for violation of special laws

*No subsidiary imprisonment for nonpayment of income tax