SEC EB Case No. 08-19-461ETHEL ASUNCION MOON, Appellant, v. SEA PINE SHIPPING CORPORATION, Appellee.

Securities and Exchange Commission COMMISSION EN BANC Republlc of the Philipplnes Department of Finance

IN THE MATTEROF ETHEL ASUNCION MOON, Petitioner-Appellant,

-versus- SEC En Banc Case No.08-19-461 Promulgated:13 October 2022

SEA Represented CORPORATION, PINE by Rosalyn SHIPPING N

Bermudez, Gyu Cho Lee, and Kyung Tamares -in her personal capacity Sook Yoon Ma. Cecilia S. Zeta, Rosemarie Respondents-Appellees.

DECISION

Rosario of the Company Registration and Monitoring Department 2018 on the ground of lack of jurisdiction,the dispositive portion of August 2019 by Ethel Asuncion Moon"Appellant)assailing the Decision dated 17 July 2019("Assailed Decision") issued by Dir.Gerardo F.Del (CRMD), which dismissed Appellant's Complaint dated 26 November Before this Commission is the Memorandum on Appeal filed on 28

which reads

November 2018 for the Revocation of the Certificate of Registration of WHEREFORE, in view of the foregoing, the Petition dated 26 Sea Pine Shipping Corp.is hereby DISMISSED for lack of jurisdiction.

THE RELEVANT FACTS

having been issued Certificate of Registration No.A1997-9561 on 16 May 1997.Its principal office address is at the 6th Floor, Ramon Magsaysay organized and existing under the laws of the Republic of the Philippines Center,1680 Roxas Boulevard,Manila Sea Pine Shipping Corp.Sea Pine) is a domestic corporation duly

Moon v. Sea Pine Shipping Corp SEC En Banc Case No.08-19-46 Page 2 of 7 DECISION

Rosalyn N.Tamares,Ethel A.Moon,Ma.Cecilia S.Zeta,Gyo Cho Lee and Article EIGHT of the Articles of Incorporation of Sea Pine states

Kyung Sook Yoon as incorporators.

that Sea Pine complied with the foreign ownership restriction on the crime of simulation of Minimum Capital punished under the Anti- of Presidential Decree(PD) No.108 or theAnti-Dummy Law."Appellant that her signature in the incorporation documents were all forged.i Appellant further alleged that she was used as a dummy to make it appear the ground of fraud in the procurement thereof,and for alleged violation alleged that she did not consent to being an incorporator of Sea Pine,and shipping companies. Sea Pine,according to Appellant,is thus liable for Dummy Law. seeking the cancellation of the Certificate of Registration of Sea Pine on On 26 November 2018,Appellant filed with the CRMD a Complaint

returned to the corporation by Jong Gu Moon Appellant's husband, the in the AOI of the corporation,and alleged that when the said AOI was dismissal of the Complaint for lack of merit, for being barred by support thereof,Sea Pine denied having forged the signature of Appellant same already contained the signature of Appellant.This,according to Sea Pine, was not denied by Appellant. prescription,and for violation of the rule against forum shopping. In In its Answer dated 11 February 2019, Sea Pine prayed for the

falsified documents, and in making it appear that it is compliant with applicable laws. Pine, through its directors and officers, has the propensity of using In Appellant's Replyand Supplemental Replyshe alleged that Sea

the Commission has jurisdiction over actions for revocation of such jurisdiction does not extend to cases which calls for the determination on whether forgery has been committed, as this is essentially a criminal action cognizable by the courts of law.The CRMD took administrative notice of the fact that complaints for falsification and the use of falsified documents have already been filed,and were pending the Complaint for lack of jurisdiction. The CRMD ratiocinated that while Certificates of Registration which have been procured by means of fraud, with the proper fora. Finally, the CRMD accorded to the AOI the On 17 July 2019, the CRMD issued the Assailed Decision dismissing

2 Filed on 5 March 2019 1 Pars.20.21,and 25 of the Complaint dated 26 November 2018 Dated 26March 2019

SEC En Banc Case No.08-19-461 Moon v.Sea Pine Shipping Cor Page 3 of 7 DECISION

presumption of regularity, being a notarized document, constituted prima facie evidence of the truth of the facts stated therein. which

and alleged that the CRMD erred in focusing only on the issue of fraud in In her Appeal, Appellant bewailed the dismissal of her Complaint

the procurement of Sea Pine's AOI,despite a recital in her pleadings of the evidence that she submitted showed the disparity of her true the other violations committed by Sea Pine. Appellant maintained that the CRMD should have found that the AOl was procured by fraud because

signature from her falsified signature. Appellant further argued that the cancellation of the Certificate of Registration of Sea Pine is warranted by the alleged use by the latter of falsified documents which included its Amended AOI and GIS

ISSUE

revocation of the Certificate of Registration of Sea Pine on the ground of fraud in the procurement thereof. Whether the allegations and the evidence on record warrant the

RULING

The Appeal is bereft of merit.

grounds provided for by law, thus: power and authority,among others,to suspend or revoke the certificate of registration of corporations, after notice and hearing, based on the Code (RCC) both contain an express grant to the Commission of the The Securities Regulation Code5 (SRC) and the Revised Corporation

functions provided by this code, Presidential Decree No.902-A,the "Section 5. Powers and Functions of the Commission.- 5.1. The Commission shall act with transparency and shall have the powers and

Act and other existing laws.Pursuant thereto the Commission shall Corporation Codethe Investment Houses law,the Financing Company

have,among others,the following powers and functions

XXX XXX XXX

(m Suspend, or revoke, after proper notice and hearing the franchise or certificate of registration of

4 Pars.40 to 42 of the Appeal 5 Republic Act No.8799 Republic Act No.11232

SEC En Banc Case No.08-19-461 Moon v.Sea Pine Shipping Corp Page 4 of 7 DECISION

corporations, partnership or associations, upon any of the grounds provided by law; xxx7

"Section 179.Powers,Functions, and jurisdiction of the Commission. The Commission shall have the power and authority to:

XXX XXX X

) proper notice and hearing;"s Suspend or revoke the certificate of incorporation after

the grounds that will warrant the suspension or revocation ofa certificate of registration,to wit Relative thereto,Section 6 of PD No.902-A specifically provides for

Commission shall possess the following powers: "Section 6. In order to effectively exercise such jurisdiction, the

t partnerships or associations,upon any of the grounds provided by law, including the following. To suspend. or revoke. after proper notice and hearing, the franchise or certificate of registration of corporations.

1 Fraud in procuring its certificate of registration;

2 Serious misrepresentation as to what the corporation can do or is doing to the great prejudice of or damage to the general public;

3. amount to a grave violation of its franchise; Refusal to comply or defiance of any lawful order of the Commission restrainingcommission of acts which would

4 Continuous in operation for a period of at least five (5 years;

5 Failure to file by-laws within the required period

6 Failure to file required reports in appropriate forms as period;" (Emphasis and underscoring supplied) determined by the Commission within the prescribed

but also, by reason of public policy, constructive fraud. The Supreme the afore-quoted provision means that it includes not only actual fraud Court in Care Best International, Inc. vs Securities and Exchange The use of the word"fraud" in its generic and unqualified sense in

Section 5.1(m of the SRC Section 179j) of the RCC

SEC En Banc Case No.08-19-461 Moon v.Sea Pine Shipping Corp Page 5 of 7 DECISION

includes, in part, the following: Commission,et al affirmed the ruling of the Court of Appeals which

"Fraud can be classified as either actual or constructive. Actual or positive fraud proceeds from an intentional deception practiced by effect upon public interest, and public or private confidence,even means of the misrepresentation or concealment of a material fact. though the act is not done with an actual design to commit positive Constructive fraud is construed as a fraud because of its detrimenta

not detract from the undisputed commission of the falsity when they simply speaks of fraud without limiting its use of the term, then the well. Since the provision is not concerned with a crime or a felony. criminal intent or intent to deceive is not essential. Consequently,even used fictitious names in petitioner's Articles of Incorporation. (Underscoring supplied) fraud or injury upon other persons.Since Section 6i1 of PD 902-A section must include not only actual fraud but constructive fraud as assuming that incorporators Evita and Solivio were in good faith does

a certificate of registration refers to fraud attendant in the registration, of Section 6i1 of PD No.902-A,fraud as a ground for the revocation of and must be contained or connected with the documents or papers presented to the Commission,for purposes of registration.io Moreover, this Commission has consistently held that for purposes

procurement of the certificate of registration, as a ground for its sustained the Court of Appeals and the Commission in revoking the three (3) of its incorporators used their aliases instead of their real names the Corporation Code (now the RCC),which is entitled to enjoy the rights and privileges granted by the State, is truthful in each and every protecting investors,11 among others.Thus, in Care Best International, Inc. vs Securities and Exchange Commission, et al. the Supreme Court certificate of registration of a corporation,on the basis of a finding that revocation, is to ensure that every corporation established under declaration and disclosure that it makes. Only through this mechanism can the public be assured that fictitious,bogus or sham corporations are allowed to operate. This is consistent with the mandate of the Commission in promoting the development of the capital market and in The purpose and policy of the law in including fraud in the

9GR No.215510.March 16,2015 for revocation of a certificate of registration of a corporation, partnership or association refers 1oThe fraud mentioned in Section 6,paragraph I,subparagraph 1 of P.D.902-A as one of the grounds to fraud attendant in the registration of the corporation, partnership or association and the same must be contained or connected with the documents and/or papers presented to this and underscoring supplied) [n the Matter of Silvermoon Security& Investigation Agency, Inc., SEC Case Commission for.the registration of.the said corporation partnership or association. (Emphasis No.12-05-99 (0rder), March 30,2006.] H See Section 2 of the Securities Regulation Code

SEC En Banc Case No.08-19-461 Moon v. Sea Pine Shipping Corp Page 6 of 7 DECISION

ruled in the case that an act of misrepresenting one's identity tended to including the general public, may have against in the AOI,and that such act rendered it difficult,if not impossible,for the circumstances,according to the appellate court, effectively placed the authenticity of the AOI under acloud of doubt. Commission to determine if the requirements of Section 10 of the Corporation Code were complied with.The Court of Appeals significantly confuse and defeat whatever claims the other corporate stakeholders them.These

any intention to become an incorporator. Necessarily, according to incorporators of Sea Pine made a misrepresentation about their respective identities.Appellant is alleging that her signature in the AOl of the corporation was forged,because she never signed it and did not have Appellant, the AOI of Sea Pine was procured by means of fraud. In the instant case, there is no allegation in the Complaint that the

independent examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity.i2 Moreover, consistent with the established rule that forgery must be established by clear positive,and convincing evidence,13 the conduct of a full-blown trial by a court of competent jurisdiction is indispensable, as even the finding of probable cause by the city prosecutor that a forgery was committed,is still required to be threshed out in a full-blown trial.14 determination on whether a signature was forged is one that falls within the exclusive province of the courts which are required to conduct an Given the foregoing,the Commission agrees with the CRMD that the

filed another criminal complainti7 against private respondents for already filed a Complaint-Affidavit against private respondents for violation of Article 172 (Falsification by private individual and use of falsified documents) of the Revised Penal Code before the Office of the dated 26 May 201716 for lack of probable cause.The same Resolution was never assailed by Appellant. Further,the evidence shows that Appellant City Prosecutor (OCP) of Manila,15 which was dismissed in a Resolution Relative thereto, the evidence on record shows that Appellant

evidence, the burden of prooflies on the party alleging forgery. One who alleges forgery has the burden to establish his case by a preponderance of evidence,or evidence which is of greater weight or more convincing than that which is offered in opposition to it. In this case, the 17 (bid. Annex "" 12 jimenez v.Commission on Ecumenical MissionG.R No.140472,[June 10,2002],432 PHIL 895-912 13 "As a rule,forgery cannot be presumed and must be proved by clear,positive and convincing respondent was not able to prove the fact that his signature was forged." (Philippine Trust Company 14 Shu vs Dee [G.R.No.182573, April 23, 2014] 15 Answer to the Memorandum on Appeal dated 18 November 2021. Annex5 16bid.Annex6 vs Gabinete,G.R.No.216120,March 29,2017

SEC En Banc Case No.08-19-461 Moon v. Sea Pine Shipping Corp Page 7 of 7 DECISION

pending with the OCP of Mandaluyong. alleged Use of Falsified Document in any Transaction,which is currently

considered public documents which this Commission can take administrative notice of. Appellant forgets,that the Commission is the repository of all corporate documents filed with it,whichunless specifically provided by law,are abuse of discretion when it considered the original AOI when such was not presented in evidence,is bereft of merit.It should be emphasized,lest Finally,the argument of Appellant that the CRMD committed grave

is hereby DISMISSED for lack of merit.The Decision dated Order dated Registration and Monitoring Department STANDS. 17 July 2019 (the Assailed Decision") issued by the Company WHEREFORE,premises considered,the Memorandum on Appeal

SOORDERED.

Makati City, Philippines.

AM EMILIO B.AQUINO Chairp. erson

JAVEY PAUL D.FRANCISCO KEJAAN K F1

Commissioner Commissioner

KARLS.BELLO Comnissioner MCJILL BRYANT T.FERNANDEZ Commissioner