In depth

The modification of the Law had been under discussion for several months — in connection with the presentation by the executive branch of Bill No. 676-2021 in November 2021 — and was even part of several political speeches. After the changes introduced by Congress to the text originally proposed by the executive, the amendments to the Law that were approved by insistence are as follows: 

1. The list of crimes for which companies can be held liable has been expanded.

To date, companies can only be liable for the commission of crimes of corruption, collusion, influence peddling, money laundering and financing of terrorism. Now the following crimes have been added to these offenses:

• Parallel accounting
• Attempt against archeological monuments and paleontological zones
• Illegal extraction of cultural property and paleontological heritage
• Failure to report suspicious operations or transactions
• Refusal, delay and falsehood in the provision of information in the framework of investigations or trials for money laundering
• Customs offenses (smuggling, revenue fraud, customs receiving, trafficking of prohibited goods and financing of any of the above)
• Tax fraud
• Terrorist crimes (collaboration with terrorism, affiliation to terrorist organizations, instigation to commit a terrorist crime, recruitment of persons, conspiracy to commit a terrorist crime and obstruction of justice)

2. It is specified that the Law will apply to foreign companies when they carry out or develop their activities, directly or indirectly, in the national territory through any corporate, contractual or business modality.

3. The criteria for determining the fine penalty are replaced.

When the benefit obtained or expected to be obtained from the commission of an offense is indeterminable, the fine will no longer be established according to the size of the company (annual income), but, in a reasoned manner by the judge, according to the following criteria:

• Non-compliance with internal rules and procedures
• The number and hierarchy of employees involved
• The omission of the duty of vigilance
• The extent of the damage caused
• The amount involved in the commission of the crime
• The size, nature and economic capacity of the company
• The spontaneous denunciation to the authorities as a consequence of an internal activity of detection or internal investigation    
• The behavior subsequent to the commission of the crime
• The willingness to mitigate or repair the damage

4. It is established that the exemption from liability for the implementation of an adequate prevention model will not be applicable when the crime has been committed by partners, directors, administrators, legal representatives or attorneys-in-fact, with the capacity to control the company. In this case, the criminal judge will only impose a fine, which may be reduced by 90%.

5. The binding nature of the technical report of the Superintendence of the Securities Market on the suitability of the prevention model implemented by a company is eliminated. That is to say, if said report is favorable, the prosecutor will no longer be obliged to order the criminal investigation against the company to be closed. Thus, the technical report will only constitute one more piece of evidence to be assessed by the prosecutor and the judge in addition to the others that have been incorporated in the investigation or criminal proceeding.

The amendments will enter into force the day after the publication of the Law, except for the extension of the crimes (indicated in 1.), which will be effective within six months.

Finally, it is provided that, within a term not exceeding 60 calendar days, the executive branch will adapt the Regulations of Law No. 30424, approved by Supreme Decree No. 002-2019-JUS.

You can find the full text of Law No. 31740 here (Spanish version).

We hope that this information will be of relevance to you and your company. If you require any further information, please do not hesitate to contact us.

Click here to access the Spanish version.

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Estudio Echecopar is a member firm of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner or equivalent in such a law firm. Similarly, reference to an "office", means an office of any such law firm. 

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