In July 2017, Peru incorporated for the first time the so-called “administrative responsibility of Legal Entities” before the commission of crimes. Before the enactment of Law No. 30424, the idea was maintained that a legal person could not have criminal liability. However, this would mark a before and after not only for the world of Peruvian law, but also for businessmen, managers, shareholders, directors and workers and how they should act in the face of criminal risks.
The rule, among other points, exposed the possibility of exempting itself from liability or mitigating it, if the company had a “Crime Prevention Model”, which -to this day- remains voluntary.
Almost five years have passed and in the face of the criticism that this regulation has received, as well as the need to broaden its field of action, the Government presented to the Congress of the Republic a long list of modifications, among which the following stand out:
- Expansion of the catalog of crimes for which liability can be applied: Currently it focuses on crimes of corruption, as well as money laundering and financing of terrorism. It is proposed to include, among others, the following:
- private corruption
- environmental crimes
- customs offenses
- tax crimes
- Prohibited financing of political organizations
- Applicability in cases of reorganization of the legal person: Eliminates the limitations to establish liability in cases of Spin-off, Merger and Absorption.
- Determination of responsibility for the action of intermediaries or with the benefit of the natural person.
- New formulas for calculating fines: That increase the applicable monetary sanctions.
- Improvement of the definition of the prevention model: The voluntary implementation of the PM is privileged, with a profile based on risks, according to its size, nature, characteristics and complexity of its operations.
- The disclaimer does not apply when senior management personnel are involved.
The bill, after four months, was discussed in Congress, which after receiving different opinions from experts from both the public and private sectors, has drawn up a new amending proposal that reduces the field of what is proposed. For example, among other crimes, environmental crimes and those of private corruption are ignored.
It is interesting, however, that both the Government and Parliament have recognized the importance of clarifying the so-called “Prevention Model” that can serve as a defense. Based on this, entrepreneurs, shareholders, directors or any other person who is involved in the actions and management of the company must recognize not only the importance of having a Compliance system, but also that it must be appropriate to their needs. own characteristics.
In a scenario of constant political and economic risks, in situations of possible instability and regulatory changes that affect business development, today more than ever it is necessary to have a business culture that incorporates compliance with all external obligations and, in turn, integrates ethical and quality standards, ensuring that the performance of the company as a whole -and that of each of its members- is carried out in such a way as to guarantee the minimization of risks and with it, the continuity of the business.