Actualidad Peru

Secondary legislation to Act 30424 regulating the administrative liability of legal persons

Supreme Decree 003-2019-EF

Act 30424 regulating the administrative liability of legal persons and its amendments (hereinafter, the Act), stipulates that a legal person will be exempt from administrative liability for the commission of the felonies of bribery, money laundering and financing of terrorism, collusion and influence trafficking, when it has adopted and implemented in its organization, prior to the commission of the crime, a prevention model that is appropriate to the nature of its business, risks, needs and characteristics. Similarly, it establishes that the regulation will lay out the minimum elements that all prevention models must contain. The scope of the Act was discussed in issue 10 of Progreso.

This regulation (hereinafter, the Regulation) aims to establish, describe and develop the minimum components, principles, standards and requirements that companies can consider or take into account, when they voluntarily implement a crime prevention model in their organizations.

The voluntary implementation of this model follows the principle of company self-regulation and has the purpose of preventing, detecting, mitigating and significantly reducing the risk of crimes being committed, as well as to encourage integrity and transparency in the management of legal persons.

Thus, the Regulation makes provision for the processes and stages that companies can follow when designing this model based on the assessment, analysis and identification of the risks associated with the activity, size and complexity of the legal person. In fact, the Regulation attaches particular importance and encourages companies to conduct appropriate integrated risk management, identifying the risks and establishing functions, responsibilities and mechanisms for controlling and mitigating these.

In parallel to the roll-out of this model, the Regulation emphasizes the regular tasks of disclosure and training that the legal person should conduct, which will encourage the growth of a culture of corporate integrity to combat the commission of crimes.

Another feature of the Regulation is the inclusion of the intervention by the Securities Market Authority which, if the public prosecutor in charge of an investigation so requests it, will assess and verify whether the prevention model has been properly implemented and whether the operating procedures work, issuing the corresponding expert report to that effect.

Finally, the Regulation explicitly states that legal persons implementing a prevention model may choose whether to build it according to the provisions of the regulation or else opt for using any international instrument that provides good practice guidelines, provided that this ensures appropriate implementation and effectiveness. As such, the public prosecutor in charge of the investigation cannot require the prevention model to contain all the provisions in the regulation.