jurisdiction

Peru
Source of law 

Legislative Decree N° 635, Criminal Code of Peru from 1991. 

Law N° 30424, Law that regulates the administrative responsibility of companies in the criminal process. 

Law N° 31740, Law that modifies Law N° 30424, Law that regulates the administrative responsibility of companies, to strengthen the anticorruption regulation referring to legal entities and promoting good corporate governance. 

Supreme Decree N° 002-2019-JUS, Regulations of Law N° 30424. 

Legislative Decree N° 1352, Legislative Decree that extends the administrative responsibilities of companies. 

Legislative Decree N° 1385, Legislative Decree that sanctions corruption in the private sphere. 

  

Offence 

Bribery (Articles 397, 397-A, 398 and 398-A of the Criminal Code):  

To offer, give, or promise a public official any donations, promises, advantages or benefits in exchange for them:  

  • acting in violation of their obligations  
  • failing to act in violation of their obligations  
  • performing acts related to their functions without violating their obligations (i.e. a facilitation payment)  
  • failing to act related to their functions without violating their obligations (i.e. a facilitation payment) 
  • bribing a public official from another state or a public official from any international organisation.  

This offence may be committed when any of the above conduct is directed towards magistrates, prosecutors, experts, arbitrators, members of the Administrative Tribunal or similar, judicial assistants, rapporteurs, or members of the National Police of Peru.  

Being bribed (Article 394, 395, 395-A, 395-B, 396 of the Criminal Code):  

Where a public official accepts, receives, or solicits directly or indirectly, or facilitates the delivery of a donation, promise or any other advantage or benefit to:  

  • act in violation of their obligations  
  • fail to act in violation of their obligations  
  • perform acts related to their functions without violating their obligations (i.e. a facilitation payment)  
  • fail to act related to their functions without violating their obligations (i.e. a facilitation payment). 

This crime may be committed by magistrates, prosecutors, experts, arbitrators, members of the Administrative Tribunal or similar, judicial assistants, rapporteurs or members of the National Police of Peru.  

Other forms of bribery are committed when the public official:  

  • abuses their position and obliges or induces a person to give or inappropriately promise property or any benefit in cash or in kind (Article 382 of the Criminal Code, Extortion)  
  • demands, pays or delivers contributions or emoluments not due or in amounts that exceed the legal rate (Article 383 of the Criminal Code, Improper Collection)  
  • intervenes in one of the stages of a public tendering process or public procurement of goods or services and arranges with the State to defraud it. In this crime, both the participation and the economic damage to the State are sanctioned (Article 384 of the Criminal Code, Collusion)  
  • sponsors the interests of individuals as a priority over the interests of the public administration (Article 385 of the Criminal Code, Illegal Sponsorship)  
  • appropriates or uses, for him or herself or for another, funds, whose administration is entrusted to him because of his or her position. The penalty is greater if the funds are intended for welfare purposes, support programs or social inclusion (Article 387 of the Criminal Code, Peculation)  
  • uses or allows another to use vehicles or equipment belonging to the public administration for purposes unrelated to the service (Article 388 of the Criminal Code, Peculation of use)  
  • gives money or property that serves a different purpose to that which was intended for such money or property (Article 389 of the Criminal Code, Embezzlement of funds)  
  • is directly or indirectly interested, for their own benefit or that of a third party, in any contract or operation and wrongly intervenes in that contract or operation due to their position (Article 399 of the Criminal Code, Incompatible Negotiation)  
  • uses their actual or apparent position of influence to receive for themselves, or gives or promises to third parties a donation or any other advantage, with the objective of influencing an official who is involved or has been involved in a judicial or administrative case (Article 400 of the Criminal Code, Traffic of Influence)  
  • abuses their position to increase their assets illegally (Article 401 of the Criminal Code, Illicit Enrichment). 

Corruption in the private sector (Article 241-A) of the Criminal Code) 

Promising, offering or granting an undue advantage or benefit of any nature, to the partner, shareholder, manager, director, administrator, legal representative, attorney-in-fact, employee or advisor of a private legal entity, non-governmental organisation, association, foundation, committee, including non-registered entities or irregular companies, in exchange for favouring them or third parties in the acquisition or commercialisation of goods or merchandise, in the contracting of commercial services or commercial relations. Those who accept or receive such undue donations, promises, advantages or benefits of any nature, for themselves or a third party, will also be sanctioned.  

Corruption within private entities (Article 241-B) of the Criminal Code) 

Accepting, receiving or requesting a donation, promise, or any other advantage or undue benefit of any nature for oneself or a third party, to carry out or omit an act to the detriment of the legal entity. The offence may be committed by the partner, shareholder, manager, director, administrator, legal representative, attorney-in-fact, employee or advisor of the private legal entity, non-governmental organisation, association, foundation, committee, including non-registered entities or irregular corporations. Anyone who promises, offers or grants such undue advantages or benefits of any nature, for themselves or a third party, as consideration for carrying out or omitting an act to the detriment of the legal entity, will also be punished. 

Note: In the case of corruption in the private sector and corruption within private entities, the criminal liability is for the person who commits the crime, not the company. The company has no criminal liability for this crime. 

The bribe  
Is there a presumption that the advantage was given/received corruptly? No
Would facilitation payments be caught? Yes
Would corporate hospitality be caught? No 
Is there any de minimis? No
Does the bribe have to be monetary? No
Public officials  
Does the offence only apply to bribing public officials? Yes
Acts performed outside Peru  
Can bribery performed outside Peru be caught? Yes 
Does the act also need to be illegal in the foreign country of performance? No
Who can be liable?  
Peruvian nationals? Yes 
Peruvian company? Yes
Peruvian partnership (including limited liability partnerships) incorporated? Yes 
Director of Peruvian company? Yes 
Peruvian company if the bribe is committed abroad by its foreign subsidiary? Yes 
Foreign subsidiary of a Peruvian company if the bribe is committed abroad? Yes 
Foreign national/company/partnership if bribe is committed in  Peru? Yes
Foreign national domiciled or “ordinarily resident” in Peru if bribe is committed outside Peru? No 
Foreign company/partnership if bribe is committed abroad? No
Penalties  
Penalties include: 

Criminal Code of Peru from 1991, Legislative Decree N° 1243, Legislative Decree N° 1385

Individual  

  • Imprisonment for up to 15 years for public officials 
  • Imprisonment for up to 8 years for non-public officials  
  • Up to 730 day-fines for public officials 
  •  Up to 730 day-fines for non-public officials  
  • Additionally, other sanctions may be imposed, for example, disqualification from the function or position, a ban on holding certain other positions, the suspension of political rights, and the withdrawal of qualifications relating to certain positions or professions  

Company  

Wherever there is individual liability, the following measures may be imposed on the organisation:  

  • a fine between five and 500 UIT1  
  • suspension of the company’s commercial activities  
  • prohibition on carrying out future activities  
  • temporary or permanent closure of business  
  • liquidation or winding up of company 

Law N° 30424 and, Legislative Decree N° 1352, Law N°o 30835 and Law N° 31740 

Company  

Regardless of whether the individual that commits the crime is sanctioned (or even if they are prosecuted) the organisation may be held responsible and face the following penalties:  

  • fines 

a. When the amount of the benefit obtained or expected to be obtained from the commission of the crime can be determined, the fine will be between 2 – 6x  that amount. 

b. When the amount of the benefit obtained or expected to be obtained from the commission of the crime cannot be determined, it will be between ten and 10,000 UIT. 

  • disqualification 
  • temporary or permanent suspension of activities  
  • prohibition on carrying on future activities or contracting with the Government  
  • cancellation of licences, concession agreements or rights  
  • temporary or permanent closure of business  
  • liquidation or winding up of the company.  

Applicable only to legal persons that have been incorporated and operated to favour, facilitate or conceal the commission of crimes. 

Defences  
Are there any defences available? The company is exempt from responsibility for the commission of crimes, if has developed and implemented an effective and tailored compliance programme before the crime is committed. This exemption is not applicable when the crime is committed by the partners, directors, de facto or legal administrators, legal representatives or attorneys-in-fact, with the capacity to control the company.