The regulation that identifies and characterizes corruption crimes in the private sector will enter into force today. Said regulation was published yesterday as Legislative Order 1385 in “El Peruano” official gazette. The key points to understand the scope of the legal definitions or elements of the new offenses incorporated into our legal system are detailed herein below:

I. Background Information

  1. The criminalization of “private corruption” is a result of the commitment assumed by the Peruvian State as a signatory party to the United Nations Convention against Corruption of 2013. At the regional level, Colombia incorporated the crime of private corruption into its legal system in 2015 and, at the European level, Spain did so as well in 2010, whereas Germany had already done so back in 1997.
  1. Legislative Order 1385 comprises two (2) forms of this crime in Tile IX of the Criminal Code, which pertains to “Crimes against Economic Order,” i.e. (i) a crime of unfair competition, which affects competitors ―whether real or potential― who may be disregarded as a consequence of the offering or granting of advantages or benefits in favor of shareholders, executives, employees or consultants of a private company, with the purpose of favoring the procurement of goods or services; and (ii) a crime of disloyal administration (in the broadest sense), which affects a private company whose shareholders, executives, employees or consultants receive or solicit a certain advantage or benefit to carry out or to omit an act to the detriment of the company to which they are linked.

In both forms of the crime, law punishes both the recipients or requestors of unjust benefits and those who grant or offer them. For this reason, it is worth differentiating between the subtypes of active and passive corruption, based on the penalty imposed on the individual who solicits/receives (passive corruption) or offers/grants (active corruption) the aforementioned unjust advantage or benefit.

II. Crime of private corruption in the form of unfair competition

  1. Subtype of “passive private corruption” (Criminal Code, Section 241-A, first paragraph)

a. Individuals included in the scope of this regulation (potential perpetrators)

This crime may be perpetrated by those individuals who, as part of a legal entity subject to private law (joint stock corporations, limited liability partnerships, general partnerships, or branches thereof), hold the position of partners, shareholders, directors, managers, administrators, legal representatives, attorneys-in-fact, employees or consultants (external).

b. Individuals protected by this regulation (victims)

The criminalization of this conduct aims at protecting the competitors affected by the decision of procuring certain goods or hiring certain services based on the solicitation of unjust benefits by those individuals that have the capacity of influencing said decisions within a company.

c. Forbidden or criminalized conduct

This regulation punishes the solicitation or acceptance of gifts, advantages or benefits of any kind by an individual, either for himself or for third parties, with the purpose of carrying out or omit a conduct that implies favoring someone (an individual or a company) in the procurement of goods or services. In other words, this regulation punishes the solicitation or acceptance of any type of advantage (for the officer of the private company, for any third parties, or even for the company itself) as a consideration to obtain or retain some business, either in the procurement or commercialization of goods or in the hiring of commercial services.

This is a type of crime that does not require the verification of a damage or loss to the company whose partner, shareholder, director, manager, administrator, legal representative, attorney-in-fact, employee or consultant received or solicited the unjust advantage. This is due to the fact that this is a crime perpetrated to the detriment of the competitors of the company granting or offering an unjust benefit. The company to which the benefit recipient belongs is not considered to be a victim of this criminal offense.

For example, this crime takes place if the Procurement Manager solicits from a supplier any amount of money or job position for a family member, or any gift or bonus as a consideration for the approval of a purchase or service order, or to award a contract. Even if the supplier does not accept the request of the Procurement Manager, the crime is deemed to have been perpetrated by the latter, and if the supplier yields to those unjust conditions, then he would be criminally liable along with the Procurement Manager.

d. Criminal Penalty

Up to four (4) years imprisonment; disqualification from practicing a profession, business, art or trade for six (6) to ten (10) years; and a fine equivalent to one hundred and eighty (180) to three hundred and sixty-five (365) days (the fine is equivalent to the daily income of the perpetrator of the criminal offense).

e. Type of Proceeding

Public proceeding, i.e. any individual may file a criminal complaint for the perpetration of this type of crime, without being it necessary to prove his/her condition as victim. Moreover, the criminal investigation may me initiated sua sponte by the Government Attorney General’s Office in the event that it notified of said fact, for example, through social communication media. Certainly, the criminal complaint may be filed by the competitor that considers himself as having been affected, who may request the imposition of a compensation (civil remedy) during the criminal proceeding.

  1. Subtype of “active private corruption” (Criminal Code, Section 241-A, second paragraph)

a. Individuals included in the scope of this regulation (potential perpetrators)

This type of crime may be perpetrated by any individual acting in a personal capacity or on behalf of a company or another individual.

b. Individuals protected by this regulation (victims)

The criminalization of this conduct aims at protecting the competitors affected by the decision of procuring certain goods or services based on the offering of unjust benefits by other competitors.

c. Forbidden or criminalized conduct

This regulation punishes the offering or granting (or promise to grant) of advantages or benefits of any kind to partners, shareholders, directors, managers, administrators, legal representatives, attorneys-in-fact, employees or consultants (external) belonging to a legal entity subject to private law, for them to carry out or omit any act, thus favoring the individual granting the unjust advantage (or to any related third party, such as the company they work for) in the procurement of goods or hiring of services.

This is a type of crime that does not require the verification of a damage or loss to the company whose partner, shareholder, director, manager, administrator, legal representative, attorney-in-fact, employee or consultant received the unjust advantage. This is due to the fact that this is a crime perpetrated to the detriment of the competitors of the company granting or offering an unjust benefit. The company to which the benefit recipient belongs is not considered to be a victim of this criminal offense.

For example, this crime takes place if the sales executive of a service provider company offers any gift, bonus or benefit to an officer of a private company as a consideration to obtain the awarding of a contract. Even if the officer of the company requesting the service does not accept the offer of the sales executive, the crime is deemed to have been perpetrated by the latter.

d. Criminal Penalty

Up to four (4) years imprisonment; disqualification from practicing a profession, business, art or trade for six (6) to ten (10) years; and a fine equivalent to one hundred and eighty (180) to three hundred and sixty-five (365) days (the fine is equivalent to the daily income of the perpetrator of the criminal offense).

e. Type of Proceeding

Public proceeding, i.e. any individual may file a criminal complaint for the perpetration of this type of crime, without being it necessary to prove his/her condition as victim. Moreover, the criminal investigation may me initiated sua sponte by the Government Attorney General’s Office in the event that it notified of said fact, for example, through social communication media. Certainly, the criminal complaint may be filed by the competitor that considers himself as having been affected, who may request the imposition of a compensation (civil remedy) indemnity during the criminal proceeding.

III. Crime of private corruption in the form of disloyal administration

  1. Subtype of “private passive corruption” (Criminal Code, Section 241-B, first paragraph)

a. Individuals included in the scope of this regulation (potential perpetrators)

This crime may be perpetrated by those individuals who, as part of a legal entity subject to private law (joint stock corporations, limited liability partnerships, general partnerships, or branches thereof), hold the position of partners, shareholders, directors, managers, administrators, legal representatives, attorneys-in-fact, employees or consultants (external).

b. Individuals protected by this regulation (victims)

The criminalization of this conduct aims at discouraging dishonest administration practices by shareholders, executives, employees or consultants of private companies.

c. Forbidden or criminalized conduct

This regulation punishes the solicitation or acceptance of gifts or advantages of any kind with the purpose of carrying out or omit a conduct to the detriment of the company itself.

This is a form of disloyal administration or disloyalty in the management of the corporate equity (in the broadest sense). This regulation punishes the acceptance of any advantage or benefit as a consideration for carrying out or omitting an act that generates a pecuniary loss for the company to which the recipient of the unfair advantage is linked. In other words, it punishes the acceptance or solicitation of any personal benefit as a payment for favoring the interests of the contracting counterparty over those of the company to which the executive, employee or consultant is linked. The circle of potential perpetrators of this type of crime is not restricted to those individuals holding legal administration or representation powers, but is rather extended to include those individuals who made decisions that may affect the company.

For example, this crime takes placeif, in the framework of a private bidding for hiring services for the company, the person in charge of making the decision receives or solicits any consideration to award the contract to a specific bidder whose price is superior (or quality is inferior) to that of his competitor. Even if the bidder does not accept the request of the person in charge of the private bidding, the crime is deemed to have been perpetrated by the latter, and if the bidder accepts to make the requested payment, then he would be criminally liable along with the person in charge of the private bidding.

d. Criminal Penalty

Up to four (4) years imprisonment; disqualification from practicing a profession, business, art or trade for six (6) to ten (10) years; and a fine equivalent to one hundred and eighty (180) to three hundred and sixty-five (365) days (the fine is equivalent to the daily income of the perpetrator of the criminal offense).

e. Type of Proceeding

Private proceeding, i.e. the criminal action may only be lodged by the company affected by the disloyal conduct of its partner, shareholder, director, manager, administrator, legal representative, attorney-in-fact, employee or consultant. The case must be directly initiated before the Judiciary after bringing a complaint, without the involvement of the Government Attorney General’s Office or the Police Force.

  1. Subtype of “active private corruption” (Criminal Code, Section 241-B, second paragraph)

a. Individuals included in the scope of this regulation (potential perpetrators)

This type of crime may be perpetrated by any individual acting in a personal capacity or on behalf of a company or another individual.

b. Individuals protected by this regulation (victims)

The criminalization of this conduct aims at discouraging dishonest administration practices by shareholders, executive-level officers, employees or consultants of private companies.

c. Forbidden or criminalized conduct

This regulation punishes the offering or granting (or promise to grant) of advantages or benefits of any kind to partners, shareholders, directors, managers, administrators, legal representatives, attorneys-in-fact, employees or consultants (external) belonging to a legal entity subject to private law, for them to carry out or omit any act to the detriment of the company.

For example, this crime takes place if the client of a financial institution grants or offers any consideration to a banking officer in order to obtain a credit facility without complying with the requirements established by the entity, or in order to obtain said facility under conditions that are unfavorable to the bank. Even if the officer of the financial institution does not accept the offer of the client, the crime is deemed to have been perpetrated by the latter, and if the officer accepts the consideration offered, then he would be criminally liable along with the client.

d. Criminal Penalty

Up to four (4) years imprisonment; disqualification from practicing a profession, business, art or trade for six (6) to ten (10) years; and a fine equivalent to one hundred and eighty (180) to three hundred and sixty-five (365) days (the fine is equivalent to the daily income of the perpetrator of the criminal offense).

e. Type of Proceeding

Private proceeding, i.e. the criminal action may only be lodged by the company affected by the conduct of the corrupting agent and/or of its partner, shareholder, director, manager, administrator, legal representative, attorney-in-fact, employee or consultant. The case must be directly initiated before the Judiciary after bringing a complaint, without the involvement of the Government Attorney General’s Office or the Police Force.

IV. Usual business practices

The Statement of Reasons of the regulation commented herein states that the usual business gifts and courtesies that are not given as a consideration for the decision of procuring specific goods or services are not considered to be elements of the crime of private corruption. Likewise, said document expressly states that, in order to differentiate between permitted practices and those considered as offenses, it is necessary to establish internal procedures within the companies in order to ensure the operative development of their agents.

In this regard, the Statement of Reasons submits the Anti-Corruption Compliance Programs in order to set out the limits between commercial courtesy and private corruption, recommending the definition of the following aspects in the corporate codes of ethics and in the compliance programs:

  • Clearly and accurately define the red line that must not be crossed, or compliance policy in relation to the risk of corruption.
  • Establish objective limits, even for common gifts or those permitted by customary use (Christmas presents, invitations, etc.).
  • Reject conducts that influence the decision-making process or compromise the neutrality of the recipient.
  • Establish a reporting system that ensures transparency.
  • Create a common pool of gifts, which will be subsequently raffled or donated.
  • Periodically communicate and inform employees and top management officers, even with examples, regarding specific situations that would be forbidden in the organization.


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