Adjunct Superintendent Resolution N.° 036-2025-SMV/10 — SMV — PE

PERÚ Ministry of Economy and Finance

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Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship Adjunct Superintendent Resolution SMV No. 036-2025-SMV/10 Lima, June 13, 2025 Subject: EAFC MAQUISISTEMA S.A. is sanctioned with a reprimand for having committed one (1) serious infringement typified in Annex XIII, paragraph 2, item 2.16 of the Sanctions Regulation for failing to comply with the provisions of the collective fund administration contract regarding the annulment of the allocation; in accordance with what is established in the Regulation of the Collective Fund System and its Administrator Companies and the Contract. It is declared that EAFC MAQUISISTEMA S.A. committed one (1) serious infringement typified in Annex I, paragraph 2, item 2.33 of the Sanctions Regulation to which the principle of non-retroactivity collected in paragraph 5 of article 248 of the Single Consolidated Text of the General Administrative Procedure Law corresponds; and therefore, the archiving of the administrative sanctioning procedure. Likewise, the archiving of the administrative sanctioning procedure against EAFC MAQUISISTEMA S.A. is declared for not having committed three (03) serious infringements typified in Annex I, paragraph 2, items 2.25; and Annex XIII, paragraph 2, items 2.11. Regulated Entity: EAFC MAQUISISTEMA S.A. Subject: Administrative sanctioning procedure File No.: 2024031832 The Adjunct Superintendent of Prudential Supervision SEEN:
The administrative file No. 2024031832, and Report No. 540-2025-SMV/10.3, issued by the General Superintendence of Prudential Compliance; as well as the defenses and arguments presented by EAFC Maquisistema S.A., and,

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship CONSIDERING:
Pursuant to Article 1 of Law No. 29782, Law for the Strengthening of the Supervision of the Securities Market, the name of the National Commission for the Supervision of Companies and Securities (CONASEV) is replaced by that of the Securities Market Superintendence (SMV), so that any reference to CONASEV in legal norms shall be understood as made to the SMV;
I. BACKGROUND

Through Office No. 3250-2024-SMV/10.3, notified on July 26, 2024 (hereinafter OFFICE OF CHARGES), an administrative sanctioning procedure was initiated against EAFC MAQUISISTEMA S.A. (hereinafter, MAQUISISTEMA EAFC) for indications of infringements to the Regulation of the Collective Fund System and its Administrator Companies, approved by SMV Resolution No. 020-2014-SMV/01 (hereinafter, REGULATION) and the Collective Fund Administration Contract signed between MAQUISISTEMA EAFC and an associate;
On August 15, 2024, MAQUISISTEMA EAFC presented its defenses to the charges made through the OFFICE OF CHARGES;
The charges formulated against MAQUISISTEMA EAFC, the defenses of the latter and their evaluation have been the subject of analysis in Report No. 540-2025-SMV/10.3 of the General Superintendence of Prudential Compliance, which has been submitted to the knowledge of this Adjunct Superintendence;
In observance of the Principle of Due Process contemplated both in Article IV, paragraph 1.2, of the Preliminary Title and in article 248, item 2, of the Single Consolidated Text of Law No. 27444 General Administrative Procedure Law, approved by Supreme Decree No. 004-2019-JUS (hereinafter, TUO LPAG), through Office No. 2365-2025-SMV/10, the administrative file to which this resolution refers was made available to MAQUISISTEMA EAFC for its review;
By Adjunct Superintendent Resolution No. 022-2025-SMV/10, it was resolved to exceptionally extend by an additional period of three (03) months, the term for the resolution of the present administrative sanctioning procedure;
On May 05, 2025, MAQUISISTEMA EAFC presented additional written arguments;
II. MATTERS TO BE DETERMINED
In the present administrative procedure, in the opinion of this Adjunct Superintendence, it corresponds to determine the following:
a. Whether MAQUISISTEMA EAFC committed or did not commit an infringement of what is provided in Annex XIII, paragraph 2, item 2.11 of the Sanctions Regulation, approved by Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), for failing to inform the associate, within the established deadline, that he has been allocated. b. Whether MAQUISISTEMA EAFC committed or did not commit an infringement of what is provided in Annex I, paragraph 2, item 2.25 of the SANCTIONS REGULATION, for failing to comply with the conduct norms contained in article 48, paragraphs b), e) and f) of the Regulation of the Collective Fund System and its Administrator Companies, approved by

PERÚ Ministry of Economy and Finance

SMV
Securities Market
Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship SMV Resolution No. 020-2014-SMV-01 and its amendments (hereinafter, REGULATION).
c. Whether MAQUISISTEMA EAFC committed or did not commit an infringement of what is provided in Annex XIII, paragraph 2, item 2.11 of the SANCTIONS REGULATION, for failing to send the necessary documents to finalize the procedures for the delivery of the asset.
d. Whether MAQUISISTEMA EAFC committed or did not commit an infringement of what is provided in Annex XIII, paragraph 2, item 2.16 of the SANCTIONS REGULATION, for failing to comply with the provisions of the Collective Fund administration contract regarding the annulment of the allocation, which is in concordance with article 120 of the REGULATION. e. Whether MAQUISISTEMA EAFC committed or did not commit an infringement of what is provided in Annex I, paragraph 2, item 2.33 of the SANCTIONS REGULATION, for failing to comply with article 99 of the REGULATION, referred to the timely resolution of the contract. f. Whether it corresponds or not to impose sanctions on MAQUISISTEMA EAFC;
III. ANALYSIS
FIRST CHARGE: FAILING TO INFORM THE ASSOCIATE, WITHIN THE ESTABLISHED DEADLINE, THAT HE HAS BEEN ALLOCATED OF THE NORMATIVE
8. Article 114 of the Regulation of the Collective Fund System and its Administrator Companies, approved by SMV Resolution No. 020-2014-SMV/01 (hereinafter, REGULATION), provides as follows:
“Article 114.- Allocation Act
(...)
Within three (3) days following the holding of the Assembly, the Administrator must communicate to all allocated Associates the results obtained in it, through the means established in the Contract. Such communication must contain the requirements to proceed with the delivery of the Purchase Certificate or the asset and/or service provision subject to the Contract. (...)”; OF THE FACTS
9. The participants' assembly of the group to which the COMPLAINANT 1 belonged took place on January 26, 2021 (hereinafter, ASSEMBLY);
10. According to what is stated in complaint 2, the COMPLAINANT stated that he found out that he had been allocated in said assembly when he called MAQUISISTEMA EAFC by telephone in February 2021;
11. Regarding this, in the response to the complaint filed on December 17, 2021, MAQUISISTEMA EAFC stated that the

1 In the Annex attached to this resolution, the complete data of the natural persons to whom the denominations used in this resolution belong are detailed, and likewise, if applicable, the email addresses.
2 File No. 2021046378.

PERÚ Ministry of Economy and Finance

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Securities Market
Superintendence
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship communication of the allocation was sent in a timely manner, to the addresses provided by the associate;
12. As support, MAQUISISTEMA EAFC attached a screenshot of its extranet system “Message Box” in which a list of records referring to the Collective Fund Administration Contract signed between MAQUISISTEMA EAFC and the COMPLAINANT (hereinafter, CONTRACT) can be seen, in which, among others, the fields and data, “Notification Date: 28/01/21”, “Send Time: 12:49 p.m.” and “Subject: “Letter of Record and Congratulations on Allocation” are observed, in order to prove that, through this system, and on that date and time, he sent the COMPLAINANT a communication informing him about his allocation. Likewise, he attached a copy of a letter called “Letter of Record and Congratulations on Allocation” of the same date addressed to the COMPLAINANT. It must be indicated that said letter does not have proof of receipt;
13. In the case of the COMPLAINANT, it is appropriate to point out that according to the document called “Key to the Collective Fund Administration Contract” signed by the COMPLAINANT on September 21, 2015, no chosen means for sending communications was established. Likewise, it is appreciated that the COMPLAINANT indicated as his address the one located at COMPLAINANT'S ADDRESS;
14. Regarding this, it is appropriate to cite the clauses of the Collective Fund Administration Contract signed between MAQUISISTEMA EAFC and the COMPLAINANT that regulate the situation described above:
5.3.5 “MAQUISISTEMA”, within two (2) days following the holding of the “ASSEMBLY”, will publish the results obtained on the “Web Page” as public information. It will also communicate to the “ASSOCIATE” allocated through the chosen means, including, the indications and requirements for the delivery of the asset, subject to the “CONTRACT”.
8.10. The “ASSOCIATE” must communicate in writing, with proof of receipt, any change of his domicile. The parties agree that any communication referred to the present “CONTRACT” effected by “MAQUISISTEMA” at the address of the “ASSOCIATE” indicated in the “Key of the Contract”, will be considered valid for all legal effects. By virtue of the present “CONTRACT” the “ASSOCIATE” authorizes “MAQUISISTEMA” for the sending of communications of any kind, including those of a commercial nature to the address indicated by the “ASSOCIATE”;
15. As can be appreciated, since no chosen means for sending communications was established, Maquisistema EAFC would have had to send the communication referred to the allocation to the associate's address in accordance with clause 8.10 of the Contract, so that, by not having proven it, said EAFC would have infringed article 114 of the Regulation, which states that the administrator must, within three (3) days following the holding of the Assembly, communicate to all allocated Associates the results obtained in it, through the means established in the Contract;
16. Therefore, it was imputed to MAQUISISTEMA EAFC that it would have committed one (1) infringement qualified as serious, according to Annex XIII, paragraph 2, item 2.11 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01 (hereinafter, SANCTIONS REGULATION), according to which it constitutes an infringement: “Not complying with informing the associates, within the established deadline, of the readjustment of the quotas, that he has been allocated or that the guarantee proposed by the associate has been accepted or denied, or not sending the necessary documents to finalize the procedures for the delivery of the purchase certificate, of the asset and/or service provision subject to the contract.”;
Defense Presented
17. MAQUISISTEMA EAFC states that it has complied with informing the allocation through the means chosen by the COMPLAINANT. In this sense, it maintains that the imputation originates from an error of interpretation by the SMV, when it is evident that the header of the CONTRACT contains a typographical error, which does not enervate the effects of the associate's declaration. Thus, the chosen means for communications is the Extranet and, on the other hand, the chosen means for the return of contributions on the date of liquidation is by check;
18. MAQUISISTEMA EAFC adds that due to a typographical error the “x” has shifted and that interpreting the contrary would be contradictory, since it would imply that there are two (2) “x” regarding the chosen mode for the return of contributions on the date of liquidation, both by “check” and by “account credit”. On the contrary, it is evident that the associate chose communication via “extranet” and the form of return of contributions by “check”;
19. MAQUISISTEMA EAFC states that there is no controversy that the allocation letter was sent via Extranet, therefore, this aspect of the imputation must be dismissed;
Evaluation of the Defense
20. According to what was expressed by the collective fund administrator and in attention to the preceding image of said Annex 1 of the CONTRACT that is in the file, it has been verified that there is a marking outside the box “Extranet” as option “Chosen mode for sending communication”;
21. This marking is in the box “Check” as option “Chosen mode of return or payment at liquidation”, which according to MAQUISISTEMA EAFC corresponds to the option “Extranet” and the “x” shifted due to a typographical error;
22. Regarding this, it must be indicated that it is the responsibility of the EAFC to verify that the information in its records is correct and that it agrees with the option chosen by its associate, more so if it is about the way its client will receive information from the EAFC, as occurred in this case;
23. However, it is reasonable to consider that in the present case, due to the limited typographical error, the option chosen by the COMPLAINANT as a means for communications was the “Extranet”;
24. In that sense, based on the documentation presented by the administrator company, it has been proven that MAQUISISTEMA EAFC complied with sending to the COMPLAINANT the communication informing him that he had been allocated, within the deadline of three (3) days of holding the Allocation Assembly and through the means chosen in the CONTRACT, as established by article 114 of the Regulation and clause eighth, paragraph 8.10 3 of the CONTRACT;

3 EIGHTH CLAUSE.- OBLIGATIONS OF THE ASSOCIATE (...)
8.10. (...)
Likewise, “MAQUISISTEMA” will make available to the “ASSOCIATES” the “extranet” which is a private network that uses internet and communication protocols to securely share information and operations of interest to the “ASSOCIATE”. Said “extranet” is for personal use and will allow the “ASSOCIATE” to securely consult his status, present auction proposals, administer his installment payments; additionally, he will have an electronic messaging box through which “MAQUISISTEMA” will direct the communications related to the present “CONTRACT”. For this, “MAQUISISTEMA” will grant an access code to the “ASSOCIATE”, with which he will access the “extranet, the “ASSOCIATE”, if he considers it convenient, can modify said code. The access to the “extranet” will be valid until the liquidation of the “Group”, in case the “ASSOCIATE” has more than one contract in different “Groups” the validity will extend until the liquidation of the last “Group” in which he participates. The parties expressly agree that any communication referred to the present “CONTRACT” effected by “MAQUISISTEMA” directed to the mentioned box, will be considered valid for all legal effects provided that the “ASSOCIATE” has chosen this mode of communication at the time of signing the “CONTRACT”. The “ASSOCIATE” has the obligation to review the electronic messaging box so as to take knowledge of the communications that “MAQUISISTEMA” sends him.

PERÚ Ministry of Economy and Finance

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Securities Market
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Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship
25. Therefore, MAQUISISTEMA EAFC did not commit the non-compliance of the referred communication to the complainant, so it corresponds to archive the present charge;
26. It is worth specifying that this imputation would not have been formulated if MAQUISISTEMA EAFC, at the time of sending its comments with the transfer of the complaint, had explained with the corresponding detail the facts questioned by the COMPLAINANT;
Defense Presented
27. MAQUISISTEMA EAFC lists below the facts related to all the imputations formulated in the OFFICE OF CHARGES;
28. The COMPLAINANT requested his entry into the collective fund system on June 15, 2013, signing for this purpose the Collective Fund Administration Contract No. B 02880 - Code M35609201, to obtain a Purchase Certificate for the value of US$ 12,600.00 (Twelve thousand six hundred with 00/100 American Dollars). Then he reincorporated into the system through Addendum of September 21, 2015, signing for this purpose the Collective Fund Administration Contract No. E 000575 - Code M38204902, receiving again the documents concerning the collective fund system. This is the contract under which the Purchase Certificate was allocated. MAQUISISTEMA EAFC specifies that all these documents are in the administrative file;
29. In January 2021, he states that the COMPLAINANT was allocated the Purchase Certificate by lottery and in March 2021 said associate applied the amount to the acquisition of a RENAULT brand vehicle, Oroch model, olive green color, without stock on the date of choice;
30. MAQUISISTEMA EAFC adds that after evaluating various options, on August 16, 2021, the COMPLAINANT opted to acquire a RAM vehicle, model 700, formalizing said order on August 19, paying the difference of said unit;
31. MAQUISISTEMA EAFC refers that on August 23, 2021, the purchase order was sent to Divemotor S.A., which is in the administrative file;
32. MAQUISISTEMA EAFC adds that since August 17, 2021, he coordinated with the COMPLAINANT, verbally and in writing, the signing of the guarantee contract who committed to go on Thursday, August 19, 2021, but he did not. MAQUISISTEMA EAFC states that he insisted on September 27, 2021,

account, present auction proposals, administer his installment payments; additionally, he will have an electronic messaging box through which “MAQUISISTEMA” will direct the communications related to the present “CONTRACT”. For this, “MAQUISISTEMA” will grant an access code to the “ASSOCIATE”, with which he will access the “extranet, the “ASSOCIATE”, if he considers it convenient, can modify said code. The access to the “extranet” will be valid until the liquidation of the “Group”, in case the “ASSOCIATE” has more than one contract in different “Groups” the validity will extend until the liquidation of the last “Group” in which he participates. The parties expressly agree that any communication referred to the present “CONTRACT” effected by “MAQUISISTEMA” directed to the mentioned box, will be considered valid for all legal effects provided that the “ASSOCIATE” has chosen this mode of communication at the time of signing the “CONTRACT”. The “ASSOCIATE” has the obligation to review the electronic messaging box so as to take knowledge of the communications that “MAQUISISTEMA” sends him.

PERÚ Ministry of Economy and Finance

SMV
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Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship but the complainant replied the next day that “(...) I have initiated other actions (...)” and never wanted to sign the movable guarantee;
33. The COMPLAINANT sent a notarial letter on October 5, 2021, requesting the return of his contributions. This communication was responded to by MAQUISISTEMA EAFC on October 7, 2021, denying the request and reiterating that he had to coordinate with the vehicle area for the delivery of his unit;
34. MAQUISISTEMA EAFC argues that within the framework of a mediation request before the Securities Market Superintendence, he sent to the COMPLAINANT a communication on November 10, 2021, reiterating that the signing of the guarantee contract was pending;
35. Through communication dated May 27, 2022, MAQUISISTEMA EAFC informed the COMPLAINANT of the liquidation of his group. He adds that the associate was entitled to pick up the check with the liquidation amount starting from July 13, 2022, however, to the date of his defenses he has not presented himself for this purpose. MAQUISISTEMA EAFC reiterates that he has proceeded to the issuance of the check by virtue of the group liquidation;
36. MAQUISISTEMA EAFC highlights that parallelly, on October 1, 2022, the COMPLAINANT complained about the facts before INDECOPI. This entity admitted the complaint to procedure through Resolution No. 1 of December 21, 2022. Based on the complained facts, the following alleged infringements were imputed:
a. MAQUISISTEMA EAFC would have denied the delivery of the vehicle from the dealership Divemotor S.A. to the complainant, despite the fact that they had agreed on it after the signing of the contract and that up to that date he had paid 72 installments; b. MAQUISISTEMA EAFC would have been delayed in issuing the check to Divemotor S.A., which resulted in the complainant assuming the total payment of the vehicle to the mentioned dealership; and,
c. MAQUISISTEMA EAFC would not have returned all the contributions made by the complainant for various concepts that added up to the amount of US$ 14,292.72, despite the fact that he had requested it;
37. MAQUISISTEMA EAFC specifies that the administrative procedure before INDECOPI was resolved definitively through Resolution No. 1623-2024/SPC-INDECOPI issued by the Competition and Intellectual Property Defense Tribunal Specialized Chamber in Consumer Protection (hereinafter, INDECOPI RESOLUTION), which dismissed in all respects the complaint of the COMPLAINANT;
38. MAQUISISTEMA EAFC points out that in the same way, in communications presented on December 6 and 10, 2021, the COMPLAINANT complains about the same facts before the SMV. The entity transfers the communications through Office No. 4855-2021-SMV/10.3, complemented by Office No. 4916-2021-SMV710.3;
39. MAQUISISTEMA EAFC warns that later, the SMV imputed to him as an infringement, in an absolutely new procedure, that which had been supervised, observed and timely corrected by MAQUISISTEMA EAFC;
SECOND CHARGE: FAILING TO COMPLY WITH CONDUCT NORMS

PERÚ Ministry of Economy and Finance

SMV
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Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría DE LA NORMATIVA
40. Article 48 of the REGULATIONS establishes the following:
"Article 48.- Conduct Rules
In the development of their activities, the Administrator, its directors, managers, officials, dependents, and salespeople, must comply with the following general conduct rules:
(…) b) Priority of Interests.- At all times, prioritize the interests of the Collective Funds it manages and its Associates over its own interests, those of its affiliates, its staff, or third parties.
(…) e) Honesty, Care, and Diligence.- Perform their activities with honesty, as well as with the due care and diligence in the best interest of the Collective Fund and its Associates, avoiding acts that could deteriorate their trust. f) Information to Associates.- Inform within the sales process of Contracts, about the benefits and risks that characterize the Collective Funds. Likewise, all information that may be relevant to the adoption of their subscription Contract decisions or choice of the good and/or service subject to the Contract must be offered to associates. All information to Associates must be clear, correct, precise, truthful, sufficient, and timely. (…)" DE LOS HECHOS RESPECTO A LA FALTA DE STOCK DEL VEHÍCULO RENAULT OROCH ESCOGIDO POR EL DENUNCIANTE
41. The COMPLAINANT in his complaint stated that in
February 2021, due to a telephone communication he made, he had access to the information of the results of the allocation lottery in which he was the beneficiary, therefore, a few days later, he went to the MAQUISISTEMA EAFC office to request the respective purchase certificate;
42. Likewise, the COMPLAINANT adds that in March 2021 he presented to the MAQUISISTEMA EAFC official FUNCIONARIOEAFC1 the
guarantee documents requested, likewise declares that he chose the vehicle and the characteristics it should contain, which was detailed in the proforma offered by them, Renault Oroch brand, 2021 model from the Derco Center dealership; the FUNCIONARIOEAFC1 told him that delivery would be made in April 2021. According to this, on file is the letter dated February 23, 2021 from the FUNCIONARIOEAFC1 addressed to the COMPLAINANT in which he informs him that his operation has been approved, subject to the perfection of the movable guarantee, promissory note signed alone, and GPS greater than one year. It is also indicated that they are waiting for stock of the chosen vehicle and the signature of the guarantor is pending;
43. Likewise, the COMPLAINANT has also indicated
that since they did not contact him, he returned to the offices of MAQUISISTEMA EAFC in the last days of April 2021 to request information about the delivery of the vehicle, in which the FUNCIONARIOEAFC1 told him that there was no stock of the chosen model, indicating that it would arrive the following month;
44. In May 2021, the COMPLAINANT states that the
superior boss of FUNCIONARIOEAFC1 stated that there was no stock and that it would arrive in

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría June, which was also not fulfilled. The complainant adds that in July 2021 he demanded that a deadline be set for the delivery of the vehicle;
45. On the other hand, as part of the preliminary
investigations initiated by this Superintendency, through Office No. 4855-2021- SMV/10.3 received by MAQUISISTEMA EAFC on December 7, 2021, said administrator society stated:
"(…) In January 2021, the Purchase Certificate was allocated by lottery. In March 2021 Complainant applied the amount to the acquisition of a RENAULT vehicle, Oroch model, olive green color, with no stock at the time of choice.
(…)
Regarding points Four and Five, WE DENY that there was no timely information.
The stock is conditioned by the decision of an importer, unrelated to our company, which is why it is not within our objective control. However, the vehicle was NEVER offered for a specific date.
Considering that the importer did not give us an estimated date for the arrival of the vehicle chosen by the Complainant, in August 2021 other options were granted and the complainant himself chose a RAM vehicle, model 700, paying the difference for that unit, as indicated in point Six."
46. It is appropriate to add that the COMPLAINANT in his
complaint stated that MAQUISISTEMA EAFC always indicated that the reason for the non- delivery of the chosen vehicle "Renault, model Oroch 2022" was the lack of stock. If in July 2021, the complainant obtained a quote regarding the same chosen vehicle from the Derco Center supplier located in the Plaza Norte Lima shopping center, this does not necessarily imply the existence of stock of the vehicle in question;
47. According to the EAFC Regulations, it is the
associate who can freely choose the vehicle to be acquired with the allocated certificate as well as the supplier thereof. Consequently, upon receiving information that the chosen vehicle was out of stock, the associate had the options of waiting for the return of stock, changing suppliers, or changing the vehicle to be acquired, as he did in August 2021 as seen in the purchase order for the RAM vehicle of August 23, 2021. It should be noted that the interest of a supplier to materialize a vehicle sale as soon as possible is aligned with the interest of the associate to complete said sale and consequent delivery at the earliest opportunity. In this case, it is observed that in 2021 there was a considerable stockout of new vehicles, mainly due, among other factors, to the COVID-19 pandemic and the global shortage of microchips. These factors caused a significant impact on the supply chain;
48. Consequently, regarding this aspect, no
breach of conduct rules by MAQUISISTEMA
EAFC is observed;
RESPECTO A LA SOLICITUD DE RESCISIÓN DEL CONTRATO Y DEVOLUCIÓN DE APORTES DEL DENUNCIANTE
49. Through the notarial letter received by
MAQUISISTEMA EAFC on October 6, 2021, the COMPLAINANT communicated his request to resolve the CONTRACT;

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Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
50. Said notarial letter has the subject "Request:
Rescission of Contract" and sets forth as grounds, among others, the time elapsed from its allocation to the date of his notarial letter without delivering the vehicle RAM 700 brand, despite having chosen it by mutual consensus; having paid to the dealership the difference he was supposed to pay: and, because the administrator company ignored his requests and those of the dealership Divemotor S.A. regarding the disbursement of the pending difference payment that corresponds to the purchase certificate;
51. Likewise, through the aforementioned notarial letter, the
COMPLAINANT requests the return of the total amount of all payments made (registration fee, capital quota, and administrative quotas plus the corresponding interest) for breach of contract;
52. Regarding this, MAQUISISTEMA EAFC in its
response to the aforementioned notarial letter dated October 7, 2021, among other things, indicates that the return of contributions is not warranted and that he must wait for the end of the group or win in the quarterly lotteries. Likewise, it specifies that the condition of the complainant is that of an allocated associate and in the process of delivery of the vehicle unit;
53. In relation to this, MAQUISISTEMA EAFC in its
writing dated October 24, 2022, states that the COMPLAINANT was allocated the Purchase Certificate in January 2021, however, he did not perfect the procedures for delivery of the vehicle to which he applied the amount; and that he also did not formally renounce the collective fund system.
54. It should be noted that the formal renunciation procedure
is established in the contract signed by the associate. Without prejudice to the foregoing, in the email sent by the administrator company to the COMPLAINANT on November 10, 2021, he indicated:
"(…) In case you wish to withdraw from the purchase of the vehicle (application of the purchase certificate) and wish to conclude the contractual relationship, in your capacity as an allocated associate, the company will proceed with the return of the capital quotas contributed, deducting 2 of them as a penalty, for this you must be up to date with payments and communicate your decision expressly through a letter with legalized signature, as established in the contract";
55. On this matter, it must be indicated that from the
review of the collective fund contract signed by the COMPLAINANT and the administrator company, it is observed that for an allocated associate, only the figure of unilateral resolution by decision of the allocated associate who has not applied the purchase certificate is regulated in clause twelfth, numeral 12.4, which establishes that such request must be made through a letter with legalized signature before a notary public within a period that cannot exceed eight (08) days counted from the date of allocation;
56. However, such legal situation was not applicable
due to the fact that, as previously stated, although the allocation was in January 2021, the delivery of the first vehicle chosen by the COMPLAINANT did not occur, according to what is stated, due to the lack of stock – a circumstance that has been recognized by the administrator company and which was beyond the responsibility of the COMPLAINANT – so in August 2021, based on other options proposed by the administrator company itself, the COMPLAINANT opted for another vehicle model, so the new allocation processes for the new chosen vehicle were initiated;

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
57. Additionally, it must be indicated that it is not regulated in
the contract as a requirement to conclude the contract that the associate must be up to date with his payments, as indicated in the email from MAQUISISTEMA EAFC of November 10, 2021.
However, according to the information provided by MAQUISISTEMA EAFC in the statement of account as of November 4, 2021, the COMPLAINANT was up to date with his payments as of October 6, 2021, the date of his notarial letter;
58. For the reasons stated, the request for contract resolution
presented on October 6, 2021 did not comply with the circumstances provided for in the contract signed by the associate since in August a new application of the purchase certificate on a RAM vehicle had been made and it was in the process of allocation;
59. For the reasons stated, no breach is observed of
the conduct rules contained in Article 48, numerals b), e) and f) of the REGULATIONS, so it corresponds to archive the charge in this regard;; THIRD CHARGE: NOT REMITTING THE NECESSARY DOCUMENTS TO CONCRETIZE THE DELIVERY PROCEDURES OF THE GOOD DE LA NORMATIVA
60. Article 119 of the REGULATIONS establishes the following:
"Article 119.- Guarantees for the delivery of the good and/or service The Administrator must verify, prior to the delivery of the good and/or provision of the service, that (i) the Associate constitutes the real and/or personal guarantees sufficient in accordance with the guarantee policy established in the Program; (ii) that he is up to date with his payments; and, (iii) that he has complied with the other contractual and regulatory requirements. The guarantees presented by the Associate must cover at least the balance of the debt that he has with the Collective Fund. Within twenty (20) days following the Associate's proposal to grant the guarantees, the Administrator must communicate in writing its acceptance and remit to him the pertinent documentation for its formalization or, likewise, its rejection of the Associate's proposal, indicating in the latter case, the reasons for it. (…)
61. Likewise, clause 16.4 of the CONTRACT states the following:
CLAUSE SIXTEENTH.- OBLIGATIONS OF MAQUISISTEMA (…)
16.4 "MAQUISISTEMA" within twenty (20) days following the proposal of
granting of the guarantees by the "ASSOCIATE" allocated, must communicate its acceptance or rejection and remit to the "ASSOCIATE" the pertinent documentation for the formalization of said guarantees, if accepted.
(…);
DE LOS HECHOS
62. The COMPLAINANT in his complaint maintains that
MAQUISISTEMA EAFC did not make the payment to the dealership to conclude with the purchase of the RAM vehicle, model 700, model by which he opted in August 2021;

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría
63. Regarding this matter, MAQUISISTEMA EAFC has
proved that on August 23, 2021 it issued the purchase order MM-N° 2021-08- 24235 for said vehicle in the name of the company Divemotor S.A. in which it is observed that the COMPLAINANT paid the price difference with respect to the value of the certificate for US$ 2,890, as acknowledged by the administrator company, so to the latter corresponded to pay the amount corresponding to the purchase certificate of the vehicle allocated for US$ 12,600;
64. The COMPLAINANT maintains that in the first days of
September 2021, the sales representative of the dealership Divemotor S.A., communicated to him that there was no response from MAQUISISTEMA EAFC regarding the purchase order who also had not made the disbursement of money to conclude with the purchase;
65. Regarding this, the administrator company in its
writing of December 17, 2021 indicated that despite the credit evaluation of the COMPLAINANT having been approved and the purchase order being delivered to Divemotor S.A., the COMPLAINANT did not want or refused to sign the movable guarantee, as explained below:
"(…) On August 23, 2021, the purchase order was sent to Divemotor S.A. and the signing of the movable guarantee deed is pending, which the claimant does not want to sign.
(…)
(…), Mr. (…) has not wanted to sign the movable guarantee documents. The disbursement cannot be made if the debt to the fund is not guaranteed. Therefore, the claimant himself is responsible for hindering the payment of the vehicle. (…) (…) We must indicate that the claimant could have had the vehicle since August 2021, but has denied on multiple occasions his willingness to sign the corresponding movable guarantee contract, being an express obligation of the Collective Fund Administration Contract. (…) Regarding this matter, our company cannot disburse the money since Mr. (…) refuses to sign the movable guarantee, despite his credit evaluation having been approved and the purchase order having been delivered to Divemotor S.A."
66. Likewise, MAQUISISTEMA EAFC indicated that in
virtue of the communication sent by the COMPLAINANT to the Investor Ombudsman of the SMV, he sent an email to the COMPLAINANT on November 10, 2021 in which he indicated that the vehicle was at his disposal and the only pending procedure was the signing of the movable guarantee contract, without presenting any response obtained from the COMPLAINANT; "(…) (…) Likewise, we must remind you that as a consequence of the previously mentioned lack of stock, in August 2021 you opted to acquire a RAM vehicle, model 700, paying the difference for that unit. However, I leave pending the signing of the movable guarantee deed, which you have opted not to sign, which is why it has not been feasible to continue with the operation. As stated above, we propose as an immediate solution the signing of the movable guarantee deed, in order to continue with the process of application of the vehicle purchase certificate.

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Documento electrónico firmado digitalmente en el marco de la Ley N° 27269, Ley de Firmas y Certificados Digitales, su Reglamento y modificatorias. La integridad del documento y la autoría (…) The above has already been duly informed through electronic communications of September 22, 2021, October 17, 2021 and notarial letter dated October 6, 2021";
67. Regarding this, it should be highlighted that this communication
was made in response to the efforts of the Investor Ombudsman and was subsequent to the notarial letter issued by the COMPLAINANT TO MAQUISISTEMA EAFC on October 6, 2021 in which he requests the rescission of his contract;
68. On the other hand, the COMPLAINANT also alleged that
MAQUISISTEMA EAFC would have breached clause sixteenth, numeral 16.4 of the Collective Fund Administration Contract, since according to the applicable clause indicated by the COMPLAINANT, the administrator company should have communicated within 20 days following the proposal to grant the guarantees, its acceptance or rejection and remit to him the pertinent documentation for the formalization of said guarantees if accepted, which indicates that it was not done;
69. It should be specified that, it is taken into consideration that the fact referred to by the COMPLAINANT as breached by MAQUISISTEMA EAFC
is found in clause 16.4 of clause sixteenth of the model contract to which the contract of administration of collective funds signed 4, which establishes, that said EAFC should have communicated to him within 20 days following the proposal to grant the guarantees, its acceptance or rejection and remit to him the pertinent documentation for the formalization of said guarantees if accepted, this in accordance with the second paragraph of Article 119 of the REGULATIONS;
70. Regarding this matter, it is appropriate to cite clause 6.2 of the CONTRACT:
CLAUSE SIXTH.- APPLICATION OF THE PURCHASE CERTIFICATE (…)
6.2. Once the "ASSOCIATE" allocated has chosen the vehicle and "MAQUISISTEMA"
has verified his payment capacity and approved the guarantees proposed by the "ASSOCIATE", "MAQUISISTEMA" will issue the purchase order so that payment can be made to the provider. However, payment will not be made until the perfection of the guarantees referred to in numeral 9.1, letters e and/or f, the price difference of the vehicle has been covered, he is up to date with his payments, and he has complied with the other requirements established in this "CONTRACT";
71. Based on what is stated in clause sixth,
numeral 6.2 of the CONTRACT previously cited, although it is evident that MAQUISISTEMA EAFC, upon issuing the respective purchase order, approved the guarantees proposed by the COMPLAINANT; the COMPLAINANT alleged that the administrator company did not communicate to him the acceptance of his guarantee proposal, nor did it remit the documentation for its formalization;
72. Now, based on what was complained by the
COMPLAINANT and taking into account the statements made by MAQUISISTEMA EAFC in its writing of December 17, 2021 cited previously, the General Superintendent of Prudential Compliance via email on April 6, 2022, requested from the administrator company that it remit all correspondence sent that

4 The model contract to which the contract signed by the Complainant corresponds was modified by Resolution of the General Superintendent of Entity Supervision No. 032-2015-SMV/10.2 of April 8, 2015.

PERÚ Ministerio de Economía y Finanzas

SMV
Superintendencia del Mercado de Valores
Electronically signed document under the framework of Law No. 27269, Law of Digital Signatures and Certificates, its regulations, and amendments. The integrity of the document and the authorship

allow us to appreciate that the COMPLAINANT did not wish to or did not follow the procedures for the constitution of the guarantee, which is their responsibility;

MAQUISISTEMA EAFC, in its response of April 11, 2022, stated:

“The communications and coordination for the signing of the Movable Property Guarantee Contract were telephone calls (verbal), as well as messages to the cell phone number provided by the associate. We must clarify that, in August 2021, the unit was separated, coordinating the signing of the guarantee for Thursday, August 19, but the associate did not attend. There were other verbal coordinations and a final one, in writing, on September 27, 2021, without success.”

We must add that, pursuant to the communication sent by the Complainant to the SMV, a direct communication was sent to them on November 9, 2021, reiterating the coordination for the signing of the movable property guarantee, without response.”;

In this sense, as stated, from the information on file, it is clear that since February 23, 2021, the COMPLAINANT was aware that if awarded, they had to constitute the required guarantee under the regulations; however, they did not do so. In this sense, it must be indicated that the regulatory framework has established that collective fund administrators have the duty to deliver fully guaranteed assets to ensure the financial well-being of the group. Within this framework, as a result of the purchase order of August 23, 2021, it has not been proven that the COMPLAINANT made any proposal regarding the granting of guarantees on which MAQUISISTEMAS EAFC was to rule. Consequently, based on the elements previously mentioned, the charge must be archived;

FOURTH CHARGE: FAILURE TO COMPLY WITH THE PROVISIONS OF THE COLLECTIVE FUND ADMINISTRATION CONTRACT OF THE REGULATIONS

The second paragraph of clause 5.3.6 of the CONTRACT states the following;

5.3.6 (...)

Furthermore, awarded “ASSOCIATES” must, within three (3) months following the date of their award, comply with the constitution of the corresponding guarantees, in accordance with what is established in Clause Ninth of this “CONTRACT”; otherwise, “MAQUISISTEMA” will annul the award.

In the event that the situation described in the preceding paragraphs occurs and the respective award is annulled, “MAQUISISTEMA” will communicate to the “ASSOCIATE” regarding the annulment of their award, the grounds for such annulment, and return to the Collective Fund the amount equivalent to the “Purchase Certificate”, (...).

Likewise, Article 120 of the REGULATION establishes the following:

“Article 120.- Annulment of the Award

In the event that the awarded Associate has not communicated to the Administrator the clarifications referred to in Article 117 of the Regulation, it will proceed to annul the award automatically.

If within three (3) months following the date on which they were awarded, the notified Associate has not complied with the constitution of the guarantees required for the acquisition and delivery of the good and/or service subject to the Contract, the Administrator must annul the award.

(...)”;

OF THE FACTS
RESPECTING THE TIMELINESS OF THE ANNULMENT OF THE AWARD

MAQUISISTEMA EAFC in its writing of April 11, 2022, stated that by that date, the COMPLAINANT's award was annulled and that their contract was resolved due to non-payment, their status being “not awarded”;
Regarding the annulment of the award, MAQUISISTEMA EAFC stated that in application of the second paragraph of clause fifth numeral 5.3.6 of the collective fund administration contract, the award is annulled, because the COMPLAINANT did not formalize the constitution of the corresponding guarantee;
From the review of the information sent by MAQUISISTEMA EAFC to the SMV in the “Award Delivery Archive (ADJ)”5 and registered in the SMV collective fund information systems consulted for the period from January 1, 2022, to October 5, 2022, it has been verified that the COMPLAINANT's contract award was annulled by MAQUISISTEMA EAFC on April 12, 2022;
However, based on the reason for the annulment indicated by the administrator company regarding the associate not having complied with the constitution of the guarantees required for the payment and delivery of the good; and taking into account the second paragraph of clause 5.3.6 of the contract, in concordance with Article 120 6 of the REGULATION; it must be noted that on the date of annulment carried out by the administrator company on April 12, 2022, it was late because more than three months had excessively elapsed since the date on which the COMPLAINANT was awarded (26/01/2021); thus the new status of associate “not awarded”;
Likewise, as indicated in the contract, MAQUISISTEMA EAFC was required to communicate to the associate the annulment of their award, and therefore the COMPLAINANT, if they remained up to date with their installments, could have continued participating in the subsequent assemblies of the respective group and exercising the rights contemplated, among others, in clause seventh of the CONTRACT, such as presenting their auction proposal, being awarded again, and applying a new purchase certificate, participating in the respective lotteries, or requesting the resolution of their contract

5 According to what is stated in the “Technical Specifications Manual for the submission to the SMV of information from collective fund administrator companies” approved by Superintendent Resolution No. 102-2016-SMV/02.
6 “Article 120.- Annulment of the Award

In the event that the awarded Associate has not communicated to the Administrator the clarifications referred to in Article 117 of the Regulation, it will proceed to annul the award automatically.

(...)”

PERÚ Ministry of Economy and Finance

being a non-awarded associate, assign their contractual position to a third party, among others;

Therefore, MAQUISISTEMA EAFC would have failed to comply with the legal obligation contained in the second paragraph of clause 5.3.6 of the CONTRACT in concordance with Article 120 of the REGULATION;
In that sense, it was imputed to MAQUISISTEMA EAFC that they had committed one (1) infraction classified as grave, according to Annex XIII, numeral 2, item 2.16 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not comply with the provisions of the collective fund administration contract celebrated with the associate”;

Defense Presented

In their written defenses and additional arguments, MAQUISISTEMA EAFC cites the infraction type contained in Annex XIII, numeral 2, item 2.16 of the SANCTIONS REGULATION that has been the subject of imputation for the alleged non-compliance with the second paragraph of clause 5.3.6 of the CONTRACT in concordance with Article 120 of the REGULATION, because the CONTRACT was not annulled in the time provided by the referenced provisions;
MAQUISISTEMA EAFC states that for clause 5.3.6 of the CONTRACT to be applicable, it must be verified that the guarantees were not constituted. It adds that the failure to sign the movable property guarantee is not a defect of constitution, but of formalization of said guarantee. It cites as an example that someone names a guarantor, the guarantor is approved and then, after exhausting the procedures, that person refuses to sign the documents that formalize their condition;
MAQUISISTEMA EAFC affirms that the constitution was made and that it is irrefutable to verify that the COMPLAINANT not only constituted the required guarantees, but even paid the price difference for the RAM vehicle, model 700, issuing the corresponding purchase order in order to draft the movable property guarantee contract;
MAQUISISTEMA EAFC states that in these facts, the SMV, in practice, would be extending a restrictive clause to other situations, requiring them to resolve the contractual relationship even in the event that the associate constitutes the guarantees, but for one reason or another, the constituted guarantees are not formalized;
MAQUISISTEMA EAFC holds that in the present case, the duty to constitute a guarantee has not been breached. It adds that in any case, it insisted on the signing of the movable property guarantee contract and resolved the CONTRACT after 3 months of exhausting the procedures for its signing;

Evaluation of the Defense

Regarding what was indicated by the administrator company, it must be indicated that this charge refers to the legal obligation to annul the award according to what is stated in clause fifth, numeral 5.3.6 of the CONTRACT, as exposed in the CHARGE OFFICE;
Regarding this, it is worth reiterating what was established by the second paragraph of clause 5.3.6 of the CONTRACT, which is in concordance with Article 120 of the REGULATION:

PERÚ Ministry of Economy and Finance

“5.3.6. (...)

Furthermore, awarded “ASSOCIATES” must, within three (3) months following the date of their award, comply with the constitution of the corresponding guarantees, in accordance with what is established in Clause Ninth of this “CONTRACT”; in the contrary case, “MAQUISISTEMA” will annul the award. (...)” ;

According to what was exposed in the aforementioned clause and what was stated by MAQUISISTEMA EAFC, for the annulment of the award to be carried out, it must be verified that the corresponding guarantees have not been constituted in accordance with what is established in the ninth clause of the contract, and said annulment must be carried out within a maximum period of three (3) months following the date of award;
Regarding this, as indicated by MAQUISISTEMA EAFC, the constitution of guarantees does not imply the signing of the movable property guarantee. In this sense, it affirms that the COMPLAINANT constituted the required guarantees, with which they issued the purchase order for the RAM vehicle, model 700;
It is appropriate to clarify that the administrator company is referring to the purchase order issued for the RAM vehicle, model 700. Although the issuance of said purchase order implies the approval of the guarantees proposed by the associate; it was issued on August 23, 2021. Although the initial award was on January 26, 2021, and the chosen good was later changed to the RAM vehicle from August 23, 2021, the annulment of the award was carried out much later than this latter date, so even if criteria of reasonableness were applied according to the circumstances, the annulment of the award occurred some months later, exceeding by far the three months established by the regulations;
Additionally, it is worth reiterating that the issuance of the purchase order only implies the approval of the guarantees proposed by the associate, as stated in clause 6.2 7 of the CONTRACT, which in no way implies compliance with the questioned regulation;
Regarding this, concerning the administrator company's statement, regarding the lack of signing of the movable property guarantee not being a defect of constitution, but of formalization of said guarantee. It is appropriate to cite clause ninth, literal 9.3 –referred to by clause 5.3.6- of the CONTRACT:

“9.3. The “ASSOCIATE” before receiving the vehicle, must:

(...)

(i) Sign the documents to constitute the guarantees.

7
CLAUSE SIXTH.- APPLICATION OF THE PURCHASE CERTIFICATE (...)
6.2. Once the awarded “ASSOCIATE” has chosen the vehicle and “MAQUISISTEMA” has verified their payment capacity and approved the guarantees proposed by the “ASSOCIATE”, “MAQUISISTEMA” will issue the purchase order so that payment to the supplier can be made. However, payment will not be made until the perfection of the guarantees referred to in numeral 9.1, literals e and/or f, the price difference of the vehicle has been covered, they are up to date with their payments, and they have complied with the other requirements established in this
“CONTRACT”.

PERÚ Ministry of Economy and Finance

(...)”;

However, according to the documents on file, it has been verified that during the validity of the COMPLAINANT's contract, the documents for the constitution of the guarantees were not signed (much less registered in the Public Registries), and consequently, the guarantees were not constituted;
It is worth adding that Article 6 of Legislative Decree No. 1400 that approves the Movable Property Guarantee Regime, published in the Official Newspaper El Peruano on September 10, 2018, in its Article 6, numeral 6.2 8 “movable property guarantee with possession or possessory”, expressly states that the constitution of the guarantee must be recorded by any means that accredits the will of the parties which “must” be formalized through public deed, legalized signatures, handwritten signatures, among others, that is, the movable property guarantee is not merely consensual, so it is not possible that it was accredited by MAQUISISTEMA EAFC by affirming that in the case of the COMPLAINANT the guarantees under analysis had already been constituted, which was not the case;
In addition -as indicated in the CHARGE OFFICE-, it must be taken into account that MAQUISISTEMA EAFC in its writing of April 11, 2022, in response to the SMV requirement 9, indicated:

“In application of the Collective Fund Administration Contract, by this date the award is annulled, because the Complainant did not formalize the constitution of the corresponding guarantee. Regarding this matter, the second paragraph of clause 5.3.6 states the following:
(...)” (Underlining own);

Based on this response, it is observed that what was argued in said communication is contradictory, regarding what was done by the administrator company, considering that the 3 months following the date of award in which the constitution of the guarantee was not formalized, ended on April 26, 2021, and not on April 12, 2022, the date on which MAQUISISTEMA EAFC annulled the award. It is worth highlighting that the administrator company itself states as the ground for the annulment, the fact that the constitution of the guarantee was not formalized;
Additionally, taking into account that the annulment of the award was carried out by MAQUISISTEMA EAFC on April 12, 2022, it is observed that the administrator company acted in response to the SMV requirement of April 6, 2022, in which it was asked if the award of the

8 Article 6. Constitution of the movable property guarantee (...)
6.2 It is called movable property guarantee with possession or possessory when the possession of the good is delivered to the secured creditor or to a third-party depositary. It is constituted at the moment when the debtor guarantor delivers the possession of the goods in guarantee to the secured creditor or to a third-party depositary designated by them. Such constitution must be recorded by any written means that leaves a record of the will of the parties under penalty of nullity, which must be formalized through public deed, legalized signatures, digital signatures or handwritten signatures, as determined by the parties.
9 Email of April 6, 2022 in which it is requested: “1. Comment if by this date, the award has been annulled (considering the passage of months since they were awarded and chose the vehicle) or remains in place”.

PERÚ Ministry of Economy and Finance

COMPLAINANT has been annulled (considering the passage of months since they were awarded and chose the first and then the second vehicle) or remains in place;

In that context, not only is what was affirmed by MAQUISISTEMA EAFC, by indicating that the guarantees were indeed constituted, refutable; but the non-constitution of them can be verified with the facts and documents of the file, and the declarations of the administrator itself;
Based on what was exposed, the alleged “extension of a restrictive clause to other situations” alleged by MAQUISISTEMA EAFC, is dismissed;
Therefore, it has been proven that MAQUISISTEMA EAFC did not comply with annulling the COMPLAINANT's award within the three (3) months following the date of their award, but did so on a date much later than the choice of the new vehicle produced on August 23, 2021, failing to comply with what is established in the second paragraph of clause 5.3.6 of the CONTRACT in concordance with Article 120 of the REGULATION;
Consequently, MAQUISISTEMA EAFC committed one (1) infraction classified as grave, according to Annex XIII, numeral 2, item 2.16 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not comply with the provisions of the collective fund administration contract celebrated with the associate”;

FIFTH CHARGE: FAILURE TO COMPLY WITH THE PROVISIONS CONTEMPLATED IN THE REGULATION OF THE REGULATIONS

Article 99° of the REGULATION states the following:

“Article 99.- Resolution of Contract

The Administrator must unilaterally resolve the Contract when the Associate has failed to pay three (03) Total consecutive Installments. (...)”;

RESPECTING THE TIMELY RESOLUTION OF THE CONTRACT

Regarding the resolution of the contract for non-payment that the administrator company states it carried out, from the review of the information sent by MAQUISISTEMA EAFC to the SMV in the “Associate Status Archive (SIT)” and registered in the SMV collective fund information systems -consulted for the period from January 1, 2016, to October 4, 2022-, it has been verified that the COMPLAINANT presents a status of “Resolved”, regarding the contract, with withdrawal date April 12, 2022. That is, the contract was resolved by MAQUISISTEMA EAFC on April 12, 2022, being the same date on which the award was annulled;
Regarding this, it must be taken into account that according to what was informed in the statement of account as of November 4, 2021 presented by MAQUISISTEMA EAFC, the COMPLAINANT paid their total monthly installments until September 2021, leaving eight (8) total monthly installments pending from October 19, 2021;
Consequently, in application of the first paragraph of Article 99 of the REGULATION, MAQUISISTEMA EAFC was required to resolve the CONTRACT upon verifying that the COMPLAINANT incurred in the non-payment of three (3) consecutive total monthly installments, which occurred on December 20, 2021, after total monthly installments No. 73, 74, and 75 became due, so said EAFC was required to resolve the contract; however, MAQUISISTEMA EAFC resolved the contract only on April 12, 2022;
Additionally, it is worth indicating that Article 122 10 of the REGULATION establishes, among others, that the return of contributions to associates with some resolved contract not awarded, as would be the case of the COMPLAINANT, can be carried out through quarterly lotteries in assembly, in accordance with what is established in literal a) of the cited Article 99 of the REGULATION, deducting the penalties established in the contract, and to associates who are not favored by the lottery, their contributions will be returned at the end of the group. In this context, clause tenth, numeral 10.5 of the contract establishes, among others, that the return to associates with a resolved contract not awarded will be carried out through quarterly lotteries and in case of not being benefited, the return will be made at the end of the group in the liquidation stage;
In that sense, MAQUISISTEMA EAFC was required to consider the COMPLAINANT in the quarterly lotteries carried out from the date of resolution of the Contract until the date of termination of the group. However, by resolving the contract on April 12, 2022, it would have caused the COMPLAINANT to lose the opportunity to participate in the quarterly lotteries for the return of their contributions, which occurred from January to March 2022;
Consequently, MAQUISISTEMA EAFC would have failed to comply with what was provided by Article 99 of the REGULATION;
In that sense, MAQUISISTEMA EAFC would have committed one (1) infraction classified as grave, according to Annex I, numeral 2, item 2.33 of the SANCTIONS REGULATION, according to which it constitutes an infraction: “Not fulfill its functions or any of the other provisions contemplated in the regulations or what is provided or required by the SMV in the exercise of its functions, specifically to the participants”;

OF THE DEFENSE PRESENTED

In their defense, MAQUISISTEMA EAFC cites the infraction type contained in Annex I, numeral 2, item 2.33 of the SANCTIONS REGULATION that has been the subject of imputation for the alleged non-compliance with Article 99 of the REGULATION, because the EAFC did not resolve the CONTRACT in a timely manner despite the time limit indicated by said regulation;
MAQUISISTEMA EAFC states that, regardless of the fact that the SMV imputes to them facts that were no longer verified by the date of notification of Office No. 3250-2024-SMV/10.3, in the present case the COMPLAINANT was an awarded associate without a good, because the signing of the guarantee contract was pending

10 “Article 122.- Return of Contributions
(…)
In other cases, when it comes to Associates with an unawarded Contract, the return of their contributions may be carried out through lotteries in the General Meeting in accordance with what is established in letter a) of Article 99 of the Regulations, deducting the penalties established in the Contract. To Associates with a resolved contract who were not benefited by the lottery, their contributions will be returned upon the termination of the Group.”

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship mobiliary. Adds, that as they have pointed out, the guarantee was constituted, but its formalization before a notary was pending;
115. Therefore, MAQUISISTEMA EAFC maintains, in its
additional written defenses and arguments, that the COMPLAINANT is not a common associate, but the clauses provided for in Chapter V of Title IV of the REGULATION apply to him, which refers to the award. In the event that the award is not formalized, for some reason provided for in the REGULATION or in the CONTRACT, the cancellation and return of contributions is provided for, as can be seen in articles 120 and 122, by since the treatment of an unawarded associate is different from the treatment of an awarded associate;
116. He states that therefore, MAQUISISTEMA EAFC has not
breached Article 99 of the REGULATION, considering the situation of the COMPLAINANT after the award of the Purchase Certificate, its application to a vehicle, the constitution of the required guarantees and the payment of the price for the value of the unit;
117. MAQUISISTEMA EAFC adds that the reasons why
the associate decided not to sign, as a last step, the contract of guarantee mobiliary is not within his knowledge, but in the face of that fact MAQUISISTEMA EAFC acted in accordance with the applicable rules and provisions, always trying to conciliate and resolve any concern of the consumer, without success; EVALUATION OF THE DEFENSE
118. As for what was stated, MAQUISISTEMA EAFC in
his defenses, has not specified how he complied with Article 99 of the REGULATION imputed, nor even less presented evidence to support his statement, since he has only limited himself to pointing out that the case of the COMPLAINANT is different from the others, as it is a case of an awarded associate without asset;
119. Having clarified this, MAQUISISTEMA EAFC states that since
the COMPLAINANT is an awarded associate without asset, articles 120 and 122 apply provided for in chapter V of Title IV of the REGULATION referred to the award, which provides for the cancellation and return of contributions, in the event that the award is not formalized;
120. Regarding this, Article 120 of the REGULATION refers
to the cancellation of the award and to the restitution that must be made to the collective fund of the amount of the awarded good and/or service or purchase certificate when the cancellation of the award occurs;
121. In this sense, MAQUISISTEMA EAFC states that he did not
breach Article 99 of the REGULATION, considering the situation of the COMPLAINANT after the award of the Purchase Certificate, its application to a vehicle, the constitution of the required guarantees and the payment of the price for the value of the unit. He also maintains that in the face of the fact that the associate decided not to sign the contract of mobiliary guarantee, he acted in accordance with the applicable rules and provisions, trying at all times to conciliate and resolve any concern of the consumer, without success;
122. In principle, it should be noted that what concerns the
constitution of guarantees, it was already evaluated previously, leaving accredited that said constitution did not occur. Likewise, it must be taken into account that, as reviewed in the previous charge, MAQUISISTEMA EAFC did not proceed with the cancellation of the award in accordance with what is established in clause fifth, numeral 5.3.6 of the

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship CONTRACT, but he did so on a very late date, April 12, 2022, with which it was demonstrated that MAQUISISTEMA EAFC also did not comply with Article 120 of the REGULATION, which now refers to;
123. On the other hand, clause 99 of the REGULATION, on
the resolution of the Contract by the administrator company, does not specify any particular scenario nor even the circumstances described by MAQUISISTEMA EAFC in his defenses, except that in the event of non-payment of three (3) consecutive monthly installments by the associate, the administrator company must resolve his CONTRACT. Therefore, said clause should have been applied in the case of the COMPLAINANT;
124. Regarding this, and as indicated in the OFFICE OF
CHARGES, in the account statement as of November 4, 2021 presented by MAQUISISTEMA EAFC, it was verified that the COMPLAINANT paid his monthly installments until September 2021, and incurred in the non-payment of three (3) consecutive monthly installments, which occurred on December 20, 2021, after the total monthly installments No. 73, 74 and 75 became due, so the company administrator should have resolved the contract; however, he only resolved it on April 12 2022;
125. It should be added that MAQUISISTEMA EAFC in his
writing of April 11, 2022, in response to the SMV request 11 , indicated:
“The Collective Fund Administration Contract is, at this date, resolved due to lack of payment. The client's condition is “unawarded”.”
126. Based on this response it is observed that
MAQUISISTEMA EAFC stated that the cause of resolution was the lack of payment; however, this is contradictory to the actions taken by the administrator company, considering that the 3 months of unpaid installments were completed on December 20, 2021, and not on April 12, 2022, the date on which MAQUISISTEMA EAFC resolved the CONTRACT;
127. Additionally, considering that the
resolution of the CONTRACT was carried out by MAQUISISTEMA EAFC on April 12, 2022, it is observed that the administrator company acted in response to the request of the SMV, in which it is asked if the contract is resolved at this date and the cause of the same (if applicable);
128. On the other hand, it is taken into account that having
MAQUISISTEMA EAFC should have proceeded with the cancellation of the award based on what was exposed (which he did not do), the associate would have to have constituted himself as an unawarded associate and participate in quarterly lotteries for the return of contributions of resolved contracts;
129. Regarding this, Article 122 12 of the REGULATION
establishes, among others, that the return of contributions to associates with some

11 Email of April 6, 2022 requesting: “3. Comment if at this date, the contract is resolved and the cause of the same (if applicable). (…)”.
12 “Article 122.- Return of contributions
(…)
In other cases, when it comes to Associates with an unawarded Contract, the return of their contributions may be carried out through lotteries in the General Meeting in accordance with what is established in letter a) of Article 99 of the Regulations, deducting the penalties established in the Contract. To Associates with a resolved contract who were not benefited by the lottery, their contributions will be returned upon the termination of the Group.”

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship contract unawarded resolved, as it corresponded to the COMPLAINANT, may be carried out through quarterly lotteries in the assembly, in accordance with what is established in the letter a) of said Article 99 of the REGULATION, deducting the penalties established in the contract, and to associates who are not favored by the lottery, their contributions will be returned upon the termination of the group. In this context, the clause tenth, numeral 10.5 of the contract establishes, among others, that the return to the associates with an unawarded resolved contract will be carried out through quarterly lotteries and in case of not being benefited, the return will be made at the end of the group in the liquidation stage;
130. In this sense, MAQUISISTEMA EAFC should have
considered the COMPLAINANT in the quarterly lotteries carried out from the date of resolution of the Contract until the date of termination of the group. However, by having resolved the contract on April 12, 2022, it would have caused the COMPLAINANT to lose the opportunity to participate in the quarterly lotteries for the return of his contributions, which occurred from January to March 2022;
131. Likewise, considering that the termination
of the group of the COMPLAINANT M382 corresponding to Program M3, was carried out in May 2022 13 (Assembly No. 80) and its liquidation date was July 4, 2021 14; with Office No. 5312-2022-SMV/10.3 it was requested from MAQUISISTEMA EAFC to indicate if he proceeded with the return of contributions in favor of the COMPLAINANT and to send the support of having carried out said return, including the date, amount and the payment method used;
132. MAQUISISTEMA EAFC in his response of October 24
2022, indicated that through a writing dated May 27, 2022, he communicated to the COMPLAINANT the liquidation of his group and that the associate was entitled to pick up his check with the liquidation amount starting from July 13, 2022; however, he points out that the COMPLAINANT did not pick up the check in his favor, which was reiterated by the company administrator in his writing of January 29, 2024, in response to Office No. 310- 2024-SMV/10.3. It should be noted that the writing of May 27, 2022 does not have receipt charge by the COMPLAINANT, it does have annotations by the notifier regarding the description of the facade of the COMPLAINANT's home. Likewise, it must be indicated that in his additional written arguments of May 05 2025, MAQUISISTEMA EAFC does not specify if the COMPLAINANT already picked up the check corresponding or if he already proceeded to return his contributions according to the calculation of the liquidation carried out;
133. As for the amount to be returned to the COMPLAINANT,
considering that in his case the cancellation and resolution of his contract should have occurred

according to what is exposed in the fourth and fifth charge of this resolution,
respectively-, the condition of an unawarded associate with resolved contract is taken into account to determine the amount that would correspond to return him considering the applicable deductions, in accordance with what is established in the

13 As reported in the account statement of the Complainant as of November 4, 2021 14 According to what was reported by MAQUISISTEMA EAFC to the SMV in the “File of information and liquidation by group (LIQ)”

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship CONTRACT 15 and the REGULATION 16 . Regarding this, it must be taken into account that the fee of enrollment and the administration fees paid by the COMPLAINANT are part of the remuneration 17 that the administrator company charges and are freely available 18 of MAQUISISTEMA EAFC. Therefore, the return of contributions is based on the capital installments paid by the COMPLAINANT.
134. Below, the calculation of the amount to be
returned in favor of the COMPLAINANT is presented, determining the amount to be returned to him of US$ 10,893.00 (Ten thousand eight hundred ninety-three and 00/100 US dollars):
Concepts US$
Capital installments contributed 19
11,340.00

15 TENTH CLAUSE.- BREACH AND RESOLUTION OF THE UNAWARDED ASSOCIATE'S CONTRACT (…)
10.3 Effects of the resolution of the “CONTRACT” for breach:
The “ASSOCIATE” unawarded with “CONTRACT” resolved, as the case may be, will receive the following treatment:
(…) b) If the resolution of the “CONTRACT” occurs when the “ASSOCIATE” had paid more than two (2) Capital Installments, “MAQUISISTEMA”, as a penalty for breach, will have the right to make its own the first two (2) Capital Installments paid, deducting from the remaining Capital Installments paid, the balance by pay the Enrollment Fee and the Administration and Insurance Installments accrued, if applicable, up to the resolution of the “CONTRACT”, as well as charges for late payment, penalty for breach of payment of auction and other pending debts to be cancelled in favor of “MAQUISISTEMA”, returning to the “ASSOCIATE” what corresponds to him from the value of the Capital Installments contributed without interest in accordance with what is established in numeral 10.5 of this Clause. In no case or circumstance, the “ASSOCIATE” will have the right to the return of the Enrollment Fee, of the Administration Fee and of the Insurance Installment, if applicable, that he had paid. 16 Article 122.- Return of contributions (…) In other cases, when it comes to Associates with an unawarded Contract, the return of their contributions may be carried out through lotteries in the General Meeting in accordance with what is established in letter a) of Article 99 of the Regulations, deducting the penalties established in the Contract. To Associates with a resolved contract who were not benefited by the lottery, their contributions will be returned upon the termination of the Group.
Article 99.- Resolution of Contract
a) (…)
The Associate with Resolved Contract will participate in quarterly lotteries and if he is benefited by the lottery, he will be returned the Capital Installments contributed, deducting the penalties established in the Contract.
If he is not benefited by the lottery, the Associate with Resolved Contract will receive his contributions upon the termination of the Group, with the deductions that correspond according to what is established in the Contract.
Likewise, Annex 13, Cards for the Associate, in numeral 6, states the following:
(…)
Return Period:
The return of contributions to ASSOCIATES with RESOLVED CONTRACTS will be carried out through quarterly lotteries or within sixty (60) days following the end of the validity period of the group.
Amount to be returned to the ASSOCIATE with RESOLVED CONTRACT:
From the total of the payments made by the ASSOCIATE, the following will be deducted:

Enrollment Fee according to CONTRACT.
Administration Fee billed according to CONTRACT.
Insurance Installment(s) billed according to CONTRACT.
General Sales Tax taxed.
Penalties established in the CONTRACT, up to a maximum of two (2) Capital Installments each”.
17 Article 51 of the Regulations establishes:
“Article 51.- Remuneration
The Administrator may charge for the services inherent to the administration of Collective Funds that are provided to the general public of a Group, a fee for enrollment and another for administration.
(…).”
18 TENTH FIFTH CLAUSE.- RIGHTS OF MAQUISISTEMA
15.2. The Enrollment Fee and the Administration Fee for the services provided by "MAQUISISTEMA"
constitute own income freely available to "MAQUISISTEMA".
19 According to the current account statement as of November 4, 2021, presented by Maquisystem EAFC, the Complainant paid 72 monthly capital installments for US$ 11,340.00.

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship Less Penalty for breach 20 ( 315.00) Accrued administration installments 21 (102.03) Late payment charge 22 (29.97) Amount to be returned to the Complainant 10,893.00
135. It is necessary to point out that MAQUISISTEMA EAFC
presented the liquidation of contributions of the COMPLAINANT, determining an amount to return him by US$ 10,790.97. The difference of this amount with the determined by the SMV in the previous table, is explained because MAQUISISTEMA EAFC considered the deduction of six (6) accrued administrative installments for a total of US$ 204.06 (while the SMV only 3 installments for US$ 102.03);
136. Regarding this, the administrator company stated that
he considered that the COMPLAINANT did not perfect the procedures for the delivery of the vehicle to which he applied the amount, nor did he formally renounce the collective fund system, for which he resolved the contract for delinquency – which occurred on April 12, 2022- in which case he affirms that administrative installments accrued until the liquidation of the group;
137. However, as can be seen in the previous table
and according to what is stated with the fifth charge of this resolution, only corresponds the deduction of three (3) accrued administrative installments for US$ 102.03, since MAQUISISTEMA EAFC should have resolved the contract on December 20 2021, when it was verified on that date the non-payment of the three (3) consecutive monthly total installments No. 73, 74 and 75, for the months of October, November and December 2021, by the COMPLAINANT;
138. Therefore, it has been accredited that
MAQUISISTEMA EAFC did not comply with Article 99 of the REGULATION, by not resolving the CONTRACT on December 20, 2021 in the event of non-payment of three (3) consecutive monthly total installments by the COMPLAINANT;

20 According to clause tenth, numeral 10.3 letter b), of the Contract, Maquisystem EAFC will have the right to make its own the first two (2) capital installments paid as a penalty for breach. This in concordance with the
Article 97 of the Regulations,
“Article 97.- Penalties
Any penalty to be charged by the Administrator must be clearly established in the Contract, including the amount to which it will amount. No penalty individually may exceed the amount equivalent to two (02) Capital Installments. (…)” 21 According to clause tenth, numeral 10.3 letter b), of the Contract, Maquisystem EAFC will have the right to deduct the accrued administration installments until the resolution of the contract. In this case the accrued administration installments accrued corresponded to the three (3) months of unpaid October, November and December 2021. 22 According to clause tenth, numeral 10.1 of the Contract, the unawarded associate who fails to pay one or more total installments must pay Maquisystem EAFC as a late payment charge the sum of US$ 10.00 for each month of delay. Maquisystem EAFC in the liquidation of the COMPLAINANT presented to the SMV, considered US$ 9.99 for each of the 3 months of non-compliance, TENTH CLAUSE.- BREACH AND RESOLUTION OF THE UNAWARDED ASSOCIATE'S CONTRACT
10.1. Effects of non-payment in Payment:
(…)
According to what is stated in the preceding paragraph, the “ASSOCIATE” unawarded who fails to pay one or more Total Installments must pay “MAQUISISTEMA”, as a late payment charge the sum of Ten and 00/100 US Dollars (US$ 10.00), for each month of delay in the payment of each Total Installment due. If the “ASSOCIATE” cancels the Total Installment pending payment after its due date but before the “ASSEMBLY” corresponding to the month in which the delay occurred, the late payment charge will be reduced to twenty percent (20%) of its amount.

PERU Ministry of Economy and Finance

SMV
Securities Market
Superintendency
Electronically signed document within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and the authorship
139. Consequently, MAQUISISTEMA EAFC incurred
in one (1) infringement classified as serious, according to Annex I, numeral 2, clause 2.33 of the SANCTIONS REGULATION, according to which it constitutes an infringement: “Not comply with its functions or any of the other provisions contemplated in the regulations or what ordered or required by the SMV in the exercise of its functions, specifically to participants”;
140. Without prejudice to what is stated, it must be indicated that the
Article 99 of the REGULATION was modified by Article 1 of Resolution SMV No.
027-2022-SMV/01, which establishes that
“Article 99.- Resolution of Contract
The Administrator may unilaterally resolve the Contract, complying with the second paragraph of Article 1430 of the Civil Code or the norm that replaces it, when the Associate has failed to pay three (3) or more Total Installments consecutively, according to what is established in the Program and Contract. (…)” Underlined added.
141. In this sense, from said modification, the
collective fund administrators do not have the obligation to resolve the contract when the non-payment of three (3) or more total installments has occurred consecutive by the associate, so in application of the principle of non-retroactivity collected in numeral 5 of Article 248 of the TUO LPAG, it corresponds archive the present charge;
142. Regarding this, it must be specified that the purpose of the
regulatory modification referred to is to safeguard the continuity of the associate granting reasonable time to collective fund administrator companies so that they adopt the measures and facilities that allow the associate to continue in the system and thus minimize the delinquency of the group; however, this should not constitute a perverse incentive to continue accruing administrative installments or charges for late payments and erode the amount to be returned to the associate with resolved contract for non-payment. To compensate for such situations is that precisely the regulations have provided for the penalty of 2 installments. Consequently, the EAFC may resolve the contract after the 3 months of non-compliance, but in case it does not achieve the continuity of the client, it must accrue as a maximum the 3 administrative installments or charges associated with the periods that have not been paid before the generation of the faculty of the EAFC to resolve the contract; ADDITIONAL DEFENSE BY INDECOPI RESOLUTION
143. MAQUISISTEMA EAFC exposes arguments
additional defenses regarding the third and fourth charges exposed previously considering for this what was resolved by the INDECOPI RESOLUTION;
144. Regarding this, it should be noted that as a result of the
evaluation carried out, it has been concluded that the filing of the charges referred to, for not so, it makes no sense to pronounce on these additional defenses; ADDITIONAL DEFENSE BY APPLICATION OF EXEMPTION
145. MAQUISISTEMA EAFC requests that the
administrative responsibility exemption, explicitly typified in subsection f) of clause 1 of Article 257 of the TUO LPAG, it is in the measure that the first, fourth and fifth

PERU Ministry of Economy and Finance

...already been remedied, which indicates, even this was
included in the notice of charges;
MAQUISISTEMA EAFC adds that the SMV's own system allows for the spontaneous remediation of facts classified as infractions.
For example, the Superintendent of the Securities Market, through Resolution No. 033-2019-SMV/02 issued on March 19, 2019, stated the following 23:
“(…) In the present case, MAQUISISTEMA submitted the required information before the notice of charges, therefore (…) it corresponds to apply the exemption from liability for voluntary remediation contained in letter f) of paragraph 1 of article 257 of the TUO LPAG and archive the charge filed against MAQUISISTEMA”;
For the aforementioned reasons, MAQUISISTEMA EAFC requests that the present procedure be archived regarding the points indicated in this section;

Evaluation of the defense
148. Regarding the exemption from liability alleged by MAQUISISTEMA EAFC referred to the voluntary remediation of three of the five charges imputed, we must indicate that this will be evaluated in the section “Evaluation of the Sanction”;

IV. EVALUATION OF THE SANCTION TO BE IMPOSED
149. According to article 7 of Decree Law No. 21907 on Collective Fund Companies, modified by Law No. 27659 24 and article 25 of the SANCTIONS REGULATION; in concordance with article 248, numeral 3 25 of the TUO LPAG and article 257 of the aforementioned normative body; the administrative sanctions imposed must take into account the criteria established by Decree Law No. 21907, the SANCTIONS REGULATION and the TUO LPAG;
150. Within that framework, the evaluation of the sanction must consider: a) Offender's antecedents; b) Recidivism; c) Circumstances of the commission of the infraction; d) Economic damage caused and its repercussion on the market; e) Illicit benefit resulting from the commission of the infraction; f) Probability of

23 Issued in File No. 2017007943
24 Through Law No. 27659, article 7 of Decree Law No. 21907 was modified, providing that collective fund administrator companies that contravene the provisions of said decree or the regulatory norms issued by the SMV will be sanctioned taking into consideration the offender's antecedents, the circumstances of the commission of the infraction, the damage caused and its repercussion on the market. 25 “Article 248.- Principles of administrative sanctioning power The sanctioning power of all entities is additionally governed by the following special principles:
(…)
3. Reasonableness.- Authorities must foresee that the commission of the sanctionable conduct does not result in more advantage for the offender than complying with the infringed norms or assuming the sanction. However, the sanctions to be applied must be proportional to the non-compliance classified as an infraction, observing the following criteria indicated for their graduation:
a) The illicit benefit resulting from the commission of the infraction; b) The probability of detection of the infraction; c) The gravity of the damage to the public interest and/or protected legal good; d) The economic damage caused; e) Recidivism, for the commission of the same infraction within a period of one (1) year from when the resolution sanctioning the first infraction became final. f) The circumstances of the commission of the infraction; and g) The existence or non-existence of intent in the offender's conduct”.

PERÚ Ministry of Economy and Finance

26
“Article 257°.- Exemptions and mitigating circumstances of liability for infractions 1.- The following constitute conditions exempting liability for infractions:
a) Force majeure or fortuitous event duly proven. b) Acting in compliance with a legal duty or the legitimate exercise of the right of defense. c) Mental incapacity duly proven by the competent authority, provided that this affects the aptitude to understand the infraction. d) Mandatory order of a competent authority, issued in the exercise of its functions. e) Error induced by the Administration or by confusing or illegal administrative provision.

PERÚ Ministry of Economy and Finance

f) Voluntary remediation by the possible sanctioned party of the act or omission imputed as constitutive of an administrative infraction, prior to the notification of the notice of charges referred to in paragraph 3) of article 255. 2.- The following constitute conditions mitigating liability for infractions:
a) If an administrative sanctioning procedure has begun and the offender recognizes their responsibility expressly and in writing.
In cases where the applicable sanction is a fine, it is reduced to an amount no less than half of its value. b) Others that are established by special norm”.
26 The sanctioning criteria referred to Recidivism and Probability of detection of the infraction, were introduced by article 2° of Legislative Decree No. 1272 that modified, among others, article 230°; numeral 3 of Law No. 27444, General Administrative Procedure Law. 27 Article 28.- CIRCUMSTANCES IN WHICH REMEDIATION DOES NOT APPLY AS AN EXEMPTION FROM LIABILITY Remediation prior to the notification of the notice of charges is not considered as an exemption from liability, when a communication demanding compliance with the obligation had been sent. Not subject to remediation for the purposes of letter f) of article 27:
(…) e) The performance of activities that imply the disposal of funds, financial instruments or any asset belonging to clients without their authorization or the non-compliance with custody, administration or fiduciary duties that entities authorized by the SMV have.

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Document electronically signed digitally under the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and modifications. The integrity of the document and authorship letter f) of the TUO LPAG constitutes an exemption from liability for the infraction committed “Voluntary remediation 28 of the act or omission as constitutive of an administrative infraction, prior to the notification of the notice of charges (…)”;
172. In such sense, from the normative text it is evident that for voluntary remediation to be applied as an exemption from liability, two (02) actions must occur before the notice of charges: i) the cessation of the infringing conduct voluntarily 29, that is, the adaptation of the conduct to the norm; and, ii) repair, remedy a defect or compensate for damage caused, derived from the improper action (correction of the effects that derive from that infringing conduct). Therefore, if a conduct cannot be reversed or repaired or it is not possible to compensate for the damage produced by the commission of the infraction, it will not be subject to remediation;
173. In that context, it is pertinent to specify that the RAE defines voluntary as “an act that arises from the will, and not by force or necessity foreign to those, ‘no obligation or duty’. Likewise, regarding the voluntariness of an action, the RAE defines it as by “mere whim and without other reason for what is resolved”. From this, it can be inferred that a certain action or conduct is voluntary when it is not subject to obligations or duties;
174. In this order of ideas, the remediation of the infringing conduct must be the product of the free initiative of the administered, that is, it adapts its behavior to the legal order without mediation of a request or petition from the administration or a third party, or any coercive measure; and therefore it will cease to be voluntary when there are requirements made by the administrative authority or the application of some coercive measure, since from the moment there is such a requirement, the correction of the conduct will cease to be by the own initiative of the administered, that is, it will cease to be voluntary;
175. In such sense, it must be indicated that regarding the annulment of the allocation, this was done after the communication of the SMV of April 6, 2022, in which it consulted MAQUISISTEMA EAFC: “Comment if by this date, the allocation has been annulled (considering the passage of months since it was allocated and the vehicle was chosen) or remains in place”;
176. In its additional written allegations, MAQUISISTEMAS EAFC infers that there should be no contradiction between the TUO LPAG and the Sanctions Regulation, as it indicates that the Specialized Courts in Administrative Litigation state that entities cannot denature the application of the General Administrative Procedure Law with artifices (such as subsuming exempting circumstances as a mere criterion for sentencing), nor can they use formulas that affect fundamental rights safeguarded in said law. Likewise, it refers that various judicial sentences indicate that an administered party is exempt from liability if it voluntarily remedied the fact constitutive of the infraction before the start of the sanctioning procedure
177. MAQUISISTEMA EAFC states that if by the date the entity was about to impute the infraction the fact no longer persists, there is no object to initiate the sanctioning procedure since no corrective purpose would be obtained;
178. Regarding this, it must be reiterated that the exemption of remediation established by the LPAG is subject to said remediation being voluntary, as also indicated by the 6th and 25th specialized courts cited by MAQUISISTEMA EAFC itself. The administrator presents a partial analysis of the cited items restricting itself only to the remediation of the imputed fact, without considering that letter f) of paragraph 1 of article 257 of the TUO LPAG establishes that what constitutes as a condition of exemption is that the remediation be voluntary, which does not occur in the present case, as previously developed;
179. On the other hand, regarding the supposed contradiction between article 257, letter f) of the TUO LPAG and article 28 of the SANCTIONS REGULATION, insofar as the administrator argues that the application of article 257, letter f) of the TUO LPAG should not be denatured, nor can formulas be used that affect rights safeguarded in said law, it can be noted that, as the author Natalia Zuñiga Arbildo 30 indicates “It is clear that although the law does not make distinctions (ie. it would be impossible for the law to cover all potential infraction scenarios), practice does limit the possibility of remediation, there being situations where it does not proceed. Thus, there may be cases where the impossibility of reversing the effects of an infraction is impossible”. (Emphasis added);
180. Although article 257, letter f) of the TUO LPAG does not expressly contain restrictions to the application of the exemption from liability for voluntary remediation besides carrying out the remediation before the notice of charges, from the same article it is derived that there are infractions that are subject to remediation and others that are not, such as those to which the present analysis is devoted;
181. Regarding this, it must be indicated that the application of the exemption from liability for voluntary remediation before the notification of the notice of charges, established in article 257°, numeral 1, letter f) of the TUO LPAG is subject to the act constitutive of the infraction or omission imputed being remedied, not the consequences of the administrative infractions;
182. In that sense, from the infringing type imputed in the present case, it is derived that the constitutive elements of the infractions are linked to the non-compliance of fiduciary duties with respect to the facts imputed by MAQUISISTEMA EAFC, so that, taking into account the specific type of infraction, the non-compliance with said duty could not be remedied;
183. Likewise, it must be noted that there are conducts that are not subject to voluntary remediation, because in these cases it is not possible to reverse, repair or compensate for the damage produced as a consequence of the commission of the infraction. Such is the case of infractions for annulment and resolution of contract that led to the non-compliance of fiduciary duties as an act constitutive of the infraction;

30 ZUÑIGA ARBILDO, Natalia. Op. cit.
Link: https://agnitio.pe/articulo/no-basta-con-pedir-perdon-la-interpretacion-de-oefa-respecto-a-la-causal-deeximente-de-responsabilidad-por-subsanacion-voluntaria/

PERÚ Ministry of Economy and Finance

SMV
Superintendencia del Mercado de Valores
Document electronically signed digitally within the framework of Law No. 27269, Law of Digital Signatures and Certificates, its Regulations and amendments. The integrity of the document and authorship

Additionally, the arguments raised by the Third Specialized Chamber in Administrative Litigation in Resolution No. 7 of File No. 1231-2022 are cited:

“(…)

Eighth.- Now, although Article 255 of the Consolidated Text of the Organic Law of Administrative Procedure (TUO LPAG), approved by Supreme Decree D.S. No. 006-2017-JUS, in force since September 19, 2017, and therefore applicable to the case, considers voluntary remediation as an exonerating condition of liability, such premise assumes that there are obligations that can and cannot be remedied, without the norm specifying when one is in a particular situation, requiring therefore, an evaluation in each particular case.

Precisely, regarding the aforementioned exemption, national doctrine has pointed out that, “not only the concurrence of the described requirements (before the start of the Administrative Sanctioning Procedure) will be evaluated, but also the remediable nature of the detected non-compliance, from the nature of the infringing conduct and from the effects it produces, taking into account that there are infractions that, due to their own nature or by express legal provision, are not susceptible to being remedied10”

31.

(…)

Ninth.- Consequently, this Superior Chamber corroborates that the exonerating condition of liability contained in Article 255, letter f), numeral 1 of the TUO LPAG approved by D.S. No. 006-2017-JUS11 is not configured as alleged by the plaintiff; which leads to such argumentation being dismissed.”

Without prejudice to what has been stated, it is necessary to point out that among the sources of law, the extraordinary peculiarity of the “Regulation” stands out. The Public Administration is not simply subordinated to legal norms, but it itself has the power to create them; the norm created directly by the Administration is the Regulation, thus, the coexistence and articulation of the Law with this administrative formulation norm is generated.

Likewise, in the present case, it is necessary to observe the principle of separation or competence, which operates as a complementary rule to the principle of normative hierarchy, which implies the attribution to a specific organ or entity of the power to regulate certain matters or to dictate certain types of norms to the exclusion of others;

Likewise, it is worth mentioning that the principle of legality, established as a general principle of administrative procedure and as a principle of administrative sanctioning procedure, in Article IV, numeral 1.1 of the Preliminary Title and in Article 248 of the TUO LPAG, respectively, implies that administrative authorities must act with respect for the Constitution, the law, and the law, within the faculties attributed and with the purposes for which they were conferred; and also that by a norm with the rank of law, the sanctioning power is attributed to a public entity and the possible sanctions that that entity is authorized to apply are regulated;
In this sense, Article 1, letter a) of the Unified Concorded Text of the Organic Law of the SMV approved by Legislative Decree No. 26126 and its amendments (hereinafter, ORGANIC LAW), establishes that the SMV is authorized to dictate the legal norms that regulate matters of the securities market, product market, and collective fund system; likewise, as provided in letter b) of Article 5 of the ORGANIC LAW, the Board of Directors of the SMV has the attribute to approve the regulations of the securities market, as well as those to which natural and legal persons subject to its supervision must be subject, among which are collective fund administration companies;
According to the cited norms, it is observed that by law, the SMV has been conferred the faculty to regulate the applicable regulations to the securities market, product market, and collective fund system, so that by approving the SANCTIONS REGULATION taking into account all the modifications introduced in the LPAG and adapting it to its field of action and the competencies assigned considering the specialization of the markets and systems it regulates, the principle of legality is strictly complied with, for which reason, what is stated in Article 28 of the SANCTIONS REGULATION does not violate the rights of the administered, nor the principle of legality;
In accordance with what has been exposed, no supposed contradiction is observed between Article 257, letter f) of the TUO LPAG and Article 28 of the SANCTIONS REGULATION;
Therefore, in accordance with what has been exposed, in the present administrative sanctioning procedure, it is necessary to point out that none of the situations that constitute exonerating conditions of liability are observed;
Regarding the mitigating factors of liability contemplated both in Article 257, numeral 2, item a) of the TUO LPAG and in Article 26 of the SANCTIONS REGULATION, the following is to be stated;
Regarding the recognition of the infringer's responsibility, it must be indicated that MAQUISISTEMA EAFC has not recognized the commission of the infractions that are the subject of the present sanctioning procedure;
Regarding the contribution of the infringer to its clarification, it is necessary to point out that MAQUISISTEMA EAFC has not obstructed the clarification of the facts linked to the infractions that are the object of the present administrative sanctioning procedure;
From what has been stated, it is concluded that MAQUISISTEMA EAFC has committed a serious nature infringement;
In this sense, a sanction corresponding to the infractions classified as serious must be imposed on MAQUISISTEMA EAFC in accordance with Article 38 of the SANCTIONS REGULATION, which establishes that the serious infringement is sanctionable with a fine greater than twenty-five (25) and up to fifty (50) Tax Units (UIT) or with the prohibition of the formation of new groups;
However, in application of the Principle of Reasonableness contemplated in Article 248, numeral 3 of the TUO LPAG which states that the sanctions to be applied must be proportional to the non-compliance classified as an infringement, as well as taking into account the sanctioning criteria analyzed, in which it has been determined that MAQUISISTEMA EAFC is not a repeat offender regarding the infractions evaluated; it has not been proven that it has obtained illicit benefit and that the infractions in which it has incurred have had repercussion in the market or have caused damage to the determinable public interest; in accordance with what is provided in the last paragraph of Article 25 of the SANCTIONS REGULATION, this Adjunct Superintendency considers that it corresponds to impose on MAQUISISTEMA EAFC a sanction lower than that provided for serious infractions, so it is proposed to impose on MAQUISISTEMA EAFC a sanction applicable to minor infractions, in accordance with what is provided in Article 39 of the SANCTIONS REGULATION;

Being in accordance with what is provided in Article 32, numeral 16, of the Organization and Functions Regulation of the SMV, approved by Supreme Decree No. 216-2011-EF;

RESOLVES:

Article 1st.- Declare that EAFC MAQUISISTEMA S.A. has committed one (01) infringement classified as serious as established in Annex XIII, numeral 2, item 2.16 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for failing to comply with clause 5.3.6 of the Collective Fund Administration Contract signed between MAQUISISTEMA EAFC S.A. and the COMPLAINANT, in concordance with Article 120 of the Regulation of the Collective Fund System and its Administration Companies, approved by SMV Resolution No. 020-2014-SMV-01; for failing to comply with the provisions of the aforementioned collective fund administration contract referred to the annulment of the allocation.

Article 2nd.- Declare that EAFC MAQUISISTEMA S.A. has committed one (01) infringement classified as serious as established in Annex I, numeral 2, item 2.33 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, for failing to comply with Article 99 of the Regulation of the Collective Fund System and its Administration Companies, approved by SMV Resolution No. 020-2014-SMV-01, since it did not timely resolve the Collective Fund Administration Contract signed between MAQUISISTEMA EAFC S.A. and the COMPLAINANT.

Article 3rd.- Declare that MAQUISISTEMA EAFC has not committed one (01) serious nature infringement typified in Annex XIII, numeral 2, item 2.11 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, regarding its obligation to inform the associate, within the established deadline, that it has been allocated; therefore, the archiving of the present charge corresponds. Declare that EAFC MAQUISISTEMA S.A. has not committed one (01) serious nature infringement typified in Annex I, numeral 2, item 2.25 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, regarding the observance of conduct norms contained in Article 48, numerals b), e) and f) of the Regulation of the Collective Fund System and its Administration Companies, approved by SMV Resolution No. 020-2014-SMV-01.

Article 4th.- Declare that EAFC MAQUISISTEMA S.A. has not committed one (01) infringement classified as serious as established in Annex XIII, numeral 2, item 2.11 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01, regarding what is provided by Article 119 of the Regulation of the Collective Fund System and its Administration Companies, approved by SMV Resolution No. 020-2014-SMV-01; and clause 16.4 of the Collective Fund Administration Contract signed between MAQUISISTEMA EAFC S.A. and the COMPLAINANT.

Article 5th.- Sanction EAFC MAQUISISTEMA S.A. with a reprimand for the commission of the infringement referred to in Article 1 of this Resolution.

Article 6th.- Declare the archiving of the infringement referred to in Article 2 of this resolution in application of the principle of non-retroactivity, contained in numeral 5 of Article 248 of the Consolidated Text of the General Administrative Procedure Law, Law No. 27444, approved by Supreme Decree No. 004-2019-JUS.

Article 7th.- Within 20 business days of notification of this resolution, EAFC MAQUISISTEMA EAFC must prove to the SMV the refund in favor of the COMPLAINANT of the amount amounting to US$ 10,893.00 (Ten thousand eight hundred ninety-three and 00/100 US dollars).

Article 8th.- This resolution does not exhaust the administrative route, unless it is consented, and may be challenged before the Adjunct Superintendency of Prudential Supervision by filing a reconsideration or appeal appeal, presented before the same, within the deadline of fifteen (15) business days counted from the day following its notification.

Article 9th.- In the event that this resolution is not subject to challenge through reconsideration or appeal appeal within the deadline of fifteen (15) business days of notification and remains consented, it must be published on the Institutional Page of the SMV in the Unique Digital Platform of the Peruvian State, in observance of what is provided in numeral 1, Article 7 of the Policy on dissemination of normative projects, general character legal norms, early agenda and other administrative acts of the SMV, approved by SMV Resolution No. 014-2014-SMV/01 and by what is provided in Article 14 of the Sanctions Regulation, approved by SMV Resolution No. 035-2018-SMV/01.

Article 10th.- Transcribe this resolution to EAFC MAQUISISTEMA S.A.

Omar Gutiérrez Ochoa
Adjunct Superintendent
Adjunct Superintendency of Prudential Supervision

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