Law No. 30737 on the Payment of Civil Reparation in Favor of the Peruvian State

2 LEGAL NORMS Monday, March 12, 2018 / El Peruano LEGISLATIVE POWER CONGRESS OF THE REPUBLIC LAW No. 30737 THE PRESIDENT OF THE REPUBLIC WHEREAS: THE CONGRESS OF THE REPUBLIC; Has enacted the following Law: LAW ENSURING THE IMMEDIATE PAYMENT OF CIVIL REPARATION IN FAVOR OF THE PERUVIAN STATE IN CASES OF CORRUPTION AND RELATED CRIMES SECTION I MEASURES TO SAFEGUARD THE PAYMENT OF CIVIL REPARATION IN FAVOR OF THE PERUVIAN STATE IN CASES OF CORRUPTION AND RELATED CRIMES TITLE I GENERAL PROVISIONS Article 1. Scope of this section 1.1. This section is applicable to legal entities or juridical entities: a. Condemned by final judgment, in Peru or abroad, for the commission of crimes against public administration, money laundering, or related crimes; or equivalents committed in other countries, to the detriment of the Peruvian State. b. Whose officials or representatives have been condemned by final judgment in Peru or abroad for the commission of crimes against public administration, money laundering, or related crimes; or equivalents committed in other countries, to the detriment of the Peruvian State. c. Who, directly or through their representatives, have admitted or recognized the commission of crimes against public administration, money laundering, or related crimes; or equivalents before a competent national or foreign authority. d. Linked to the legal entities or juridical entities in subsections a, b, and c. 1.2. For the purposes of subsection d of paragraph 1.1, linked legal entities or juridical entities are understood as follows: a. Any legal entity or juridical entity that owns more than ten percent (10%) of the shares representing the social capital or holds social participations or that directly or indirectly participates in said percentage in its ownership, either directly or through subsidiaries. b. Any person who exercises control over it and the other persons over which that person also exercises control. c. Any legal entity or juridical entity of the same economic group. 1.3. For the purposes of paragraph 1.2, the following definitions apply: a. Control: Is the ability to direct or determine the decisions of the board of directors, the shareholders' or partners' meeting, or other decision-making bodies of a legal entity or of the administrative body of an autonomous patrimony. b. Juridical entities: Are investment funds, trust patrimonies, and other autonomous patrimonies managed by third parties, which lack legal personality. For these purposes, mutual investment funds in securities and pension funds do not qualify as juridical entities. c. Economic group: Has the meaning assigned to it in Article 7 of the Regulation on Indirect Ownership, Linkage and Economic Group, approved by Superintendency Resolution 019-2015-SMV-01, as it may be modified or supplemented. d. Persons: Natural and/or legal persons. e. Subsidiary: Is, with respect to a person: (a) any legal entity of whose shares representing the social capital or social participations it owns in whole or at least fifty percent (50%), either directly or through another subsidiary and; (b) any legal entity over which it exercises control, as well as its subsidiaries. 1.4. The Ministry of Justice and Human Rights, under penalty of liability, prepares a list of the subjects included in this article. Said information is published on its institutional portal and is updated on the last business day of each month. Article 2. Measures ensuring the payment of civil reparation in favor of the State for the commission of crimes against public administration, money laundering, or related crimes; or equivalents Public entities apply the following measures to the persons included in Article 1: a. Suspension of transfers abroad. b. Acquisition and retention of the sale price in the Retention and Reparation Trust. c. Retention of amounts to be paid by State entities. d. Preventive annotation. TITLE II SUSPENSION OF TRANSFERS ABROAD Article 3. Suspension of transfers abroad The right of persons included in Article 1 to transfer abroad, under any title, totally or partially, the following is suspended: a. The entirety of their capital originating from investments in the country, including the sale of assets, shares, participations, or rights, regardless of whether they imply a reduction of capital or partial or total liquidation of companies. b. The entirety of dividends or profits originating from their investment, as well as consideration for the use or enjoyment of goods physically located in the country and royalties and consideration for the use and transfer of technology, including any other constituent element of industrial property. The suspension of transfers abroad is valid until any of the following situations occur: a. Payment is made of labor, supplier, financial, and other El Peruano / Monday, March 12, 2018 LEGAL NORMS 3 obligations with third parties of the persons included in Article 1, which are overdue, generated by projects in Peru. As well as the entirety of the civil reparation in favor of the State and the entirety of the exigible tax debt. b. A final acquittal judgment is issued in favor of the legal entities or juridical entities included in Article 1. c. A resolution is adopted that ends the processes. The Ministry of Justice and Human Rights, at the request of a party and after prior evaluation, may approve, according to the provisions of the regulation of this law, individually or jointly as the case may be, the corresponding transfers abroad for creditor debt or other payments that may affect the value of concessions or assets located in Peru owned by the persons referred to in Article 1. TITLE III ACQUISITION AND RETENTION OF THE SALE PRICE IN THE RETENTION AND REPARATION TRUST Article 4. Rules for acquisition 4.1. Any person intending to acquire, under any title, any asset or right from any of the persons referred to in Article 1, as well as shares or other securities representing participation rights issued by persons constituted in Peru included in Article 1, even if these assets, rights, shares, or securities have been transferred in trust or under another similar modality, must first submit a written request to the Ministry of Justice and Human Rights expressing their interest. The Ministry of Justice and Human Rights informs through its institutional portal about the submission of acquisition requests, as well as the status of the procedure before said entity and its approval or denial resolution, as the case may be. It may also request additional information and supporting documentation it deems pertinent according to the regulation. The Ministry of Justice and Human Rights requests an opinion from the public entity corresponding to the project, public work, or concession to which the request refers. In the case of National Government concessions, an opinion is requested from the Ministry of Economy and Finance, in accordance with the criteria established in the regulation of this law. 4.2. Any person who acquires assets, rights, shares, or securities referred to in paragraph 4.1, without first following the procedure and making the deposit to the trust as provided in Articles 5 and 7, as well as any subsequent acquisition of said assets, rights, shares, or securities, shall be null and void by operation of law. The acquirer is prevented from contracting with the State in accordance with State Contracting regulations. 4.3. In the event that the acquisition of assets, rights, shares, participations, or securities of the subjects included in Article 1 is carried out, following the procedures established in this article and accrediting the deposit of the corresponding amounts in the respective accounts referred to in Article 7, the assets, rights, shares, participations, or securities representing rights subject to transfer, automatically cannot be affected, under any title, as a consequence 4 LEGAL NORMS Monday, March 12, 2018 / El Peruano of the actions or omissions of the subjects included in Article 1. Likewise, the preventive annotation is lifted ex officio. Acquisitions made before the entry into force of Urgent Decree 003-2017 cannot be affected, under any title, unless the jurisdictional authority determines that said acquisitions were made in bad faith by the parties. The rule provided in the preceding paragraph applies to legal entities or juridical entities until before they appear in the list of persons included on the institutional portal of the Ministry of Justice and Human Rights referred to in Article 1.4. 4.4. The amount to be applied for the retention and reparation trust referred to in Article 7 is up to the amount of the exigible tax debt plus the amount of civil reparation for damages caused by the persons included in Article 1, determined at that moment by the corresponding State Public Prosecutor, at the request of the Ministry of Justice and Human Rights and in accordance with the provisions of the fifth final complementary provision. 4.5. In the case of the assumption regulated in the second paragraph of paragraph 4.1, the approval of the sale is carried out by Ministerial Resolution of the Ministry of Justice and Human Rights, after prior opinion of the corresponding public entity and, where applicable, of the Ministry of Economy and Finance. 4.6. Dations in payment on non-financial movable goods in favor of micro, small, and medium-sized enterprises regulated in the Consolidated Text of the Law for the Promotion of Productive Development and Business Growth approved by Supreme Decree 013-2013-PRODUCE that acted as suppliers of the persons included in Article 1, are exempt from the application of the rules and procedures contained in this title. The dation in payment must fall on non-financial movable goods that cover credits whose total value does not exceed 100 UIT and for obligations contracted before the entry into force of Urgent Decree 003-2017. In the case of dation in payment of non-financial movable goods that cover credits whose total value exceeds 100 UIT, requests follow the general procedure established in this title and are processed within a maximum period of 10 business days. The dation in payment is not indemnificatory. Article 5. Acquisition procedure 5.1. Within the framework of the rules provided in Article 4, the applicant must submit a transfer request, indicating the amount corresponding to the sale price of the assets, rights, shares, participations, or securities to be paid in favor of the persons included. 5.2. The deposit to the Trust referred to in Article 7 is made in each sale operation up to the amount covering the civil reparation estimated by the corresponding State Public Prosecutor and the entirety of the exigible tax debt. In each operation, fifty percent (50%) of the sale price is retained, until the amount of civil reparation estimated by the Public Prosecutor and the entirety of the exigible tax debt is reached. Said retention is made when the payment is made viable. The sale price must prioritize the payment of labor, supplier, financial, and other third-party obligations of the persons included in Article 1, generated by the project subject to sale, in accordance with the provisions of Article 5.3. For these purposes, the oversight mechanism is activated, and a periodic report on the continuity of the payment chain must be submitted, as indicated by the regulation. The amount corresponding to the person included in Article 1 is not subject to the provisions regulated in the first and second paragraphs of Article 3, as long as it is primarily allocated to the payment of labor, supplier, financial, and other third-party obligations of the persons included in Article 1, generated by projects in Peru. For these purposes, the oversight mechanism is activated, and a periodic report on the continuity of the payment chain must be submitted, as indicated by the regulation. 5.3. In the case of projects, the Ministry of Justice and Human Rights evaluates, based on the information presented, the sale price, which includes the present value of future income and cost flows of the project (net of depreciation and amortization of the project), as well as the project's cash and cash equivalents balance and the deduction of the recognition of accounts receivable and payable to workers, suppliers, and taxes, as well as financial debts assumed exclusively for the project. Financial debts contracted with the persons included in Article 1 and financial debts assumed by shareholders are excluded from said debts. This rule applies to the acquisition of companies. 5.4. The Ministry of Justice and Human Rights, under penalty of liability, within the period determined by the regulation of this norm, issues its pronouncement on the acquisition authorization request. For this purpose, it may rely on the assistance of expert consultants, with recognized solvency and suitability, who verify compliance with the provisions of paragraph 5.3. Law 30225, State Contracting Law, and its amendments or replacement norm, is not applicable for their contracting, unless they are disqualified from contracting with the State. No natural or legal person who has maintained a legal relationship with the project or operation subject to the contract may be contracted for these purposes. 5.5. In the pronouncement referred to in paragraph 5.4, the Ministry of Justice and Human Rights indicates the trust account into which the retention deposit must be made. 5.6. For transfer purposes, the applicant may directly pay, on behalf of the transferor, the labor, tax, supplier, and other obligations referred to in numeral 5.3 of this article. TITLE IV RETENTION OF AMOUNTS TO BE PAID BY THE STATE Article 6. Retention of amounts to be

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