Supreme Decree No. 002-2019-JUS: Regulations of the Law Regulating the Administrative Liability of Legal Entities

El Peruano / Wednesday, January 9, 2019 LEGAL NORMS 43

Supreme Decree No. 002-2004-DE/SG, in its article 3, establishes that "Official trips abroad include the following modalities: Service Commission (...)";

That, Supreme Decree No. 001-2009-IN in its article 1 states "To extend to the police and civil personnel of the National Police of Peru the scope of Supreme Decree No. 002-2004-DE/SG (...)";

That, the Public Sector Budget Law for Fiscal Year 2019, approved by Law No. 30879, in its article 10 establishes that "10.1. During Fiscal Year 2019, trips abroad of public servants or officials and representatives of the State funded with public resources must be made in economy class (...) The authorization for trips abroad of the persons mentioned in the preceding paragraph shall be approved in accordance with what is established in Law No. 27619, Law that regulates the authorization of trips abroad of public servants and officials, and its regulatory norms. (...)";

That, by Supreme Decree No. 047-2002-PCM, regulatory norms on the authorization of trips abroad of public servants and officials are approved, which in its article 2, referring to the content of the authorization act, establishes that "The Resolution authorizing trips abroad of the Republic, strictly necessary, shall be duly supported in the national interest or in the specific interest of the Institution, and must expressly indicate the reason for the trip, the number of days of duration of the trip, the amount of travel expenses, per diems and Corpac tariff. (...)";

That, Supreme Decree No. 047-2002-PCM in its article 1 establishes that "(...) The authorization of trips abroad of persons, who travel on behalf of the Executive Branch incurring expense to the Public Treasury, shall be granted by Ministerial Resolution of the corresponding Sector, provided that they are supported in the national interest or in the specific interest of the institution, in accordance with Law No. 27619 and this Regulation";

That, likewise, article 4 of Supreme Decree No. 047-2002-PCM states that "The Resolutions of travel authorization must be published in the Official Newspaper El Peruano (...)";

With the visa of the General Command of the National Police of Peru and the General Office of Legal Advice of the Ministry of the Interior;

In accordance with Law No. 27619, Law that Regulates the Authorization of Trips Abroad of Public Servants and Officials; Supreme Decree No. 047-2002-PCM, through which the regulatory norms on the authorization of trips abroad of public servants and officials were approved; Law No. 29158, Organic Law of the Executive Power; Law No. 30879, Public Sector Budget Law for Fiscal Year 2019; Legislative Decree No. 1266, Law of Organization and Functions of the Ministry of the Interior; and, the Regulation of Organization and Functions of the Ministry of the Interior, approved by Supreme Decree No. 004-2017-IN.

IT IS RESOLVED:

Article 1.- Authorize the trip abroad, on a service commission, of the Commander of the National Police of Peru Martín Oscar Díaz Vásquez, from January 9 to 11, 2019, to the Autonomous City of Buenos Aires – Argentine Republic, for the purposes exposed in the consideration part of this Resolution.

Article 2.- The expenses for per diems (partial financing) incurred by the compliance with this resolution are covered from Executive Unit 002: Directorate of Economy and Finances of the National Police of Peru, from Pliego 007, Ministry of the Interior, according to the following detail:

Amount	US$	Days	Persons	Total US$
Per diems (40%)	148.00	X 2	X 1	296.00

Article 3.- Order that the police personnel whose trip is authorized present to the Head of the Entity, within fifteen (15) calendar days following the realization of the authorized trip, a detailed report describing the actions carried out and the results obtained during the authorized trip, as well as the duly documented accounting of the assigned per diems.

Article 4.- This Ministerial Resolution does not grant the right to exemption or release from the payment of taxes or customs duties, whatever their class or denomination.

Register, communicate and publish.

CARLOS MORAN SOTO
Minister of the Interior
1729759-1

Appoint Director of the Office of Operational Planning and Budget of the General Office of Planning and Budget of the Ministry

MINISTERIAL RESOLUTION
NO. 036-2019-IN

Lima, January 8, 2019

CONSIDERING:

That, with the position of Director of the Office of Operational Planning and Budget of the General Office of Planning and Budget of the Ministry of the Interior vacant, it is necessary to designate who will exercise it;

In accordance with what is provided by Law No. 29158, Organic Law of the Executive Power; Law No. 27594, Law that regulates the participation of the Executive Power in the appointment and designation of public officials; Legislative Decree No. 1266, Law of Organization and Functions of the Ministry of the Interior; and, the Regulation of Organization and Functions of the Ministry of the Interior approved by Supreme Decree No. 004-2017-IN;

IT IS RESOLVED:

Sole Article.- Designate Mrs. MARIA ANTONIETA NERIO PONCE in the position of Director of the Office of Operational Planning and Budget of the General Office of Planning and Budget of the Ministry of the Interior.

Register, communicate and publish.

CARLOS MORAN SOTO
Minister of the Interior
1729758-1

JUSTICE AND HUMAN RIGHTS

Regulation of Law No. 30424, Law that regulates the Administrative Liability of Legal Entities

SUPREME DECREE
NO. 002-2019-JUS

THE PRESIDENT OF THE REPUBLIC

CONSIDERING:

That, through Law No. 30424, which regulates the administrative liability of legal entities, modified through Legislative Decree 1352, Legislative Decree that expands the administrative liability of legal entities and by Law No. 30835, Law that modifies articles 1, 9 and 10 of Law No. 30424, which regulates the administrative liability of legal entities for the crime of transnational active bribery,

44 LEGAL NORMS Wednesday, January 9, 2019 / El Peruano

it is established that legal entities may be declared administratively responsible for the commission of the crimes of transnational bribery, generic active bribery, specific active bribery, simple and aggravated collusion, influence peddling, money laundering and terrorism financing;

That, article 17 of the aforementioned Law, establishes a case of exemption of administrative liability of the legal entity for the commission of the crimes of transnational bribery, generic active bribery, specific active bribery, simple and aggravated collusion, influence peddling, money laundering and terrorism financing, in case it has adopted and implemented in its organization and prior to the commission of the crime, a prevention model adequate to its nature, risks, needs and characteristics, consisting of suitable surveillance and control measures to prevent the aforementioned crimes or to significantly reduce the risk of their commission;

That, numeral 17.2 of article 17 of the Law, establishes the minimum elements that the prevention model implemented by legal entities must observe, likewise, it states that the content of the prevention model, taking into account the characteristics of the legal entity, is developed in the Regulation. In the case of micro, small and medium enterprises, the prevention model will be limited to its nature and characteristics, and must contain some of the minimum elements;

That, the Second Final Complementary Provision of Law No. 30424 and its modifications, establishes that the Executive Power approves the Regulation referred to in numeral 17.2 of article 17 of the aforementioned Law, at the proposal of the Ministry of Production, with the countersignature of the Minister of Justice and Human Rights and the Minister of Economy and Finance;

That, crime prevention models constitute management tools in the matter of corporate integrity, which implies the implementation of an ordered system of norms, mechanisms and procedures of surveillance and control, destined to neutralize or significantly reduce the risks of commission of crimes and to promote integrity and transparency in the management of legal entities; which are adopted and implemented voluntarily, under the principle of self-regulation of legal entities;

That, in this sense, it is necessary to approve the Regulation of Law No. 30424, Law that regulates the administrative liability of legal entities, in order to develop the characteristics, principles, procedures and stages that may be contemplated or taken into account by legal entities, which voluntarily adopt a crime prevention model, in order to achieve an adequate and effective implementation and functioning of the same;

In accordance with numeral 8 of article 118 of the Political Constitution of Peru; Law No. 29158, Organic Law of the Executive Power; and Law No. 30424, Law that regulates the administrative liability of legal entities;

DECREES:

Article 1.- Approval

The Regulation of Law No. 30424, Law that regulates the administrative liability of legal entities, is approved, which, as an Annex, forms an integral part of this Supreme Decree.

Article 2.- Publication

This Supreme Decree and its Annex are published in the Official Newspaper El Peruano, as well as on the Web Portal of the Peruvian State (www.peru.gob.pe), of the Ministry of Justice and Human Rights (www.minjus.gob.pe), of the Ministry of Economy and Finance (www.mef.gob.pe) and of the Ministry of Production (www.produce.gob.pe), on the same day of its publication in the official newspaper El Peruano.

Article 3.- Financing

The implementation of this regulation, in the case of public entities, is funded from their institutional budget, without demanding additional resources from the Public Treasury.

Article 4.- Countersignature

This Supreme Decree will be countersigned by the Minister of Justice and Human Rights, by the Minister of Economy and Finance and by the Minister of Production.

Given in the Government House, in Lima on the eighth day of the month of January of the year two thousand nineteen.

MARTÍN ALBERTO VIZCARRA CORNEJO
President of the Republic

VICENTE ANTONIO ZEBALLOS SALINAS
Minister of Justice and Human Rights

CARLOS OLIVA NEYRA
Minister of Economy and Finance

RAÚL PÉREZ-REYES ESPEJO
Minister of Production

REGULATION OF LAW NO. 30424,
LAW THAT REGULATES THE ADMINISTRATIVE
LIABILITY OF LEGAL ENTITIES

TITLE I
GENERAL PROVISIONS

Article 1.- Object and purpose

This Regulation has as its object to establish, specify and develop the components, standards and minimum requirements of the prevention models that legal entities may voluntarily implement in their organization in order to prevent, identify and mitigate the risks of commission of crimes through their structures, in accordance with what is provided in article 17 of Law No. 30424, Law that regulates the administrative liability of legal entities and its modifications.

The voluntary implementation of a prevention model aims to prevent, detect and mitigate the commission of crimes, as well as to promote integrity and transparency in the management of legal entities.

Article 2.- Scope of Application

This Regulation applies to all legal entities mentioned in article 2 of Law No. 30424, which comprises private law entities, as well as associations, foundations, non-governmental organizations and unregistered committees, irregular societies, entities that administer an autonomous patrimony and state-owned enterprises or mixed economy companies, which may be exposed to the risk of commission of the crimes collected in article 1 of the same norm.

Article 3.- Classification of legal entities for the purposes of the prevention model

According to the regulations on the matter, legal entities are classified as:

1. Large company: annual sales exceeding 2300 UIT.
2. Medium-sized company: annual sales exceeding 1700 UIT and up to the maximum amount of 2300 UIT.
3. Small company: annual sales exceeding 150 UIT and up to the maximum amount of 1700 UIT.
4. Micro company: annual sales up to the maximum amount of 150 UIT.

For the purposes of this regulation, regarding non-profit legal entities or those in which a classification cannot be determined by the level of annual income, the classification will be given taking into consideration the number of workers, according to the following:

El Peruano / Wednesday, January 9, 2019 LEGAL NORMS 45

1. Large company: more than 250 workers.
2. Medium-sized company: from 51 to 250 workers.
3. Small company: from 11 to 50 workers.
4. Micro company: from one to 10 workers.

Article 4.- Principles of the prevention model

The following are principles for the design, approval, implementation, monitoring and continuous improvement of prevention models:

1. Accessibility: the policies, actions, procedures, strategies that make up the prevention model, as well as support materials, are easily accessible and formulated in clear and understandable language, in order to facilitate access, promotion and knowledge of the model among workers and commercial partners, and when applicable to stakeholders.
2. Adaptability: the policies, actions, procedures and strategies that make up the prevention model adapt to the nature, needs, size, structure, geographic operations, business model and other concrete characteristics of the legal entity, based on the risks to which it is exposed, in each concrete case.
3. Commitment and leadership: the highest bodies of government, administration and senior management of the legal entity or those who act on its behalf, are responsible for leading the implementation and proper functioning of the prevention model, through their firm, active and visible commitment and support.
4. Continuity: the prevention model is a continuous process, which permanently adapts to changes in the business environment and the legal entity.
5. Documentation: legal entities document and evidence the processes, controls, risk assessment and the results of that assessment, as well as all elements that support that the prevention model functions adequately.
6. Efficiency: the legal entity must adequately employ and optimize its resources for the design, approval and implementation of the prevention model, in order to not incur in unnecessary costs and burdens that could put its efficacy, effectiveness and sustainability at risk.
7. Continuous risk evaluation: implies the identification, evaluation and continuous monitoring of risky activities, as well as those that may increase or create new risks, know their consequences, as well as value the existence of factors that could prevent the commission of the crime or mitigate the risk of its commission.
8. Independence: the prevention and compliance function is endowed with maximum independence, so that the decision-making and actions undertaken by the prevention officer cannot be conditioned by issues or assumptions that prevent or hinder the development of their functions.
9. Proportionality: the controls implemented by the legal entity are proportional to the level of risk, to the probability of the commission of criminal acts and to their potential effects.
10. Publicity and preventive communication: legal entities, regardless of their size and capacity, inform about their programs, policies and practices to prevent the commission of crimes to their workers, and when applicable to commercial partners and stakeholders. This does not imply the disclosure or duty to report on issues that attack or may attack the interests of the legal entity.
11. Reasonableness: the controls implemented by the legal entity have the reasonable possibility of preventing, detecting and mitigating the risks of crimes.

Article 5.- Definitions

For the application of this Regulation, the following definitions are considered:

1. Autonomy: authority and functional independence of the prevention officer, who has sufficient capacity to supervise and enforce the prevention model. It does not necessarily imply exclusive dedication to the task nor belonging to the internal structure of the organization.
2. Senior Management: person or group of people who direct a legal entity at the highest level. They have responsibility for the management of the entire organization of the legal entity.
3. Conflict of interest: Situation where business, financial, family, political or personal interests may interfere with the value judgment of people in the performance of their functions or obligations inside and towards the legal entity.
4. Financial controls: management systems and processes with which the legal entity has to control its financial transactions with precision, comprehensively and in a timely manner, with the purpose of registering these transactions and mitigating the risk of commission of crimes.
5. Non-financial controls: processes or tools with which the legal entity has for the purpose of managing and mitigating the risk of commission of crimes with respect to sensitive or critical areas, such as purchases, operations, sales, commercial, human resources, legal and regulatory activities.
6. Internal contexts: conditions related to the nature and internal composition of the legal entity, such as its size, structure, scale and its complexity of its organization as well as its operations.
7. External contexts: conditions related to the interactions of the legal entity with the market.
8. Due diligence: process through which the legal entity identifies and evaluates in detail the nature and scope of crime risks within the framework of its activity, which allows for informed decision-making, with the purpose of preventing or mitigating the risk of the commission of crimes, in the scope of commercial transactions, projects, activities, commercial partners and personnel considered within these categories.
9. Crimes: those provided for in article 1 of Law No. 30424, Law that regulates the administrative liability of legal entities and its modifications.
10. Public official or civil servant: all persons included in article 425 of the Penal Code.
11. Technical Report: Report issued by the Securities Market Superintendence SMV that contains a technical opinion on the implementation and effectiveness of the prevention model within the framework of Law No. 30424 and its modifications, which does not have the nature of an administrative act.
12. Law: Law No. 30424, Law that regulates the administrative liability of legal entities.
13. Prevention model: ordered system of norms, mechanisms and procedures of prevention, surveillance and control, voluntarily implemented by the legal entity, destined to reasonably mitigate the risks of commission of crimes and to promote integrity and transparency in the management of legal entities.
14. Governing body: group or body that has the final responsibility and authority regarding the activities, governance and policies of an organization, to which senior management reports and by which it is accountable.
15. Administrative body: group or body in charge of the administration, management and representation of the legal entity, carrying out the acts proper to its social object.
16. Risk profile: is the result of the risk assessment of the legal entity that allows knowing the degree of vulnerability of being involved and facing the commission of crimes, as a consequence of the exercise of its activities.
17. Stakeholders: natural or legal person who can affect the achievement of the objectives of a legal entity or who can be affected by the achievement of the same.
18. Legal entity: private law entities, associations, foundations, non-governmental organizations and unregistered committees, irregular societies, entities that administer an autonomous patrimony and state-owned enterprises or mixed economy companies, as well as any other that is included in article 2 of the Law that, voluntarily, adopts a Prevention Model.
19. Process: set of mutually related activities that interact to elaborate or transform some element.
20. Risk: effect of the uncertainty of the fulfillment of objectives. This is the deviation with respect to the expected objectives, whether positive or negative.
21. Inherent risk: is the level of risk to which the legal entity is exposed in the exercise of its activities in attention to all the elements and characteristics that make up its risk profile. It is defined by combining the probability of occurrence of the risk in a foreseeable period and the impact of the occurrence according to the calculation of the consequences of a legal, commercial, operational, reputational and any other nature.
22. Residual risk: is the level of risk remaining after the implementation of the elements and controls of the prevention model destined to mitigate the inherent risk of the legal entity.
23. System for the Prevention of Money Laundering and Terrorism Financing: the system for the prevention of ML/FT is composed of the policies and procedures established by the obligated subjects, in accordance with the regulatory provisions on the matter. Through the management of ML/FT risks, it seeks to prevent and avoid that the activities they develop, or the services that the obligated subjects provide to the public, are used for the commission of crimes of money laundering or terrorism financing, through the detection of unusual operations and of suspicious operations carried out or that have been attempted to be carried out.
24. Commercial partners: those natural or legal persons linked to the legal entity by a reciprocal economic or commercial interest, which include, but are not limited to, clients, partners of joint ventures, consortia or any other form of business association, suppliers, contractors, subcontractors, agents, distributors, intermediaries and investors.

TITLE II
STRATEGIC PHASES FOR
RISK MANAGEMENT

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