UPDATE: Essential Issues of the Peruvian Legal System
By Sergio Endress Gómez and Milagros Bustillos Pinto
Sergio Endress Gómez has a Masters in Law from the Universidad de Chile. Since 1994, he has
been a lawyer and a Professor of Taxation and Trial Taxation at the School of
Law of the Universidad de Chile. He is also a partner of Endress, Israel, Olguín, Lawyers and Tax Advisors. He has published "Las inversiones en materia Tributaria"
(Investment from tax perspective), Editorial Conosur, 1994-1998; "Manual de Impuesto a la Renta" (Income Tax Handbook), by Patricio Figueroa V., Editorial Jurídica de Chile, 1997 and reprinted 2004, (in
collaboration); "Tributación del Propietario de Empresa", (Shareholders and Partners Taxation in
Chile), Editorial Jurídica de
Chile, 2005; and several articles about taxation.
Milagros Bustillos Pinto is a specialist
on Tax Law (graduated from Pontificia Universidad Católica del Perú in 1985)
and a Partner of Hernández & Cía. Abogados in Lima , Perú. She has
participated in several research work teams carried out by the Peruvian
Institute of Tax Law, the International Fiscal Association (IFA) Peruvian
Group, the International Association of Taxation and Human Rights, Latin
American Institute of Tax Law, among others. She is a member of the Board of
Directors of the Peruvian Institute of Tax Law (IPDT) and an active member of
the International Fiscal Association (IFA), Peruvian Group. She is former
assistant professor of Tax Law I (Tax Code) at the Law School of the
Pontifical Catholic University of Peru and former Professor of Tax law II
(Income Tax) at the University of Lima. She was also professor of Tax Law II at
the Administration and Accountancy Schools of the Academic Department of
Political and Social Sciences at The Pacific University.
Published October 2009
Table of Contents
Peru is located on the Pacific Coast side of the continent of South America, with an area of 1,285,215 km2 (slightly smaller than the State of Alaska), and has a population of 28,220,764 habitants (2007). The capital city is Lima, located in the center coast of the country with a population of 8,445,200 habitants (2007). The population is in majority Catholic (89 %) and from an ethnic point of view they are 45% Amerindian, 37% mixed, 15% Indo-Europeans, 3% Afro-American, Orientals, among others. As part of its cultural wealth, a multitude of native languages coexist in Peru. Although Spanish is the language of common use, the Quechuan is an important heredity of the Inca past. There also exist other dialects such as the Aymara and diverse Amazon languages that are distributed in a surprising variety of families. In general terms, the weather is mixed from tropical in the eastern rainforest, passing through cold on the Andes, to dry desert in the western coast. The official currency of Peru is the Nuevo Sol (S/.).
The Republic is ruled by the Political Constitution of 1993 (Constitución Política de 1993), approved by the Democratic Constituent Congress (Congreso Constituyente Democrático) and then ratified by referendum with 52 % of the vote (the amount of total electors was 8,178,742), and in force since December 31, 1993. The reform of the Constitution requires a simple majority from Congress and referendum. Otherwise, the reform can be approved by two consecutive congressional approvals, with specific quorums. Thirty four articles of the Political Constitution of 1993 have been modified since it came into force.
As it is expressed in the Political Constitution of 1993, the Republic of Peru is democratic, social, independent and sovereign.
The government is Unitarian, representative and decentralized, and is organized according to the principle of separation of powers (Executive, Legislative and Judicial Powers).
The President is the Chief of State and represents the Nation. He must be more than 35 years old and must enjoy suffrage rights. He is directly elected by public elections for the people and he has to win a half plus one of the total electors. As in other countries, Peru has a second ballot formula to elect from two main majorities, if none of them can obtain more than 50% in the first round. The Presidential mandate is for five years without chance for immediate reelection.
Alongside the President is a Council of Ministers (Consejo de Ministros) who has to approve, with majority, Legislative Decrees (Decretos Legislativos) and proposal Laws (proyectos de Leyes) from the President.
The legislature is currently a unicameral National Congress. It has a Legislative Chamber composed of 120 legislators serving five year terms. Elections were last held on April 9, 2006 (next to be held on April, 2011).
The Congress has among its duties the task of issuing, modifying and derogating Laws and Legislative Resolutions (resoluciones legislativas), as authorizing International Treaties. The President and congressmen have legislative initiative, but in specific matters certain organizations (and even citizens) have this power.
When the Congress approves a law, it will be sent to the President to sign it. The President can propose changes to the law before enacting it, within fifteen days. Made to reconsider by the Congress, the President of the Congress, with the approval of the majority of members, can enact the law. This means that the President of the Congress with the approval of the majority of the members can enact the law despite the fact that the President does not agree with the law.
The Executive Power could issue Legislative Decrees, which has the same hierarchy of a Law (issued by the Congress). Notwithstanding that, the Congress must give authority (throughout a law) to the Executive Branch (President) to act in place of Congress with the purpose to make and enact new laws. In these cases, the delegation act should be previous to make and enact the specific law by the President (executive power).
The judicial system consists of the Supreme Court and other Courts and judges as defined by law. The National Council of the Magistracy (Consejo Nacional de la Magistratura) selects and appoints judges. There is a Public Prosecutor and a Public Defender. The Public Prosecutor has the duty to represent the public interest and to defend the rule of law. This site has a jurisprudence database according to the site.
The Constitutional Court (Tribunal Constitucional) is autonomous and independent, formed by seven members elected for five years by the Congress. The Court must review the contradiction/opposition between laws and the Political Constitution of 1993. The Court also has to make the final judgment in the constitutional trials about habeas corpus, habeas data, amparo and cumplimiento.
This site provides full access of jurisprudence, going through the link “JURISPRUDENCIA” found on the left side on the main page of the site.
The Republic is divided into 24 regions, which are further divided into provinces and districts. The regions are Amazonas, Ancash, Apurimac, Arequipa, Ayacucho, Cajamarca, Cusco, Huancavelica, Huanuco, Ica, Junin, La Libertad, Lambayeque, Lima, Loreto, Madre de Dios, Moquegua, Pasco, Piura, Puno, San Martín, Tacna, Tumbes y Ucayali. There is also one constitutional province named Callao.
Laws and regulations are published in "El Peruano", a newspaper founded in 1825 by Simon Bolivar, an important Latin-American hero during the independence wars.
Peru has a civil law system.
In accordance with article 36, paragraph 2, of the Statute of the International Court of Justice, Peru recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation and on condition of reciprocity, the jurisdiction of the International Court of Justice in all legal disputes.
Legislation is accessed by year and month. A separate library, similarly organized, provides brief summaries arranged by subject of laws and regulations appearing in El Peruano.
You can find the full text of laws for free online (government site).
· The Constitutional Procedural Code (Código Procesal Constitucional), Law Nº 28.237. It was enacted in May 28, 2004, and published in May 31, 2004. It contains process rules to exercise the most important constitutional actions and remedies like, habeas corpus, habeas data and amparo. The trial of Amparo is the main remedy to protect most of the rights granted/established in the Peruvian Political Constitution of 1993.
· The Civil Code (Código Civil) was enacted in 1984, and was enforced in November of the same year by the Law Nº 23.403 of July 27, 1984. It was a result of special commissions who revised a proposed project of the Civil Code made by a Commission established in 1965, by the Supreme Decree (Decreto Supremo) Nº 95, from March 1, 1965. The text has 2.132 articles, distributed in ten Sections (Libros") with a final section.
· The Commercial Code (Código de Comercio) was enacted in February 15, 1902.
· The Corporate General Law (Ley General de Sociedades) was established by Law Nº 26.887 in 1998.
· The Penal Code (Código Penal) was enacted in April 3, 1991 and published in April 8, 1991. It was the result of several Commissions appointed to revise and improve a previous project. The Congress gave authority (throughout the law Nº 25.280) to the Executive Branch (President) to act in place of the Congress with the purpose of drafting and enacting a new penal code.
· The oldest Peruvian Law review - From Pontificia Universidad Católica del Peru