The Regulation of the Law of Coercive Execution Procedure, PERU
Updated as of December 14, 2021.
They approve the Regulation of the Law of Coercive Execution Procedure
SUPREME DECREE No. 069-2003-EF
CONFORMITIES: RM N ° 262-2003-PRODUCE D.S. No. 008-2008-MTC, Art. 28 D.SN ° 010-2017-MINEDU (Regulation), Art.274 (Coercive enforcement of sanctions)
THE PRESIDENT OF THE REPUBLIC
That, through Law No. 26979, the legal framework applicable to acts of coercive execution exercised by Public Administration entities, with the exception of the Central Government Tax Administration, was established;
That, by means of Supreme Decree No. 036-2001-EF, the Regulation of the Law of Coercive Execution Procedure was approved;
That, the subsequent entry into force of Law No. 27444, Law of General Administrative Procedure and Law No. 27584, Law of the Contentious-Administrative Process, has led to the introduction of transcendental changes in the legal system referring to the exercise of administrative powers linked to the processing of administrative procedures as well as their control through the contentious-administrative process.
That, in this sense, it is essential to adapt the regulations regarding the coercive enforcement procedure, linked to the forced execution of non-tax obligations under the jurisdiction of Public Administration Entities as well as tax obligations under the jurisdiction of Local Governments, the new general regulatory framework provided for by the provisions referred to in the previous recital;
That, as a consequence of the aforementioned, the issuance of a new Regulation of the Coercive Execution Procedure Law and the partial repeal of the Regulation approved by Supreme Decree No. 036-2001-EF.
In use of the regulatory powers conferred by paragraph 8 of Article 118 of the Political Constitution of Peru.
Article 1.- Approve the Regulation of the Coercive Enforcement Procedure Law, which consists of Sixteen (16) Articles and One (1) Transitory and Final Provision, the same one that, as an annex, forms an integral part of this Supreme Decree .
Article 2.- Repeal Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 13 and 14 as well as the First, Second and Third Transitory and Final Provisions of the Regulation of the Coercive Execution Procedure Law , approved by Supreme Decree No. 036-2001-EF.
Article 3.- This Supreme Decree will be endorsed by the Minister of Economy and Finance.
Given at the Government House, in Lima, on the twenty-sixth day of the month of May of the year two thousand and three.
Constitutional President of the Republic
JAVIER SILVA RUETE
Minister of Economy and Finance
REGULATION OF THE COACTIVE ENFORCEMENT PROCEDURE LAW
Article 1.- Purpose and Scope
These Regulations regulate the nature, purpose, functions, requirements and the coercive enforcement procedure exercised by entities of the National Public Administration, by virtue of the powers granted by specific laws, and within the framework of what is established by Law No. 26979, Coercive Execution Procedure Law.
Article 2.- Definitions
When in this Regulation mention is made of the Law, it will be understood that the reference is to the Law of Coercive Execution Procedure. In the same way, when in these Regulations mention is made of the Procedure, it will be understood that the reference is to the Coercive Execution Procedure, and when the Entity is mentioned, it will be understood that the reference is to the entities of the National Public Administration.
Article 3.- Function of the Coercive Executor
3.1 The Executor is the holder of the Procedure and exercises, on behalf of the Entity, the actions of coercion to comply with the Obligation, in accordance with the provisions of the Law.
3.2 The coercive executor may not delegate to other people and / or agencies the exercise of the enforcement actions referred to above.
3.3 Only Coercive Executors duly accredited before the entities of the financial and banking system, the National Police of Peru, the different registry offices of the national territory and before the Bank of the Nation, may order embargoes or require their compliance. Said accreditation must contain, at least, the name of the person, the number of the personal identification document, the personal address, the registration number corresponding to the tuition fee in the case of the provinces of Lima and Callao as well as the other capitals of Provinces and Departments, the number and date of the resolution that designates it, the corresponding register of signatures and stamps, the address of the office where the Coercive Execution Office of the Entity operates. The accreditation of the Coercive Executor must be signed by the holder of the corresponding Entity.
Third parties will require, under responsibility, the aforementioned accreditation, being exempted from executing the precautionary measures that are dictated in case it is not complied with and / or is not in accordance with the provisions of this standard.
3.4 In the case of local governments, the coercive executor may not carry out his functions outside the province to which the entity he represents belongs. In order to extend its functions to another provincial or district jurisdiction, the coercive executor must issue an exhortation to the coercive executor of the Provincial Municipality corresponding to the place where it is intended to carry out the actions of execution of the act, the provisions of Title Four being applicable for these purposes of the Third Section of the Civil Procedure Code. In this case, compliance with this requirement cannot be excepted by application of what is established in the Third Complementary and Transitory Provision of the Law. In the event that the free coercive executor simultaneously exhorts two or more Provincial Municipalities, the coercive executor, under responsibility, must immediately notify the executors called upon the fulfillment of the obligation and the consequent termination of the coercive execution procedure that had been entrusted to them.
The coercive executor called upon will only be empowered to carry out those actions inherent to the coercive execution procedure that are expressly stated in the order. Once the warrant is issued, the coercive executor of the Provincial Municipality is the only competent official to carry out the acts related to the coercive execution procedure that is the subject of the warrant, remaining subject to the civil, criminal and administrative responsibilities referred to in Article 22 of the Law.
It is the responsibility of the coercive executor called upon to control the legality of the procedure followed in accordance with this rule, with respect to the actions that are entrusted to carry out by warrant, under responsibility. If the exhorted executor notices the existence of irregularities and / or violations of the ordinance in matters of coercive enforcement or the General Administrative Procedure Law, he will return the letter of exhortation to the exhorting coercive executor, under responsibility, to proceed to correct the observations made. . In the latter case, the acts of execution carried out by the coercive executor exhorted will be automatically suspended, the provisions of paragraph 16.5 of Article 16 of the Law being applicable.
Article 4.- Initiation of the coercive enforcement procedure
4.1 The Coercive Executor may only initiate the Procedure when the Entity has duly notified him of the administrative act stating that the obligation is enforceable in accordance with the provisions of Article 9 of the Law.
4.2 A coercive enforcement procedure may not be initiated against the obligated party or jointly and severally liable, while an appeal is pending in the administrative proceedings against the act establishing the Obligation or the period legally foreseen for the filing of the same is in force, in any administrative instance.
Neither may a coercive enforcement procedure be initiated against the joint and several liable, while an appeal is pending in the administrative proceedings against the resolution of the imputation of joint and several liability or the period legally foreseen for the filing of the same is in force, in any administrative instance. .
The resolution of imputation of joint and several liability can only be issued by the authority that issued the original administrative act, where the enforceability of the obligation is established. The coercive executor is not competent to impute joint and several liability, under responsibility.
4.3 The resolution of coercive execution referred to in Article 14 of the Law, will be notified accompanied by a copy of the administrative resolution that generates the obligation of forced execution, as well as the corresponding proof of its personal notification in which the date on which the latter was carried out. If the personal notification could not be carried out, a copy of the notification made in the publication mode will be attached.
If the administrative resolution that generates the obligation of forced execution had been notified according to numeral 21.3 of article 21 of the Law of General Administrative Procedure (Law No. 27444), for the purposes of coercive execution, a copy of the act to which it refers will be attached. said rule.
Said record must contain the signature of two witnesses in the event that the person with whom the notification of the administrative resolution was understood, had refused to identify or sign . (*)
(*) Numeral modified by Article 1 of Supreme Decree No. 154-2014-EF , published on June 26, 2014 , the text of which is as follows:
" 4.3 The resolution of coercive execution referred to in article 14 of the Law, will be notified accompanied by a copy of the administrative resolution that generates the obligation of forced execution, as well as the corresponding proof of its personal notification in which it appears the date the latter was carried out If the personal notification could not be carried out, a copy of the notification made in the form of publication will be attached.
If the administrative resolution that generates the obligation of compulsory execution had been notified according to numeral 21.3 of article 21 of the Law of General Administrative Procedure (Law No. 27444), modified by Legislative Decree No. 1029, for the purposes of coercive execution, A copy of the record referred to in said norm shall be attached "
Such minutes must state the characteristics of the place where it has been notified. "
4.4 Administrative acts that contravene the provisions of the preceding paragraphs, in application of the provisions of Article 10 of Law No. 27444, Law of General Administrative Procedure, are null and void.
Article 5.- Suspension of the coercive enforcement procedure
For the purposes of applying the provisions set forth in Article 16 of the Law, regarding the suspension of the coercive enforcement procedure, the following rules apply:
5.1 The grounds for suspension of the coercive enforcement procedure provided for in numeral 16.2 of Article 16 of the Law, includes the existence of a mandate issued by the Judicial Power in the course of an amparo or administrative contentious process, or when a measure is issued. precautionary within or due to the contentious-administrative process. For such purposes, the suspension of the coercive enforcement procedure will be appropriate both in the cases in which the mandate or precautionary measure so expressly provide it, and in the cases in which they are intended to suspend the effects of the acts. administrative constitutive of the obligation subject to compulsory execution.
The suspension of the procedure must occur on the date of the notification of the judicial mandate and / or the precautionary measure, or of the disclosure of the same by the executed or third party in charge of the retention, in the latter case, by means of an attached letter. copy of the injunction or precautionary measure, and without prejudice to the provisions of Article 9 of these Regulations and other regulations in force referring to the demand for judicial review.
5.3 Notwithstanding the provisions of Article 16 of the Law, the coercive executor as agent of the Entity that designates him and holder of the Procedure is subject to the decision of the Entity, which at any time has the power to modify or to render the Obligation without effect, having to suspend the coercive procedure, where appropriate.
In the event that the competent Administrative or Judicial Authority revokes the decision of the Entity that gave rise to the Procedure, the latter, under responsibility, must issue the pertinent orders to the Coercive Executor to comply with the decision issued by the competent Authority.
5.4 The provisions of this Article also apply to coercive enforcement procedures whose purpose is the collection of tax obligations from Local Governments.
5.5. In all cases of suspension of coercive enforcement provided for in this Regulation, numeral 16.5 of article 16 of the Law will be automatically applied.
Article 6.- Obligation and responsibility of the third party
In the event of any of the assumptions referred to in numerals 18.1 and 18.2 of Article 18 of the Law, the following provisions shall apply for the determination of joint and several liability referred to in numeral 18.3 of said article:
6.1 The imputation of joint and several liability to the third party may only be carried out by means of an express administrative act issued, after an administrative procedure, by the same body of the entity that determined the Obligation that is the subject of the coercive execution procedure in process, and notified in accordance with the law .
6.2 The administrative act that imputes responsibility to the third party may be subject, as appropriate, to administrative challenge through the remedies provided for in Law No. 27444, Law of General Administrative Procedure. For the purposes of the eventual forced execution of joint and several liability imputed to the third party, a coercive enforcement procedure other than the main procedure must be initiated, for which the provisions set forth in the Law must be complied with.
6.3 The grounds for suspension referred to in literal e) of numeral 16.1 of Article 16 of the Law, is also applicable to the coercive enforcement procedure that is initiated against the third party.
6.4 Administrative acts issued by the Coercive Executor, which contravene or imply the usurpation of administrative powers in accordance with the provisions of this rule, are null and void.
6.5 What is established in this Article is also applicable in the case of coercive enforcement procedures aimed at collecting tax obligations under the jurisdiction of Local Governments.
Article 7.- Precautionary Measures
The power to block preliminary precautionary measures, referred to in Article 13 of the Law, must be subject to compliance with the following rules:
7.1 In order to comply with the requirement contemplated in numeral 13.1 of article 13 of the Law, it will only be understood that there are reasons that allow objectively to presume that the coercive collection may become unsuccessful when the Entity has reliably determined that the Obligor performs actions with the Obligor. Manifest and indubitable purpose of hiding their assets or income to avoid paying the Obligation, which must be expressly and in detail stated in the motivation of the respective resolution that provides for the precautionary measures prior to the initiation of the coercive enforcement procedure, under penalty of nullity, and consequent non-enforceability for third-party retainers.
7.2 If the intervening precautionary measure is of intervention in collection, the third party controller must directly consign the funds collected in an administrative deposit in the name of the Entity in the Banco de la Nación. The funds deposited in said account will be retained and can only be delivered after the completion of the Procedure and, if applicable, after the Superior Court of Justice has ruled on the legality of the seizure and on the origin of the delivery. of withheld funds, resolving the request for review referred to in Article 9 of this Regulation and other regulations in force on the matter, when it had been raised. In any case, the Entity must prove to the Banco de la Nación that the Procedure has concluded. The Banco de la Nación will be empowered to withhold the funds if it considers that these conditions are not met, and must inform the General Comptroller of the Republic of any act that violates the provisions of this Article.
7.3 If the precautionary measure is blocked in the form of withholding, the coercive executor may not withdraw or demand that they make available the goods, securities, funds in checking accounts, deposits, custodians and others, on which said measure falls, until after it has become final and, if applicable, until after the Superior Court of Justice has ruled on the legality of the seizure and on the origin of the delivery of withheld funds, deciding to declare unfounded the request for review filed refers to Article 9 of this Regulation and other regulations in force on the matter, when it has been raised.
The withholding third party has a maximum period of five (5) business days counted from the notification of the precautionary measure, to inform the coercive executor of the retention or the impossibility of it.
The third party withholding must inform the obligated party of the preliminary precautionary measure after the retention has been made.
7.4 If the preliminary precautionary measures are not made final within the period provided for in paragraph 3) of Article 13 of the Law, they will expire by right and the third parties who have in their possession assets affected by said precautionary measure must return them to the Obligor to single request for it.
7.5 In the event that the obligor submits the surety letter referred to in numeral 13.6 of Article 13 of the Law, the Entity must pronounce on the sufficiency of the surety letter to guarantee the amount for which the precautionary measure was blocked, within the three business days from the presentation of the letter of guarantee, under the responsibility of its holder. The lifting of the preliminary precautionary measure will occur automatically, when the favorable pronouncement of the Entity occurs or, at the expiration of the period indicated for that purpose. This circumstance may be made known to third parties, by the obligor.
Article 8.- Various provisions regarding precautionary measures in coercive enforcement procedures
8.1 To order the delivery of retained or collected funds, or to carry out compulsory execution by auction or any other method, the coercive executor must necessarily have previously notified the obligee with the Resolution that informs him of the initiation of the compulsory execution. . The Coercive Executor must also notify the obligee, by means of Resolution, of the conversion of the preventive embargo into definitive or the order to lock one of such nature, specifying the modality of the same.
8.2 If the definitive embargo falls on the funds deposited in the Banco de la Nación in accordance with the provisions of paragraph 7.2 of Article 7 of these Regulations, or if it is in the form of withholding on assets, securities, funds in current accounts, deposits, custodian and others or on credit rights of which the obligor is the holder and that are in the power of third parties, the controller or the withholder, as the case may be, will inform the obligor of the existence of the embargo after the retention has been made.
8.3 In the case of seizures in the form of withholding, the measure may only be executed by notifying the third party thereof. In both cases, the third party has a maximum period of five (5) business days counted from the notification, to inform the Executor of the retention or the impossibility of it. If after said period has elapsed there is no response from the third party, it will be understood that the meaning of the same is negative and that, therefore, he does not have the property of the obligor in his possession, under responsibility.
8.4 Administrative acts issued in contravention of the provisions of this Article, in application of the provisions of Article 10 of Law No. 27444, Law of General Administrative Procedure, are null and void.
Article 9.- Judicial Review of the Coercive Execution Procedure
For the purposes of the judicial review process provided for in Article 23 of the Law and regulatory norms, the Specialized Administrative Litigation Chamber of the respective Superior Court will be competent, in the place where the coercive execution procedure for review was carried out. or the competent one at the domicile of the obligor. In places where there is no Specialized Chamber for Administrative Litigation, the corresponding Civil Chamber is competent and, failing that, the one that takes its place. (*)
(*) Numeral modified by Article 1 of Supreme Decree No. 201-2011-EF , published on November 10, 2011 , the text of which is as follows:
“Article 9.- Judicial review of the Coercive Execution procedure.
For the purposes of the judicial review process provided for in Article 23 of the Law and regulatory norms, the Specialized Administrative Litigation Chamber of the respective Superior Court will be competent, in the place where the coercive execution procedure for review was carried out. or the competent one at the domicile of the obligor. In places where there is no Specialized Chamber for Administrative Litigation, the corresponding Civil Chamber is competent and, failing that, the one that takes its place.
In the case of the second paragraph of numeral 23.4 of the Law, if the plaintiff does not present a surety policy within the established period, an irrevocable, unconditional and immediately enforceable guarantee letter, issued by a first-rate local bank in the name of the creditor entity for the amount of the obligation renewable every six (6) months; or does not make the consignment of the required amount before the Banco de la Nación on behalf of the Superior Court of Justice, the executor may automatically continue with the procedure.
When the coercive enforcement procedure is followed against a State entity, in order to resume it, a duly motivated judicial resolution that authorizes it must be issued, considering the parameters established by the Constitutional Court ruling No. 015-2001 as applicable. -AI-TC, 016-2001-AI-TC and 004-2002-AI-TC. ?
Article 10.- Nullity of Acts that contravene or restrict judicial or administrative mandates
Administrative acts issued by the Coercive Executor that intend to breach, question, contradict or restrictively interpret the resolutions and / or mandates issued by the competent jurisdictional and / or administrative bodies, which have direct or indirect impact on the processing of coercive enforcement procedures; including, but not limited to, the resolutions that declare founded the requests for precautionary measures that have as their object the suspension of the coercive enforcement procedure or the effects of the administrative act constituting the obligation that is the subject of said procedure, as well as the judicial orders and / or administrative that expressly order suspension of the coercive enforcement procedure.
What is established in this regulation also applies to coercive enforcement procedures aimed at collecting tax obligations from Local Governments.
Article 11.- Subscription of Agreements between entities of the Public Administration
The power of Public Administration entities to enter into collaboration agreements with the Banco de la Nación or with other public entities of an administrative nature, in order to entrust them with the processing of coercive enforcement procedures, established in the Third Complementary and Transitory Provision of The Law must be exercised within the framework of the provisions of Articles 76 and following of Law No. 27444, Law of General Administrative Procedure.
Collaboration agreements may not have as their object the partial or total transfer of territorial jurisdiction of coercive enforcement. In the specific case of Local Governments, the power to enter into Agreements must be carried out without contravening the express provisions contained in numeral 3.4 of Article 3 of these Regulations.
Acts that contravene the provisions of this Article, in application of the provisions of Article 10 of Law No. 27444, Law of General Administrative Procedure, are null and void.
It should be specified that the notifications of the acts referred to in this law will be made in accordance with the provisions of Law No. 27444, Law of General Administrative Procedure, in accordance with the rules detailed below:
a) The valid address of the company will be the one registered as a taxpayer with the creditor entity. In the event that a tax relationship is not maintained with the entity, the provisions of Article 21 of Law No. 27444, Law of General Administrative Procedure, shall apply.
b) In no case will the notification made in a manner other than personal notification, by certified mail and the subsidiary publication be considered valid.
c) The subsidiary publication will also be appropriate when, exclusively for reasons attributable to the manager, which must be demonstrated by the Coercive Executor, the personal notification or by certified mail becomes unsuccessful.
Article 13.- Notification of resolutions to third parties
The Judicial Power and the Fiscal Court must notify the third parties that the administered or obligated party indicates, the resolutions they issue on the suspension of the coercive enforcement procedures and the lifting of precautionary measures. These resolutions will be mandatory until the aforementioned entities issue new resolutions, rendering them ineffective and notify third parties.
Notwithstanding the aforementioned, the obligee or the company to whom joint and several liability is imputed subject to coercive enforcement, may deliver to third parties a simple copy of the charge of the resolutions referred to in the preceding paragraph, which must be evidenced of the date of notification to the interested party. In the absence of notification by the bodies to which reference has been made, the copy sent by the company will constitute a sufficient element to exempt third parties from making withholdings and / or proceed to the delivery of the goods on which a precautionary measure of However, for the duration of the suspension of the coercive execution procedure.
Article 14.- Prohibition of Inapplication of current regulations
The Executor and the Coercive Assistant in the exercise of their functions, and in application of the provisions of numeral 1.1 of Article IV of the Preliminary Title of Law No. 27444, Law of General Administrative Procedure, are prevented from not applying the legal norms or current regulations. Administrative acts that are issued in contravention of this Article are null and void, in application of the provisions of Article 10 of Law No. 27444, Law of General Administrative Procedure.
Article 15.- Entry into force
These Regulations will enter into force on the day following their publication in the Official Gazette El Peruano.
Article 16.- Procedures in process
The procedures that are in process from the effective date of this law, will be adapted, under the responsibility of the Executor as well as of the Entity, to the provisions established in this Regulation.
TRANSITIONAL AND FINAL PROVISIONS
Sole.- The judicial review processes that are in process at the entry into force of this Regulation and that, by virtue of the provisions of the Second Transitory and Final Provision of the Regulation of the Law of Coercive Execution Procedure approved by Supreme Decree No. 036-2001-EF, had been initiated before the Civil Chamber or the one that takes its place in the respective Superior Court, or the Civil Chamber of Abbreviated Processes and Knowledge in the case of the Superior Court of Lima, will continue the process in said instances, until the culmination of the respective processes.