Single Ordained Text of Law 27444 LAW of General Administrative Procedure OF PERU
Single Ordained Text of Law 27444 LAW of General Administrative Procedure OF PERU.
The Single Ordained Text of the General Administrative Procedure Law was published by Supreme Decree 004-2019-JUS, published in the official newspaper El Peruano, on January 25, 2019.
LAW OF GENERAL ADMINISTRATIVE PROCEDURE
TITLE I: On the legal regime of administrative acts
Chapter I: Administrative acts
Chapter II: Nullity of administrative acts
Chapter III: Efficacy of administrative acts
TITLE II: Administrative procedure
Chapter I: General provisions
Chapter II: Of the subjects of the procedure
Subchapter I: Of the administered
Subchapter II: Of the administrative authority: General principles and competence
Subchapter III: Collaboration between entities
Subchapter IV: Conflicts of jurisdiction and abstention
Subchapter V: Collegiate bodies
Chapter III: Initiation of the procedure
Chapter IV: Deadlines and terms
Chapter V: Organization of the procedure
Chapter VI: Instruction of the procedure
Chapter VII: Participation of the administered
Chapter VIII: End of the procedure
Chapter IX: Execution of resolutions
TITLE III: On the review of acts in administrative proceedings
Chapter I: Ex officio review
Chapter II: Administrative resources
TITLE IV: Of the trilateral procedure, of the sanctioning procedure and the administrative activity of inspection
Chapter I: Trilateral Procedure
Chapter II: The administrative activity of inspection
Chapter III: Penalty procedure
TITLE V: On the responsibility of the public administration and the personnel at its service
Chapter I: Responsibility of the public administration
Chapter II: Responsibility of the authorities and personnel at the service of the public administration
COMPLEMENTARY AND FINAL PROVISIONS
ADDITIONAL PROVISIONS TRANSITIONAL
REPEALING COMPLEMENTARY PROVISIONS
SINGLE ORDERED TEXT OF THE LAW OF GENERAL ADMINISTRATIVE PROCEDURE
Article I. Scope of application of the law
This Law will be applicable to all entities of the Public Administration. For the purposes of this Law, it will be understood by "entity" or "entities" of the Public Administration:
1. The Executive Power, including Ministries and Public Organizations;
2. The Legislative Power;
3. The Judicial Power;
4. The Regional Governments;
5. Local Governments;
6. The Bodies to which the Political Constitution of Peru and the laws confer autonomy.
7. The other entities, agencies, special projects, and state programs, whose activities are carried out by virtue of administrative powers and, therefore, are considered subject to the common rules of public law, unless expressly mandated by law that refers them to another regime; and,
8. Legal persons under the private regime that provide public services or perform administrative functions, by virtue of a concession, delegation or authorization from the State, in accordance with the regulations on the matter.
The procedures processed by the legal entities mentioned in the previous paragraph are governed by the provisions of this Law, as applicable according to their private nature.
Article II.- Content
1. This Law contains common rules for the actions of the administrative function of the State and, regulates all the administrative procedures developed in the entities, including the special procedures.
2. The laws that create and regulate the special procedures may not impose less favorable conditions on the companies than those provided for in this Law.
3. The administrative authorities, when regulating the special procedures, shall comply with following the administrative principles, as well as the rights and duties of the subjects of the procedure, established in this Law.
Article III.- Purpose
The purpose of this Law is to establish the applicable legal regime so that the actions of the Public Administration serve the protection of the general interest, guaranteeing the rights and interests of those administered and subject to the constitutional and legal order in general.
Article IV. Principles of administrative procedure
1. The administrative procedure is fundamentally based on the following principles, without prejudice to the validity of other general principles of Administrative Law:
1.1. Principle of legality.- The administrative authorities must act with respect to the Constitution, the law and the law, within the powers that are attributed to them and in accordance with the purposes for which they were conferred.
1.2. Principle of due procedure.- The companies enjoy the rights and guarantees implicit in due administrative procedure. Such rights and guarantees include, but are not limited to, the rights to be notified; to access the file; to refute the charges imputed; to present arguments and to present additional arguments; to offer and produce evidence; to request the use of the floor, when appropriate; to obtain a reasoned decision, based on law, issued by a competent authority, and within a reasonable time; and, to challenge the decisions that affect them. The institution of due administrative procedure is governed by the principles of Administrative Law. The regulation of Procedural Law is applicable only insofar as it is compatible with the administrative regime.
1.3. Principle of ex officio impulse.- The authorities must direct and promote
1.4. Principle of reasonableness.- The decisions of the administrative authority, when they create obligations, qualify infractions, impose sanctions, or establish restrictions on the administered ones, must be adapted within the limits of the attributed power and maintaining the due proportion between the means to be used and the public purposes that it must protect, so that they respond to what is strictly necessary for the satisfaction of its mission.
1.5. Principle of impartiality.- The administrative authorities act without any kind of discrimination between those administered, granting them equal treatment and protection against the procedure, resolving in accordance with the legal system and with attention to the general interest.
1.6. Informalism principle.- The procedural norms must be interpreted in a favorable way to the admission and final decision of the claims of the administrated, so that their rights and interests are not affected by the requirement of formal aspects that can be corrected within the procedure, provided that said excuse does not affect the rights of third parties or the public interest.
1.7. Principle of presumption of veracity.- In the processing of the administrative procedure, it is presumed that the documents and statements formulated by the administered in the manner prescribed by this Law, respond to the truth of the facts that they affirm. This presuntion allow test on contrary.
1.8. Principle of procedural good faith.- The administrative authority, the companies, their representatives or lawyers and, in general, all the participants in the procedure, carry out their respective procedural acts guided by mutual respect, collaboration and good faith. The administrative authority cannot act against its own acts, except in the cases of ex officio review contemplated in this Law. No regulation of the administrative procedure can be interpreted in such a way as to protect any conduct against procedural good faith.
1.9. Principle of speed.- Those who participate in the procedure must adjust their actions in such a way that the process is endowed with the maximum possible dynamics, avoiding procedural actions that hinder its development or constitute mere formalities, in order to reach a decision in a reasonable time, without this relieving the authorities of respect for due procedure or violating the ordinance.
1.10. Principle of effectiveness.- The subjects of the administrative procedure must prevail compliance with the purpose of the procedural act, over those formalities whose performance does not affect its validity, does not determine important aspects in the final decision, does not diminish the guarantees of the procedure, or cause defenselessness to the administered.
In all cases of application of this principle, the purpose of the act that takes precedence over non-essential formalities must comply with the applicable regulatory framework and its validity will be a guarantee of the public purpose that is sought to be satisfied with the application of this principle.
1.11. Principle of material truth.- In the procedure, the competent administrative authority must fully verify the facts that serve as a reason for its decisions, for which it must adopt all the necessary evidentiary measures authorized by law, even when they have not been proposed by the administered or have agreed to waive them.
In the case of trilateral procedures, the administrative authority will be empowered to verify by all available means the truth of the facts that are proposed by the parties, without this implying a substitution of the evidentiary duty that corresponds to them. However, the administrative authority will be obliged to exercise said power when its pronouncement could also involve the public interest.
1.12. Principle of participation.- The entities must provide the necessary conditions to all those administered to access the information they manage, without expression of cause, except those that affect personal privacy, those linked to national security or those that are expressly excluded by law; and extend the possibilities of participation of the administered and their representatives, in those public decisions that may affect them, through any system that allows the dissemination, the service of access to information and the presentation of opinion.
1.14. Principle of uniformity.- The administrative authority must establish similar requirements for similar procedures, guaranteeing that the exceptions to the general principles will not be converted into the general rule. All differentiation must be based on duly supported objective criteria.
1.15. Principle of predictability or legitimate confidence.- The administrative authority provides the companies or their representatives with truthful, complete and reliable information on each procedure in their charge, so that, at all times, the company can have a certain understanding of the requirements, procedures, estimated duration and possible results that could be obtained.
The actions of the administrative authority are congruent with the legitimate expectations of those administered reasonably generated by the practice and the administrative background, unless for the reasons that are made explicit, in writing, it decides to depart from them.
The administrative authority is subject to the current legal system and cannot act arbitrarily. In this sense, the administrative authority cannot unreasonably and unreasonably vary the interpretation of the applicable norms.
1.16. Principle of privilege of subsequent controls.- The processing of administrative procedures will be based on the application of subsequent control; reserving the administrative authority, the right to verify the veracity of the information presented, compliance with the substantive regulations and apply the pertinent sanctions in the event that the information presented is not truthful.
1.17. Principle of the legitimate exercise of power.- The administrative authority exercises solely and exclusively the powers conferred for the purpose set forth in the regulations that grant it powers or powers, especially avoiding the abuse of power, either for purposes other than those established in the provisions general or against the general interest.
1.18. Principle of responsibility.- The administrative authority is obliged to respond for the damages caused against the administered as a consequence of the malfunction of the administrative activity, in accordance with the provisions of this law. The entities and their officials or servants assume the consequences of their actions in accordance with the legal system.
1.19. Principle of permanent access.- The administrative authority is obliged to provide information to the administrations that are part of an administrative procedure processed before them, so that at any time during the referred procedure they can know their processing status and access and obtain copies of the documents contained in said procedure, without prejudice to the right of access to information that is exercised in accordance with the law on the matter.
2. The aforementioned principles will also serve as interpretative criteria to resolve the issues that may arise in the application of the procedural rules, as parameters for the generation of other general administrative provisions, and to fill the gaps in the administrative system.
The list of principles stated above is not exhaustive.
Article V.- Sources of the administrative procedure
1. The administrative legal system integrates an organic system that has autonomy with respect to other branches of law.
2. The sources of the administrative procedure are:
2.1. Constitutional provisions.
2.2. The international treaties and conventions incorporated into the National Legal System.
2.3. Laws and provisions of equivalent hierarchy.
2.4. The Supreme Decrees and other regulations of other powers of the State.
2.5. The other regulations of the Executive Power, the statutes and regulations of the entities, as well as those of institutional scope or from the administrative systems.
2.6. The other rules subordinate to the previous regulations.
2.7. The jurisprudence from the jurisdictional authorities that interpret administrative provisions.
2.8. The resolutions issued by the Administration through its courts or councils governed by special laws, establishing interpretive criteria of general scope and duly published. These decisions generate administrative precedent, exhaust administrative procedures and cannot be annulled at that headquarters.
2.9. The binding pronouncements of those entities expressly empowered to answer queries on the interpretation of administrative regulations that apply to their work, duly disclosed.
2.10. The general principles of administrative law.
3. The sources indicated in numerals 2.7, 2.8, 2.9 and 2.10 serve to interpret and delimit the field of application of the positive order to which they refer.
Article VI.- Administrative precedents
1. The administrative acts that, when resolving particular cases, expressly and generally interpret the meaning of the legislation, will constitute administrative precedents of mandatory observance by the entity, as long as said interpretation is not modified. Said acts will be published in accordance with the rules established in this regulation.
2. The interpretative criteria established by the entities may be modified if it is considered that the previous interpretation is not correct or is contrary to the general interest. The new interpretation may not be applied to previous situations, unless it is more favorable to the administered.
3. In any case, the mere modification of the criteria does not authorize the ex officio review of the final acts at the administrative headquarters.
Article VII.- Function of the general provisions
1. Higher authorities can generally direct or orient the activity of those subordinate to them through circulars, instructions and other similar ones, which, however, cannot create new obligations for the administered.
2. Said provisions must be sufficiently publicized, placed in a visible place in the entity if its scope is merely institutional, or published if it is external in nature.
3. The administered may invoke these provisions in their favor, insofar as they establish obligations to the administrative bodies in their relationship with the administered.
Article VIII.- Deficiency of sources
1. The administrative authorities may not fail to resolve the questions that are proposed to them, due to the deficiency of their sources; in such cases, they will resort to the principles of the administrative procedure provided for in this Law; failing that, to other supplementary sources of administrative law, and only subsidiarily to these, to the norms of other legal systems that are compatible with its nature and purpose.
2. When the deficiency of the regulation makes it advisable, in addition to the resolution of the case, the authority will elaborate and propose to whoever is responsible, the issuance of the regulation that generally overcomes this situation, in the same sense as the resolution given to the matter submitted to your knowledge.
Of the legal regime of administrative acts
Of the administrative acts
Article 1.- Concept of administrative act
1.1 Administrative acts are the declarations of the entities that, within the framework of public law norms, are destined to produce legal effects on the interests, obligations or rights of those administered within a specific situation.
1.2 They are not administrative acts:
1.2.1. The acts of internal administration of the entities destined to organize or operate their own activities or services. These acts are regulated by each entity, subject to the provisions of the Preliminary Title of this Law, and of those regulations that expressly establish it.
1.2.2. The behaviors and material activities of the entities.
Article 2.- Modalities of the administrative act
2.1 When authorized by law, the authority, by express decision, may submit the administrative act to condition, term or mode, provided that said elements that can be incorporated into the act, are compatible with the legal system, or when it is a question of ensuring with them the fulfillment of the public purpose pursued by the act.
2.2 An accessory modality cannot be applied against the end pursued by the administrative act.
Article 3.- Requirements for the validity of administrative acts
The validity requirements of administrative acts are:
1. Competence.- Be issued by the body empowered by reason of the matter, territory, grade, time or amount, through the authority regularly appointed at the time of issuance and in the case of collegiate bodies, meeting the requirements of session, quorum and deliberation essential for its issuance.
2. Purpose or content.- Administrative acts must express their respective purpose, in such a way that their legal effects can be unequivocally determined. Its content will conform to the provisions of the legal system, and must be lawful, precise, physically and legally possible, and understand the issues arising from the motivation.
3. Public Purpose.- Adapt to the purposes of public interest assumed by the regulations that grant the powers to the issuing body, without being able to enable it to pursue through the act, even covertly, any purpose that is personal of the authority itself, in favor of a third party, or another public purpose other than that provided by law. The absence of rules indicating the purposes of a faculty does not generate discretion.
4. Motivation.- The administrative act must be duly motivated in proportion to the content and in accordance with the legal system.
5. Regular procedure.- Before its issuance, the act must be conformed by complying with the administrative procedure foreseen for its generation.
Article 4.- Form of administrative acts
4.1 Administrative acts must be expressed in writing, except that due to the nature and circumstances of the case, the legal system has provided for another form, provided that it allows proof of their existence.
4.2 The written act indicates the date and place in which it is issued, name of the body from which it emanates, name and signature of the intervening authority.
4.3 When the administrative act is produced by means of automated systems, the administrator must be guaranteed to know the name and position of the authority that issues it.
4.4 When several administrative acts of the same nature must be issued, a mechanical signature may be used or integrated into a single document under the same motivation, provided that the administrations on whom the effects of the act fall are identified. For all subsequent purposes, the administrative acts will be considered as different acts.
Article 5.- Purpose or content of the administrative act
5.1 The object or content of the administrative act is what the authority decides, declares or certifies.
5.2 In no case will an object or content prohibited by the normative order be admissible, nor will it be incompatible with the factual situation provided for in the rules; neither imprecise, obscure, or impossible to perform.
5.3 It will not be able to contravene in the concrete case constitutional, legal provisions, firm judicial orders; nor may it violate general administrative rules from authority of equal, lower or higher hierarchy, and even from the same authority that dictates the act.
5.4 The content must include all the questions of fact and law raised by the administered, and may involve others not proposed by them that have been appraised ex officio, provided that the administrative authority grants them a period of no less than five (5) days so that state their position and, where appropriate, provide the evidence they deem pertinent.
Article 6.- Motivation of the administrative act
6.1 The motivation must be express, by means of a concrete and direct relation of the relevant proven facts of the specific case, and the exposition of the legal and normative reasons that with direct reference to the previous justify the adopted act.
6.2 It can be motivated by means of the declaration of conformity with the foundations and conclusions of previous opinions, decisions or reports in the file, provided that they are accurately identified, and that due to this situation they constitute an integral part of the respective act. The reports, opinions or similar that serve as the basis for the decision, must be notified to the company together with the administrative act.
6.3 The presentation of general or empty foundation formulas for the specific case or those formulas that due to their obscurity, vagueness, contradiction or insufficiency are not admissible as motivation, are not specifically enlightening for the motivation of the act.
The fact that the hierarchical superior of the authority that issued the contested act has a different appreciation regarding the assessment of the evidence or the application or interpretation of the right contained in said act does not constitute grounds for nullity. Said different assessment must lead to partially or totally uphold the appeal filed against the contested act.
6.4 The following acts do not require motivation:
6.4.1 The mere procedural decisions that drive the procedure
6.4.2 When the authority deems appropriate what is requested by the company and the administrative act does not harm the rights of third parties.
6.4.3 When the authority produces a large number of substantially equal administrative acts, the sole motivation being sufficient.
(Text modified according to Article 2 of the Legislative Decree N .º 1272)
Article 7.- Regime of internal administration acts
7.1 The internal administration acts are aimed at the effectiveness and efficiency of the services and the permanent purposes of the entities. They are issued by the competent body, their purpose must be physically and legally possible, their motivation is optional when hierarchical superiors issue orders to their subordinates in the legally foreseen manner.
The regime of anticipated effectiveness of administrative acts provided for in article 17 is capable of being applied to acts of internal administration, provided that no rules of public order are violated or affect third parties.
7.2 The internal decisions of mere processing can be given verbally by the competent body, in which case the lower body that receives them will document them in writing and communicate immediately, indicating the authority of who proceeds through the formula, "By order of ..." .
Nullity of administrative acts
Article 8.- Validity of the administrative act
The administrative act issued in accordance with the legal system is valid.
Article 9.- Presumption of validity
Any administrative act is considered valid as long as its alleged nullity is not declared by administrative or jurisdictional authority, as appropriate.
Article 10.- Grounds for invalidity
The following are vices of the administrative act, which cause its nullity by right:
1. Contravention of the Constitution, laws or regulations.
2. The defect or omission of any of its validity requirements, unless one of the cases of conservation of the act referred to in article 14 arises.
3. Express acts or those resulting from automatic approval or positive administrative silence, by which powers or rights are acquired when they are contrary to the legal system, or when the requirements, documentation or procedures are not met. essential for its acquisition.
4. Administrative acts that are constitutive of a criminal offense, or that are issued as a consequence of it.
Article 11.- Competent instance to declare nullity
11.1 The administrations raise the nullity of the administrative acts that concern them through the administrative resources provided for in Title III Chapter II of this Law.
11.2 The nullity of office will be known and declared by the superior authority of the person who issued the act. If it is an act dictated by an authority that is not subject to hierarchical subordination, the nullity will be declared by resolution of the same authority.
The nullity raised by means of a reconsideration or appeal will be known and declared by the competent authority to resolve it.
11.3 The resolution declaring nullity also provides what is convenient to enforce the liability of the issuer of the invalid act, in cases where manifest illegality is noticed, when it is known by the hierarchical superior.
Article 12.- Effects of the declaration of nullity
12.1 The declaration of nullity will have declarative and retroactive effect to the date of the act, except for rights acquired in good faith by third parties, in which case it will operate in the future.
12.2 Regarding the act declared void, the companies are not obliged to comply with it and the public servants must oppose the execution of the act, founding and justifying their refusal.
12.3 In the event that the defective act has been consummated, or it is impossible to revert its effects, it will only give rise to the responsibility of the person who issued the act and, where appropriate, to compensation for the affected party.
Article 13.- Scope of nullity
13.1 The nullity of an act only implies that of successive acts in the procedure, when they are linked to it.
13.2 The partial nullity of the administrative act does not reach the other parts of the act that are independent of the null part, unless it is its consequence, nor does it prevent the production of effects for which, however, the act may be suitable, except for legal provision in contrary.
13.3 Whoever declares the nullity, has the conservation of those actions or procedures whose content would have remained the same had the defect not been incurred.
Article 14.- Conservation of the act
14.1 When the defect of the administrative act due to non-compliance with its validity elements is not transcendent, the preservation of the act prevails, proceeding to its amendment by the issuing authority itself.
14.2 The following are administrative acts affected by non-transcendent defects:
14.2.1 The act whose content is imprecise or inconsistent with the issues raised in the motivation.
14.2.2 The act issued with insufficient or partial motivation.
14.2.3 The act issued in violation of the non-essential formalities of the procedure, considering as such those whose correct performance would not have prevented or changed the meaning of the final decision in important aspects, or whose non-compliance will not affect the due process of the company.
14.2.4 When it is undoubtedly concluded in any other way that the administrative act would have had the same content, had the defect not occurred.
14.2.5 Those issued with omission of non-essential documentation.
14.3 Notwithstanding the preservation of the act, the administrative responsibility of the person issuing the corrupted act remains, unless the amendment is produced without a request from the party and before its execution.
Article 15.- Independence of the vices of the administrative act
The vices incurred in the execution of an administrative act, or in its notification to the administered ones, are independent of its validity.
Efficacy of administrative acts
Article 16.- Efficacy of the administrative act
16.1 The administrative act is effective from the moment the legally made notification produces its effects, in accordance with the provisions of this chapter.
16.2 The administrative act that grants benefits to the company is understood to be effective from the date of its issuance, except for a different provision of the same act.
Article 17.- Anticipated effectiveness of the administrative act
17.1 The authority may provide in the same administrative act that it is effective in advance of its issuance, only if it is more favorable to those administered, and provided that it does not harm fundamental rights or interests in good faith legally protected to third parties and that it existed on the date to the one that seeks to revert the effectiveness of the act to the justifying factual assumption for its adoption.
17.2 The declaration of nullity and the acts that are enacted in amendment also have anticipated effectiveness.
Article 18.- Obligation to notify
18.1 The notification of the act is practiced ex officio and its due diligence is the competence of the entity that issued it. The notification must be made on a business day and time, except for different special regulations or continuous nature of the activity.
18.2 Personal notification may be made through the entity itself, by courier services specially hired for this purpose and in the case of remote areas, it may be arranged through the local political authorities of the administered party.
Article 19.- Waiver of notification
19.1 The authority is exempted from formally notifying the administrated of any act that has been issued in their presence, provided that there is a record of this procedural action stating the attendance of the administered.
19.2 It is also exempted from notifying if the administrator becomes aware of the respective act through direct and spontaneous access to the file, collecting its copy, leaving a record of this situation in the file.
Article 20. Notification modalities
20.1 Notifications are made through the following modalities, according to this respective order of priority:
20.1.1 Personal notification to the company interested or affected by the act, at their home address.
20.1.2 By telegram, certified mail, fax; or any other means that allows you to reliably verify your acknowledgment of receipt and who receives it, provided that the use of any of these means has been expressly requested by the administrator.
20.1.3 By publication in the Official Gazette or in one of the newspapers with the greatest circulation in the national territory, except as otherwise provided by law. Additionally, the competent authority orders the publication of the act in the respective Institutional Portal, in case the entity has this mechanism.
20.2 The authority cannot replace any modality with another or modify the order of priority established in the previous paragraph, under penalty of nullity of the notification. You can go in addition to those or others, if you deem it appropriate to improve the chances of participation of the administered.
20.3 Treatment equal to that provided for in this chapter corresponds to subpoenas, summons, document requirements or other similar administrative acts.
20.4 The company interested or affected by the act that has entered in its writing an electronic address that appears in the file can be notified through that means provided that it has given its express authorization to do so. In this case, the order of priority provided in paragraph 20.1 does not apply.
The notification addressed to the email address indicated by the administrator is understood to have been validly made when the entity receives the response of receipt of the electronic address indicated by the administrator or it is generated automatically by a technological platform or computer system that guarantees that the notification has been made. The notification takes effect on the day it is proven to have been received, in accordance with the provisions of paragraph 2 of article 25.
In the event that no automatic response is received within a maximum period of two (2) business days from the day after the act of notification was carried out via email, it shall be notified by identification pursuant to section 20.1.1, returning to compute the term established in paragraph 24.1 of article 24.
For notification by e-mail, the administrative authority, if it considers it pertinent, may use digital signatures and certificates in accordance with the provisions of the law on the matter.
The entity that has technological availability can assign the administrator an electronic box managed by it, for the notification of administrative acts, as well as actions issued in the framework of any administrative activity, provided that it has the express consent of the administrator. By means of a supreme decree of the sector, previous favorable opinion of the Presidency of the Council of Ministers and the Ministry of Justice and Human Rights, it can approve the obligatory nature of the notification via electronic box.
In this case, the notification is understood to have been validly made when the entity deposits it in the electronic mailbox assigned to the administrator, taking effect on the day it is proven to have been received, in accordance with the provisions of paragraph 2 of article 25.
Likewise, the implementation of the single electronic box for communications and notifications from State entities addressed to the administered ones is established. By means of a Supreme Decree endorsed by the Presidency of the Council of Ministers, the criteria, conditions, mechanisms and deadlines for the gradual implementation in public entities of the single electronic box are approved.
The express consent referred to in the fifth paragraph of numeral 20.4 of this Law may be granted electronically.
(Amended by numeral 20.4 of article 20 of Law No. 27,444, modified according to Article 2 of the Legislative Decree N .º 1452)
Article 21.- Regime of personal notification
21.1 Personal notification will be made at the address that appears in the file, or at the last address that the person to whom it must notify has indicated before the administrative body in another similar procedure in the entity itself within the last year.
21.2 In the event that the company has not indicated an address, or that it is non-existent, the authority must use the address indicated in the National Identity Document of the company. If it is verified that the notification cannot be made at the address indicated in the National Identity Document due to the occurrence of any of the circumstances described in paragraph 23.1.2 of article 23, the notification must be made by publication.
21.3 In the act of personal notification, a copy of the notified act must be delivered and the date and time it is carried out, collecting the name and signature of the person with whom the diligence is understood. If the latter refuses to sign or receive a copy of the notified act, this shall be recorded in the minutes, considering it to be well notified. In this case, the notification will record the characteristics of the place where it has been notified.
21.4 Personal notification will be understood with the person who must be notified or his legal representative, but if either of the two is not present at the time of delivering the notification, it will be understood with the person who is at said address, leaving evidence your name, identity document and your relationship with the manager.
21.5 In the event of not finding the client or another person at the address indicated in the procedure, the notifier must record this in the minutes and place a notice at said address indicating the new date on which the following notification will be effective. If the notification cannot be delivered directly on the new date, a record will be left under the door together with the notification, a copy of which will be incorporated into the file.
Article 22.- Notification to plurality of interested parties
22.1 When there are several recipients, the act will be notified personally to all, except if they act together under the same representation or if they have designated a common address for notifications, in which case these will be made at said single address.
22.2 If more than ten people who have made a single request with common law should be notified, the notification will be made with the person who heads the initial letter, indicating that they transmit the decision to their co-interested parties.
Article 23.- Regime of publication of administrative acts
23.1 The publication will proceed according to the following order:
23.1.1 In the main thoroughfare, in the case of provisions of general scope or those administrative acts that are of interest to an undetermined number of companies not present at the procedure and with no known address.
23.1.2 In a subsidiary way to other modalities, in the case of administrative acts of a particular nature when the law so requires, or the authority is faced with any of the following evident and attributable circumstances to the company:
- When another modality of preferential notification is impracticable due to the ignorance of the domicile of the company, despite the investigation carried out.
- When any other modality had been practiced unsuccessfully, either because the person to whom it should be notified has disappeared, the address provided by the company is wrong or is abroad without having left a legal representative, despite the request made through the respective Consulate .
23.2 The publication of an act must contain the same elements provided for the notification indicated in this chapter; but in the case of publishing several acts with common elements, it will be possible to proceed jointly with the coinciding aspects, specifying only the individual of each act.
23.3. Exceptionally, the publication of an act can be carried out provided that it contains the elements of identification of the administrative act and the summary of the operative part and that it is directed to the Institutional Portal of the authority where the administrative act is published in its entirety, taking effect in within 5 days from publication. Likewise, the public administration, if requested by the administration recipient of the act, is obliged to deliver a copy of said administrative act. The first copy of the administrative act is free and must be issued and delivered on the same day it is requested, and for duly justified exceptional reasons, on the next business day. By means of a Supreme Decree of the Ministry of Justice and Human Rights, the guidelines for the publication of this type of act are established.
Article 24.- Term and content to make the notification
24.1 All notification must be made no later than within a period of five (5) days, from the issuance of the act that is notified, and must contain:
24.1.1 The full text of the administrative act, including its motivation.
24.1.2 The identification of the procedure within which it was issued.
24.1.3 The authority and institution from which the act comes and its address.
24.1.4 The effective date of the notified act, and with the mention of whether it exhausts the administrative procedure.
24.1.5 In the case of a publication directed to third parties, any other information that may be important to protect your interests and rights will also be added.
24.1.6 The expression of the appeals that proceed, the body before which the appeals must be presented and the term for filing them.
24.2 If, based on erroneous information, contained in the notification, the company practices a procedural act that is rejected by the entity, the time elapsed will not be taken into account to determine the expiration of the corresponding deadlines.
Article 25.- Validity of notifications
Notifications will take effect in accordance with the following rules:
1. Personal notifications: the day they were made.
2. Those sent by certified mail, official letter, e-mail and the like : on the day it is proven to have been received.
3. Notifications for publications: from the day of the last publication in the Official Gazette.
4. When by express legal provision, an administrative act must be both personally notified to the administered and published to protect the legitimate rights or interests of third parties not in person or undetermined, the act will take effect from the last notification.
For the purposes of computing the beginning of the terms, the rules established in article 144 must be followed, with the exception of the notification of precautionary or precautionary measures, in which case the provisions of the paragraphs of the preceding paragraph must be applied.
Article 26.- Defective notifications
26.1 In the event that it is shown that the notification has been made without the formalities and legal requirements, the authority will order it to be redone, correcting the omissions that may have been incurred, without prejudice to the manager.
26.2 The rejection of the challenge to the validity of a notification causes said notification to operate from the date it was made.
Article 27.- Correction of defective notifications
27.1 The defective notification due to omission of any of its content requirements, will take legal effect from the date on which the interested party expressly states having received it, if there is no evidence to the contrary.
27.2 The company will also be considered as well notified after the interested party has carried out procedural actions that make it possible to reasonably assume that they had timely knowledge of the content or scope of the resolution, or file any appropriate appeal. The notification request made by the company is not considered such, in order to be notified of any decision of the authority.
Article 28.- Communications within the administration
28.1 Communications between administrative bodies within an entity will be made directly, avoiding the intervention of other bodies.
28.2 The communications of resolutions to other national authorities or the requirement for the fulfillment of diligences in the procedure will always be carried out directly under the notification regime without actions of mere transfer due to internal hierarchies or transcription by intermediate bodies.
28.3 When any other authority or internal administrative body should have knowledge of the communication, an informative copy will be sent.
28.4 The documentary evidence of the remote transmission by electronic means between entities and authorities, constitutes in itself authentic documentation and will give full faith to all its effects within the file for both parties, regarding the existence of the transmitted original and its reception.
Of the administrative procedure
Article 29.- Definition of administrative procedure
An administrative procedure is understood to be the set of acts and proceedings processed in the entities, leading to the issuance of an administrative act that produces individual or individual legal effects on interests, obligations or rights of the administered.
Article 30.- Electronic Administrative Procedure
30.1 Without prejudice to the use of traditional physical means, the administrative procedure may be carried out totally or partially through technologies and electronic means, and must be included in a file, electronic writing, containing the documents presented by the companies, by third parties and by other entities. , as well as those documents sent to the company.
30.2 The electronic administrative procedure must respect all the principles, rights and guarantees of due procedure provided for in this Law, without affecting the right of defense or the equality of the parties, and must provide the pertinent measures when the company does not have access to electronic media.
30.3 Administrative acts carried out through electronic means have the same legal validity and effectiveness as acts carried out by traditional physical means. Digital signatures and documents generated and processed through electronic technologies and means, following the procedures defined by the administrative authority, will have the same legal validity as handwritten documents.
30.4 By means of a Supreme Decree, endorsed by the Presidency of the Council of Ministers, guidelines are approved to establish the conditions and use of technologies and electronic means in administrative procedures, together with their requirements.
Article 31.- Electronic File
31.1 The electronic file is made up of the set of electronic documents generated from the initiation of the administrative procedure or service provided exclusively in a certain entity of the Public Administration.
31.2 The electronic file must have a unique and unalterable identification number that allows its unique identification within the entity that originates it. This number allows, in turn, its identification for the purposes of an exchange of information between entities or by interested parties, as well as to obtain copies of it, if applicable.
31.3 Each electronic document incorporated in the electronic file must be numbered consecutively, so that a digital index is originated which is electronically signed in accordance with the law by the personnel responsible for the Public Administration entity in order to guarantee the integrity and its recovery. whenever necessary.
Article 32.- Qualification of administrative procedures
All the administrative procedures that, by legal requirement, those administered before the entities must initiate to satisfy or exercise their interests or rights, are classified in accordance with the provisions of this chapter, in: automatic approval procedures or prior evaluation by the entity, and the latter in turn subject, in the event of a lack of timely pronouncement, to positive silence or negative silence. Each entity indicates these procedures in its Single Text of Administrative Procedures - TUPA, following the criteria established in this ordinance.
Article 33.- Regime of the automatic approval procedure
33.1 In the automatic approval procedure, the application is considered approved from the moment it is presented to the competent entity to know it, provided that it complies with the requirements and submits the complete documentation, demanded in the entity's TUPA.
33.2 In this procedure, the entities do not issue any express statement confirming the automatic approval, having only to carry out the subsequent examination. However, when the automatic approval procedures necessarily require the issuance of a document without which the user cannot exercise their right, the maximum term for its issuance is five business days, without prejudice to those longer periods established. by special laws prior to the effective date of this Law.
33.3 As proof of the automatic approval of the application by the administrator, a copy of the document or the submitted format containing the official reception stamp, without observations and indicating the registration number of the application, date, time and signature of the receiving agent is sufficient.
33.4 Automatic approval procedures, subject to the presumption of truthfulness, are those that enable the exercise of pre-existing rights of the company, registration in administrative records, obtaining licenses, authorizations, certificates and certified or similar copies that enable continued exercise of professional, social, economic or labor activities in the private sphere, as long as they do not affect the rights of third parties and without prejudice to the subsequent control carried out by the administration.
33.5 The Presidency of the Council of Ministers is empowered to determine the procedures subject to automatic approval. Said qualification is mandatory for adoption, as of the day following its publication in the official gazette, without the need for prior updating of the Single Text of Administrative Procedures by the entities, without prejudice to the provisions of numeral 44.7 of article 44.
Article 34.- Subsequent control
34.1 By subsequent control, the entity before which an automatic approval procedure, prior evaluation is carried out or has received the documentation referred to in article 49; is obliged to verify ex officio through the sampling system, the authenticity of the declarations, documents, information and translations provided by the company.
34.2 In the case of automatic approval procedures and those of prior evaluation in which positive administrative silence has operated, the audit comprises no less than ten percent (10%) of all files, with a maximum of one hundred and fifty (150 ) records per semester. This amount may be increased taking into account the impact that the occurrence of fraud or falsehood in the information, documentation or statement presented may lead to the occurrence of fraud or falsehood in the information, documentation or declaration presented on the general interest, the economy, security or public health. Said inspection must be carried out every six months in accordance with the guidelines issued for this purpose by the Presidency of the Council of Ministers.
34.3 In the event of verifying fraud or falsity in the statement, information or documentation submitted by the company, the entity will consider the respective requirement not satisfied for all purposes, proceeding to declare the nullity of the administrative act supported by said statement, information or document; and impose on whoever has used that statement, information or document a fine in favor of the entity of between five (5) and ten (10) Tax Tax Units in force on the date of payment; and, furthermore, if the conduct conforms to the assumptions set forth in Title XIX Offenses against the Public Faith of the Penal Code, it must be communicated to the Public Ministry so that it may file the corresponding criminal action.
34.4 As a result of the subsequent audit, the list of companies who have submitted false or fraudulent statements, information or documents under the protection of automatic approval and prior evaluation procedures, is published quarterly by the Administrative Risk Center, in charge of the Presidency of the Council of Ministers, consigning the National Identity Document or the Sole Taxpayer Registry and the agency before which they presented said information. The entities must prepare and submit the indicated relationship to the Administrative Risk Center, following the current guidelines on the matter. The entities are obliged to automatically include in their subsequent control actions all the procedures initiated by the companies included in the Administrative Risk Center relationship.
Article 35.- Prior evaluation procedure with positive silence
35.1 The prior evaluation procedures are subject to positive silence, in the case of some of the following assumptions:
1.- All procedures at the request of a party not subject to the exhaustive negative administrative silence contemplated in article 38.
2.- Resources destined to question the rejection of an application when the individual has opted for the application of negative administrative silence.
35.2 As proof of the application of the positive silence of the request of the administrator, a copy of the document or of the submitted format containing the official reception stamp, without observations and indicating the registration number of the request, date, time and signature of the agent is sufficient. receiver. In the case of electronic administrative procedures, the email stating that the request has been sent is sufficient.
35.3 The Presidency of the Council of Ministers is empowered to determine the procedures subject to positive silence. Said qualification will be mandatory for adoption, as of the day following its publication in the official gazette, without the need for prior updating of the Single Text of Administrative Procedures by the entities, without prejudice to the provisions of numeral 44.7 of article 44.
35.4 The ex gratia request and consultation procedures are governed by their specific regulations.
Article 36.- Approval of petition through positive silence
36.1 In administrative procedures subject to positive silence, the request of the company is considered approved if, after the established or maximum term to pronounce, the entity has not notified the corresponding pronouncement, and it is not necessary to issue any pronouncement or document so that the company can make their right effective, under the responsibility of the official or public servant who requires it.
36.2 The provisions of this article do not undermine the obligation of the entity to carry out the subsequent audit of the documents, statements and information presented by the company, in accordance with the provisions of article 34.
Article 37.- Approval of the procedure.
37.1 Notwithstanding the provisions of article 36, once the deadline for positive silence to operate in the prior evaluation procedures, regulated in article 35, has expired, without the entity having issued a statement on the request, the companies, if they consider it pertinent and in a complementary way, they can present an Affidavit before the very entity that configured said fictitious approval, in order to enforce the right conferred before the same or third entities of the administration, constituting the position of receipt of said document, sufficient proof of the fictitious approval resolution of the request or procedure initiated.
37.2 The provisions of the preceding paragraph are also applicable to the automatic approval procedure, replacing the fictitious approval, contained in the Affidavit, to the document referred to in numeral 33.2 of article 33.
37.3 In the event that the administrative authority refuses to receive the Affidavit referred to in the previous paragraph, the company may send it through a notarial channel, having the same effects.
Article 38.- Previous evaluation procedures with negative silence.
38.1 Exceptionally, negative silence is applicable in those cases in which the request of the company may significantly affect the public interest and affect the following legal interests: health, the environment, natural resources, citizen security, the financial system and insurance, the stock market, trade defense, national defense and cultural heritage of the nation, as well as those procedures promoting private investment, trilateral procedures, registration procedures registration and which generate an obligation to give or do the State and authorizations to operate gambling casinos and slot machines.
The exceptional qualification of negative silence occurs in the regulation of creation or modification of the administrative procedure, and must technically and legally support its qualification in the explanatory statement, in which the effect on the public interest and the impact on any of the legal assets provided for in the preceding paragraph.
By Supreme Decree, endorsed by the President of the Council of Ministers, it is possible to expand the matters in which, because it significantly affects the public interest, the application of negative administrative silence corresponds.
38.2 Likewise, it is applicable to those procedures by which powers of the public administration are transferred.
38.3 In tax and customs matters, administrative silence is governed by its laws and special regulations. In the case of administrative procedures that have an impact on the determination of the tax or customs obligation, the Tax Code applies.
38.4 The authorities are empowered to classify the administrative procedures indicated in a different way in their Single Text of Administrative Procedures, with the exception of trilateral procedures and in those that generate an obligation to give or do of the State, when they consider that their effects recognize the interest of the applicant, without significantly exposing the general interest.
Article 39.- Maximum period of the administrative procedure for prior evaluation
The period that elapses from the beginning of an administrative procedure of prior evaluation until the respective resolution is issued, cannot exceed thirty (30) business days, unless by law or legislative decree procedures are established whose compliance requires a longer duration.
Article 40.- Legality of the procedure
40.1 Administrative procedures and requirements must be established in a substantive provision approved by supreme decree or higher-ranking standard, by Regional Ordinance, by Municipal Ordinance, by Resolution of the head of constitutionally autonomous bodies . In the case of regulatory bodies, they may establish procedures and requirements in the exercise of their regulatory function. The specialized technical agencies of the Executive Power may establish administrative procedures and requirements by resolution of the management body or the head of the entity, as appropriate, for which they must be authorized by law or legislative decree to regulate the granting or recognition of rights of the individuals, entering markets or the development of economic activities. The establishment of the procedures and requirements must comply with the provisions of this section and be within the framework of the provisions of the policies, plans and guidelines of the corresponding sector.
40.2 The entities carry out the Regulatory Quality Analysis of the administrative procedures under their charge or their proposals, taking into account the scope established in the current regulations on the matter.
40.3 Administrative procedures must be summarized and systematized in the Single Text of Administrative Procedures, approved for each entity, in which procedures cannot be created or new requirements established, except for the determination of the processing rights that are applicable from according to current regulations.
40.4 The entities only require the companies to comply with procedures, the presentation of documents, the provision of information or the payment of processing fees, provided that they comply with the requirements set forth in the preceding paragraph. Responsibility is incurred by the authority that proceeds differently, making demands on those administered outside of these cases.
40.5 The provisions concerning the elimination of procedures or requirements or their simplification may be approved by Ministerial Resolution, by Resolution of the Board of Directors of the Regulatory Bodies, Resolution of the management body or the head of specialized technical bodies, as appropriate, Resolution of the head of constitutionally autonomous bodies, Regional Decree or Mayoral Decree, depending on whether they are entities dependent on the Executive Power, Constitutionally Autonomous Bodies, Regional or Local Governments, respectively.
40.6 The administrative procedures, including their requirements, in charge of the legal entities under the private regime that provide public services or exercise administrative functions must be duly publicized, for the knowledge of the administered ones.
Article 41.- Mandatory standardized Administrative Procedures.
41.1 By means of a supreme decree endorsed by the Presidency of the Council of Ministers, administrative procedures and services provided in standardized exclusivity are approved that are mandatory for application by the competent entities to process them, which are not empowered to modify or alter them. Entities are obliged to incorporate such standardized procedures and services in their respective Single Text of Administrative Procedures without the need for approval by another entity. Entities may only determine: the documentary processing unit or the one that takes its place to initiate the administrative procedure or service provided exclusively, the competent authority to resolve the administrative procedure and the organic unit to which it belongs, and the competent authority that resolves the administrative appeals, in what is pertinent.
41.2 Failure to update by the entities of their respective Single Text of Administrative Procedure within five (5) business days after the entry into force of the standardized administrative procedures by the Presidency of the Council of Ministers, has as a consequence the application of article 58.
Article 42.- Indeterminate validity of the qualifying titles
The qualifying titles issued are valid for an indefinite period, unless a specific period of validity is established by law or legislative decree. When the authority verifies the change of the indispensable conditions for obtaining it, after inspection, it may render the enabling title null and void.
Exceptionally, by supreme decree, the determined validity of the qualifying titles is established, for which the entity must support the need, the public interest to protect and other criteria that are defined according to the regulatory quality standards.
Article 43. Content of the Single Text of Administrative Procedures
43.1 All entities prepare and approve or manage the approval, as the case may be, of their Single Text of Administrative Procedures, which includes:
1. All the party initiative procedures required by the companies to satisfy their interests or rights through the pronouncement of any body of the entity, provided that this requirement has legal support, which must be expressly stated in the TUPA with indication of the date of publication in the Official Gazette.
2. The clear and exhaustive description of all the requirements for the complete performance of each procedure, which must be established in accordance with the provisions of the preceding paragraph.
3. The qualification of each procedure as appropriate between the prior evaluation or automatic approval procedures.
4. In the case of prior evaluation procedures if the applicable administrative silence is negative or positive.
5. The cases in which the payment of processing fees is applicable, indicating the amount and method of payment. The amount of the rights is expressed by publishing it in the entity in legal tender.
6. The appropriate reception channels to access the procedures contained in the TUPA, in accordance with the provisions of articles 127 and following.
7. The competent authority to resolve in each instance of the procedure and the resources to be filed to access them.
8. The forms that are used during the processing of the respective administrative procedure, and should not be used for the requirement of additional requirements.
Complementary information such as offices, hours, means of payment, contact information, notes to the citizen; updating them is the responsibility of the highest administrative authority of the entity that manages the TUPA, without following the formalities provided in numbers 44.1 or 44.5.
The Presidency of the Council of Ministers, through Resolution of the Secretariat of Public Management, approves the Format of the Single Text of Administrative Procedures applicable to the entities provided for in numbers 1 to 7 of article I of the Preliminary Title of this law.
43.2 The TUPA also includes the list of services provided exclusively, understood as the services that entities are empowered to provide exclusively within the framework of their competence, and cannot be performed by another entity or third parties. They are included in the TUPA, the provisions of numerals 2, 5, 6, 7 and 8 of the previous numeral being applicable, as applicable.
43.3 The requirements and conditions for the provision of services exclusively provided by entities are set by supreme decree endorsed by the President of the Council of Ministers.
43.4 For those services that are not provided exclusively, the entities, through the Resolution of the Holder of the entity, establish the name, the clear and exhaustive description of the requirements and their respective costs, which must be duly disclosed so that they are of public knowledge, respecting the provisions of article 60 of the Political Constitution of Peru and the rules on the repression of unfair competition.
Article 44.- Approval and dissemination of the Single Text of Administrative Procedures
44.1 The Single Text of Administrative Procedures (TUPA) is approved by Supreme Decree of the sector, by Regional Ordinance, by Municipal Ordinance, or by Resolution of the Head of constitutionally autonomous body, according to the respective government level.
44.2 The standard approved by the TUPA is published in the official newspaper El Peruano.
44.3 The TUPA and the legal provision for approval or modification are compulsorily published on the portal of the official newspaper El Peruano. Additionally, it is disseminated through the Unique Digital Platform for Citizen Orientation of the Peruvian State and in the respective Institutional Portal of the entity. The publication in the media provided in this section is made free of charge.
44.4 Notwithstanding the aforementioned publication, each entity disseminates its TUPA through its location in a visible place in the entity.
44.5 Once the TUPA is approved, any modification that does not imply the creation of new procedures, increase in processing rights or requirements, must be carried out by Ministerial Resolution of the Sector, or by resolution of the head of the Autonomous Body in accordance with the Political Constitution of Peru. , or by Resolution of the Board of Directors of the Regulatory Bodies, Resolution of the management body or the head of the specialized technical bodies, as appropriate, Regional Decree or Mayor's Decree, according to the respective government level. Otherwise, its approval is carried out in accordance with the mechanism established in paragraph 44.1. In both cases, the modification will be published in accordance with the provisions of numbers 44.2 and 44.3.
44.6 For the preparation of the TUPA, duplication of administrative procedures in the entities is avoided.
44.7 In the cases in which by Law, Legislative Decree and other norms of general scope, the requirements, term or administrative silence applicable to administrative procedures are established or modified, the Public Administration entities are obliged to make the corresponding modifications in their respective Unique Texts of Administrative Procedures within a maximum period of sixty (60) business days, counted from the entry into force of the rule that establishes or modifies the requirements, term or administrative silence applicable to administrative procedures. If this period has expired, the entity has not updated the TUPA incorporating the procedure established or modified in the current regulations, it cannot fail to issue a statement regarding the procedure or provide the service that is in force according to the corresponding legal framework, under responsibility.
44.8 The official incurs administrative responsibility who:
a) Requests or demands the fulfillment of requirements that are not in the TUPA or that, being in the TUPA, have not been established by current regulations or have been repealed.
b) Apply rates that have not been approved in accordance with the provisions of articles 53 and 54, and the Single Ordered Text of the Tax Code, when applicable.
c) Apply rates that have not been ratified by the corresponding Provincial Municipality, in accordance with the provisions established in Article 40 of Law 27972, Organic Law of Municipalities.
Likewise, the Mayor and the municipal manager, or those who act in their stead, incur administrative responsibility when, after a period of thirty (30) business days after receiving the request for ratification from the district municipality, they have not complied with meeting the request for ratification of the rates referred to in article 40 of Law 27972, Organic Law of Municipalities, except for excise taxes, in which case the term will be sixty (60) business days.
Notwithstanding the above, the requirements set out in the preceding literals, also constitute illegal bureaucratic barrier, the sanctions established by Legislative Decree N being applicable .º 1256, which approves the Law on Prevention and Elimination of Bureaucratic Barriers or regulation replacing .
44.9 The Office of the Comptroller General of the Republic, within the framework of the Organic Law of the National Control System and the Office of the Comptroller General of the Republic, verifies compliance with the deadlines indicated in numeral 44.7 of this article.
Article 45.- Considerations to structure the procedure
45.1 Only those that are reasonably indispensable to obtain the corresponding ruling will be included as requirements demanded for the performance of each administrative procedure, also taking into account their costs and benefits.
45.2 For this purpose, each entity considers as criteria:
45.2.1 The documentation that according to this law may be requested, the one prevented from requiring and those substitutes established to replace the original documentation.
45.2.2 Its need and relevance in relation to the object of the administrative procedure and to obtain the required pronouncement.
45.2.3 The real capacity of the entity to process the required information, in the process of prior evaluation or subsequent audit.
Article 46.- Access to information for consultation by entities
46.1 All entities have the obligation to allow others, free of charge, access to their databases and records to consult information required to comply with the requirements of administrative procedures or services provided exclusively.
46.2 In these cases, the entity only requests that the company submit a sworn statement in which it states that it complies with the requirement set forth in the administrative procedure or service provided exclusively.
Article 47.- Intercultural approach
The administrative authorities must act applying an intercultural approach, helping to generate a service with cultural relevance, which implies the adaptation of the processes that are necessary according to the geographical, environmental, socio-economic, linguistic and cultural characteristics of those administered to who is intended this service.
Article 48.- Documentation prohibited to request
48.1 For the beginning, pursuit or conclusion of any procedure, common or special, the entities are prohibited from requesting the companies to submit the following information or the documentation that contains it:
48.1.1 That which the requesting entity generates or possesses as a result of the exercise of its public functions conferred by the Law or that it must possess by virtue of some procedure previously carried out by the company in any of its dependencies, or because it has been supervised by them. , during five (5) immediate previous years, provided that the data have not changed. In order to prove it, it is enough for the company to show the copy of the position where said presentation is recorded, duly stamped and dated by the entity to which it was provided.
48.1.2 That which has been issued by the same entity or by other public entities in the sector, in which case it corresponds to the entity itself to collect it directly.
48.1.3 Presentation of more than two copies of the same document before the entity, unless it is necessary to notify as many interested parties.
48.1.4 Personal photographs, except to obtain identity documents, passport or licenses or authorizations of a personal nature, for reasons of national security and citizen security . The administrations will supply themselves the requested photographs or will be free to choose the company that produces them, with the exception of the cases of digitization of images.
48.1.5 Personal identity documents other than the National Identity Document. Likewise, only a foreigner card or passport will be required for foreign citizens, as appropriate.
48.1.6 Collect stamps from the entity itself, which must be collected by the authority in charge of the file.
48.1.7 New documents or copies, when other are presented, despite having been produced for another purpose, unless they are illegible.
48.1.8 Proof of payment made before the entity itself for some procedure, in which case the company is only obliged to inform in writing the day of payment and the proof of payment number, corresponding to the administration the immediate verification.
48.1.9 That which, in accordance with the applicable regulations, was accredited or should have been accredited in a previous phase or to obtain the completion of a previous procedure already satisfied. In this case, the information or documentation will be deemed accredited for all legal purposes.
48.1.10 All information or documentation that Public Administration entities administer, collect, systematize, create or possess with respect to users or administrations that are obliged to supply or make available to other entities that require them for the processing of its administrative procedures and for its internal administration acts, in accordance with the provisions of law, legislative decree or Supreme Decree endorsed by the President of the Council of Ministers.
The terms and other conditions for the application of the provisions of this paragraph to entities of the Public Administration other than the Executive Power, are established by Supreme Decree endorsed by the President of the Council of Ministers.
48.2 The provisions contained in this article do not limit the power of the company to spontaneously present the aforementioned documentation, if deemed appropriate.
Article 49.- Presentation of substitute documents for the originals
49.1 In order to comply with the requirements corresponding to all administrative, common or special procedures, entities are obliged to receive the following documents and information instead of the official documentation, which they replace with the same probative merit:
49.1.1 Simple copies to replace original documents or notarized copies of such documents, accompanied by a sworn statement from the administrator about their authenticity. Simple copies will be accepted, whether or not they are certified by notaries, officials or public servants in the exercise of their functions and will have the same value as the original documents for compliance with the requirements for the processing of administrative procedures followed before any entity.
49.1.2 Simple translations with the indication and subscription of the duly identified translator, instead of official translations.
49.1.3 The written expressions of the administrator contained in sworn statements by which they affirm their favorable situation or status, as well as the existence, veracity, validity in replacement of the information or documentation prohibited to request.
49.1.4 Private instruments, notarial ballots or simple copies of public deeds, instead of public instruments of any nature, or notarial testimonies, respectively.
49.1.5 Original certificates signed by duly identified independent professionals in replacement of official certifications about the special conditions of the manager or his interests whose appreciation requires special technical or professional attitudes to recognize them, such as health certificates or architectural plans, among others. They will be registered professionals only when the norm that regulates the requirements of the procedure so requires.
49.1.6 Photostatic copies of official formats or a particular reproduction of them prepared by the administrator fully respecting the structure of those defined by the authority, replacing the official forms approved by the entity itself for the provision of data.
49.2 The presentation and admission of documentary substitutes is made under the principle of presumption of veracity and entails the mandatory performance of subsequent control actions by said entities, with the consequent application of the sanctions provided for in numeral 34.3 of article 34 if fraud or falsehood is proven.
49.3 The provisions of this article are applicable even when an express rule provides for the presentation of original documents.
49.4 The provisions contained in this article do not limit the right of the company to present the documentation prohibited to require, if it is considered convenient to their right.
49.5 By means of a Supreme Decree endorsed by the President of the Council of Ministers and the competent sector, the list of original documents that can be replaced by substitutes can be expanded.
Article 50.- Validity of administrative acts of other entities and suspension of the procedure
Except for a special rule, in the processing of administrative procedures, entities cannot question the validity of administrative acts issued by other entities that are presented to comply with the requirements of the administrative procedures under their charge. Nor can they suspend the processing of procedures pending resolutions or information from another entity.
Article 51.- Presumption of veracity
51.1 All the sworn statements, the substitute documents presented and the information included in the documents and forms submitted by the companies to carry out administrative procedures, are presumed to have been verified by whoever makes use of them, regarding their own situation, as well as their content. truthful for administrative purposes, unless proven otherwise. In the case of documents issued by government authorities or by third parties, the company can prove their due diligence in carrying out the corresponding and reasonable verifications prior to their presentation.
51.2 In the case of part translations, as well as professional or technical reports or certificates presented as substitutes for official documentation, said responsibility jointly and severally reaches the person presenting them and those who issued them.
Article 52.- Value of public and private documents
52.1 Public documents are those validly issued by the entities' bodies.
52.2 The copy of any public document has the same validity and effectiveness as these, provided there is evidence that it is authentic.
52.3 The copy of the private document whose authenticity has been certified by the notary, has full validity and effectiveness, exclusively within the scope of activity of the entity that authenticates it.
Article 53.- Processing right
53.1 It is appropriate to establish processing rights in administrative procedures, when their processing implies for the entity the provision of a specific and individualizable service in favor of the company, or based on the cost derived from the activities aimed at analyzing the request; Except in cases where there are taxes intended to directly finance the activities of the entity. This cost includes the operating and maintenance expenses of the infrastructure associated with each procedure.
53.2 The conditions for the origin of this collection are that the processing rights have been determined in accordance with the current methodology, and that they are consigned in the current Single Text of Administrative Procedures. In the case of Executive Power entities, it must also have the endorsement of the Ministry of Economy and Finance.
53.3 It is not appropriate to establish charges for processing rights for procedures initiated ex officio, nor in those in which the right of ex gratia petition, regulated in article 123, or that of reporting to the entity for functional infractions of its own officials or that must be known by the Institutional Control Bodies, for which each entity must establish the corresponding procedure.
53.4 Procedures cannot be divided or collection established in stages.
53.5 The entity is obliged to reduce the processing rights in administrative procedures if, as a result of its processing, economic surpluses have been generated in the previous fiscal year.
53.6 By means of a supreme decree endorsed by the President of the Council of Ministers and the Minister of Economy and Finance, the criteria, procedures and methodologies are specified for determining the costs of the procedures, and administrative services provided by the administration and for setting the processing rights. The application of said criteria, procedures and methodologies is mandatory for the determination of costs of administrative procedures and services provided exclusively for all public entities in the processes of preparation or modification of the Single Text of Administrative Procedures of each entity. The entity may approve processing rights less than those resulting from the application of the criteria, procedures and methodologies approved according to this article.
53.7 Through Supreme Decree endorsed by the President of the Council of Ministers and the Minister of Economy and Finance, following the provisions of the previous paragraph, the processing rights for standardized procedures can be approved, which are mandatory for entities to comply with. from its publication in the Official Gazette, without the need to update the Single Text of Administrative Procedures. Notwithstanding the foregoing, entities are obliged to incorporate the amount of the processing fee in their Single Text of Administrative Procedures within a maximum period of five (5) business days, without requiring a procedure for the approval of processing rights, nor its ratification.
Article 54.- Limit of processing rights
54.1 The amount of the processing fee is determined based on the amount of the cost that its execution generates for the entity for the service provided throughout its processing and, where appropriate, by the actual cost of production of documents issued by the entity. Its amount is supported by the server in charge of the administration office of each entity.
For the cost to exceed one (1) UIT, authorization from the Ministry of Economy and Finance is required in accordance with the guidelines for the preparation and approval of the Single Text of Administrative Procedures approved by Resolution of the Secretary of Public Management. Said authorization is not applicable in cases where the Presidency of the Council of Ministers has approved processing rights for standardized procedures.
54.2 Entities cannot establish differentiated payments to give preference or special treatment to an application, distinguishing it from others of the same type, or discriminate based on the type of company that follows the procedure.
Article 55.- Cancellation of processing rights
The form of cancellation of the processing rights is established in the institutional TUPA, with the aim that the payment in favor of the entity can be made through any monetary form that allows its verification, including payments to bank accounts or electronic fund transfers.
Article 56.- Reimbursement of administrative expenses
56.1 The reimbursement of administrative expenses is only applicable when a law expressly authorizes it.
Administrative expenses are those caused by specific actions requested by the administrator within the procedure. It is requested once the administrative procedure has started and is the responsibility of the company that has requested the action or of all the companies, if the matter is of common interest; having the right to verify and, where appropriate, to observe, the support of the expenses to be reimbursed.
56.2 In the case of trilateral administrative procedures, the entities may order in the administrative act that causes the state the condemnation of costs and costs for the filing of malicious or reckless administrative appeals. A malicious or reckless appeal is understood to be one that lacks any substantiation in fact and in law, so that due to the ostensible lack of rigor in its foundation, the bad faith intention of the administered is evidenced. For this, the objective knowledge of the company to cause damage must be accredited. The guidelines for the application of this numeral will be approved by Supreme Decree endorsed by the President of the Presidency of the Council of Ministers.
Article 57.- Compliance with the rules of this chapter
57.1 The Presidency of the Council of Ministers, as the governing body, is the highest regulatory technical authority of the Public Management Modernization System and is in charge of ensuring compliance with the standards established in this chapter in all public administration entities. , without prejudice to the powers attributed to the Commission for the Elimination of Bureaucratic Barriers of the National Institute for the Defense of Competition and Protection of Intellectual Property to hear and resolve complaints that citizens or economic agents make on the subject.
57.2 The Presidency of the Council of Ministers has the following powers:
1. To issue Directives, methodologies and technical normative guidelines in the matters of its competence, including those referring to the creation of administrative procedures and services provided exclusively.
2. Issue a binding opinion on the scope and interpretation of the rules of administrative simplification including this Law. In the case of the Single Text of Administrative Procedures of the Ministries and Public Bodies, issue a favorable opinion prior to its approval.
3. Advise entities on administrative simplification matters and permanently evaluate administrative simplification processes within the entities, for which they may request all the information they require from them.
4. Supervise and ensure compliance with the rules of this Law, except for the determination of processing rights.
5. Supervise that the entities comply with approving their Single Text of Administrative Procedures in accordance with the applicable regulations.
6. Carry out the necessary steps to enforce the responsibility of officials for non-compliance with the rules of this Chapter, for which it has the legitimacy to act before the various entities of the public administration.
7. Establish mechanisms for receiving complaints and other mechanisms for citizen participation. When said complaints refer to matters within the competence of the Commission for the Elimination of Bureaucratic Barriers, it will refrain from knowing them and will send them directly to it.
8. Detect non-compliance with the rules of this Law and order the pertinent normative modifications, granting the entities a peremptory period for rectification.
9. If the correction is not produced, the Presidency of the Council of Ministers delivers a report to the Commission for the Elimination of Bureaucratic Barriers of INDECOPI, in order to initiate ex officio a procedure for the elimination of bureaucratic barriers, without prejudice to the application of the provisions of article 261.
Likewise, the INDECOPI Commission for the Elimination of Bureaucratic Barriers has the power to oversee: a. That the entities comply with applying the standardized procedures and incorporate them in their Sole Texts of Administrative Procedures. b. That the entities comply with the rules of administrative simplification in the processing of their administrative procedures and services provided exclusively.
10. Request the Technical Secretariat of the Commission on Bureaucratic Barriers to initiate an ex officio procedure regarding the elimination of bureaucratic barriers contained in administrative provisions that regulate the exercise of significant economic activities for the development of the country.
11. Others provided for in this Law and those indicated by the corresponding legal provisions.
Article 58.- Regime of entities without a Unique Text of Administrative Procedures in force
58.1 When the entity does not comply with publishing its Single Text of Administrative Procedures, or publishes it omitting procedures, those administered, without prejudice to enforcing the responsibility of the offending authority, are subject to the following regime:
1. Regarding the administrative procedures that correspond to be approved automatically or that are subject to positive administrative silence, the administered ones are released from the requirement to initiate that procedure to obtain prior authorization, to carry out their professional, social, economic or labor activity. , without being subject to sanctions for the free development of such activities. The suspension of this prerogative of the authority ends as of the day following the publication of the TUPA, without retroactive effect.
Administrative procedures subject to negative administrative silence follow the regime provided in the regulation for the creation or modification of the respective administrative procedure.
2. With respect to other matters subject to a prior evaluation procedure, the regime established in each case by this Chapter is followed.
58.2 Failure to comply with the obligations to approve and publish the Single Text of Procedures generates the following consequences:
1. For the entity, the suspension of its powers to require the administration to process the administrative procedure, the presentation of requirements or the payment of the processing fee, for the development of its activities.
2. For the officials responsible for the application of the provisions of this Law and the respective regulatory norms, it constitutes a serious disciplinary offense.
Article 59.- Outsourcing of activities
All activities related to the control functions, administrative procedures and services provided exclusively other than the issuance of administrative acts or any resolution may be outsourced unless otherwise provided by law. By means of a Supreme Decree endorsed by the Presidency of the Council of Ministers, the necessary provisions are established for the application of this modality.
Article 60.- Role of the Comptroller General and the internal control bodies
60.1 It is the responsibility of the Comptroller General of the Republic and the internal control bodies of the entities, within the framework of Law N 27785, Organic Law of the National Control System and the General Comptroller of the Republic, to verify ex officio that the entities and its officials and public servants comply with the obligations established in Chapter I, General Provisions, of Title, II Administrative Procedure, of Law No. 27444, Law of General Administrative Procedure.
60.2 The companies may file complaints with the internal control bodies of the entities, which are part of the National Control System, or directly with the Comptroller General of the Republic, against officials or public servants who fail to comply with any of the obligations to which they are refers to the previous paragraph.
60.3 It is the obligation of the internal control bodies of the entities or of the Office of the Comptroller General of the Republic that are aware of the complaints to inform the complainants about the processing of the same and about the actions that are developed, or the decisions that are adopted, as a result of the complaints in relation to the irregularities or breaches that are the object of the complaint.
60.4 The head or person in charge of the internal control body has the obligation to make a quarterly report, which must be sent to the head of the entity so that he or she can order that it be published in the respective institutional transparency web portal within a period of no more than 5 business days. , in which it will give an account of the actions carried out, or the decisions adopted, in relation to the complaints it receives against officials or public servants who fail to comply with the obligations referred to in the first paragraph of this device.
Of the subjects of the procedure
Article 61.- Subjects of the procedure
For the purposes of compliance with the provisions of Administrative Law, the subjects of the procedure are understood to be:
1. Managed: the natural or legal person who, whatever their qualification or procedural situation, participates in the administrative procedure. When an entity intervenes in a procedure as administered, it is subject to the rules that discipline it with equal powers and duties as the other administered.
2. Administrative authority: the agent of the entities that under any legal regime, and exercising public powers, conduct the initiation, instruction, substantiation, resolution, execution, or that otherwise participate in the management of administrative procedures.
Of the administered
Article 62.- Content of the concept administered
They are considered administered with respect to a specific administrative procedure:
1. Those who promote it as holders of individual or collective rights or legitimate interests.
2. Those who, without having started the procedure, have legitimate rights or interests that may be affected by the decision to be adopted.
Article 63.- Procedural capacity
People who have legal capacity in accordance with the laws have procedural capacity before the entities.
Article 64.- Representation of legal persons
Legal persons can intervene in the procedure through their legal representatives, who act premunido of the respective powers.
Article 65.- Freedom of procedural action
63.1 The company is empowered, in its relations with the entities, to carry out any action that is not expressly prohibited by any legal device.
63.2 For the purposes of the previous numeral, everything that prevents or disturbs the rights of other companies, or the fulfillment of their duties regarding the administrative procedure, is understood to be prohibited.
Article 66.- Rights of the administered
The rights of the administered with respect to the administrative procedure are the following:
1. The precedence in the attention of the required public service, keeping strict order of admission.
2. To be treated with respect and consideration by the personnel of the entities, in conditions of equality with the other administrations.
3. Access, at any time, directly and without any limitation to the information contained in the files of the administrative procedures to which they are parties and to obtain copies of the documents contained therein, defraying the cost of their request, except for the exceptions expressly provided by law.
4. Access the free information that State entities must provide on their activities aimed at the community, including their purposes, competencies, functions, organization charts, location of dependencies, hours of service, procedures and characteristics.
5. To be informed in the ex officio procedures about its nature, scope and, if foreseeable, the estimated term of its duration, as well as its rights and obligations in the course of such action.
6. Participate responsibly and progressively in the provision and control of public services, ensuring their efficiency and timeliness.
7. Upon compliance with the deadlines determined for each service or action and thus demand it from the authorities.
8. To be assisted by the entities for the fulfillment of their obligations.
9. Know the identity of the authorities and personnel at the service of the entity under whose responsibility the procedures of your interest are processed.
10. For the actions of the entities that affect them to be carried out in the least burdensome way possible.
11. To the responsible exercise of the right to formulate analysis, criticism or question the decisions and actions of the entities.
12. Not to present the prohibited documents to request the entities, to use the documentary substitutes and not to pay rates different from those due according to the rules of this Law.
13. That in case of renewals of authorizations, licenses, permits and the like, they are understood to be automatically extended as long as they have been requested during the original term, and while the authority instructs the renewal procedure and notifies the final decision on this file.
14. To demand the responsibility of the entities and the personnel at its service, when it corresponds legally, and,
15. Other rights recognized by the Political Constitution of Peru or the laws.
Article 67.- General duties of those administered in the procedure
Those administered with respect to the administrative procedure, as well as those who participate in it, have the following general duties:
1. Refrain from formulating illegal claims or articulations, from declaring facts contrary to the truth or not confirmed as if they were reliable, from requesting merely delaying actions, or in any other way affecting the principle of procedural conduct.
2. Provide their collaboration for the pertinent clarification of the facts.
3. Provide the authority with any information aimed at identifying other non-appearing companies with a legitimate interest in the procedure.
4. Check, prior to its presentation to the entity, the authenticity of the substitute documentation and any other information that relies on the presumption of veracity.
Article 68.- Provision of information to entities
68.1 The companies are empowered to provide entities with the information and documents related to their requests or claims that they deem necessary to obtain the ruling.
68.2 In the investigative procedures, the companies are obliged to provide the information and documents that they knew and were reasonably adequate to the objectives of the action to reach the material truth, in accordance with the provisions of the chapter on the investigation.
Article 69.- Personal appearance
69.1 The entities can summon the personal appearance at their headquarters of the administrated only when it has been expressly empowered by law.
69.2 The companies may appear assisted by advisers when necessary for the best exposition of the truth of the facts.
69.3 At the verbal request of the manager, the entity delivers at the end of the act, proof of their appearance and a copy of the minutes prepared.
Article 70.- Formalities of the appearance
70.1 The summons is governed by the common system of notification, stating the following:
70.1.1 The name and address of the citing body, with identification of the requesting authority;
70.1.2 The object and subject of the appearance;
70.1.3 The names and surnames of the aforementioned;
70.1.4 The day and time on which the aforementioned must appear, which cannot be before the third day of receipt of the summons, and, if foreseeable, the maximum duration required for their presence. Conventionally, the day and time of appearance can be set;
70.1.5 The legal provision that empowers the body to make this summons; and 70.1.6 The warning, in case of non-attendance at the request.
70.2 The appearance must be carried out, as far as possible, in a way compatible with the labor or professional obligations of those summoned.
70.3 The summons that violates any of the indicated requirements does not take effect, nor does it oblige the managers to attend.
Article 71.- Third parties managed
71.1 If during the processing of a procedure the existence of certain non-appearing third parties whose rights or legitimate interests may be affected by the resolution that is issued is noticed, said processing and the proceeding must be communicated to them by summons to the address that is known, without interrupt the procedure.
71.2 Regarding undetermined administered third parties, the summons is made by publication or, when appropriate, by conducting the public information process or public hearing, in accordance with this Law.
71.3 Third parties may appear at any stage of the procedure, having the same rights and obligations as the participants in it.
Of the administrative authority: General principles and competence
Article 72.- Source of administrative competence
72.1 The competence of the entities has its source in the Constitution and the law, and is regulated by the administrative norms derived from them.
72.2 Every entity is competent to carry out the internal material tasks necessary for the efficient fulfillment of its mission and objectives, as well as for the distribution of the attributions that are included within its competence.
Article 73.- Presumption of decentralized competence
73.1 When a norm attributes to an entity some competence or faculty without specifying which body within it should exercise it, it must be understood that it corresponds to the lower hierarchy body with the most similar function linked to it by reason of the matter and territory, and, accordingly If there are several possible bodies, to the common hierarchical superior.
73.2 It is particularly up to these bodies to resolve matters that consist of the simple confrontation of facts with express norms or matters such as: certifications, registrations, referrals to the file, notifications, issuance of certified copies of documents, communications or the return of documents.
73.3 Each entity is competent to carry out internal material tasks necessary for the efficient fulfillment of its mission and objectives.
Article 74.- Inalienable nature of administrative jurisdiction
74.1 Any administrative act or contract that contemplates the renunciation of ownership, or the abstention from the exercise of the powers conferred on any administrative body, is void.
74.2 Only by law or by express judicial mandate, in a specific case, may an authority be required not to exercise any administrative attribution within its competence.
74.3 Delay or negligence in the exercise of jurisdiction or its non-exercise when appropriate, constitutes a disciplinary offense attributable to the respective authority.
74.4 The entities or their officials cannot fail to comply with the administrative procedures, in accordance with the provisions of this Law. Any act against is null and void.
Article 75.- Conflict with the jurisdictional function
75.1 When, during the processing of a procedure, the administrative authority acquires knowledge that a litigious issue between two administrations is being processed in the jurisdictional headquarters about certain private law relationships that need to be clarified prior to the administrative ruling, it will request the judicial body to communicate about the actions carried out.
75.2 Once the communication has been received, and only if it considers that there is a strict identity of subjects, facts and grounds, the competent authority for the resolution of the procedure may determine its inhibition until the court resolves the dispute.
The inhibitory resolution is raised in consultation with the hierarchical superior, if any, even when there is no appeal. If the inhibitory resolution is confirmed, it is communicated to the corresponding Public Prosecutor so that, if it is the case and is in the interests of the State, it may appear in the process.
Article 76.- Exercise of jurisdiction
76.1 The exercise of jurisdiction is a direct obligation of the administrative body that has it attributed as its own, except for the change of jurisdiction for reasons of delegation or evocation, as provided in this Law.
76.2 The management order, the delegation of signature and the substitution do not imply alteration of the ownership of the competition.
76.3 The competence of the entities enshrined in the Constitution cannot be changed, altered or modified.
Article 77.- Changes of jurisdiction for organizational reasons
If during the processing of an administrative procedure, the competence to know it is transferred to another administrative body or entity for organizational reasons, the procedure will continue in this one without going back stages or suspending deadlines.
Article 78.- Delegation of jurisdiction
78.1 Entities may delegate the exercise of competence conferred on their bodies to other entities when there are technical, economic, social or territorial circumstances that make it convenient. The delegation of competence from one body to another within the same entity also proceeds.
78.2 The essential powers of the body that justify its existence, the powers to issue general rules, to resolve administrative appeals in the bodies that have issued the acts subject to appeal, and the powers in turn received by delegation are non-delegable.
78.3 While the delegation lasts, the delegator may not exercise the competence that he / she had delegated, except in the cases in which the law allows certiorari.
78.4 Administrative acts issued by delegation expressly indicate this circumstance and are considered issued by the delegating entity.
78.5 The delegation expires:
a) By revocation or certiorari.
b) Due to the fulfillment of the term or the condition established in the act of delegation.
Article 79.- Duty of vigilance of the delegator
The delegator will always have the obligation to monitor the management of the delegate, and may be liable to the latter due to fault in the surveillance.
Article 80.- Avocation of competition
80.1 In general, the law may consider exceptional cases of certiorari of knowledge, by superiors, due to the matter, or the particular structure of each entity.
80.2 The delegating entity may take charge of the knowledge and decision of any specific matter that corresponds to decide to another, by virtue of delegation.
Article 81.- Common provision for delegation and certification of jurisdiction
Any change of jurisdiction must be temporary, motivated, and its content must refer to a series of acts or procedures indicated in the act that originates it. The decision that is made must be notified to the companies included in the current procedure prior to the resolution issued.
Article 82.- Management commission
82.1 The carrying out of activities of a material, technical or service nature within the competence of a body may be entrusted to other bodies or entities for reasons of efficiency, or when the person in charge has the appropriate means to perform it herself.
82.2 The order is formalized by agreement, where the express mention of the activity or activities affected by the term, the nature and its scope is stated.
82.3 The commissioning body remains with the ownership of the competition and with responsibility for it, having to supervise the activity.
82.4 By regulation with the force of law, entities may be empowered to carry out management assignments to non-state legal entities, when technical and budgeted reasons make it advisable under the same terms provided in this article, said assignment must be carried out subject to the Administrative law.
Article 83.- Delegation of signature
83.1 The heads of the administrative bodies may delegate by written communication the signing of acts and decisions within their competence to their immediate subordinates, or to the heads of the bodies or administrative units that depend on them, except in the case of resolutions of sanctioning procedures, or those that exhaust the administrative route.
83.2 In the case of a signature delegation, the delegate is solely responsible and the delegate is limited to signing what is resolved by him.
83.3 The delegate signs the acts with the annotation "by", followed by the name and position of the delegator.
Article 84.- Substitution
84.1 The performance of the positions of the heads of the administrative bodies may be temporarily replaced in case of vacancy or justified absence, by whoever designates the competent authority to make the appointment of those.
84.2 The alternate substitutes the holder for all legal purposes, exercising the functions of the body with the full powers and duties that they contain.
84.3 If he is not appointed as a regular or substitute, the position is temporarily assumed by whoever follows him in hierarchy in said unit; and before the existence of more than one with the same level, by whoever holds the position with the greatest connection to the management of the area that it supplies; and, if the equivalence persists, the oldest; in all cases on an interim basis.
Article 85.- Deconcentration
85.1 The ownership and exercise of competence assigned to the administrative bodies are deconcentrated in other bodies of the entity, following the criteria established in this Law.
Deconcentration of competition can be vertical or horizontal. The first is an organizational form of deconcentration of competition that is established according to the grade and line of the body that performs the functions, without taking into account the geographical aspect. The second is an organizational form of deconcentration of competition that is used in order to expand the coverage of the administrative functions or services of an entity.
85.2 The management bodies of the entities are freed from any routine of execution, from issuing ordinary communications and from the tasks of formalizing administrative acts, in order that they can concentrate on planning, supervision, coordination, internal control activities of its level and in the evaluation of results.
85.3 The hierarchically dependent bodies are transferred competence to issue resolutions, in order to bring the administrative powers that concern their interests closer to the administered entities.
85.4 When the challenge against administrative acts issued in the exercise of decentralized jurisdiction is appropriate, it will be up to the person who transferred them to decide, except for different legal provisions.
Article 86.- Duties of the authorities in the procedures
The following are the duties of the authorities with respect to the administrative procedure and of their participants:
1. Act within the scope of their competence and in accordance with the purposes for which their powers were conferred.
2. Carry out their functions following the principles of the administrative procedure set forth in the Preliminary Title of this Law.
3. Direct the procedure ex officio, when it notices any error or omission of the administered, without prejudice to the action that corresponds to them.
4. Refrain from demanding that the companies comply with requirements, carry out procedures, supply information or make payments, not legally foreseen.
5. Carry out the actions under their charge in a timely manner, in order to facilitate the timely exercise of the procedural acts of their position by those administered.
6. Explicitly resolve all submitted applications, except in those automatic approval procedures.
7. To ensure the effectiveness of the procedural actions, trying to simplify their procedures, with no more formalities than those essential to guarantee respect for the rights of the companies or to promote certainty in the actions.
8. Interpret the administrative regulations in a way that better serves the public purpose to which they are directed, while reasonably preserving the rights of those administered.
9. The others provided for in this Law or derived from the duty to protect, conserve and provide assistance to the rights of the administered, in order to preserve their effectiveness.
10. Enable suitable spaces for the consultation of files and documents, as well as for the comfortable and orderly attention of the public, without prejudice to the use of means with the application of information technology or other similar ones.
Collaboration between entities
Article 87.- Collaboration between entities
87.1 The relationships between the entities are governed by the criteria of collaboration, regardless of the fact, it waives its own competence indicated by law.
87.2 In view of the collaboration criteria, entities must:
87.2.1 Respect the exercise of competence of other entities, without questioning outside the institutional levels.
87.2.2 Provide directly the data and information they possess, whatever their legal nature or institutional position, through any means, without any limitation other than that established by the Constitution or the law, for which the interconnection of electronic information processing equipment, or other similar means.
87.2.3 Provide, within its own scope, the cooperation and active assistance that other entities may need to carry out their own functions, unless it causes them high expenses or jeopardizes the fulfillment of their own functions.
87.2.4 Provide entities with the means of proof that are in their possession, when requested to better fulfill their duties, unless otherwise provided by law.
87.2.5 Provide a free and timely response to requests for information made by another public entity in the exercise of its functions.
87.3 In procedures subject to positive administrative silence, the term to resolve will be suspended when an entity requires the collaboration of another to provide the information provided for in numbers 87.2.3 and 87.2.4, provided that this is essential for the resolution of the administrative Procedure. The suspension period may not exceed the period established in paragraph 3 of article 143.
87.4 When an entity requests the collaboration of another entity, it must notify the manager within 3 days after the information is required.
Article 88.- Means of inter-institutional collaboration
88.1 The entities are empowered to provide stability to inter-institutional collaboration through conferences between related entities, collaboration agreements or other legally admissible means.
88.2 Conferences between related entities allow those entities that correspond to the same administrative problem, to meet to exchange solution mechanisms, promote institutional collaboration in specific common aspects, and constitute instances of bilateral cooperation.
The agreements will be formalized when it warrants, through agreements signed by the authorized representatives.
88.3. Through the collaboration agreements, the entities, through their authorized representatives, enter into agreements within the law within the scope of their respective competence, of a mandatory nature for the parties and with an express clause of free adhesion and separation.
88.4 Entities may enter into agreements with private sector institutions, provided that this achieves the fulfillment of their purpose and does not violate public order rules.
Article 89.- Execution of collaboration between authorities
89.1 The origin of the requested collaboration is regulated according to the rules of the requesting authority, but its compliance is governed by the rules of the requested authority.
89.2 The authority requesting the collaboration is solely responsible for the legality of the request and for the use of its results. The requested authority is responsible for the execution of the collaboration carried out.
Article 90.- Costs of the collaboration
90.1 The collaboration request does not generate the payment of fees, administrative rights or any other concept that implies any payment, between public administration entities
90.2 At the request of the requested authority, the requesting authority of another entity will have to pay the latter the actual expenses incurred when the actions are outside the entity's scope of ordinary activity.
Conflicts of jurisdiction and abstention
Article 91.- Control of competition
Upon receipt of the request or provision of a higher authority, as the case may be, to initiate a procedure, the ex officio authorities must ensure their own competence to continue with the normal development of the procedure, following the criteria applicable to the case of the matter, the territory , the time, the degree or the amount.
Article 92.- Conflicts of jurisdiction
92.1 Incompetence may be declared ex officio, once appreciated in accordance with the previous article or at the request of those administered, by the body that hears the matter or by the hierarchical superior.
92.2 In no case, the lower levels can sustain competition with a superior, owing him, in any case, to state the reasons for their discrepancy.
Article 93.- Decline of jurisdiction
93.1 The administrative body that is deemed incompetent for the processing or resolution of a matter sends the proceedings directly to the body that it considers competent, with the knowledge of the company.
93.2 The body that declines its competence, at the request of one party and even before another assumes, may adopt the necessary precautionary measures to avoid serious or irreparable damage to the entity or to the companies, communicating it to the competent body.
Article 94.- Negative conflict of jurisdiction
In the event of a negative conflict of jurisdiction, the file is submitted to the immediate higher body to resolve the conflict.
Article 95.- Positive conflict of jurisdiction
95.1 The body that is considered competent requires inhibition of the one who is hearing the matter, which if it agrees, sends the action to the requesting authority so that the process can continue.
95.2 If the requested authority maintains its competence, it sends the action to the immediate superior to resolve the conflict.
Article 96.- Resolution of conflict of jurisdiction
In any conflict of jurisdiction, the body to which the file is sent issues an irrevocable resolution within a period of four days.
Article 97.- Competence to resolve conflicts
97.1 It is the responsibility of resolving the positive or negative conflicts of competence of the same entity, to the common hierarchical superior, and, if there is not, to the owner of the entity.
97.2 The conflicts of competence between authorities of the same Sector are resolved by the person responsible for it, and conflicts between other authorities of the Executive Power are resolved by the Presidency of the Council of Ministers, by means of an unwarranted decision; without being taken by the authorities in any case to the courts.
97.3 Conflicts of jurisdiction between other entities are resolved in accordance with the provisions of the Constitution and the laws.
Article 98.- Continuation of the procedure
After the conflict of jurisdiction has been resolved, the body that is competent to hear the matter continues the procedure according to its status and retains everything that has been done, except for what is not legally possible.
Article 99.- Grounds for abstention
The authority that has decision-making power or whose opinions on the merits of the procedure may influence the direction of the resolution, must refrain from participating in matters whose competence is attributed to it, in the following cases:
1. If you are a spouse, cohabitant, relative within the fourth degree of consanguinity or second degree of affinity, with any of the administered or with their representatives, agents, with the administrators of their companies, or with those who provide them services.
2. If he has intervened as an advisor, expert or witness in the same procedure, or if as an authority he has previously expressed his opinion on it, so that it could be understood that he has pronounced on the matter, except for the rectification of errors or the decision on the appeal for reconsideration.
3. If personally, or your spouse, partner or a relative within the fourth degree of consanguinity or second degree of affinity, has an interest in the matter in question or in another similar, whose resolution may influence the situation of the former.
4. When he has an intimate friendship, manifest enmity or objective conflict of interest with any of the companies involved in the procedure, which are made evident through attitudes or facts evident in the procedure.
5. When you have or have had in the last twelve (12) months, a service or subordination relationship with any of the companies or third parties directly interested in the matter, or if you have a business agreement with any of the parties in mind, even if it doesn't happen later.
The provisions of this numeral do not apply in the cases of contracts for the provision of public services or, that deal with operations normally carried out by the managed-legal entity with third parties and, provided that they are agreed in the conditions offered to other consumers or users.
6. When reasons are presented that disturb the function of the authority, this, by decorum, may abstain by means of a duly substantiated resolution. To do this, the following rules must be taken into account:
a) If the authority is part of a collegiate body, the latter must accept or deny the request.
b) In the event that the authority is a unipersonal body, its hierarchical superior must issue a resolution accepting or denying the request.
Article 100.- Promotion of abstention
100.1 The authority that is in any of the circumstances indicated in the previous article, within two (2) business days following the one in which it began to know the matter, or in which it learned of the supervening cause, raises its abstention in writing reasoned, and remits the action to the immediate hierarchical superior, to the president of the collegiate body or to the plenary, as the case may be, so that without further processing, it can rule on abstention within the third day.
100.2 When the authority does not abstain despite the existence of any of the stated causes, the company may make said situation known to the owner of the entity, or to the plenary, if it is a collegiate body, at any time.
Article 101.- Superior provision for abstention
101.1 The immediate hierarchical superior orders, ex officio, or at the request of the administered, the abstention of the agent incurred in any of the causes referred to in article 100.
101.2 In this same act designates who will continue to hear the matter, preferably among authorities of equal hierarchy, and will forward the file.
101.3 When there is no other public authority capable of hearing the matter, the superior will choose to empower an ad hoc authority, or order that the person incurred in abstention process and resolve the matter, under his / her direct supervision.
Article 102.- Consequences of non-abstention
102.1 The participation of the authority in which any of the grounds for abstention concur does not necessarily imply the invalidity of the administrative acts in which it has intervened, except in the case in which the impartiality or manifest arbitrariness is evident or that would have caused the defenselessness of the administered.
102.2 Notwithstanding this, the hierarchical superior orders the initiation of administrative, civil or criminal liability actions against the authority that has not refrained from intervening, knowing the existence of the cause.
Article 103.- Processing of abstention The processing of an abstention will be carried out incidentally, without suspending the deadlines to resolve or for administrative silence to operate.
Article 104.- Challenge of the decision
The resolution of this matter is not contested in administrative headquarters, except for the possibility of alleging non-abstention, as the basis of the administrative appeal against the final resolution.
Article 105.- Withdrawal of the abstained authority
The authority that by effect of the abstention is removed from the procedure, cooperates to contribute to the speed of the attention of the procedure, without participating in subsequent meetings or in the deliberation of the decision.
Article 106.- Regime of collegiate bodies
The internal functioning of the collegiate, permanent or temporary bodies of the entities, including those in which representatives of non-state trade union, social or economic organizations participate, are subject to the provisions of this section.
Article 107.- Authorities of the collegiate bodies
107.1 Each collegiate body of the entities is represented by a President, in charge of ensuring the regularity of the deliberations and executing their agreements, and has a Secretary, in charge of preparing the agenda, keeping, updating and keeping the minutes of the sessions , communicate the agreements, grant copies and other acts of the nature of the position.
107.2 In the absence of an express nomination in the manner prescribed by law, the positions indicated are elected by the collegiate body itself from among its members, by an absolute majority of votes.
107.3 In case of justified absence, they may be substituted provisionally by alternates or, failing that, by whomever the collegiate chooses from among its members.
Article 108.- Attributions of the members
Corresponds to the members of the collegiate bodies:
1. Receive with reasonable advance notice, the call to sessions, with the agenda containing the order of the day and sufficient information on each topic, so that they can learn about the issues that need to be debated.
2. Participate in the debates of the sessions.
3. Exercise their right to vote and formulate their singular vote when deemed necessary, as well as express the reasons that justify it. The substantiation of a singular vote can be made at the same time or delivered in writing until the next day.
4. Make requests of any kind, in particular to include topics on the agenda, and ask questions during the debates.
5. Receive and obtain a copy of any document or minutes of the sessions of the collegiate body.
Article 109.- Regime of the sessions
109.1 Every collegiate meets ordinarily with the frequency and on the day indicated by its ordinance; and, failing both, when he agrees.
109.2 The convocation of the collegiate bodies corresponds to the President and must be notified together with the agenda of the order of the day with reasonable advance notice, except for urgent or periodic sessions on a fixed date, when the summons may be waived.
109.3 However, it is validly constituted without meeting the call or agenda requirements, when all its members meet and unanimously agree to start the session.
109.4 Once the session has started, no matter outside the agenda can be agreed upon, unless all the members of the collegiate body are present and approve the inclusion by unanimous vote, due to the urgency of adopting an agreement on it.
Article 110.- Quorum for sessions
110.1 The quorum for the installation and valid session of the collegiate body is the absolute majority of its members.
110.2 If there is no quorum for the first session, the body is constituted on a second call the day after the one indicated for the first, with a quorum of one third of the legal number of its members, and in any case, no less to three.
110.3 Once a session is installed, it can be suspended only due to force majeure, with a charge to continue it on the date and place indicated at the time of suspending it. If it is not possible to indicate it in the same session, the Presidency announces the restart date notifying all the members with reasonable advance.
Article 111.- Quorum for voting
111.1 Resolutions are adopted by the votes of the majority of those present at the time of voting in the respective session, unless the law expressly establishes a different rule; corresponding to the Presidency the casting vote in the event of a tie.
111.2 The members of the collegiate body who express a vote other than the majority must record their position and the reasons that justify it in the minutes. The Secretary shall record this vote in the minutes together with the decision adopted.
111.3 In the case of collegiate advisory bodies or informants, the majority agreement is accompanied by the single vote that may exist.
Article 112.- Mandatory voting
112.1 Except for legal provision to the contrary, the members of collegiate bodies attending the session and not legally prevented from intervening, must affirm their position on the proposal under debate, and it is forbidden to inhibit themselves from voting.
112.2 When abstention from voting is authorized by law, such position must be substantiated in writing.
Article 113.- Minutes of the session
113.1 A minute is drawn up for each session, which contains the indication of the attendees, as well as the place and time in which it was held, the points of deliberation, each agreement separately, with an indication of the form and meaning of the votes of all participants. The agreement clearly expresses the meaning of the decision taken and its rationale.
113.2 The minutes are read and submitted to the approval of the members of the collegiate body at the end of the same session or at the beginning of the next one, although the Secretary may certify the specific agreements already approved, as well as the plenary session to authorize the immediate execution of the the agreed.
113.3 Each minute, once approved, is signed by the Secretary, the President, by those who have voted individually and by those who request it.
Initiation of the procedure
Article 114.- Forms of initiation of the procedure
The administrative procedure is promoted ex officio by the competent body or instance of the administered, unless by legal provision or its purpose corresponds to be initiated exclusively ex officio or at the request of the interested party.
Article 115.- Commencement of office
115.1 For the official initiation of a procedure, there must be a provision of a higher authority that supports it in that sense, a motivation based on the fulfillment of a legal duty or the merit of a complaint.
115.2 The ex officio initiation of the procedure is notified to the certain companies whose interests or protected rights may be affected by the acts to be carried out, except in the case of subsequent control of requests or their documentation, under the presumption of veracity. The notification includes information on the nature, scope and, if foreseeable, the estimated term of its duration, as well as its rights and obligations in the course of such action.
115.3 The notification is made immediately after the decision is issued, unless the regulations authorize it to be deferred due to its confidential nature based on the public interest.
Article 116.- Right to file complaints
116.1 Every company is empowered to communicate to the competent authority those facts that it becomes aware of contrary to the ordinance, without the need to support the immediate affectation of any right or legitimate interest, nor that for this action it is considered the subject of the procedure.
116.2 The communication must clearly state the relationship of the facts, the circumstances of time, place and manner that allow their verification, the indication of their alleged perpetrators, participants and victims, the contribution of evidence or its description so that the administration can proceed to its location, as well as any other element that allows its verification.
116.3 Its presentation obliges to carry out the necessary preliminary procedures and, once its verisimilitude has been verified, to initiate the respective examination ex officio. The rejection of a complaint must be motivated and communicated to the complainant, if individualized.
116.4 The entity receiving the complaint may grant protection measures to the complainant, guaranteeing their safety and avoiding being affected in any way.
Article 117.- Right of administrative petition
117.1 Any person administered, individually or collectively, may promote in writing the initiation of an administrative procedure before any and all entities, exercising the right of petition recognized in article 2, paragraph 20) of the Political Constitution of the State.
117.2 The right of administrative petition includes the powers to present requests in the particular interest of the company, to make requests in the general interest of the community, to contradict administrative acts, the powers to request information, to formulate consultations and to present grace requests.
117.3 This right implies the obligation to give the interested party a written response within the legal term.
Article 118.- Request in the particular interest of the company
Any company with legal capacity has the right to appear personally or be represented before the administrative authority, to request in writing the satisfaction of their legitimate interest, obtain the declaration, recognition or granting of a right, the proof of a fact, exercise a power or formulate legitimate opposition.
Article 119.- Request in the general interest of the community
119.1 Natural or legal persons may file a petition or contradict acts before the competent administrative authority, claiming the diffuse interest of the company.
119.2 This power includes the possibility of communicating and obtaining a response about the existence of problems, obstacles or regulatory obstacles or those arising from administrative practices that affect access to entities, the relationship with the companies or compliance with procedural principles, as well as to present any suggestion or initiative aimed at improving the quality of services, increasing performance or any other measure that implies a better level of satisfaction of society with respect to public services.
Article 120.- Faculty of administrative contradiction
120.1 Faced with an act that supposes that it violates, affects, ignores or injures a right or a legitimate interest, its contradiction in the administrative route in the manner provided in this Law, so that it is revoked, modified, annulled or its effects are suspended .
120.2 For the interest to be able to justify the ownership of the company, it must be legitimate, personal, current and proven. The interest can be material or moral.
120.3 The reception or attention of a contradiction cannot be conditioned to the previous fulfillment of the respective act.
Article 121.- Power to request information
121.1 The right to petition includes that of requesting the information that is in the possession of the entities, following the regime provided in the Constitution and the Law.
121.2 The entities establish mechanisms for responding to requests for specific information and provide for the ex officio supply to the interested parties, including by telephone or electronic means, of general information on topics of recurring interest to citizens.
121.3 The entities are obliged to respond to the request for information within the legal term.
Article 122.- Power to formulate consultations
122.1 The right of petition includes written consultations to the administrative authorities, on the matters in their charge and the meaning of the current regulations that comprise their actions, particularly those issued by the entity itself. This right implies the obligation to give the interested party a written response within the legal term.
122.2 Each entity attributes to one or more of its units competence to answer queries on the basis of the interpretation precedents followed in it.
Article 123.- Power to formulate requests for grace
123.1 Due to the power to formulate grace requests, the company may request the owner of the competent entity to issue an act subject to its discretion or free appreciation, or to provide a service when it does not have another specific legal title that allows it to be required. as a request in particular interest.
123.2 Faced with this request, the authority communicates to the administrator the ex gratia quality of the request and is attended directly by the effective provision of the request, unless expressly provided by law that provides for a formal decision for its acceptance.
123.3 This right is exhausted with its exercise in the administrative channel, without prejudice to the exercise of other rights recognized by the Constitution.
Article 124.- Requirements of the writings
Any writing that is presented to any entity must contain the following:
1. Full names and surnames, address and number of the National Identity Document or immigration card of the administrator, and where appropriate, the quality of representative and of the person he represents.
2. The specific expression of the request, the factual grounds that support it and, when possible, those of law.
3. Place, date, signature or fingerprint, in case of not knowing how to sign or being disabled.
4. The indication of the body, entity or authority to which it is addressed, meaning, as far as possible, the authority closest to the user, according to the hierarchy, with competence to know and resolve it.
5. The address of the place where you want to receive the notifications of the procedure, when it is different from the real address set forth under number 1. This address indication takes effect from its indication and is presumed subsistent, as long as its change is not expressly communicated .
6. The list of the accompanying documents and annexes, indicated in the TUPA.
7. Identification of the matter file, in the case of procedures already initiated.
Article 125.- Copies of documents
125.1 The document is presented on plain paper accompanied by a compliant and legible copy, unless a larger number is necessary to notify third parties. The copy is returned to the administrator with the signature of the authority and the reception stamp indicating the date, time and place of presentation.
125.2 The charge thus issued has the same legal value as the original.
Article 126.- Representation of the administered
126.1 For the processing of procedures, a simple power of attorney signed by the manager is sufficient, unless special laws require an additional formality.
126.2 For the withdrawal of the claim or the procedure, avail itself of the forms of conventional termination of the procedure or, for the collection of money, special power of attorney is required expressly indicating the act or acts for which it was conferred. The special power of attorney is formalized at the discretion of the company, by means of a private document with signatures legalized before a notary or public official authorized for this purpose, as well as by means of a personal appearance of the company and representative before the authority.
126.3 The use of representation does not prevent the intervention of the company itself when it considers it pertinent, nor the fulfillment by the latter of the obligations that require their personal appearance according to the rules of this Law.
Article 127.- Accumulation of requests
127.1 In the event that there are several companies interested in obtaining the same administrative act without incompatible interests, they may appear jointly by means of a single letter, forming a single file.
127.2 More than one petition may be accumulated in a single writing, provided that it deals with related matters that allow them to be processed and resolved jointly, but not subsidiary or alternative proposals, except as established in numeral 217.4 of article 217.
127.3 If, at the discretion of the administrative authority, there is no connection or there is incompatibility between the requests made in writing, they will be summoned to present separate requests, under the warning of proceeding ex officio to substantiate them individually if they are separable, or failing that, to dispose of abandonment of the procedure.
Article 128.- Documentary reception
128.1 Each entity has its general unit of documentary reception, documented procedure or table of parts, except when the entity provides services in several properties located in different areas, in which case it corresponds to open auxiliary records to the main one in each premises, to which all records are reported. that they do.
128.2 Such units are in charge of keeping a record of the entry of the documents that are presented and the exit of those documents issued by the entity addressed to other bodies or administrations. For this purpose, they issue the charge, make the respective entries respecting their order of entry or exit, indicating their entry number, nature, date, sender and recipient. Once the registration is concluded, the writings or resolutions must be processed the same day to their addressees.
128.3 These units will tend to manage your information on computer support, ensuring its integration into a single documented processing system.
128.4 Also through these units, the administrations carry out all the pertinent steps to their procedures and obtain the information they require for this purpose.
Article 129.- Rules for speedy reception
The entities adopt the following actions to facilitate the personal reception of the submissions of the administrated and avoid their agglomeration:
1. The implementation of programs to rationalize the attention time per user and the greater simultaneous provision of servers dedicated exclusively to the attention of users.
2. The advisory service for users to complete forms or model documents.
3. Adapt its regime of working hours for customer service, in order to adapt it to the forms provided for in article 149.
4. Study the seasonality of the demand for its services and dictate preventive measures to avoid it.
5. Install self-service mechanisms that allow users to directly supply their information, tending to the use of advanced levels of digitization.
Article 130.- General rules for the reception of documents
The documents that the administrations send to the entities can be presented personally or through third parties, before the reception units of:
1. The administrative bodies to which they are addressed.
2. The decentralized bodies of the entity.
3. The political authorities of the Ministry of the Interior in the corresponding district.
4. In post offices, in the manner expressly provided for in this Law.
5. In diplomatic representations or consular offices abroad, in the case of administrations residing abroad, who refer the writings to the competent entity, indicating the date of their presentation.
Article 131.- Presentation by certified mail
131.1 Managers can send their writings, with complete collections, by certified mail with acknowledgment of receipt to the competent entity, which records the certificate number and the date of receipt in its registry.
131.2 At the time of dispatch, the company exhibits the writing in an open envelope and be careful that the postal agent prints its date stamp both on its writing and on the envelope.
131.3 In case of doubt, it must be up to the date of the stamp stamped on the document, and, failing that, to the date of receipt by the entity.
131.4 This modality does not fit for the presentation of administrative appeals or in trilateral procedures.
Article 132.- Reception by alternative means
132.1 Administrators who reside outside the province where the reception unit of the competent entity is located may present the writings addressed to other dependencies of the entity through the decentralized body located in their place of domicile.
132.2 When the entities do not have decentralized services in the area of residence of the administered, the writings can be presented in the offices of the political authorities of the Ministry of the Interior of the place of their domicile.
132.3 Within the next twenty-four hours, said units send what is received to the recipient authority by any expeditious means at their disposal, indicating the date of its presentation.
Article 133.- Presumption common to alternative reception means
For the purposes of expiration of deadlines, it is presumed that the writings and communications presented through certified mail, the decentralized bodies and the authorities of the Ministry of the Interior, have entered the recipient entity on the date and time they were delivered. to any of the designated dependencies. In the case of requests subject to positive administrative silence, the term that the recipient entity has to resolve will be computed from the date of receipt by it.
In the event that the entity that receives it is not competent to resolve, it will send the writings and communications to the destination entity within the term of the distance, which will inform the company of the date on which it receives them.
Article 134.- Reception by remote data transmission
134.1 Managers may request that the sending of information or documentation that they should receive within a procedure be carried out by means of remote transmission, such as email or facsimile.
134.2 Provided that they have remote data transmission systems, entities facilitate their use to receive documents or requests and forward their decisions to the administrations.
134.3 When remote data transmission means are used, the writing or the respective resolution must be physically presented within the third day, with whose fulfillment it will be understood to be received on the date the email or facsimile was sent.
Article 135.- Obligations of reception units
135.1 The documentary reception units guide the administrator in the presentation of their applications and forms, being obliged to receive them and give them input to initiate or promote the procedures, without in any case being able to qualify, deny or defer their admission.
135.2 Whoever receives the applications or forms must write down under his signature in the writing itself, the time, date and place in which it is received, the number of pages it contains, the mention of the accompanied documents and the copy presented. As proof of receipt, the submitted copy filled out with the respective annotations and registered is delivered, without prejudice to other additional modalities, which due to the procedure it is convenient to extend.
Article 136.- Observations on submitted documentation
136.1 All forms or documents submitted must be received, despite not complying with the requirements established in this Law, which are not accompanied by the corresponding precautions or are affected by another defect or formal omission provided for in the TUPA, which warrants correction. In a single act and for the only time, the reception unit at the time of its presentation makes observations for non-compliance with requirements that cannot be saved ex officio, inviting the company to correct them within a maximum period of two business days.
136.2 The observation must be noted under the signature of the recipient in the request and in the copy that the company will keep, with the respective allegations, if any, indicating that, if they do not do so, their request will be considered not presented.
136.3 While the remedy is pending, the following rules apply:
136.3.1 The calculation of deadlines for administrative silence to operate, nor for the presentation of the request or appeal, is not applicable.
136.3.2 Automatic approval of the administrative procedure is not applicable, if applicable.
136.3.3 The unit does not send the request or the form to the competent agency for its actions in the procedure.
136.4 Once the period has elapsed without the rectification occurring, the entity considers the application or form not submitted and returns it with its collections when the interested party appears to claim them, reimbursing the amount of the processing fees that he had paid.
136.5 If the documentation presented does not comply with what is required, preventing the continuation of the procedure, which by its nature could not be noticed by the reception unit at the time of its presentation, as well as if an action by the company is necessary to continue with the procedure, the Administration, only once, must immediately summon the administered, in order to carry out the corresponding correction. While such correction is pending, the rules established in numbers 136.3.1 and 136.3.2 are applicable. If what is required is not remedied in a timely manner, the provisions of numeral 136.4 will apply.
In this case, the complaint referred to in numeral 137.2 of article 137 is not applicable, unless the Administration once again places the manager in order to carry out additional corrections.
136.6 In the case of administrative procedures that are initiated through electronic means, that do not accompany the corresponding precautions or suffer from another defect or formal omission provided for in the TUPA that cannot be rectified ex officio, the competent authority requires the correction by the same medium, in a single act and only once within a maximum period of two (2) business days.
It is the responsibility of the company to present the information to correct the defect or omission within a maximum period of two (2) business days following the request of the competent authority. While such correction is pending, the rules established in numbers 136.3.1 and 136.3.2 are applicable. If what is required is not corrected in a timely manner, the provisions of numeral 136.4 will apply.
Article 137.- Documentary correction
137.1 Once the writing is entered or the correction has been duly formulated, it is considered received from the initial document, unless the procedure confers priority registration or it is a trilateral procedure, in which case the presentation operates from the correction.
137.2 The entities of the Public Administration are obliged to carry out a comprehensive review of compliance with all the requirements of the requests presented by the companies and, in a single opportunity and in a single document, formulate all the observations and the corresponding requirements.
Without prejudice to what is stated in the preceding paragraph, the entity maintains the power to require only and exclusively the correction of those requirements that have not been corrected by the company or whose correction is not satisfactory, in accordance with the provisions of the corresponding rule. In no case may the entity make new observations invoking the power indicated in this paragraph.
137.3 Failure to comply with this obligation constitutes an administrative offense punishable in accordance with the provisions of article 261.
137.4 Notwithstanding the foregoing, failure to comply with this obligation also constitutes an illegal bureaucratic barrier, the sanctions established in the regulations on prevention and elimination of bureaucratic barriers being applicable. This, without prejudice to the obligation of the company to correct the observations made.
Article 138.- Notary Public Regime
When document authentication requirements are established, the administrator may resort to the notary system described below:
1. Each entity designates institutional notaries attached to its document reception units, in a number proportional to their care needs, who, without excluding their ordinary tasks, provide their services free of charge to the administered.
2. The notary public has the very personal task of verifying and authenticating, after a comparison between the original exhibited by the company and the copy presented, the fidelity of the content of the latter for its use in the entity's procedures, when in the administrative action it is required the aggregation of the documents or the administrator wants them added as evidence. They can also, at the request of the administrators, certify signatures after verification of the identity of the subscriber, for the specific administrative actions where necessary.
3. In case of complexity derived from the accumulation or the nature of the documents to be authenticated, the documentary processing office consults the administrator the possibility of retaining the originals, for which a record of retention of the documents will be issued to the administrator, by The maximum term of two business days, to certify the corresponding reproductions. Once this has been completed, the originals mentioned are returned to the administrator.
4. The entity may require at any stage of the procedure the exhibition of the original presented for authentication by the notary.
Article 139.- Administrative power to authenticate own acts
The power to carry out authentications attributed to notaries does not affect the administrative power of the authorities to attest to the authenticity of the documents that they themselves have issued.
Article 140.- Ratification of signature and content of writing
140.1 In case of doubt about the authenticity of the signature of the company or lack of clarity about the ends of your request, as a first action, the authority can notify it so that within a reasonable period of time it can ratify the signature or clarify the content of the document, without detriment to the continuation of the procedure.
140.2 The ratification can be done by the manager in writing or by appearing to the entity, in which case the respective act will be drawn up, which is added to the file.
140.3 It is necessary to improve the request by the administrator, in the cases referred to in this article.
Article 141.- Presentation of briefs before incompetent bodies
141.1 When a request is submitted that is deemed to be the competence of another entity, the receiving entity must send it, within the distance, to the one it deems competent, communicating said decision to the administrator. In this case, the calculation of the term to resolve will begin on the date that the competent entity receives the request.
141.2 If the entity appreciates its incompetence but does not have certainty about the competent entity, it will notify said situation to the company so that it can adopt the most convenient decision for its right.
Terms and Terms
Article 142.- Mandatory deadlines and terms
142.1 The deadlines and terms are understood as maximum, they are computed independently of any formality, and they oblige the administration and the administrated alike, without the need for pressure, in that which respectively concerns them. The deadlines for the pronouncement of the entities, in the administrative procedures, are counted from the day following the date on which the company submitted their request, unless correction has been required, in which case they are counted once the request has been made.
142.2 Every authority must comply with the terms and deadlines in charge, as well as supervise that subordinates comply with those of their level.
142.3 It is the right of the companies to demand compliance with the deadlines and terms established for each action or service.
Article 143.- Maximum periods to carry out procedural acts
In the absence of a period established by express law, the actions must take place within the following:
1. For receipt and referral of a letter to the competent unit: within the same day of its presentation.
2. For acts of mere processing and to decide requests of that nature: in three days.
3. For issuance of opinions, expert opinions, reports and the like: within seven days after being requested; It can be extended to three more days if the procedure requires the transfer away from its headquarters or the assistance of third parties.
4. For acts of charge of the manager required by the authority, such as delivery of information, answer to the questions on which they must pronounce: within ten days of requested.
Article 144.- Start of computation
144.1 The term expressed in days is counted from the business day following the one on which the notification or publication of the act is made, unless it indicates a later date, or it is necessary to make successive publications, in which case the computation is started from the last.
144.2 The term expressed in months or years is counted from the notification or publication of the respective act, unless it has a later date.
Article 145.- Course of the term
145.1 When the term is indicated by days, it will be understood as consecutive business days, excluding from the computation those non-working days of the service, and non-working national or regional holidays.
145.2 When the last day of the term or the date determined is non-business or for any other circumstance the attention to the public that day does not work during normal hours, they are understood to be extended to the first following business day.
145.3 When the term is set in months or years, it is counted from date to date, concluding on the day equal to the month or year that began, completing the number of months or years set for the period. If in the expiration month there is no day equal to that on which the computation began, it is understood that the term expires on the first business day of the following calendar month.
Article 146.- End of the distance
146.1 To the computation of the terms established in the administrative procedure, the term of the distance foreseen between the place of domicile of the administered within the national territory and the place of the reception unit closest to the one empowered to carry out the respective performance.
146.2 The table of distance terms is approved by the competent authority.
In case the owner of the entity has not approved the table of terms of the corresponding distance, he must apply the regime established in the General Table of Terms of the Distance approved by the Judicial Power.
Article 147. Non-extendable deadlines
147.1 The deadlines set by express rule are non-extendable, unless otherwise enabling provision.
147.2 The competent authority may grant an extension to the deadlines established for the performance of tests or for the issuance of reports or opinions, when so requested before their expiration by the companies or officials, respectively.
147.3 The extension is granted only once by express decision, provided that the period has not been harmed by causes attributable to the person requesting it and provided that it does not affect the rights of third parties.
147.4 In the case of procedures initiated at the request of the party with application of positive administrative silence, in case the company has to carry out a process management at its own expense necessary to adopt a decision on the merits, it can request the suspension of the calculation of the period of the procedure up to a thirty (30) business days.
Article 148.- System for non-business days
148.1 The Executive Power establishes by supreme decree, within the national geographic scope or some particular one, the non-working days, for the purpose of computing administrative deadlines.
148.2 This standard must be previously published and permanently disseminated in the entities' environments, in order to allow its knowledge to the administered.
148.3 Entities cannot unilaterally disable days, and, even in the event of force majeure that prevents the normal functioning of their services, they must guarantee the maintenance of the service of their document reception unit.
Article 149. Regime of working hours
The business hours of the entities for the performance of any action is governed by the following rules:
1. Business hours are those corresponding to the schedule set for the operation of the entity, without in any case the attention to users may be less than eight consecutive daily hours.
2. The daily business hours are established by each entity fulfilling a period that does not coincide with the ordinary working day, in order to favor the fulfillment of the obligations and actions of the citizens. For this purpose, it distributes its personnel in shifts, fulfilling shifts of no more than eight hours a day.
3. The opening hours are continuous to provide its services to all matters within its competence, without dividing it to attend some on certain days or hours, or affect its development for personal reasons.
4. The hours of operation conclude with the provision of the service to the last person appearing within the working hours.
5. Acts of a continuous nature initiated during business hours are concluded without affecting their validity after business hours, unless the manager agrees to defer them. Said consent must be indubitable.
6. In each service the time followed by the entity governs; In case of doubt or lack thereof, the official time, which will prevail, must be verified on the spot, if possible.
Article 150.- Calculation of calendar days
150.1 In the case of the term for the fulfillment of internal procedural acts in charge of the entities, the legal norm may establish that its computation is in calendar days, or that the term expires with the conclusion of the last day even when it is non-working.
150.2 When a law indicates that the computation of the term for a procedural act by the manager is in calendar days, this circumstance is expressly warned in the notification.
Article 151.- Effects of the expiration of the term
151.1 The term expires at the last moment of the fixed business day, or in advance, if before that date the actions for which it was established are fulfilled.
151.2 At the expiration of a non-extendable period to carry out an action or exercise a procedural power, prior warning, the entity declares the right to the corresponding act decayed, notifying the decision.
151.3 The expiration of the term to fulfill an act in charge of the Administration, does not exempt from its obligations established in accordance with public order. The administrative action outside the term is not null and void, unless the law expressly so provides due to the peremptory nature of the term.
151.4 Preclusion due to the expiration of administrative deadlines operates in trilateral, concurrent procedures, and in those that, because there are two or more administrations with divergent interests, must ensure equal treatment.
Article 152.- Advancement of deadlines
The authority in charge of the instruction of the procedure by means of an irrevocable decision, can reduce the deadlines or anticipate the terms, directed to the administration, attending to reasons of opportunity or convenience of the case.
Article 153.- Maximum term of the administrative procedure
The period that elapses from the initiation of a prior evaluation administrative procedure to the one in which the respective resolution is issued may not exceed thirty days , unless the law establishes procedures whose fulfillment requires a longer duration.
Article 154.- Liability for breach of deadlines
154.1 Unjustified non-compliance with the deadlines established for the actions of the entities generates disciplinary responsibility for the obligated authority, without prejudice to civil liability for damages that may have been caused.
154.2 The hierarchical superior is also jointly and severally liable, by omission in supervision, if the breach is repetitive or systematic.
Organization of the Procedure
Article 155.- Unity of view
Administrative procedures are developed ex officio, in a simple and effective way without recognizing certain forms, procedural phases, rigid procedural moments to carry out certain actions or respond to precedence among them, unless expressly provided to the contrary of the law in special procedures.
Article 156.- Promotion of the procedure
The competent authority, even without a request from a party, must promote any action that is necessary for its processing, overcome any obstacle that opposes the regular processing of the procedure; determine the rule applicable to the case even when the legal quotation has not been invoked or is erroneous; as well as avoiding the obstruction or delay due to unnecessary or merely formal procedures, adopting the appropriate measures to eliminate any irregularity produced.
Article 157.- Precautionary measures
157.1 Once the procedure has begun, the competent authority by means of a reasoned decision and with sufficient evidence may adopt, provisionally under its responsibility, the precautionary measures established in this Law or other applicable legal provisions, by means of a grounded decision, if there is a possibility that without its adoption the effectiveness of the resolution to be issued is at risk.
157.2 The precautionary measures may be modified or lifted during the course of the procedure, ex officio or at the request of a party, by virtue of supervening circumstances or that could not be considered at the time of their adoption.
157.3 The measures expire by law when the resolution that ends the procedure is issued, when the term set for its execution has elapsed, or for the issuance of the resolution that ends the procedure.
157.4 No measures may be issued that may cause damage of impossible reparation to the administered.
Article 158.- Issues other than the main matter
158.1 The issues raised by the companies during the processing of the procedure on matters other than the main matter, do not suspend their progress, and must be resolved in the final resolution of the instance, unless expressly provided to the contrary of the law.
158.2 Such questions, to be substantiated jointly with the principal, can be raised and argued before the plea. After this time, they can be enforced exclusively in the resource.
158.3 When the law provides for an early decision on the issues, for the purposes of their challenge, the resolution issued under these conditions is considered provisional in relation to the final act.
158.4 Proposals other than the substantive matter that, in the opinion of the instructor, are not linked to the validity of procedural acts, due process or that are not related to the claim, will be rejected out of hand, without prejudice to the fact that the company may raise the matter with the appeal against the resolution that concludes the instance.
Article 159.- Rules for speed
To ensure compliance with the principle of speed of procedures, the following rules are observed:
1. In the promotion and processing of cases of the same nature, the order of entry is rigorously followed, and they are resolved as their state allows, informing the superior of the reasons for delay in complying with the law deadlines, that cannot be removed ex officio.
2. In a single decision, the fulfillment of all the necessary procedures corresponding to their nature will be provided, as long as they are not successively subordinate to each other in their fulfillment, and all the proceedings and possible evidence actions will be concentrated in the same act. , ensuring that the development of the procedure is carried out in the least number of procedural acts.
3. When requesting procedures to be carried out by other authorities or those administered, the final term for compliance must be entered with a certain date, as well as the warning, if provided for in the regulations.
4. In no case may the processing of files or the attention of the service be affected by the absence, occasional or not, of any authority. The authorities that for reasons of leave, vacations or other temporary or permanent reasons leave their workplace, will deliver to the person who replaces them or to the hierarchical superior, the documents and files in their charge, with the knowledge of the managers.
5. When the motivation of several resolutions is identical, mass production means may be used, provided that they do not harm the legal guarantees of the administered; however, each will be considered as an independent act.
6. The competent authority, in order to promote the procedure, may entrust an immediate subordinate to carry out specific impulse proceedings, or request the collaboration of another authority to carry them out. In collegiate bodies, such action must fall on one of its members.
7. In no case will the authority be able to allege deficiencies of the company not noticed at the presentation of the request, as a basis for denying its claim.
Article 160.- Accumulation of procedures
The authority responsible for the investigation, on its own initiative or at the request of the administered, provides by irrevocable resolution the accumulation of the procedures in process that are connected.
Article 161.- Single file rule
161.1 Only one file can be organized for the solution of the same case, to keep together all the actions to resolve.
161.2 In the case of a request referring to a single claim, a single file will be processed and an authority will intervene and resolve, which will obtain from the bodies or other authorities the reports, authorizations and agreements that are necessary, without prejudice to the right of the administered to to urge the pertinent procedures themselves and to provide the pertinent documents.
Article 162.- Documentary information
The documents, minutes, forms and administrative files are standardized in their presentation so that each species or type of them has the same characteristics.
Article 163.- External presentation of files
163.1 The files are collated following the regular order of the documents that comprise it, forming correlative bodies that do not exceed two hundred pages, except when such limit will force the division of writings or documents that constitute a single text, in which case their unity will be maintained.
163.2 All actions must be foliated, keeping it that way during their processing. The files that are incorporated to others do not continue their folly, leaving a record of their aggregation and their number of pages.
Article 164.- Intangibility of the file
164.1 The content of the file is intangible, and no amendments, alterations, interlining or additions may be made to the documents, once they have been signed by the competent authority. If necessary, an express and detailed record of the modifications introduced must be left.
164.2 The breakdowns can be requested verbally and are granted under the evidence of the instructor and the applicant, indicating the date and pages, leaving an authenticated copy in the corresponding place, with the respective page.
164.3 The entities may use microform technology and computer media for the filing and processing of files, providing for the security, inalterability and integrity of their content, in accordance with the regulations on the matter.
164.4 If a file is lost, the administration has the obligation, under responsibility to reconstruct it, regardless of the request of the interested party, for this purpose the rules contained in article 140 of the Procedural Code will be applied, as applicable. Civil.
Article 165.- Use of forms
165.1 The entities have the use of forms of free reproduction and free distribution, by means of which the administrations, or a server at their request, completing data or marking proposed alternatives, provide the usual information that is considered sufficient, without the need for another presentation document . It is particularly used when the companies must provide information to comply with legal requirements and in automatic approval procedures.
165.2 They are also used when the authorities must resolve a large series of homogeneous files, as well as for recurring actions and resolutions, which are previously authorized.
Article 166.- Models of recurring briefs
166.1 For information purposes, the entities make available to the administered models of the most recurrent employment documents in their services.
166.2 Under no circumstances is it considered mandatory to be subject to these models, nor can their use cause adverse consequences for those who use them.
Article 167. Preparation of minutes
167.1 The statements of the managers, witnesses and experts are documented in a record, the preparation of which follows the following rules:
1. The minutes indicate the place, date, names of the participants, object of the action and other relevant circumstances, and must be formulated, read and signed immediately after the action, by the declarants, the administrative authority and by the participants who wish record its manifestation.
2. When the statements or actions are recorded, by consensus between the authority and the administrations, the minutes can be concluded within the fifth day of the act, or if it is the case, before the final decision.
3. Managers may record in the minutes any observations they deem necessary about what happened during the corresponding diligence.
167.2 In the administrative procedures of inspection and supervision, the companies may also offer evidence regarding the facts documented in the minutes.
Article 168.- Document security measures
The entities will apply the following document security measures
1. Establish a unique system of identification of all the writings and documents entered into it, which includes the progressive numbering and the date, as well as keeping an invariable numbering for each file, which will be preserved through all successive actions, whatever they may be. the organs or authorities of the intervening body.
2. Keep the records of notification, publication or delivery of information on the acts, acknowledgment of receipt and all the documents necessary to prove the completion of the proceedings, with the instructor's certification of their due compliance.
3. The body and the name of the authority, with the responsibility in charge of the procedure and the date of the final term for the attention of the file, must be entered on the title page.
4. In no case will a double or false record be made.
Article 169.- Complaint for processing defects
169.1 At any time, the companies can file a complaint against processing defects and, especially, those that involve stoppage, violation of the legally established deadlines, breach of functional duties or omission of procedures that must be corrected before final resolution of the matter in the respective instance.
169.2 The complaint is presented to the hierarchical superior of the authority that handles the procedure, citing the duty infringed and the rule that requires it. The higher authority resolves the complaint within the following three days, after transferring the complainant, so that he can present the report he deems appropriate the day after it is requested.
169.3 In no case will the processing of the procedure in which a complaint has been filed be suspended, and the resolution will be irrevocable.
169.4 The authority that is aware of the complaint may justifiably order that another official of similar hierarchy to the complainant, assume the knowledge of the matter.
169.5 If the complaint is declared well founded, the pertinent corrective measures regarding the procedure will be issued, and the same resolution will provide for the initiation of the necessary actions to punish the person responsible.
Instruction of the Procedure
Article 170.- Acts of instruction
170.1 The acts of instruction necessary for the determination, knowledge and verification of the data by virtue of which the resolution must be pronounced, will be carried out ex officio by the authority in charge of the prior evaluation procedure, without prejudice to the right of the administered to propose evidentiary actions.
170.2 The routine request for prior reports, visa requirements or any other act that does not add objective value to the action taken in the specific case, depending on its nature, is prohibited from carrying out as acts of instruction.
Article 171.- Access to the file
171.1 The companies, their representatives or their lawyer, have the right of access to the file at any time during its processing, as well as to their documents, antecedents, studies, reports and opinions, to obtain certifications of their status and to obtain copies of the pieces it contains. , upon payment of the cost of the same. Only those actions, proceedings, reports or opinions that contain information whose knowledge may affect your right to personal or family privacy are excepted and those that are expressly excluded by law or for reasons of national security in accordance with the provisions of subsection 5). of article 2 of the Political Constitution. Additionally, matters protected by banking, tax, commercial and industrial secrecy are excepted, as well as all those documents that imply a prior pronouncement by the competent authority.
171.2 The request for access to the file can be made verbally, without the need to request it through the procedure of transparency and access to public information, being granted immediately, without the need for express resolution, in the office where the file is located, although not be the document reception unit.
Article 172.- Allegations
172.1 Managers may at any time during the procedure, formulate allegations, provide documents or other elements of judgment, which will be analyzed by the authority, when deciding.
172.2 In sanctioning administrative procedures, or in the case of encumbrance acts for the administered, a resolution is issued only after having been granted a peremptory period of no less than five days to present their allegations or the corresponding defense evidence.
Article 173.- Burden of proof
173.1 The burden of proof is governed by the ex officio impulse principle established in this Law.
173.2 The companies are responsible for providing evidence by submitting documents and reports, proposing expert opinions, testimonies, inspections and other permitted procedures, or adducing allegations.
Article 174.- Evidence action
174.1 When the administration does not consider the facts alleged by the companies to be true or the nature of the procedure requires it, the entity arranges for trial action, following the procedural concentration criterion, setting a period that for this purpose will not be less than three days. nor greater than fifteen, counted from its approach. You can only justly reject the means of proof proposed by the company, when they are not related to the merits of the matter, are inappropriate or unnecessary.
174.2 The administrative authority notifies the administered, with anticipation of no less than three days, the test performance, indicating the place, date and time.
174.3 Supervening evidence may be presented as long as no final resolution has been issued.
Article 175.- Omission of evidentiary action
The entities may dispense with the performance of evidence when they decide exclusively based on the facts raised by the parties, if they hold them to be true and consistent for their resolution.
Article 176.- Facts not subject to evidentiary action
Evidence will not be acted with respect to public or notorious facts, with respect to facts alleged by the parties whose proof appears in the entity's files, on which it has been verified on the occasion of the exercise of their functions, or subject to the presumption of veracity, without prejudice to its subsequent inspection.
Article 177.- Means of proof
The facts invoked or that are conducive to deciding a procedure may be subject to all the necessary means of proof, except those prohibited by express provision. In particular, in the administrative procedure the following applies:
1. Gather background and documents.
2. Request reports and opinions of any kind.
3. Granting audience to managed, examine witnesses and experts or obtain from the same statements in writing.
4. Consult documents and minutes.
5. Practice eye inspections.
Article 178.- Request for documents from other authorities
178.1 The administrative authority to which the matter is processed shall obtain from the directly competent authorities the pre-existing documents or antecedents that it deems appropriate for the resolution of the matter, without suspending the processing of the file.
178.2 When the request is made by the administrator to the instructor, it must indicate the entity where the documentation exists and, if it were from an administrative file in another entity, it must indubitably prove its existence.
Article 179.- Presentation of documents between authorities
179.1 The documents and antecedents referred to in the previous article must be sent directly by whoever is required within a maximum period of three days, if requested within the same entity, and five, in other cases.
179.2 If the requested authority considers a longer period necessary, it shall immediately state it to the applicant, indicating the period it deems necessary, which may not exceed ten days.
Article 180.- Request for evidence to the administered
180.1 The authority may require the administrated to communicate information, the presentation of documents or assets, submitting their assets to inspections, as well as their collaboration in the practice of other means of proof. For this purpose, the request is issued mentioning the date, term, form and conditions for its fulfillment.
180.2 The rejection of the requirement set forth in the preceding paragraph shall be legitimate, when the subjection implies: the violation of professional secrecy, a disclosure prohibited by law, directly implies the disclosure of prosecutable facts practiced by the company, or affects constitutional rights. In no case does this exception cover the falsification of facts or reality.
180.3 The acceptance of this exception will be freely appreciated by the authority according to the circumstances of the case, without this exempting the administrative body from searching for the facts or issuing the corresponding resolution.
Article 181.- Supplementary regulations
In matters not provided for in this section, the documentary evidence shall be governed by articles 46 and 47.
Article 182.- Presumption of the quality of the reports
182.1 Administrative reports can be mandatory or optional and binding or non-binding.
182.2 The opinions and reports shall be presumed optional and non-binding, with the exceptions of the law.
Article 183.- Request for reports
183.1 The entities only request reports that are mandatory in the legislation or those that they deem absolutely essential for clarifying the issue to be resolved. The request must indicate with precision and clarity the questions on which its pronouncement is deemed necessary.
183.2 The request for reports or legal opinions is reserved exclusively for matters in which the legal basis of the claim is reasonably debatable, or the facts are legally controversial, and that such situation cannot be elucidated by the instructor himself.
183.3 The informant, within two days of receipt, may return without report any file in which the order does not comply with the previous paragraphs, or when it is appreciated that only confirmation of other reports or decisions already taken is required.
Article 184.- Presentation of reports
184.1 Every authority, when formulating reports or draft resolutions, bases its opinion succinctly and establishes express and clear conclusions on all the questions raised in the request, and specifically recommends the courses of action to be followed, when they correspond, signing them with their signature. usual, entering your name, surname and position.
184.2 The report or opinion does not incorporate into its text the extract of the previous actions nor does it reiterate data that are in the file, but it will refer to its folio any antecedent that allows it to be illustrated for a better resolution.
Article 185.- Omission of report
185.1 If the report is not received within the specified term, the authority may alternatively, depending on the circumstances of the case and administrative relationship with the informant: dispense with the report or summon the informant so that on a single date and in a session, which they can attend The administered party, present his opinion verbally, of which a record will be drawn up that will be attached to the file, without prejudice to the responsibility incurred by the official guilty of the delay.
185.2 The Law may expressly establish in procedures initiated by the companies that if binding reports are not received within the legal term, it is understood that there is no technical or legal objection to the approach submitted to their opinion.
185.3 The report submitted untimely may be considered in the corresponding resolution.
Article 186.- Witnesses
186.1 The proponent of the witness test has the burden of their appearance at the place, date and time set. If the witness does not attend without just cause, his testimony will be dispensed with.
186.2 The administration may freely question witnesses and, in the event of contradictory statements, may arrange confrontations, even with those administered.
Article 187.- Expertise
187.1 The companies may propose the appointment of experts at their own expense, and must at the same time indicate the technical aspects on which they must pronounce.
187.2 The administration will refrain from hiring experts for its part, and must request technical reports of any kind from its personnel or from technical entities suitable for said purpose, preferably from the faculties of public universities.
Article 188.- Evidence from public authorities
The authorities of entities do not give confession, except in internal procedures of the administration; without prejudice to being capable of providing evidence as witnesses, informants or experts, if applicable.
Article 189.- Expenses of evidentiary proceedings
In the event that the performance of the tests proposed by the company amounts to incurring expenses that the entity should not rationally bear, the entity may demand the anticipated deposit of such costs, charged to the final settlement that the instructor will document to the company, once the proof has been carried out.
Article 190.- Evidentiary actions that affect third parties
Third parties have the duty to collaborate to prove the facts with respect for their constitutional rights.
Article 191.- Draft resolution
When WHATSOEVER different instructor authority competent to decide, the instructor prepares a final report which will collect the most relevant aspects of the act that promoted, as well as a summary of the content of instruction, analysis of the educated test, and make in its agreement a draft resolution.
Participation of the administered
Article 192.- Open administration
In addition to the means of access to participation in public affairs established by other regulations, in the instruction of administrative procedures, entities are governed by the provisions of this Chapter on the hearing of the administered and the period of public information.
Article 193.- Public hearing
193.1 The administrative regulations provide for the convening of a public hearing, as an essential formality for the effective participation of third parties, when the act to which the administrative procedure leads is likely to affect rights or interests whose ownership corresponds to undetermined persons, such as in medium matters. environmental, public savings, cultural and historical values, consumer rights, urban planning and zoning; or when the pronouncement on authorizations, licenses or permits that the act enables directly affects public services.
193.2 In the public hearing, any third party, without the need to prove special legitimacy, is empowered to present verified information, to request the analysis of new evidence, as well as to express their opinion on the issues that constitute the object of the procedure or on the evidence acted upon. It is not appropriate to make interpellations to the authority at the hearing.
193.3 Failure to hold the public hearing entails the nullity of the final administrative act that is issued.
193.4 The expiration of the period provided for in article 153, without the public hearing having been held, determines the operation of the negative administrative silence, without prejudice to the responsibility of the authorities obliged to call it.
Article 194.- Call for a public hearing
The call for a public hearing must be published in the Official Gazette or in one of the most widely disseminated local media, depending on the nature of the matter, with no less than three (3) days before its completion, and must indicate: the authority convener, its object, the day, place and time of completion, the deadlines for registration of participants, the address and telephone number of the convening entity, where you can make the registration, you can access more information on the matter, or present arguments, challenges and opinions.
Article 195.- Development and effects of the public hearing
195.1 Appearance to the hearing does not, by itself, grant the condition of participant in the procedure.
195.2 Failure to attend the hearing does not prevent those legitimized in the procedure as interested parties from presenting arguments or appeals against the resolution.
195.3 The information and opinions expressed during the public hearing are recorded without generating debate, and have an advisory and non-binding nature for the entity.
195.4 The investigating authority must make explicit, in the foundations of its decision, how it has taken into account the opinions of the public and, where appropriate, the reasons for their rejection.
Article 196.- Period of public information
196.1 When it is a matter of decision of the authority, any aspect of general interest other than those provided for in the previous article where it is objectively appreciated that the participation of undetermined third parties may contribute to the verification of any status, information or any legal requirement not evidenced in the file by the authority, the instructor opens a period of no less than three and no more than five business days to receive - by the widest possible means - his statements on the matter, before resolving the procedure.
196.2 The period of public information corresponds to be convened particularly before approving administrative regulations that affect citizen rights and interests, or to resolve about the granting of licenses or authorizations to carry out activities of general interest , and to appoint officials in main positions of the entities, or even in the case of any position when it is required as an express condition to possess faultless conduct or any similar circumstance.
196.3 The call, development and consequences of the public information period is followed in what is not provided for in this Chapter, as applicable, by the rules of public hearing.
End of Procedure
Article 197.- End of the procedure
197.1 The resolutions that pronounce on the merits of the matter, the positive administrative silence, the negative administrative silence in the case referred to in paragraph 199.4 of article 199, the withdrawal, the declaration of abandonment, the agreements adopted will end the procedure. as a result of conciliation or extrajudicial transaction that aim to put an end to the procedure and the effective provision of what is requested in accordance with the administrator in case of ex gratia request.
197.2 The resolution that so declares it for supervening causes that determine the impossibility of continuing it will also put an end to the procedure.
Article 198.- Content of the resolution
198.1 The resolution that puts an end to the procedure will fulfill the requirements of the administrative act indicated in the First Chapter of the First Title of this Law.
198.2 In the procedures initiated at the request of the interested party, the resolution will be consistent with the requests made by the interested party, without in any case it may aggravate their initial situation and without prejudice to the authority of the administration to initiate a new procedure ex officio, if applicable. .
Article 199.- Effects of administrative silence 199.
199.1 Administrative procedures subject to positive administrative silence will be automatically approved in the terms in which they were requested if after the established or maximum term has elapsed, to which the maximum term indicated in paragraph 24.1 of article 24 will be added, the entity has not notified the pronouncement respective. The sworn statement referred to in article 37 is not necessary to exercise the right resulting from positive administrative silence before the same entity.
199.2 Positive silence has for all purposes the character of a resolution that puts an end to the procedure, without prejudice to the power of nullity ex officio provided for in article 213.
199.3 Negative administrative silence has the effect of enabling the company to file administrative appeals and pertinent legal actions.
199.4 Even when negative administrative silence operates, the administration maintains the obligation to resolve, under responsibility, until it is notified that the matter has been brought to the attention of a jurisdictional authority or the administration has made use of the respective administrative resources.
199.5 Negative administrative silence does not start the calculation of terms or terms for its challenge.
199.6. In sanctioning procedures, the administrative resources destined to challenge the imposition of a sanction will be subject to negative administrative silence. When the administrator has opted for the application of negative administrative silence, positive administrative silence will be applied in the following resolution instances.
Article 200.- Withdrawal of the procedure or claim
200.1 The withdrawal of the procedure will import the culmination of the same, but will not prevent that later the same claim is raised again in another procedure.
200.2 The withdrawal of the claim will prevent the promotion of another procedure for the same purpose and cause.
200.3 The withdrawal will only affect those who have formulated it.
200.4 The withdrawal may be made by any means that allows its record and indicating its content and scope. It must be expressly indicated if it is a withdrawal of the claim or the procedure. If it is not specified, it is considered to be a withdrawal from the procedure.
200.5 The withdrawal can be made at any time before the final resolution that exhausts the administrative channels is notified.
200.6 The authority will accept the withdrawal outright and will declare the procedure concluded, unless, having attended the same interested third parties, they urge its continuation within a period of ten days from when they were notified of the withdrawal.
200.7 The authority may continue the procedure ex officio if, from the analysis of the facts, it considers that the interests of third parties or the action raised by the initiation of the procedure are foreign to the general interest. In that case, the authority may limit the effects of the withdrawal to the interested party and will continue the procedure.
Article 201.- Withdrawal of acts and administrative appeals
201.1 The withdrawal of any act carried out in the procedure can be carried out before it has produced effects.
201.2 An administrative appeal can be withdrawn before the final resolution is notified in the instance, determining that the contested resolution is final, unless other companies have adhered to the appeal, in which case it will only have effect for the person who formulated it.
Article 202.- Abandonment of the procedures initiated at the request of the company.
In procedures initiated at the request of a party, when the company fails to comply with any procedure that has been required to produce its stoppage for thirty days, the authority ex officio or at the request of the company shall declare the abandonment of the procedure. Said resolution must be notified and the pertinent administrative appeals will proceed against it.
Execution of resolutions
Article 203.- Enforceability of the administrative act
Administrative acts will be enforceable, unless express legal provision to the contrary, judicial mandate or subject to condition or term according to law.
Article 204.- Loss of enforceability of the administrative act
204.1 Unless expressly stated otherwise, administrative acts lose effectiveness and enforceability in the following cases:
204.1.1 By provisional suspension according to law.
204.1.2 When two (2) years have elapsed since the firm has been acquired, the administration has not initiated the acts that are incumbent upon it to execute them.
204.1.3 When the resolutive condition to which they were subject according to law is met.
204.2 When the company opposes the loss of its enforceability at the beginning of the execution of the administrative act, the matter is resolved irrevocably at the administrative headquarters by the immediate superior authority, if any, after a legal report on the matter.
Article 205.- Forced execution
In order to carry out the forced execution of administrative acts through its own competent bodies, or through the National Police of Peru, the authority complies with the following requirements:
1. That it is an obligation to give, do or not do, established in favor of the entity.
2. That the benefit is determined in writing in a clear and complete manner.
3. That such obligation derives from the exercise of an attribution of rule of the entity or comes from a relationship of public law sustained with the entity.
4. The spontaneous compliance of the provision has been required from the administrator, under the warning of initiating the specifically applicable coercive means.
5. That it is not an administrative act that the Constitution or the law require the intervention of the Judicial Power for its execution.
6. In the case of trilateral procedures, the final resolutions that order corrective measures constitute execution titles in accordance with the provisions of article 713 section 4) of the Civil Procedure Code, modified by Law No. 28494, once the act remains firm or the administrative route has been exhausted.
In the event of final resolutions ordering corrective measures, the legitimacy to act in civil enforcement proceedings corresponds to the parties involved.
Article 206.- Notification of the act of initiation of execution
206.1 The decision authorizing the administrative execution will be notified to its addressee before it begins.
206.2 The authority may notify the start of the execution successively to the notification of the act executed, provided that it is facilitated to the administrator to spontaneously fulfill the provision under his charge.
Article 207.- Means of compulsory execution
207.1 Enforced execution by the entity will be carried out always respecting the principle of reasonableness, by the following means:
a) Coercive enforcement
b) Subsidiary execution
c) Coercive fine
d) Compulsion on people
207.2 If there are several applicable means of execution, the least restrictive of individual freedom will be chosen.
207.3 If it is necessary to enter the home or property of the affected party, the provisions of subsection 9) of article 20 of the Political Constitution of Peru must be followed.
Article 208.- Coercive enforcement
If the entity had to seek the execution of an obligation to give, do or not do, the procedure provided for in the laws of the matter will be followed.
Article 209.- Subsidiary execution There will be a subsidiary execution in the case of acts that, because they are not very personal, can be carried out by a subject other than the obligated person:
1. In this case, the entity will carry out the act, by itself or through the persons it determines, at the expense of the obligor.
2. The amount of expenses, damages and losses will be demanded in accordance with the provisions of the previous article.
3. Said amount may be provisionally settled and made before execution, or reserved for final settlement.
Article 210.- Coercive fine
210.1 When so authorized by law, and in the form and amount that they determine, the entity may, for the execution of certain acts, impose coercive fines, repeated for sufficient periods to comply with the order, in the following cases:
a) Very personal acts in which the compulsion on the person of the obliged person does not proceed.
b) Acts in which, following the compulsion, the administration does not deem it appropriate.
c) Acts whose execution the obligor may entrust to another person.
210.2 The coercive fine is independent of the sanctions that may be imposed with such character and compatible with them.
Article 211.- Compulsion on people
Administrative acts that impose a very personal obligation not to do or bear, may be executed by compulsion on people in cases where the law expressly authorizes it, and always with due respect for their dignity and the rights recognized in the Political Constitution. .
If the acts were of personal fulfillment, and were not executed, they will give rise to the payment of the damages and losses that occur, which must be regulated by the courts.
Of the Review of the Acts in Administrative Way
Article 212.- Rectification of errors
212.1 Material or arithmetic errors in administrative acts can be rectified with retroactive effect, at any time, ex officio or at the request of the administered, provided that the substance of its content or the meaning of the decision is not altered.
212.2 The rectification adopts the forms and modalities of communication or publication that correspond to the original act.
Article 213.- Nullity ex officio
213.1 In any of the cases listed in article 10, the nullity of administrative acts may be declared ex officio, even when they have become final, provided that they aggravate the public interest or infringe fundamental rights.
213.2 The nullity ex officio can only be declared by the hierarchical official superior to the one who issued the act that is invalidated. If it were an act issued by an authority that is not subject to hierarchical subordination, the nullity is declared by resolution of the same official.
In addition to declaring the nullity, the authority can decide on the merits of the matter if there are sufficient elements to do so. In this case, this point can only be reconsidered. When it is not possible to rule on the merits of the matter, the procedure must be reinstated at the time the defect occurred.
In the event of an ex officio declaration of nullity of an administrative act favorable to the administrator, the authority, prior to the pronouncement, shall transfer it, granting it a period of no less than five (5) days to exercise its right of defense.
213.3. The power to declare the nullity ex officio of administrative acts prescribes within a period of two (2) years, counted from the date on which they have been consented, or counted from the notification to the administrative authority of the criminal sentence final conviction, in relation to the nullity of the acts provided for in paragraph 4 of article 10.
213.4 In the event that the period provided for in the preceding paragraph has prescribed, the nullity should only be sued before the Judicial Power via the contentious-administrative process, provided that the claim is filed within the three (3) years following counting from the date in which the power to declare nullity in administrative headquarters prescribed.
213.5. Administrative acts issued by councils or courts governed by special laws, competent to resolve disputes in the last administrative instance, can only be declared null and void ex officio at administrative headquarters by the council or court itself with the unanimous agreement of its members. This attribution can only be exercised within a period of two (2) years from the date on which the act has been consented. It is also appropriate for the head of the Entity to demand its annulment in the contentious-administrative process, provided that the claim is filed within the three years following notification of the resolution issued by the council or court.
Article 214.- Revocation
214.1 It is possible to revoke administrative acts, with future effects, in any of the following cases:
214.1.1 When the revocation power has been expressly established by a regulation with legal status and provided that the requirements set forth in said regulation are met.
214.1.2 When the disappearance of the conditions legally required for the issuance of the administrative act, the permanence of which is essential for the existence of the legal relationship created, occurs.
214.1.3 When appreciating supervening elements of judgment, the recipients of the act are legally favored and provided that no damage is generated to third parties.
214.1.4 When it is an act contrary to the legal system that causes injury or damages the legal situation of the company, provided that it does not harm the rights of third parties or affect the public interest.
The revocation provided for in this numeral can only be declared by the highest authority of the competent entity, prior opportunity to the possible affected, granting a period of no less than five (5) days to present their arguments and evidence in their favor.
214.2 Administrative acts declaring or constituting legitimate rights or interests cannot be revoked, modified or substituted ex officio for reasons of opportunity, merit or convenience.
Article 215.- Reviewability of judicially confirmed acts
In no case will the acts that have been confirmed by a final judicial sentence be reviewed in the administrative headquarters.
Article 216.- Indemnification for revocation
216.1 When the revocation causes economic damage to the company, the resolution that decides it must contemplate what is convenient to carry out the corresponding compensation at the administrative headquarters.
216.2 The acts incurred in cause for their revocation or nullity ex officio, but whose effects have expired or exhausted, will be subject to compensation in court, arranged when their revocation or cancellation is administratively final.
Article 217. Power of contradiction
217.1 In accordance with what is stated in article 120, in the face of an administrative act that is supposed to violate, ignore or injure a right or legitimate interest, its contradiction proceeds through administrative proceedings through the administrative remedies indicated in the following article, initiating the corresponding procedure recursive.
217.2 Only the final acts that put an end to the instance and the procedural acts that determine the impossibility of continuing the procedure or produce defenselessness are subject to challenge. The contradiction to the other procedural acts must be alleged by the interested parties for their consideration in the act that ends the procedure and may be challenged with the administrative appeal that, if applicable, is filed against the final act.
217.3 It is not possible to challenge acts that are a reproduction of previous ones that have remained firm, nor that of confirmatory acts of consensual acts because they have not been appealed in a timely manner.
217.4 It is possible to accumulate challenging claims in a subsidiary manner, when the facts and / or grounds on which the aforementioned subsidiary claim is based have been analyzed in the previous instances.
Article 218. Administrative appeals
218.1 Administrative resources are:
a) Appeal for reconsideration
Only in the event that the law or legislative decree expressly establishes it, is it possible to file an administrative appeal for review.
218.2 The term for filing appeals is fifteen (15) peremptory days, and they must be resolved within thirty (30) days.
Article 219.- Appeal for reconsideration
The appeal for reconsideration will be filed before the same body that issued the first act that is the subject of the challenge and must be supported by new evidence. In the cases of administrative acts issued by bodies that constitute the sole instance, no new evidence is required. This appeal is optional and its not filing does not prevent the exercise of the appeal.
Article 220.- Appeal
The appeal will be filed when the challenge is based on a different interpretation of the evidence produced or in the case of questions of pure law, and must be addressed to the same authority that issued the act that is challenged to raise the action to the hierarchical superior.
Article 221.- Resource requirements
The writ of appeal must indicate the act of which the appeal is made and shall comply with the other requirements set forth in article 124.
Article 222.- Final act
Once the deadlines for filing administrative appeals have expired, the right to articulate them will be lost, leaving the act final.
Article 223.- Error in qualification
The error in the qualification of the appeal by the appellant will not be an obstacle to its processing as long as its true character is deduced from the writing.
Article 224.- Scope of appeals Administrative appeals will be exercised only once in each administrative procedure and never simultaneously.
Article 225.- Administrative silence regarding appeals Administrative silence regarding appeals shall be governed by the provisions of article 38 and number 2) of paragraph 35.1 of article 35.
Article 226.- Suspension of execution
226.1 The filing of any appeal, except in cases where a legal norm establishes otherwise, will not suspend the execution of the contested act.
226.2 Notwithstanding the provisions of the preceding paragraph, the authority responsible for resolving the appeal suspends, ex officio or at the request of the party, the execution of the appealed act when any of the following circumstances occur:
a) That the execution could cause damages that are impossible or difficult to repair.
b) That the existence of a transcendent vice of nullity is objectively appreciated.
226.3 The suspension decision will be adopted after a sufficiently reasoned weighting between the damage that the suspension would cause to the public interest or third parties and the damage caused to the appellant by the immediate effectiveness of the appealed act.
226.4 When the suspension is ordered, the necessary measures may be adopted to ensure the protection of the public interest or the rights of third parties and the effectiveness of the contested resolution.
226.5 The suspension will be maintained during the administrative appeal process or the corresponding contentious-administrative process, unless the administrative or judicial authority provides otherwise if the conditions under which it was decided are modified.
Article 227.- Resolution
227.1 The resolution of the appeal will uphold in whole or in part or will reject the claims made therein or will declare its inadmissibility.
227.2 Once the existence of a cause for nullity has been verified, the authority, in addition to the declaration of nullity, will decide on the merits of the matter, if there are sufficient elements to do so. When it is not possible to rule on the merits of the matter, the procedure will be reinstated at the time the defect occurred.
Article 228.- Exhaustion of administrative channels
228.1 Administrative acts that exhaust the administrative route may be challenged before the Judicial Power through the contentious-administrative process referred to in article 148 of the Political Constitution of the State.
228.2 The following are acts that exhaust the administrative route:
a) The act in respect of which there is no legal challenge before a hierarchically superior authority or body in the administrative route or when negative administrative silence occurs, unless the interested party chooses to file a reconsideration appeal, in which case the resolution issued or the administrative silence produced as a result of said objectionable appeal exhausts the administrative remedy; or
b) The act issued or the administrative silence produced on the occasion of the filing of an appeal in those cases in which the act of an authority or body subject to hierarchical subordination is challenged; or
c) The act issued or the administrative silence produced on the occasion of the filing of an appeal for review, only in the cases referred to in article 218; or
d) The act that ex officio declares nullity or revokes other administrative acts in the cases referred to in articles 213 and 214; or
e) The administrative acts of the Courts or Administrative Councils governed by special laws.
Of the trilateral procedure, of the sanctioning procedure and the administrative activity of inspection
Article 229.- Trilateral procedure
229.1 The trilateral procedure is the contentious administrative procedure followed between two or more administered before the entities of the administration and for those described in paragraph 8) of article I of the Preliminary Title of this Law.
229.2 The party that initiates the procedure by filing a claim will be designated as the “claimant” and any of those summoned will be designated as the “claimed”.
Article 230.- Legal framework
The trilateral procedure is governed by the provisions of this Chapter and otherwise by the provisions of this Law. Regarding the trilateral administrative procedures governed by special laws, this chapter will only be supplementary.
Article 231.- Initiation of the procedure
231.1 The trilateral procedure begins by filing a claim or ex officio.
231.2 During the development of the trilateral procedure, the administration must favor and facilitate the conciliated solution of the controversy.
231.3 Once the claim is admitted for processing, the defendant will be made aware of it so that he can present his discharge.
Article 232.- Content of the claim
232.1 The claim must contain the requirements of the writings provided for in article 124, as well as the name and address of each claimed, the reasons for the claim and the request for sanctions or other type of affirmative action.
232.2 The claim must offer the evidence and shall attach the evidence available to it as annexes.
232.3 The authority may request clarification of the claim to admit it, when there are doubts in the presentation of the facts or the respective legal grounds.
Article 233.- Answer to the claim
233.1 The defendant must present the answer to the claim within fifteen (15) days after notification thereof; Once this period has expired, the Administration will declare the defendant in default that he had not presented it. The answer must contain the requirements of the writings provided for in article 124, as well as the absolution of all controversial matters of fact and law, the allegations and the relevant facts of the claim, unless they have been specifically denied in the answer, they will be considered accepted or credited as true.
233.2 The issues are proposed jointly and only when answering the claim or the reply and are resolved with the final resolution.
233.3 In the event that the respondent does not comply with presenting the answer within the established period, the administration may allow, if it considers it appropriate and reasonable, the delivery of the answer after the expiration of the term.
233.4 In addition to the answer, the respondent may file a reply alleging violations of the respective legislation, within the competence of the corresponding entity of the entity. The presentation of replies and responses to those replies is governed by the rules for the presentation and answering of claims, excluding those referring to administrative processing rights.
Article 234.- Prohibition of answering the answers
The reply to the answers to the claims is not allowed. The new problems included in the answer of the denounced will be considered as controversial matter.
Article 235.- Tests
Without prejudice to what is established in articles 173 to 191, the administration can only dispense with the performance of the tests offered by any of the parties by unanimous agreement of the latter.
Article 236.- Precautionary measures
236.1 At any stage of the trilateral procedure, ex officio or at the request of a party, precautionary measures may be issued in accordance with article 146.
236.2 If the person obliged to comply with a precautionary measure ordered by the administration does not do so, the rules on compulsory execution provided for in articles 203 to 211 shall apply.
236.3 There is an appeal against the resolution that dictates a precautionary measure requested by any of the parties within a period of three (3) days from the notification of the resolution that dictates the measure. Except for legal provision or decision of the authority to the contrary, the appeal does not suspend the execution of the precautionary measure.
The appeal must be raised to the hierarchical superior within a maximum period of (1) day, counted from the date of the granting of the respective appeal and will be resolved within a period of five (5) days.
Article 237.- Challenge
237.1 Against the final resolution relapsed in a trilateral procedure issued by an authority or body subject to hierarchical subordination, only the filing of the appeal is appropriate. If there is no hierarchical superior, it is only possible to file an appeal for reconsideration.
237.2 The appeal must be filed with the body that issued the appealed resolution within fifteen (15) days of the respective notification. The respective file must be submitted to the hierarchical superior within a maximum period of two (2) days from the date of the granting of the respective appeal.
237.3 Within fifteen (15) days of receipt of the file by the hierarchical superior, it will be transferred to the other party and a period of fifteen (15) days will be granted for the acquittal of the appeal.
237.4 With the acquittal of the other party or the expiration of the term referred to in the preceding article, the authority that hears the appeal may designate a day and time for the hearing of the case that may not be carried out in a term greater than ten (10). ) days counted from the date on which the acquittal of the appeal is notified to the person who files it.
237.5 The administration shall issue a resolution within thirty (30) days following the date of the hearing.
Article 238.- Conciliation, extrajudicial transaction and withdrawal
238.1 In the cases in which the Law allows it and before the final resolution is notified, the authority may approve agreements, pacts, agreements or contracts with the companies that import an out-of-court transaction or conciliation, with the scope, requirements, effects and specific legal regime that in each case provides for the provision that regulates it, such acts may put an end to the administrative procedure and render without effect the resolutions that have been issued in the procedure. The agreement may be included in an administrative resolution.
238.2 The aforementioned instruments must be in writing and establish as a minimum content the identification of the parties involved and the term of validity.
238.3 When approving the agreements referred to in numeral 238.1, the authority may continue the procedure ex officio if, from the analysis of the facts, it considers that the interests of third parties could be affected or the action raised by the initiation of the procedure involves general interest.
238.4 The withdrawal proceeds in accordance with the provisions of articles 200 and 201.
THE ADMINISTRATIVE ACTIVITY OF AUDIT
Article 239.- Definition of the inspection activity
239.1 The inspection activity constitutes the set of acts and proceedings of investigation, supervision, control or inspection on the fulfillment of the obligations, prohibitions and other limitations enforceable to the administrated, derived from a legal or regulatory norm, contracts with the State or another legal source, under a regulatory compliance approach, risk prevention, risk management and protection of protected legal assets.
Only by Law or Legislative Decree can the inspection activity be attributed to entities.
For reasons of efficiency and economy, the authorities may coordinate to carry out joint control actions or carry out management assignments among themselves.
239.2 Regardless of their name, the special rules that regulate this function are interpreted and applied within the framework of the common rules of this chapter, even when, according to the legal framework, they are exercised by private individuals or legal entities.
Article 240.- Powers of the entities that carry out inspection activity
240.1 The acts and procedures of inspection are always initiated ex officio, either on their own initiative or as a consequence of a higher order, motivated request or by complaint.
240.2 The Public Administration in the exercise of the inspection activity is empowered to carry out the following:
1. Require the subject of the audit, the display or presentation of all kinds of documentation, files, files or other necessary information, respecting the principle of legality. Access to information that may affect personal or family privacy, as well as matters protected by banking, tax, commercial and industrial secrecy and the protection of personal data, is governed by the provisions of the Political Constitution of Peru and the laws specials.
2. Interrogate the persons subject to inspection or their representatives, employees, officials, advisers and third parties, using the technical means that it deems necessary to generate a complete and trustworthy record of their statements. The summons or personal appearance at the headquarters of administrative entities are regulated by articles 69 and 70.
3. Carry out inspections, with or without prior notification, in the premises and / or assets of the natural or legal persons that are the object of the inspection actions, respecting the fundamental right to the inviolability of the home when appropriate.
4. Take a copy of the physical, optical, electronic or other files, as well as take photographs, make prints, audio or video recordings with the prior knowledge of the manager and, in general, use the necessary means to generate a complete and reliable record of its inspection action.
5. Carry out expert examinations on the documentation and other technical aspects related to the inspection.
6. Use equipment that they deem necessary in the actions and inspection procedures. Managers must allow access to such equipment, as well as allow the use of their own equipment, when it is essential for the inspection work.
7. Expand or vary the object of the inspection action in the event that, as a result of the actions and procedures carried out, additional breaches are detected to those initially expressed in the aforementioned object.
8. The others established by the special laws.
Article 241.- Duties of the entities that carry out inspection activity
241.1 The Public Administration exercises its oversight activity with diligence, responsibility and respect for the rights of those administered, adopting the necessary measures to obtain the appropriate evidence to support the verified facts, if applicable.
241.2 The competent authorities have, among others, the following duties in the exercise of the inspection activity:
1. Prior to the actions and inspection procedures, carry out the review and / or evaluation of the documentation that contains information related to the specific case under inspection.
2. Identify yourself at the request of the administrated, presenting the credential granted by your entity, as well as your national identity document.
3. Cite the legal basis that supports its audit competence, its powers and obligations, to the company that requests it.
4. Deliver a copy of the Inspection Act or document that takes its place to the company at the end of the inspection process, clearly and precisely recording the observations made by the company.
5. Keep reservation on the information obtained in the inspection.
6. Duty of impartiality and prohibition of maintaining conflicting interests.
Article 242.- Rights of the audited companies
The rights of the audited companies are:
1. Be informed of the purpose and legal support of the supervisory action and, if foreseeable, of the estimated term of its duration, as well as of their rights and obligations in the course of such action.
2. Require the credentials and the national identity document of the officials, servants or third parties in charge of the inspection.
3. Be able to make audio or video recordings of the proceedings in which they participate.
4. Include your observations in the corresponding minutes.
5. Present additional documents, evidence or arguments after receipt of the inspection report.
6. Take professional advice to the proceedings if the company considers it.
Article 243.- Duties of the audited companies
The duties of the audited companies are:
1. Carry out or provide all the facilities to execute the powers listed in the article
2. Allow access of officials, servers and third party auditors, to their dependencies, facilities, goods and / or equipment, directly or not, without prejudice to their fundamental right to the inviolability of the home when appropriate.
3. Sign the inspection report.
4. The others established by the special laws.
Article 244.- Minimum content of the Audit Act
244.1 The Audit Certificate or document that takes its place, is the document that records the verifications of the facts objectively verified and contains at least the following data:
1. Name of the natural person or company name of the audited legal person.
2. Place, date and time of opening and closing of the diligence.
3. Name and identification of the auditors.
4. Names and identification of the legal representative of the audited legal entity or its designated representative for said purpose.
5. The facts that are the subject of verification and / or occurrences of the inspection.
6. The manifestations or observations of the representatives of the audited and the auditors.
7. The signature and identity document of the participants. If any of them refuse to sign, the refusal is recorded in the minutes, without affecting its validity. 8. The refusal of the administrator to identify himself and sign the minutes.
244.2 The audit reports record the facts verified during the diligence, unless there is evidence to the contrary.
Article 245.- Conclusion of the inspection activity
245.1 The auditing actions may conclude in:
1. The certification or proof of conformity of the activity carried out by the company.
2. The recommendation of improvements or corrections of the activity developed by the manager.
3. The warning of the existence of non-compliances not likely to merit the determination of administrative responsibilities.
4. The recommendation to initiate a procedure in order to determine the corresponding administrative responsibilities.
5. The adoption of corrective measures.
6. Other forms as established by special laws.
245.2. The entities will endeavor to carry out some audits solely for guidance purposes, that is, to identify risks and notify the managers of alerts in order to improve their management.
Article 246.- Precautionary and corrective measures
Entities may only dictate precautionary and corrective measures provided they are authorized by Law or Legislative Decree and by duly motivated decision and observing the Principle of Proportionality.
Article 247.- Scope of application of this chapter
247.1 The provisions of this Chapter discipline the power attributed to any of the entities to establish administrative offenses and the consequent sanctions to those administered.
247.2 The provisions contained in this Chapter apply as a supplementary nature to all the procedures established in special laws, including tax laws, which must necessarily observe the principles of administrative sanctioning power referred to in article 248, as well as the structure and guarantees provided for the administrative sanctioning procedure.
The special procedures may not impose less favorable conditions on the companies than those provided for in this Chapter.
247.3 The disciplinary sanctioning power over the personnel of the entities is governed by the regulations on the matter.
Article 248.- Principles of the administrative sanctioning power
The sanctioning power of all entities is additionally governed by the following special principles:
1. Legality.- Only by regulation with the force of law can the entities be attributed the sanctioning power and the consequent provision of the administrative consequences that as a sanction are possible to apply to an administrator, which in no case will enable them to dispose of the deprivation of freedom.
2. Due procedure.- Sanctions cannot be imposed without the respective procedure having been processed, respecting the guarantees of due procedure. The procedures that regulate the exercise of the sanctioning power must establish the due separation between the investigative phase and the sanctioning phase, entrusting them to different authorities.
3. Reasonableness.- The authorities must foresee that the commission of the punishable conduct is not more advantageous 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 that are indicated for the purposes of graduation:
a) The illicit profit resulting from the commission of the offense;
b) The probability of detection of the offense;
c) The seriousness of the damage to the public interest and / or protected legal asset;
d) The economic damage caused;
e) Recidivism, due to the commission of the same offense within a period of one (1) year from when the resolution that sanctioned the first offense became final.
f) The circumstances of the commission of the offense; and
g) The existence or not of intentionality in the conduct of the offender.
4. Typicity.- Only administratively punishable behaviors constitute offenses expressly provided for in norms with the force of law by classifying them as such, without admitting extensive interpretation or analogy. The regulatory provisions of development may specify or graduate those aimed at identifying the behaviors or determining sanctions, without constituting new behaviors punishable by those provided by law, except in cases in which the law or Legislative Decree allows to classify infractions by regulatory norm.
Through the classification of infractions, the compliance of obligations that are not previously foreseen in a legal or regulatory norm, as appropriate, cannot be imposed on the companies.
In the configuration of the sanctioning regimes, the classification of infractions with the same factual assumption and identical basis is avoided with respect to those crimes or misdemeanors already established in the criminal laws or with respect to those infractions already classified in other administrative sanctioning regulations.
5.- Non-retroactivity.- The sanctioning provisions in force at the time the company incurs in the conduct to be sanctioned are applicable, unless subsequent ones are more favorable.
The sanctioning provisions produce retroactive effect insofar as they favor the presumed offender or the offender, both with regard to the classification of the offense and the sanction and their statute of limitations, even with respect to the sanctions in execution when the new provision enters into force. .
6. Contest of Infractions.- When the same conduct qualifies as more than one infraction, the sanction provided for the most serious infraction will be applied, without prejudice to the other responsibilities established by law.
7. Continuation of infractions.- To determine the origin of the imposition of sanctions for infractions in which the company incurs continuously, it is required that at least thirty (30) business days have elapsed from the date of the imposition of the last sanction and that it is proven to have requested the administrator
that proves that the infringement has ceased within said period.
Entities, under penalty of nullity, may not attribute the assumption of continuity and / or the imposition of the respective penalty, in the following cases:
a) When an administrative appeal filed within the term against the administrative act by which the last sanction was imposed is in process
b) When the administrative appeal filed had not fallen into a final administrative act.
c) When the conduct that determined the imposition of the original administrative sanction has lost the character of an administrative offense due to a modification in the ordinance, without prejudice to the application of the principle of non-retroactivity referred to in subsection 5.
8. Causation.- Responsibility must fall on whoever performs the omission or active conduct constituting a punishable offense.
9. Presumption of legality.- The entities must presume that the companies have acted in accordance with their duties as long as they have no evidence to the contrary.
10. Guilt.- Administrative responsibility is subjective, except in cases where by law or legislative decree objective administrative responsibility is provided.
11. Non bis in idem.- A penalty and an administrative sanction may not be imposed successively or simultaneously for the same act in cases where the identity of the subject, fact and foundation is appreciated.
Said prohibition also extends to administrative sanctions, except in the case of continuation of infractions referred to in paragraph 7.
Article 249.- Stability of the jurisdiction for the sanctioning power
The exercise of the sanctioning power corresponds to the administrative authorities to whom they have been expressly attributed by legal or regulatory provision, without being able to assume it or be delegated to a different body.
Article 250.- Rules on the exercise of the sanctioning power.
By virtue of the principle of reasonableness in the field of administrative sanctioning procedures, the following rules must be observed:
a) In the case of administrative offenses liable to fines based on failure to carry out procedures, obtain licenses, permits and authorizations or other similar procedures before competent authorities for the installation of network infrastructures for public services or works public infrastructure, exclusively in cases where this is required by current legislation, the amount of the penalty to be imposed may not exceed:
- One (1%) of the value of the work or project, as the case may be.
- One hundred percent (100%) of the amount for the applicable fee for processing rights, according to the Single Text of Administrative Procedures (TUPA) in force at the time of occurrence of the events, in cases where it is not the valuation indicated above is applicable.
The cases of imposition of administrative fines for amounts that exceed the limits indicated above, will be known by the Market Access Commission of the National Institute for the Defense of Competition and the Protection of Intellectual Property, (2) for purposes of determining if in such cases illegal bureaucratic barriers to market access have been established, in accordance with the administrative procedure contemplated in Decree Law No. 25868 and Legislative Decree No. 807, and in their amending and complementary regulations.
b) When the sanctioning procedure falls on the lack of authorization or license to carry out several individual behaviors that, taking into account the nature of the facts, import the commission of an activity and / or project that comprise them in general, whose existence has been previously communicated to the competent entity, the sanction may not be imposed individually, but applied in a global concept according to the criteria provided in paragraph 3 of article 248.
Article 251. -Determination of responsibility
251.1 The administrative sanctions that are imposed on the company are compatible with the issuance of corrective measures leading to order the replacement or repair of the situation altered by the violation to its previous state, including that of the affected goods, as well as compensation for the damages caused, which are determined in the corresponding judicial process. Corrective measures must be previously classified, reasonable and adjust to the intensity, proportionality and needs of the protected legal rights that are intended to be guaranteed in each specific case.
251.2 When the fulfillment of the obligations provided for in a legal provision corresponds to several persons jointly, they will respond jointly and severally for the infractions that, where appropriate, are committed, and for the sanctions that are imposed.
Article 252.- Prescription
252.1 The faculty of the authority to determine the existence of administrative infractions, prescribes within the term established by the special laws, without prejudice to the calculation of the statute of limitations with respect to the other obligations that derive from the effects of the commission of the infraction. . If this has not been determined, said power of the authority will prescribe after four (4) years.
252.2 The calculation of the statute of limitations of the power to determine the existence of infractions will begin from the day on which the infraction was committed in the case of instantaneous infractions or instantaneous infractions with permanent effects, from the day the last infraction was carried out. action constituting the infringement in the case of continuous infringements, or from the day the action ceased in the case of permanent infringements.
The calculation of the limitation period is only suspended with the initiation of the sanctioning procedure through the notification to the company of the acts constituting the infringement that are imputed to them by title, in accordance with the provisions of article 255, paragraph 3. Said computation must be resumed immediately if the process of the sanctioning procedure remains paralyzed for more than twenty-five (25) business days, for reasons not attributable to the administrator.
252.3 The authority declares the prescription ex officio and terminates the procedure when it notices that the deadline for determining the existence of infractions has expired. Likewise, the administrated can raise the prescription by way of defense and the authority must resolve it without further formality than the verification of the deadlines.
In case the prescription is declared, the authority may initiate the necessary actions to determine the causes and responsibilities of the administrative inaction, only when it is noticed that situations of negligence have occurred.
Article 253.- Prescription of the enforceability of the fines imposed
1. The faculty of the authority to demand by means of forced execution the payment of the fines imposed by the commission of an administrative offense prescribes in the term that the special laws establish. If not determined, the prescription occurs after two (2) years computed from the date on which any of the following circumstances occurs:
a) That the administrative act by means of which the fine was imposed, or the one that put an end to the administrative procedure, was final.
b) That the contentious-administrative process aimed at challenging the act by which the fine was imposed has concluded as res judicata in an unfavorable way for the company.
2. The calculation of the limitation period is suspended in the following cases:
a) With the initiation of the compulsory execution procedure, in accordance with the mechanisms contemplated in Article 207, as appropriate. Said computation must be resumed immediately in the event that any of the cases of suspension of the compulsory execution procedure that contemplate the current ordinance is configured and / or any cause occurs that determines the suspension of the procedure for more than twenty-five (25) business days.
b) With the presentation of the demand for judicial review of the forced execution procedure or any other judicial disposition that suspends the forced execution, in accordance with the current legislation. The suspension of the computation operates until the notification of the resolution that declares the process concluded as res judicata in an unfavorable way to the administered.
3. The companies may deduct the prescription as part of the application of the defense mechanisms provided for within the compulsory execution procedure. The competent authority must resolve it without further formality than the verification of the deadlines, being able, in the cases of deeming it founded, to order the initiation of liability actions to elucidate the causes of administrative inaction, only when situations of negligence have occurred. .
In the event that the prescription is deducted at the administrative headquarters, the maximum term to resolve on the request for suspension of the compulsory execution by prescription is eight (8) business days counted from the presentation of said request by the administrator. Once said period has expired without express pronouncement, the request is understood to have been granted, by application of positive administrative silence.
Article 254.- Characteristics of the sanctioning procedure
254.1 For the exercise of the sanctioning power, it is mandatory to have followed the legal or regulatory procedure established characterized by:
1. Differentiate in its structure between the authority that leads the investigation phase and the one that decides the application of the sanction.
2. Consider that the facts proven by final judicial decisions bind the entities in their sanctioning procedures.
3. Notify the companies of the events that are charged to them as a position, the classification of the infractions that such events may constitute and the expression of the sanctions that, if applicable, could be imposed, as well as the competent authority to impose the sanction and the norm that attributes such competence.
4. Grant the company a period of five days to formulate their allegations and use the means of defense admitted by the legal system in accordance with numeral 173.2 of article 173, without the abstention from the exercise of this right being considered an element of judgment contrary to your situation.
254.2 The Administration automatically reviews administrative resolutions based on facts that are contradictory to those proven in judicial resolutions as res judicata, in accordance with the rules that regulate ex officio review procedures.
Article 255.- Sanctioning procedure The entities in the exercise of their sanctioning power abide by the following provisions:
1. The sanctioning procedure is always initiated ex officio, either on its own initiative or as a consequence of a higher order, a motivated request from other bodies or entities or by complaint.
2. Prior to the formal initiation of the procedure, preliminary investigation, investigation and inspection actions may be carried out in order to determine on a preliminary basis whether there are circumstances that justify its initiation.
3. Once the initiation of the sanctioning procedure has been decided, the investigating authority of the procedure formulates the respective notification of charge to the possible sanctioned person, which must contain the data referred to in numeral 3 of the preceding article so that they can present their discharges in writing within a period of time which may not be less than five business days from the date of notification.
4. Upon expiration of said period and with the respective discharge or without it, the authority that instructs the procedure will carry out ex officio all the actions necessary for the examination of the facts, collecting the data and information that are relevant to determine, where appropriate, the existence of liability subject to sanction.
5. Once the collection of evidence has concluded, if applicable, the investigating authority of the procedure concludes by determining the existence of an infraction and, therefore, the imposition of a sanction; or the non-existence of infringement. The investigating authority formulates a final investigation report which determines, in a motivated manner, the behaviors that are considered to constitute an infringement, the norm that provides for the imposition of sanction; and, the proposed sanction or the declaration of non-existence of infringement, as appropriate.
Once the final report has been received, the competent body to decide the application of the sanction may order the performance of complementary actions, provided that it considers them essential to resolve the procedure. The final instructional report must be notified to the administrator so that they can formulate their discharges within a period of no less than five (5) business days.
6. The resolution that applies the sanction or the decision to archive the procedure will be notified to both the company and the body or entity that made the request or who reported the infraction, if applicable.
Article 256.- Provisional measures
256.1 The authority that processes the procedure may order, at any time, the adoption of provisional measures that ensure the effectiveness of the final resolution that may fall, subject to the provisions of article 157.
256.2 The measures adopted must be adjusted to the intensity, proportionality and necessity of the objectives that are intended to be guaranteed in each specific case.
256.3 It is not possible to dictate measures of a provisional nature that may cause damage of difficult or impossible repair to the interested parties or that imply violation of their rights.
256.4 Provisional measures cannot be extended beyond what is essential to meet the concurrent precautionary objectives in the specific case.
256.5 During the processing, the competent authority that had ordered the provisional measures revokes them, ex officio or at the request of a party, when it verifies that they are no longer essential to meet the concurrent precautionary objectives in the specific case.
256.6 When the authority finds, ex officio or at the request of a party, that there has been a change in the situation that it took into account when making the provisional decision, it must be changed, modifying the provisional measures agreed or replacing them with others, as required by the law. new measure.
256.7 The fulfillment or execution of the provisional measures adopted, where appropriate, are compensated, as far as possible, with the sanction imposed.
256.8 Provisional measures are terminated for the following reasons:
1. By the resolution that puts an end to the procedure in which they were ordered. The competent authority to resolve the administrative appeal in question may, for reasons, maintain the agreed measures or adopt others until the act of resolution of the appeal is issued.
2. Due to the expiration of the sanctioning procedure.
Article 257.- Exemptions and mitigating liability for infractions
1.- The following are conditions that exempt from liability for infractions:
a) The fortuitous event or force majeure duly proven.
b) Act in compliance with a legal duty or the legitimate exercise of the right of defense.
c) The mental incapacity duly verified by the competent authority, whenever this affects the aptitude to understand the infraction.
d) The mandatory order of the competent authority, issued in the exercise of its functions.
e) The error induced by the Administration or by confusing or illegal administrative provision.
f) The voluntary correction by the possible sanctioned of the act or omission imputed as constituting an administrative offense, prior to the notification of the imputation of charges referred to in subsection 3) of article 255.
2.- The following are mitigating conditions of liability for infractions:
a) If a disciplinary administrative procedure has been initiated, the offender acknowledges his responsibility expressly and in writing. In cases where the applicable penalty is a fine, it is reduced to an amount not less than half of its amount.
b) Others that are established by special rule.
Article 258.- Resolution
258.1 In the resolution that puts an end to the procedure, events other than those determined in the course of the procedure may not be accepted, regardless of their different legal assessment.
258.2 The resolution will be enforceable when it ends the administrative procedure. The administration may adopt the necessary precautionary measures to guarantee its effectiveness, as long as it is not executive.
258.3 When the sanctioned offender appeals or challenges the resolution adopted, the resolution of the appeals that he files may not determine the imposition of more serious sanctions for the sanctioned person.
Article 259.- Administrative expiration of the sanctioning procedure
1. The term to resolve the disciplinary proceedings initiated ex officio is nine (9) months from the date of notification of the imputation of charges. This period may be exceptionally extended, a maximum of three (3) months, and the competent body must issue a duly supported resolution, justifying the extension of the period, prior to its expiration. Administrative expiration does not apply to the recursive procedure. When, according to the law, the entities have a longer period to resolve the expiration, it will operate at the expiration of the expiration date.
2. Once the maximum term to resolve has elapsed, without the respective resolution being notified, the procedure is automatically understood to have expired administratively and it will be filed.
3. Administrative expiration is declared ex officio by the competent body. The company is empowered to request the administrative expiration of the procedure in case the competent body has not declared it ex officio.
4. In the event that the offense has not prescribed, the competent body will evaluate the initiation of a new sanctioning procedure. The administratively expired procedure does not interrupt the prescription.
5. The declaration of administrative expiration does not invalidate the control actions, as well as the evidence that cannot or is not necessary to be acted upon again. Likewise, the preventive, corrective and precautionary measures issued remain in force for a period of three (3) additional months as long as the start of the new sanctioning procedure is available, after which they expire, being able to have new measures of the same nature in case the sanctioning procedure is initiated.
Of the responsibility of the public administration and the personnel at its service
Responsibility of the public administration
Article 260.- General Provisions
260.1 Notwithstanding the responsibilities provided for in common law and special laws, entities are financially liable vis-à-vis those administered for direct and immediate damages caused by acts of the administration or public services directly provided by them.
260.2 In the cases of the previous numeral, there is no place for repair by the Administration, when the damage was the consequence of a fortuitous event or force majeure, of a determining fact of the injured party or of a third party. There is also no place for reparation when the entity has acted reasonably and proportionally in defense of the life, integrity or property of the people or in the safeguarding of public property or in the case of damages that the company has a legal duty to bear in accordance with with the legal system and the circumstances.
260.3 The declaration of nullity of an administrative act in administrative headquarters or by judicial resolution does not necessarily presuppose the right to compensation.
260.4 The alleged damage must be effective, economically valuable and individualized in relation to a company or group of them.
260.5 Compensation includes direct and immediate damage and other consequences arising from the action or omission generating the damage, including lost profits, damage to the person and non-pecuniary damage.
260.6 When the entity compensates the administered, it may judicially repeat the responsibility of authorities and other personnel at its service, taking into account the existence or not of intentionality, the professional responsibility of the personnel involved and their relationship with the production of the damage. However, the entity may agree with the person responsible for the reimbursement of the indemnity, approving said agreement by resolution.
Responsibility of the authorities and personnel at the service of the public administration
Article 261.- Administrative offenses
261.1 The authorities and personnel at the service of the entities, regardless of their labor or contractual regime, incur an administrative fault in the processing of the administrative procedures under their charge and, therefore, are subject to administrative sanction suspension, termination or dismissal attending the seriousness of the offense, the recurrence, the damage caused and the intentionality with which they acted, in the event of:
1. Refusing to unjustifiably receive requests, appeals, statements, information or to issue a record about them.
2. Failure to deliver, within the legal term, the documents received to the authority that must decide or comment on them.
3. Unjustifiably delay the submission of data, actions or files requested to resolve a procedure or the production of a procedural act subject to a specified period within the administrative procedure.
4. Solve without motivation any matter submitted to its competence.
5. Execute an act that is not expedited for it.
6. Failure to communicate within the legal term the grounds for abstention in which it is involved.
7. Delaying the fulfillment of superior or administrative mandates or contradicting their decisions.
8. Intimidate in any way anyone who wishes to file an administrative complaint or contradict their decisions. 9. Incur in manifest illegality.
10. Disseminate in any way or allow access to the confidential information referred to in numeral 169.1 of this TUO.
11. Failure to resolve within the period established for each administrative procedure in a negligent or unjustified manner.
12. Ignore in any way the application of automatic approval or positive silence obtained by the manager before his / her own or another administrative entity.
13. Failure to comply with the criteria, procedures and methodologies for determining the costs of administrative procedures and services.
14. Charge processing fee amounts above one (1) UIT, without prior authorization.
15. Failure to apply the approved standardized procedure.
16. Charge amounts of processing fees higher than those established for standardized procedures.
17. Propose, approve or demand procedures, requirements or rates in contravention of the provisions of this law and other simplification standards, even if they are contained in internal regulations of the entities or Single Text of Administrative Procedures.
18. Require the companies to present prohibited documents from requesting or not admitting the documentary substitutes considered in this law, even when their demand is based on some internal norm of the entity or on its Single Text of Administrative Procedures.
19. Suspend the admission to processing of applications of the administrated for any reason.
20. Refusing to receive the writings, statements or forms presented by the companies, or to issue proof of their receipt, which does not prevent them from making observations in the terms referred to in article 136.
21. Require the personal presentation of petitions, resources or documents when the regulations do not require it.
22. Other breaches that are typified by Supreme Decree endorsed by the Presidency of the Council of Ministers.
261.2 The corresponding sanctions must be imposed after a disciplinary administrative process that will adhere to the current legal provisions on the matter, and the procedure established in Article 255 must be applied for other cases, as appropriate.
Article 262.- Restrictions on former authorities of the entities
262.1 No former authority of the entities may take any of the following actions with respect to the entity to which they belonged during the year following their termination :
262.1.1 Representing or assisting a company in any procedure with respect to which they had some degree of participation during their activity in the entity.
262.1.2 Advise any manager on any matter that was pending decision during their relationship with the entity.
262.1.3 Carry out any contract, directly or indirectly, with an administrator in person for a procedure resolved with their participation.
262.2 Violation of these restrictions will be the subject of an investigative procedure and, if proven, the person responsible will be sanctioned with the prohibition of entering any entity for five years, and registered in the respective Registry.
Article 263.- National Registry of Sanctions against Civil Servants
The National Registry of Sanctions against Civil Servants consolidates all the information related to the exercise of the administrative disciplinary and functional sanctioning power exercised by the entities of the Public Administration, as well as those criminal sanctions imposed in accordance with articles 296, 296-A first, second and fourth paragraph; 296-B, 297, 382, 383, 384, 387, 388, 389, 393, 393-A, 394, 395, 396, 397, 397-A, 398, 399, 400 and 401 of the Penal Code, as well as the Article 4-A of Decree Law 25475 and the crimes provided for in articles 1, 2 and 3 of Legislative Decree 1106.
Article 264.- Autonomy of responsibilities
264.1 The civil, administrative or criminal consequences of the responsibility of the authorities are independent and are required in accordance with the provisions of their respective legislation.
264.2 The procedures for demanding criminal or civil liability do not affect the authority of the entities to instruct and decide on administrative liability, unless expressly provided otherwise.
Article 265.- Complaint for the crime of omission or delay of function
The Public Ministry, in order to decide the exercise of criminal action in cases referring to crimes of omission or delay of function, must determine the presence of the following situations:
a) If the period provided by law for the official to act or expressly pronounce himself has not been exceeded.
b) If the company has expressly consented to what is resolved by the public official.
FINAL SUPPLEMENTARY PROVISIONS
First.- References to this Law
References to the rules of this Law shall be made by indicating the number of the article followed by the mention “of the Law of General Administrative Procedure”.
Second.- Prohibition of reiterating normative content
Subsequent legal provisions may not reiterate the content of the rules of this Law, having only to refer to the respective article or specify to regulate what is not foreseen.
Third.- Validity of this Law
1. This Law shall enter into force six months after its publication in the Official Gazette El Peruano.
2. The lack of regulation of any of the provisions of this Law shall not be an impediment to its validity and enforceability.
Fourth.- The ordinances issued by the District Municipalities that approve the amount of the processing fees of the procedures contained in their Single Text of Administrative Procedures that must be the subject of ratification by the Provincial Municipalities of their circumscription as established in the Article 40 of Law No. 27972- Organic Law of Municipalities, must be ratified within a maximum period of forty-five (45) business days, except for excise taxes, in which case the term is sixty (60) business days. .
The ordinance is considered ratified if, after the expiration of the maximum term established to pronounce itself, the Provincial Municipality has not issued the corresponding ratification, and no additional express pronouncement is necessary.
The validity of the thus ratified ordinance requires its publication in the official newspaper El Peruano or in the newspaper in charge of judicial notices in the capital of the department or province, by the respective district municipality.
The ratification referred to in this provision does not apply to the processing rights of mandatory standardized administrative procedures approved by the Presidency of the Council of Ministers.
Fifth.- The powers granted to the Presidency of the Council of Ministers through article 48 of Law No. 27444, Law of General Administrative Procedure, are also applicable to the Single System of Procedures (SUT) for the simplification of procedures and services exclusively provided, created by Legislative Decree No. 1203.
Sixth.- Approval of Single Ordered Texts
The entities of the Executive Power are empowered to compile in the respective Single Ordered Text the modifications made to legal or regulatory provisions of general scope corresponding to the sector to which they belong in order to compile all the regulations in a single text. Its approval is produced by supreme decree of the corresponding sector, and must have the prior favorable opinion of the Ministry of Justice and Human Rights.
Seventh.- Preparation of Guide for the preparation of draft regulatory norms The Ministry of Justice and Human Rights, within a period of no more than 120 (one hundred and twenty) business days after the publication of this Legislative Decree, issues a Guide for the preparation of projects of regulatory standards, mandatory for all entities of the Public Administration.
EIGHTH Adequacy of the Consolidated Text of Law No. .º 27444, Law on the General Administrative Procedure The Ministry of Justice and Human Rights, a working period not exceeding sixty (60) days published this Legislative Decree incorporates the modifications contained in this regulation to the Single Ordered Text of the General Administrative Procedure Law, approved by Supreme Decree No. 006-2017-JUS.
Ninth.- Grounds for negative administrative silence
The obligation to inform a substantive provision qualification of administrative silence negative in an administrative procedure provided for in section 34.1 of Law .º 27444, Law on Administrative Procedures General applies for regulations to be adopted after the entry in force of this Legislative Decree.
Tenth.- Transit process
As of December 31, 2018, the transfer of the Presidency of the Council of Ministers to the competent entity, of the documentary collection and instruments related to the Methodology for the determination of the processing rights of the administrative procedures and services provided exclusively.
TRANSITIONAL SUPPLEMENTARY PROVISIONS
First.- Transitory regulation
1. The administrative procedures initiated before the entry into force of this Law, will be governed by the previous regulations until their conclusion.
2. However, the provisions of this Law that recognize rights or faculties of the administered vis-à-vis the administration, as well as its Preliminary Title, are applicable to the procedures in process.
3. The special procedures initiated during the period of adaptation contemplated in the third transitory provision will be governed by the provisions of the previous regulations that apply to them, until the approval of the corresponding modification, in which case the procedures initiated after their entry into force, are regulated by the aforementioned adequacy regulations.
Second.- Deadline for the adaptation of special procedures
By regulation, within a period of six months from the publication of this Law, the adaptation of the regulations of the regulatory entities of the different administrative procedures, whatever their rank, will be carried out in order to achieve an integration of the supplementary applicable general rules.
Third.- Deadline for the approval of the TUPA
Entities must approve their TUPA in accordance with the rules of this Law, within a maximum period of four months from the effective date of the same.
Fourth.- Notary Public Regime
For the purposes of Article 138 of this Consolidated Text of Law .º 27444, each entity may develop rules of procedure in which the requirements, duties and other regulations related to the performance of the functions of a notary will be established .
Fifth.- Dissemination of this Law
The entities, under the responsibility of their owner, must carry out dissemination, information and training actions on the content and scope of this Law in favor of their staff and the user public. Said actions may be carried out through the Internet, printed matter, talks, posters or other means that ensure its proper dissemination. The cost of information, dissemination and training actions should not be transferred to the user public.
Entities within a period of no more than 6 (six) months after the publication of this Law, must inform the Presidency of the Council of Ministers about the actions carried out to comply with the provisions of the previous paragraph.
Sixth.- The entities will have a term of sixty (60) days, counted from the effective date of this Legislative Decree, to adapt their special procedures as provided in number 2 of article II of the Preliminary Title of this Single Ordered Text of the Law No. 27444.
Seventh.- Within a period of one hundred and twenty (120) days, counted from the effective date of this Legislative Decree, the entities must justify before the Presidency of the Council of Ministers the procedures that require the application of negative silence, provided for in article 38 of the present Single Ordained Text of Law No. 27444.
Eighth.- Within a period of one hundred and twenty (120) days, counted from the effective date of this Legislative Decree, the entities must adapt the costs of their administrative procedures and services provided exclusively, in accordance with the provisions of paragraph 53.6 of article 53 of this Single Ordered Text of Law No. 27444.
Ninth.- For the application of the loss of effectiveness and enforceability of the administrative act provided for in numeral 204.1.2 of article 204 of this Single Ordained Text of Law No. 27444, Law of General Administrative Procedure, a period of time is established. six (6) months, counted from the effective date of this Legislative Decree, for those acts that, as of the effective date of this Legislative Decree, have elapsed more than two (2) years after having become final.
TENTH For the application of the limit laid down in Article 259 of this Consolidated Text of Law .º 27444, Law on Administrative Procedures General, within one (1) year is established, counted from the effective date of the Decree Legislative No. 1272, for those sanctioning procedures that are currently in process.
First.- tenth Within sixty (60) working days from the effective date of this Decree Law, the Consolidated Text of Law will be adopted .º 27444, Supreme Decree countersigned by the Ministry of Justice and Human Rights .
Twelfth.- The prohibited documents to request from the administrated or users referred to in article 5 of Legislative Decree 1246, Legislative Decree that approves various administrative simplification measures, and those that are determined by Supreme Decree, in accordance with the provisions in numeral 5.3 of the aforementioned article, they are disseminated through the Peruvian State Portal (http://www.peru.gob.pe/) and the Citizen and Business Services Portal (http: // www.serviciosalciudadano.gob .pe /).
Thirteenth.- Electronic boxes or existing computer systems or in the process of implementation The provisions for notification in electronic boxes or existing computer systems or in the process of implementation on the date of entry into force of this legislative decree continue to operate, and in what is compatible with its operation, they are adapted to the provisions of the Supreme Decree of the Presidency of the Council of Ministers that approves the criteria, conditions, mechanisms and deadlines for the gradual implementation in public entities of the single electronic box.
In addition, the provisions of the fifth paragraph of paragraph 20.4 of Law No. .º 27444, Law on the General Administrative Procedure is not applicable for electronic boxes whose obligation was established prior to the present legislative decree.
REPEALING COMPLEMENTARY PROVISIONS
First.- Generic repeal
This Law is of public order and repeals all legal or administrative provisions, of equal or lower rank, that oppose or contradict it, regulating administrative procedures of a general nature, those whose specialty is not justified by the matter they govern, as well as by absorption those provisions that have the same content as any precept of this Law.
Second.- Express repeal
In particular, the following regulations are expressly repealed from the effective date of this Law:
1. Supreme Decree .º 006-67-SC, Law No. 26111, the Consolidated Text of the Law on General Rules of Administrative Procedures, approved by Supreme Decree No. 002-94-JUS and standards amendments, complementary, substitutes and regulations;
2. Law N .º 25035, called Administrative Simplification Act and its amendments, complementary, substitute and regulations;
3. Title IV of Legislative Decree N .º 757, called Framework Law for Private Investment Growth, and its amendments, complementary, substitute and regulations;
4. Sixth Arrangement Complementary and Transitory Law N .º 26979, called Law Enforcement Procedure Coercive.
Third.- As of the effective date of this Law, the following regulations are expressly repealed:
1) The Law N .º 29060, Administrative Law of Silence.
2) Articles 210 and 240 of Law 27444, Law of General Administrative Procedure.
3) Article 279 of Chapter XIX of Title Eleventh General Mining Law, approved by Legislative Decree N .º 109, enshrined in Article 161 of Chapter XVII of Title Twelfth of the Consolidated Text of the General Law Mining, approved by Supreme Decree No. 014-92-EM, the provisions of this Law being applicable.