Introduction
Peru is a unitary republic with a mixed economy, governed by a democratically elected legislature and executive; it is divided into 29 departments which are, in turn, divided into 179 provinces. The government plays a major role in commercial and economic life, a fact that has caused some stresses within the legal framework since Peru, as a member of the Andean Community, must rationalize its legislation to conform to the more open approach now taken by this regional organization. It was one of the most important and prosperous of the Spanish possessions in the New World, and from its colonization in the early 16th century was the seat of colonial administration in northern South America consisting of what is now Bolivia and Peru. It was the last of the Spanish territories to achieve independence—a slow process, substantially directed by outside “liberators” and lasting from 1812 to 1821.
Legal History
Beginning with the newly elected government of President
Alberto Fujimori Fujimori in 1990, Peru embarked upon an ambitious and extensive program
of denationalization and privatization. The president, an apostle of free trade
and the market economy, managed, either by maneuvering legislation through the
parliament or during a two-year period of governing by decree, to turn around
Peru’s moribund economy. Its collection of state enterprise investment policies
and controls continued to be greatly liberalized while inflation has been
modestly controlled. President Fujimori’s methods of government (in effect,
frequently by decree) and his campaigns during the two presidential elections of
2000 attracted attention and censure by human rights
activists. As a result, the president resigned and a change of government took
place 26/28 July 2001 after elections of April 2001 and a runoff of 3 June 2001.
Mr. Fujimori is now a resident of Japan.
The earliest Peruvian constitution was promulgated in 1822 and adopted in 1823. Even before the adoption of the constitution, Peru suffered the first of its endless series of military coups d’etat; one preceded the installation of Simon Bolivar as dictator. He finally defeated the Spaniards in 1824, driving them from their last stronghold in South America. He was then instrumental in drafting a new constitution adopted in 1826. Between 1825 and 1827 the territory was divided into Northern Peru (renamed Bolivia) and present-day Peru. A new constitution was drafted and adopted in 1828.
Peru’s constitutional history has been as chaotic as its economic condition. The 1828 constitution was succeeded by another five charters plus some “provisional statutes” (estatuto provisiorio) on which government, or non-government, was founded until the constitution of 1933 was adopted. It has been remarked that
[t]he constitutional history of Peru is characterized by the omnipresence of the military. Despite this, there is a continuing tendency of the government to operate within a constitutional framework, as evidenced by the number of charters adopted within the last two centuries…. Since independence, Peru had adopted some 16 constitutions, if the ephemeral and provisional ones are counted.1
Beginning with the newly elected government of President Alberto Fujimori Fujimori in 1990, Peru embarked upon an ambitious and extensive program of denationalization and privatization. The president, an apostle of free trade and the market economy, managed, either by maneuvering legislation through the parliament or during a two-year period of governing by decree, to turn around Peru’s moribund economy. Its collection of state enterprise investment policies and controls continued to be greatly liberalized while inflation has been modestly controlled. President Fujimori’s methods of government (in effect, frequently by decree) and his campaigns during the two presidential elections of 2000 attracted attention and censure by human rights activists. As a result, the president resigned and a change of government took place 26/28 July 2001 after elections of April 2001 and a runoff of 3 June 2001. Mr. Fujimori is now a resident of Japan.
Legislation and the Judicial System
The Peruvian legislative system is, in fact, advanced and sophisticated, often seeming to function in a legal vacuum unaffected by surrounding chaos. The law-making style is characterized by a great number of specific codes, more than the norm in Latin America. It would be worthwhile to analyze the sequence of legislation and its impact on the legal system. While similar to that of other Latin American jurisdictions, Peruvian legislation seems to have a greater range of nomenclature. The sequence is: Constitution (and amendments);
in effect constitutional legislation enacted by the congress (whose effect continues through subsequent constitutions), Ley and Decreto legislativo; legislation enacted by the executive (and their assignment in this hierarchy is determined by who signs the law: the executive and the entire cabinet, or only the minister involved or only the ministry alone), Decreto ley, Decreto supremo, Resolución ministerial and Resolución directorial. Codes can be enacted or implemented either by legislative or executive acts.
The two most popular forms of legislation—of major importance—are códigos and leyes orgánicas. Of these one author writes, “Even beyond the Organic laws in sweep are the
Códigos, which represent almost an exclusive source of private law, in the Civil law sense, for the Peruvian citizen. In theory at least, a code contains all the rules of law necessary to its subject, establishing a complete and comprehensive
system.”2 Public law now seems to be following a divergent path.
Public law, due to its social and economic content is dynamic and changing, not in keeping with the characteristics of a code, which is static, exclusive and excluding…. Today, legislation in those fields touching Public Law is tending toward General Laws, which possess all the advantages of a code without its inconveniences … such as the undue rigidity and permanence of its dispositions.3
All of Peru’s major codes, with the exception of a skeletal
commercial code, are of quite recent origin, sophisticated, modern and carefully drafted. The new Civil
Code of 1984 replaced one of 1936, which had replaced the first civil code of 1852. Both the earlier ones were, in the French tradition, virtual translations of the Code Napoléon. The new code is much more modern and rather closely adheres to the Italian approach of writing all “civil” legislation (including commercial law) in a single codification. In a century and a half, Peru had made the transition from the jumbled collection of legislative compilations inherited from the Spanish to a sophisticated, contemporary Latin approach to the civil law
tradition.4 The commercial code of 1853, based on the Spanish commercial code of 1829, was replaced in 1902 by a Peruvian version of the Spanish commercial code of 1885. It has, in fact, been replaced piecemeal by separate pieces of legislation on bankruptcy, negotiable instruments, business associations and securities. Now, except for maritime law, its actual effect is negligible compared to the civil code. The 1984 Civil code is now insufficient to address the needs of an expanding commercial society. Ley 26,673 of 22 October 1996 created a commission to reform the existing civil code.
Criminal law and criminal and civil procedure have been greatly modified or entirely replaced since the late 1970s; criminal law has had to be particularly responsive to the requirements of protecting an entire social fabric on the verge of disintegration. The constant specter of military government appears to have had little real effect on the application of legislation to daily civil and commercial life.
Peruvian and other Latin American practice has made a pragmatic adjustment to the recurring interruptions of the constitutional system, by simply recognizing the inevitability of such events and incorporating them into the Rule of Law…. [G]eneral decree laws should not be permanently effective without congressional consent…. However tacit consent by the reinstated Congress seems sufficient.5
Peruvian legislation and its attendant military/political system continue to evolve with variations of a free market economy, even though the legislature was for several years more or less permanently suspended under sweeping executive powers taken by President Albert Fujimori. Beginning with 1991 and continuing into 1993, President Fujimori
exercised his legislative powers to privatize a large range of industries. Even through 1999 much legislation emerged in the form of decrees.
President Fujimori left office in 2000.
Although Supreme Court decisions have been reported back to the 1870s (the Court was constituted in 1865), Peru is one of those Latin American nations that combine a very poor system of judicial reporting with a minimal regard for the persuasive effect of “jurisprudence.” A writer poses and answers a question:
[D]o judges deciding cases under code in the Romano-European tradition simply supply the written norm, always discoverable within a statute which is by definition both complete and sufficient to any legal controversy, or do judges in a code system also properly contemplate possible departures from the norm when the letter of the law and the spirit of the code in which it appears are clearly inapposite to the resolution of a particular case? The answer in Peru has ever been the first alternative …. The country remains one of the most strict constructionist jurisdictions in the world in its approach to its written codes.6
Sources for Introductions to the Legal System and its Laws
While there is no good English-language book-length introduction to the Peruvian legal system, the interested researcher is particularly recommended to the chapter on Peru in the
International encyclopedia of comparative law.7 This brief but comprehensive treatment by C. Parodi Remon was completed in 1995 and covers all aspects of the legal system, addressing major legislation accompanied by full
citation. It has been dealt with in the Modern legal systems cyclopedia8 and this does provide a beginning of an introduction. It is primarily an analysis of the constitution and cites the draft civil code. The very useful O.A.S.
Statement of the laws9 is now quite out of date in the light of the legislative activity of the last two
decades. The more recent treatment of all Peruvian laws and legal literature published by the Library of Congress in 1976 is invaluable and recommended as an introduction to Peruvian law, legal history and literature; it is a model of this
genre.10 The Martindale-Hubbell law digest (Peru) should not be overlooked, particularly the section on company and corporate law.
Doing business in Peru11 consists of two volumes. The second volume reprints the Spanish text of more than 20 commercial and general laws. The first volume discusses fairly briefly (and with a rather disappointing lack of detail) all aspects of commercial law and practice in Peru.
Researchers should also consider the material under INTERNET
SOURCES located at the end of the MAJOR PUBLICATIONS section.
_________
1. Law and legal literature of Peru, a revised guide. D.M. Valderrama, Washington, Library of Congress, 1976, page 1. This continues to be the condition since the adoption of the 1980 constitution, although presently, the prospect of administering an effective government in a nation affected by economic, social and political convulsions even deters the military from another coup d’état. Not counting the ephemeral or unofficial constitutions, the 1993 instrument is the twelfth constitution.
2. D.B. Furnish, “The hierarchy of Peruvian laws: context for law and development.” 19
American journal of comparative law 91 (1971).
3. Law and legal literature of Peru, a revised guide. D.M. Valderrama, Washington, Library of Congress, 1976, pg. 91. This is a translation of the preamble to a Peruvian legislative decree.
4. The old Spanish legislation—Las Siete partidas, Nueva Recopilación and Novisima Recopilación and Recopilación de las leyes de las Indias and the Ordenanzas de
Bilbao—filled the void in civil and commercial legislation until the 1850s. Codification was delayed due to the generally confused governmental conditions, further complicated by the imposition of Bolivian codes (1836–1838) during a short-lived Peru-Bolivian confederation.
5. D.B. Furnish, “The hierarchy of Peruvian laws: context for law and development.” 19
American journal of comparative law 91 (1971) at pg. 95.
6. D.B. Furnish, “Court and statute law in Peru.” 28 American journal of comparative law 487 (1980).
7. International encyclopedia of comparative law. “National reports,” fascicule “P.” Dordrecht, Martinus Nijhoff, 1996.
8. C.M. Lesser, “The legal system of Peru” in
Modern legal systems cyclopedia, Buffalo, N.Y., Hein, [1993] (looseleaf).
9. A statement of the law of Peru in matters affecting business. 4.rev.ed. H. de Lavalle Vargas, Washington, General Secretariat, Organization of American States, 1973.
10. Law and legal literature of Peru, a revised guide. D.M. Valderrama, Washington, Library of Congress, 1976.
11. Doing business in Peru. Estudio Rubio. Leguía, Normand and Asociados, Yonkers, N.Y., Juris Publishing, 1999– 2 vols. (looseleaf).
MAJOR PUBLICATIONS
Note: The Teleley database is so responsive, easy to use and almost totally comprehensive that we recommend it, even though it is proprietary (very reasonably priced) for access to all current Peruvian legislation and regulation. We do not cite to it in every instance, but the Spanish texts are easily available at http://www.teleley.com or http://www.asesor.com.pe/teleley.
MAJOR CODIFICATIONS
1. Civil Code
Código civil. Decreto legislativo 295 of 24 Jul 1984. Replacing the 1936 code.
Spanish text, as amended through 1996, reprinted in Doing business in Peru.*
Although of relatively recent origin, the 1984 Peruvian civil code has already become an object of revision and reform. The 1984 code was greatly influenced by the Italian civil code of 1942, although the commercial code was left alone. A Comisión Revisora del Código Civil was constituted in 1997 and has commenced work on a new draft code (various sections are being worked on separately). So far no decisions have been made on whether the commercial code of 1902 should be derogated and combined into a new civil code, or whether it should itself be reformed and let stand alone. The commission seems to be leaning towards a reorganization of the commercial code with consolidation of company and business enterprise legislation. See
Reforma del código civil peruano: doctrina y propuestas. G.A. Borda …, Miraflores, Gaceta Jurídica Ed., 1998.
2. Code of Civil Procedure
Código procesal civil. Decreto legislativo 768 of 29 Feb 1992 in El Peruano
4 Mar 1992. In force 1 Jan 1993. Replacing the old Código de procedimientos civiles. The 1992 law
modified by Decreto ley 25,940 of 10 Dec 1992 which directed the consolidated text to be in force 28 Jul 1993.
3. Commercial Code
Código de comercio. 15 Feb 1902 (much amended). Ley 26,936 of 27 Mar 1998 specified a new time frame for a revision of the
Commercial Code. The deadline of 365 days was not met.
4. Criminal Code
Código penal. Ley of 3 Apr 1991 in El Peruano
4 Apr 1991.
5. Code of Criminal Procedure
Código procesal penal. Decreto legislativo 957 of 22 Jul
2004 in El Peruano 29 Jul 2004.
Draft Código procesal penal issued by the Comisión Especial Revisora, 5 Mar 1995.
Decreto legislativo 958 of 22 Jul 2004 in El
Peruano 29 Jul 2004. This sets out the procedure for implementation of
the new Code of Criminal Procedure and the attendant transitional matters.
Código de ejecución penal. Decreto legislativo 330, 12 Jan 1985 and Reglamentos, Decreto supremo
12-85-JUS.
OFFICIAL GAZETTE
El Peruano, diario oficial. No. 1– , 13 May 1826– . Lima, Empresa Editora del Diario Oficial El Peruano, 1826– (cited herein as El
Peruano). El Peruano contained digests of court decisions up to 1981.
COMPILATIONS OR OFFICIAL CODIFICATIONS
There is no compilation, but interested users are referred to
La nueva legislación comercial peruana. Lima, El Peruano, 1993, which contains
more than 100 laws and decrees (1991–1993) dealing with the newly privatized sector and the government’s approach to a market economy.
SESSION LAWS
Normas legales. Año 1, no. 1 (17 Dec 1980)– . Lima, 1980. Commencing in late 1980, a separate edition of legislation culled from the official gazette, El
Peruano, has appeared as a supplement that can be selected out. When removed from
El Peruano, Normas legales serves as official session laws. Note: This should not be confused with the Peruvian law journal,
Normas legales, published since 1942.
Commencing in 1981, a further separate supplement of decrees (which has become the general vehicle of legislative activity) has also appeared as a supplement to El
Peruano.
Decretos legislativos. Año 1, no. 1 (Jul 1981)– . Lima, 1981– .
Colección de leyes, decretos y órdenes, publicadas en el Perú desde su indpendencia en el año 1812 hasta [1852]. Lima, Impr. Masías, 1831–1854. 13 vols.;
Colección de leyes, decretos y órdenes publicadas en el Perú desde el año 1821 hasta …
1859. Lima, F. Bailly, 1861–1872. 16 vols.; Leyes y resoluciones expedidas por los Congresos ordinarios y extraordinarios,
1860–1905. Lima, [s.n.] 1861–1906 (no volumes published for 1866/67 or 1894);
Anuario de legislación peruana [1904]–1964]. Lima, Ed. de la Revista, 1907–1965 (no more published?);
Leyes y resoluciones del carácter general de la República del Perú. Año 1, no. 1 (enero–mar 1954)–año 19, no. 100 (oct–dic 1972). Lima, Dirección General de Asuntes Legales del Estado, 1954–1972.
COURT REPORTS
Anales judiciales de la Corte Suprema de Justicia de la República. T. 1(1905)–70(1978). Lima, Imprinta del Estado, 1906–1983 (publication suspended?).
Ejecutorias supremas [de la Corte Suprema de la República]. Año 1, no. 1 (13 May 1981)– . Lima, 1981– . This compilation of judgments of the Supreme Court appears as an irregular supplement to El Peruano
(title varies: 1985–86, Despacho judicial).
Gaceta jurídica: normas legales y jurisprudencia. T. 1 (enero 1994)– . Lima, W.G. Editor, 1994– (an unofficial publication containing both legislation and court reports).
Ejecutorias supremas de derecho civil peruano. 2a.ed. 1936/1953–1966. Trujillo, Librería y Editorial “Bolivariana,” 1953–1971 (no more published?).
Resolutions and decisions of the full Supreme Court which set forth binding judicial doctrine (and so constitute a type of precedent) published in El
Peruano.
Ley 27,959 of 29 Apr 2003 in El Peruano 15 May 2003. Amends the law on amparo and habeas corpus to require all final decisions regarding such matters to be published on the web pages of El Peruano or the Tribunal Constitucional.
Tribunal constitucional. Reports of the Constitutional court (1996 to date) are on its website at http://www.tc.gob.pe/. Full text is provided.
INTERNET SOURCES
Researchers in Peruvian law are fortunate in that there are
(at least) two Internet databases that can be accessed for full Spanish texts of
most laws and regulations. A sophisticated, comprehensive and current website
providing access to Peruvian legislation in Spanish is at http://www.asesor.com.pe/teleley
or alternatively http://www.teleley.com.
This site (Teleley) is maintained by the law firm, Estudio Torres y Torres Lara
y Asociados, and is quite easy to access and use and is available on
subscription for a relatively modest charge. It provides full Spanish text of
nearly all laws and regulations from 1996 to date. The texts are, for the most
part, scanned from the official gazette, El
Peruano, but not infrequently are scanned or reprinted from another
source and are, in general, quite legible. Legislation is accessed by year and
month. A separate library, similarly organized, provides brief summaries
arranged by subject of laws and regulations appearing in
El Peruano. This is a quick, up-to-date and responsive database,
although it may not be quite as comprehensive as GLIN (below). Yet another
library within Teleley (Boletín legal) provides commentary on recent legislation
and legislative developments. Its library, “Informes legal,” reprints articles
by scholars and practitioners on Peruvian law. A separate library, “Normas
legales full-texto,” contains all major laws and regulations (1993 to date)
arranged and accessed by broad subjects. This is an excellent website, although
it is no longer available without charge to the user and it requires passwords
and log-ons. Currently response time is very prompt. Not all the regulations in Teleley are
in full text, in some cases, probably connected with scanning and technical
requirements, only the basic legislation is reproduced. Teleley is definitely a
recommended source. The Teleley database continues to improve and expand in a
sophisticated manner. Beginning in Spring 2006 its daily report, “Normas a texto
completo,” provides full texts of all important laws and regulations as these
appear each in El Peruano.
The Law Library of Congress’ online database, GLIN (the
Global Legal Information Network), is a very ambitious effort that, for Peru,
provides access to virtually all legislation and regulation. One can access
information in GLIN by date, by number of law, decree or decision and by
subject, pinpointed throughout by the use of Boolean indicators (this requires a
familiarity with GLIN’s thesaurus—which is not too difficult to acquire). The
database is at http://www.glin.gov/.‡
From 1976 to 1996 the entries in GLIN are limited to the official citation and a brief English-language summary of a few sentences. For 1996 up to about ten months from the current date, GLIN also provides the full text in Spanish in a format scanned from El
Peruano. Our experience suggests to us that we do not need to cite users to GLIN for laws and regulations from 1976 to 1995—be assured, an English summary (only) is there. This is an extremely comprehensive database containing more than Teleley (generally more than one wants to know). For our purposes, citations to these years are not worth the effort just for the English-language summaries. We do cite to GLIN from 1996 on, although our experience is that the full-text displays in Teleley are definitely more legible. Sometimes we omit citations when an easily accessible printed text or translation is published.
CONASEV (Comision Nacional Supervisoria de Empresas y Valores), the national commission responsible for securities and the securities market maintains a website at
http://www.conasev.gob.pe/. Its resolutions from 2001 are in full Spanish text under “Normas legales.”
The Peruvian Congress maintains a truly vast database at http://www.congreso.gob.pe/. Within it, the Archivo digital de la legislación del Peru contains a great deal of legislation from 1820 to date. Although promising, a visit was, until recently, not particularly rewarding. Much of the site was under construction, but this “construction” has been finished; however, the scanned texts are not agreeable to read.