The Government Guarantee Program “Reactiva Perú” was created by Legislative Decree No. 1455, amended by Legislative Decree No. 1485 and regulated by Ministerial Resolution No. 134-2020-EF/15, with the purpose of mitigating the negative impact on the country’s economy caused by Covid-19, providing a series of measures to grant loans to Peruvian companies that meet certain requirements, being beneficiaries of a working capital loan and continue with the payment chain, especially payrolls to their workers and suppliers.
In order to access this government-guaranteed loan, companies must comply with a series of requirements established by the Superintendencia de Banca y Seguros para las Empresas del Sistema Financiero (ESF), among which the following stand out:
● To access Reactiva Peru loans, companies must not have tax debts in coercive collection greater than one Unidad Impositiva Tributaria as of February 29, 2020.
In the financial system’s credit bureau, they must have a normal rating or a rating with potential problems. It also applies to companies that have not been rated in the last twelve months.
● Companies linked to the SFEs granting the credit cannot qualify as beneficiary companies.
● Those covered by Law No. 30737 – Law that ensures the immediate payment of civil reparations in favor of the Peruvian State in cases of corruption and related crimes will not be able to access the Reactiva Perú program credit.
One of the main criticisms has been the fact that this loan has benefited several companies under investigation for corruption offenses, as it is contrary to the spirit of the law, which generated a mea culpa from the President of the Republic Martin Vizcarra “by specifying that they will improve the filters to grant loans and not to benefit corrupt companies”. The latter made evident the shortcomings of the State, a fact that would have been easily noticed if the State had a regulatory compliance system to prevent risks in the public activity.
On the other hand, the loan is granted in scales according to the amount required by the beneficiary company at a really low interest rate, loan to be paid in a maximum term of thirty-six months, counted from the date the loan was granted plus an additional one-year grace period.
Loans under the “Reactiva Perú” program must be used to finance working capital and may not be used to pay past financial obligations or prepare current financial obligations.
Likewise, during the term of the loans, companies may not use the loans to distribute dividends or distribute profits, except to employees, during the term of the loan in accordance with labor regulations. The loans may not be used to pay past debts incurred prior to the acquisition of the loan, nor may they be used to acquire fixed assets, securities of the capital of other companies, make capital contributions , or acquire bonds, shares , and other monetary assets.
It should be noted that the General Managers and Representatives of the beneficiary companies must sign an Affidavit stating compliance with the requirements and conditions set forth in the document. Any false declaration, fraud , or simulation thereof, generates civil and criminal liability, as well as the penalties that may apply.
From a criminal point of view, what crimes would be committed by businessmen who use loans from the “Reactiva Perú” program for purposes other than those exclusively intended by the program?
As we have specified in previous paragraphs, if the General Manager or legal representative with the full delegation who signs a false, fraudulent , or simulated Affidavit, commits the crime of ideological falsehood (art. 428 of the Criminal Code), likewise if they use the loans for purposes other than those intended in the “Reactiva Perú” Program, they could commit the crime of fraudulent obtaining of credits (art. 247 of the Criminal Code) and the crime of illicit appropriation (art. 190 of the Criminal Code). 190 of the Penal Code) and, in the hypothetical case that the money from the loan is used to carry out suspicious financial operations with front companies, the obligor within the System for the Prevention of Money Laundering and Financing of Terrorism, must report said Record of Operations (RO) to the Financial Intelligence Unit (UIF), under suspicion of money laundering, being the UIF in charge of examining the report together with the database they have, they may find links for the alleged crime of money laundering (Legislative Decree 1106).