Debt recovery through judicial means in Peru is governed by a structured legal process that aims to protect both creditors’ rights and debtors’ guarantees. Creditors, whether individuals or legal entities, have access to several judicial mechanisms depending on the nature, amount, and enforceability of the debt. This article outlines the key aspects of judicial debt collection under Peruvian law.
1. Legal Basis
The principal legislation governing judicial debt recovery in Peru includes:
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Peruvian Civil Code – establishing obligations and rights of creditors and debtors.
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Civil Procedure Code (Código Procesal Civil) – regulating judicial processes for enforcement.
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Law of General Banking and Insurance (for debts involving financial institutions).
2. Types of Judicial Collection Proceedings
Depending on the type of evidence the creditor holds, the legal route for judicial collection may differ. The main types of proceedings are:
A. Executive Proceeding (Proceso Ejecutivo)
Used when the creditor holds a document with executive merit, such as:
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A notarized debt acknowledgment or promissory note.
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A final court judgment.
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Certified invoices recognized by the debtor.
Advantages:
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Swift procedure.
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Allows immediate request for seizure of assets (embargo) after the claim is filed.
B. Ordinary Proceeding (Proceso de Conocimiento)
Applied when the creditor lacks executive titles but can present sufficient evidence to prove the existence of the debt. This process is:
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Lengthier and more complex.
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Includes a phase of evidence presentation and full trial.
C. Summary Proceeding (Proceso Sumarísimo)
Used in specific cases such as unpaid rent or smaller commercial claims where a simplified process is appropriate.
3. Key Steps in Judicial Debt Collection
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Filing the Lawsuit: The creditor files a complaint before the competent civil court, attaching relevant documentation.
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Admittance of the Claim: The judge reviews and admits the lawsuit if it meets all legal requirements.
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Notification to the Debtor: The debtor is formally notified and given a term to respond or oppose the claim.
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Judgment and Enforcement: If the judge rules in favor of the creditor, an enforcement order (mandato de ejecución) is issued.
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Asset Seizure and Auction: The creditor may request seizure of the debtor’s assets and request a public auction to collect the owed amount.
4. Precautionary Measures
Creditors may request precautionary measures (medidas cautelares), such as freezing bank accounts or placing liens on real estate, to secure payment while the trial is ongoing. These can be requested at the time of filing the complaint or during the proceedings.
5. Enforcement Through SUNARP and SUNAT
In many cases, creditors will use the Superintendence of Public Registries (SUNARP) to place liens or register judicial orders, and coordinate with SUNAT for tax-related enforcement if necessary.
6. Duration and Challenges
The duration of judicial debt collection in Peru can vary significantly:
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Executive proceedings may take between 6 to 18 months.
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Ordinary proceedings can extend to 2 years or more, depending on complexity and appeals.
Challenges include potential delays in court processing, appeals by debtors, and difficulties in locating attachable assets.
7. Legal Assistance and Practical Considerations
Engaging an experienced Peruvian law firm, such as SOSLEGAL Abogados, is critical to navigating procedural requirements, drafting strong legal arguments, and executing judgments effectively. Legal support can also facilitate pre-judicial negotiations or mediation, where appropriate, to avoid prolonged litigation.
Conclusion
Judicial debt collection in Peru offers creditors a range of legal tools to enforce payment, particularly when amicable recovery fails. Understanding the appropriate procedure and leveraging precautionary measures can significantly improve the chances of successful recovery. Working with specialized local counsel ensures procedural compliance and efficient execution of rights.
For detailed legal assistance in Peru, please contact us or our partner firm law; Soslegal Abogados.