Employers who do not pay the pension contribution and social security, withheld from workers, within the established term, are committing the crime of illegal appropriation, warned Álvaro Gálvez Calderón, legal manager of the Lima Chamber of Commerce (CCL).
Thus, article 190 of the Criminal Code of Law 31823 would be in breach, which specifies that a custodial sentence of not less than two nor more than four years will be given to agents who do not give the respective contribution. The situation is aggravated for those who have the status of public servant, the penalty will be no less than three nor more than six years and disqualification.
“In addition, the employer could be involved in as many criminal proceedings as there are ‘affected’ workers”, Gálvez Calderón also specified in a recent CCL report.
He also pointed out that it is not specified who is the passive subject of the crime, so it could be the worker or the entity that receives and manages the contributions from AFP, ONP, or EsSalud. In that sense, it is up to them to denounce these cases.
In addition, the approved criminal type does not establish a time limit for the criminal offense to become effective, that is, it would suffice for the legal term to make the withholding deposit to expire, which may be within the first five days following the month that it accrues, without it being carried out, to have already committed the crime.
Source: Larepublica
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