PERU: An Introduction to Dispute Resolution: Litigation

Some Considerations Regarding the Modifications Made to the Appeal in Cassation as a Consequence of Law No 31591

Introduction 

Law No 31591 has been one of the most controversial and debated regulatory novelties in recent times in the Peruvian legal system, as it introduces innovative modifications to the appeal in cassation. Indeed, through this law, several significant changes were introduced to the appeal in cassation and its regulated process in Peru’s Civil Procedural Code, with the aim of optimising said resource and thereby strengthening the functions of the Supreme Court of Justice of the Republic.

In this regard, throughout this article we will analyse whether the modifications or recent regulatory innovations contained in Law No 31591 have resulted in favourable outcomes for the administration of justice, or whether they have created greater barriers of access to justice for the parties involved.

Modifications Made to the Appeal in Cassation as a Result of Law No 31591 

While it is true that Law No 31591 introduced significant additional modifications to the appeal in cassation and to Articles 122 and 144 of the Organic Law of the Judiciary, for practical purposes we will only consider the most relevant modifications made concerning the processing or admissibility of the appeal in cassation.

As such, it is pertinent to note that the appeal in cassation is an exceptional – or extraordinary – resource aimed at controlling judicial decisions for the correct application of the law. However, the grounds for filing the appeal in cassation were modified through Law No 31591, with the objective of preventing a presumed unjustified use of this resource.

Thus, from the wording of the modifications introduced by the aforementioned law, we can see that the new grounds for admissibility of the appeal in cassation are regulated by Article 388 of the Civil Procedure Code. Nevertheless, it can be seen that the list of scenarios under which the appeal in cassation would be admissible is not exhaustive. This is because, as stated in Article 387 of the Civil Procedure Code, the appeal in cassation will also proceed exceptionally if, according to the Judges of the Supreme Court, it is considered pertinent or necessary for the development of jurisprudential doctrine.

Another modification that has been subject to significant criticism is incorporated in Article 386°, Section 2 of the Civil Procedural Code, where it is determined that the appeal in cassation is admissible:

• when against a judgment or ruling that discusses a claim exceeding 500 URPS (Procedural Reference Units) or that is invaluable in monetary terms;

• when the second-instance decision is being reversed; or

• when the second-instance decision is not an annulment judgment. 

Therefore, we will analyse the mentioned modifications introduced into Peru’s legal framework as a result of Law No 31591, in order to determine whether the actions of the Peruvian legislature have resulted in positive consequences, or whether, conversely, the outlined modifications have led to confusion or have hindered the processing of the mentioned resource.

Analysis 

As previously mentioned, the purpose for which the legislature opted to modify the appeal in cassation through Law No 31591 was to optimise this resource and thereby strengthen the functions of the Supreme Court of Justice of the Republic. In other words, through this recent legislative amendment, the goal was to limit the cases that can be reviewed by the Judges of the Supreme Court, allowing only those cases that meet the requirements outlined in the preceding section to be subject to review.

However, in our opinion, the legislative reform introduced by Law No 31591 has not achieved this purpose. Upon reviewing the for-admissibility criteria outlined in Article 386° of the Civil Procedural Code, it can be seen that only judgments or rulings whose controversy exceeds 500 URPS will be accepted for processing – that is, those disputes whose amounts exceed S/ 247,500 (two hundred and forty-seven thousand five hundred with 00/100 soles) or USD66,657.68 (sixty-six thousand six hundred and fifty-seven with 58/100 US dollars) will be subject to review. In this sense, we wonder whether cases that do not exceed 500 URPS should be dismissed outright, regardless of the complexity of the controversy.

As is well known, Peru’s Supreme Judges are highly qualified to address the most complex disputes in the legal system. Therefore, given their professional experience and extensive knowledge, only these judges are competent to issue rulings on controversies that could have a significant impact on legislation and thus create highly useful jurisprudential lines. Hence, we consider it detrimental to state that a controversy cannot be examined in the appeal in cassation by Supreme Judges solely for failing to meet the requirement of exceeding 500 URPS.

However, it is necessary to note the new – and controversial – criterion of admissibility adopted by the Peruvian legislature and known in Peruvian doctrine as the “double conformity”. Indeed, under the new rules for the admissibility of the appeal in cassation, only controversies that have obtained contradictory judgments will be accepted for processing. This means that controversies that have received the same ruling in both the first and second instances (ie, confirmatory decisions) cannot be reviewed.

However, we ask, what is the purpose of such regulation? Does it limit the right of access to justice for litigants? While it is true that the Peruvian legislature regulated this measure in order to provide greater credibility or trust in the criteria of lower instance magistrates, in our opinion, this has not been an adequate mechanism for achieving this goal.

Indeed, as known in legal practice, the fact that a decision issued by first-instance courts is affirmed in second-instance courts does not necessarily mean that we are unquestionably facing a process with appropriate or lawful judgments. Furthermore, given the complexity of certain cases, only specific controversies can attain a fair decision as a result of the pronouncements of Supreme Judges and their experience or knowledge, allowing for proper administration of justice.

As indicated in the introductory section of this article, while the purpose of regulating the appeal in cassation through Law No 31591 was to provide greater speed and effectiveness to said resource, in our opinion the opposite has occurred due to the exceptional admissibility requirement.

While it is true that the appeal in cassation is admissible exceptionally, provided litigants have managed to demonstrate that the controversy is necessary for the development of jurisprudential doctrine, we wonder whether the concept of jurisprudential doctrine has been properly developed in our legislation. In reality, it has not.

Therefore, we are facing a legislative modification that, despite being innovative, has not taken into account what truly happens in legal practice. As a result, nowadays litigants tend to file the referred resource invoking the exceptional ground, thus burdening Superior Judges with rigorously examining cases in which a doctrine jurisprudential scenario exists and cases in which it does not, at their discretion.

Conclusions 

Based on the above, while the reforms contained in Law No 31591 have introduced innovative modifications, we consider that the legislature has not taken into account what is executed in judicial practice. This has hindered litigants’ access to justice when seeking proper protection of their rights through appeal in cassation.

In our view, although the reforms implemented by the legislature have aimed to enhance the appeal in cassation, they will not be effective if their application proves to be detrimental to litigants and to the judges themselves across various instances. Thus, while we believe that the intention of the modification is commendable, in reality it ends up being detrimental, as a change of this magnitude should be implemented gradually – with training for judges acting as second instance, and most importantly, by providing better equipment and tools to the jurisdictional bodies in order to obtain truly fast and efficient justice.