What is Agreed Matrimonial Property Regime of Spouses Under Vietnam Laws? | ANT Lawyers

 Husband and wife have the right to choose to apply the statutory or agreed property regime. Basic contents of an agreement on the matrimonial property regime (prenuptial agreement) includes: (i) Property determined as common property and separate property of the husband and wife;(ii) Rights and obligations of the husband and wife toward common property, separate property and related transactions; property to meet the family’s essential needs;(iii) Conditions, procedures and principles of property division upon termination of the property regime;(iv) Other related contents.

When choosing to apply the agreed matrimonial property regime, husband and wife may reach agreement on determination of property as follows:(i) Matrimonial property includes common property and separate property of husband and wife;(ii) Husband and wife have no separate property and all property a spouse has before marriage or during the marriage period is common property;(iii) Husband and wife have no common property and all property a spouse has before marriage and during the marriage period is separate property of that spouse;(iv) Property is determined as otherwise agreed by husband and wife.

Although property regime is based on the wills of the parties, it still must comply with regulation of law. Agreed property regime shall be made in writing before their marriage and be notarized or certified. The agreed matrimonial property regime shall be established on the date of marriage registration. It should be noted that in case of applying the agreed matrimonial property regime, when establishing and making a transaction, a spouse shall provide a third party with relevant information. If a spouse fails to perform this obligation, the third party shall be regarded as acting in good faith and have his/her/its interests protected.

An agreement on the matrimonial property regime shall be declared to be invalid by a court when: (i) It fails to meet the conditions on effect of transactions;(ii) It violates one of the provisions in Article 29, 30, 31 or 32 of Law on marriage and family 2014;(iii) Its contents seriously infringe upon the rights of being supported and inherit and other lawful rights and interests of parents, children and other family members.

Specifically, both parties must still comply with the regulations on:

- General principles of the matrimonial property regime: (i) Husband and wife have equal rights and obligations in the creation, possession, use and disposition of their common property without discrimination between housework labor and income-generating labor; (ii) Husband and wife have the obligation to ensure conditions for meeting their family’s essential needs.; (iii) When the performance of property rights and obligations of husband and wife infringes upon lawful rights and interests of the wife, husband, their family or other persons, compensation shall be paid.

- Rights and obligations of husband and wife to meet their family’s essential needs: (i) Husband and wife have the right and obligation to conduct transactions to meet their family’s essential needs; (ii) In case husband and wife have no common property or their common property is not enough to meet their family’s essential needs, they shall contribute their separate property according to their financial capacity.

- Transactions related to the home being the sole domicile of husband and wife and transactions with third parties in good faith related to bank accounts, securities accounts and other movable assets which registration for ownership and use is not required according to regulation of law.

In summary, although property regime is based on agreement of both parties, this written agreement still must comply with regulation of law and is not allowed to violate rights of other party or any other individual, organization. If such agreement violates above provisions, persons with related rights and interests may request a court to declare it invalid. According to regulation of law, following agencies, organizations and individuals are entitled to require the Court to declare matrimonial property regime of spouse invalid: (i) Spouses have agreed on property regimes; (ii) Person whose right and legal interest violated due to matrimonial property regime of spouse and his/her guardian.

Once property regime agreement is mad, are both parties entitled to edit?

In case of applying the agreed matrimonial property regime during the marriage period, husband and wife may reach agreement to modify and supplement some or all contents of that property regime or apply the statutory matrimonial property regime. The agreement modifying and supplementing the matrimonial property regime shall be notarized or certified in accordance with law. The agreement modifying and supplementing contents of the matrimonial property regime shall take effect on the date it is notarized or certified. A spouse shall provide a third party with relevant information. Property rights and obligations arising before the time of modifying and supplementing the matrimonial property regime must remain legally valid, unless otherwise agreed by involved parties.

Upon divorce, the following case will apply statutory matrimonial property regime, it means that parties will reach agreement, if they fail to reach agreement, at the request of a spouse or both, a court shall settle it according to Law on marriage and family: (i) There is no written agreement of matrimonial property regime of spouse;(ii) Written agreement of matrimonial property regime of spouse is declared completely invalid by the court.

Case will apply agreed matrimonial property regime: There is a written agreement of matrimonial property regime and this written agreement is not declared completely invalid by the Court. The following cases will apply provisions of Law on marriage and family:(i) The agreement is insufficient or unclear;(ii) The matters are not agreed by both husband and wife.

It is important that spouses consult with family lawyers if potential disputes would lead to divorce for proper preparation before filing a lawsuit.

ANT law firm supports clients on family and marriage law firm in Vietnam. When you need to find a divorce lawyer in Vietnam, please contact us. We have offices located in Hanoi, Da Nang, Ho Chi Minh, convenient to support customers

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Guidance on Unilateral Divorce Procedure | ANT Lawyers

Divorce is the termination of husband and wife relationship according to the court’s legally effective judgment or decision. Divorce procedures are prescribed in the Civil Procedure Code, Law on Marriage and Family, Law on Mediation at grassroots… There are two forms of divorce in Vietnam: divorce at the request of one party (unilateral divorce) and divorce by mutual consent.

For divorce at the request of one party, the Court shall handle divorce at the request of spouse if it has grounds to believe that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife, which seriously deteriorates the marriage and makes their common life no longer impossible and the marriage purposes unachievable. The goals of a marriage that are not achieved include unequal obligations and rights between husband and wife; no husband and wife friendship; husband and wife do not respect each other’s honor, dignity and reputation; do not respect the right to freedom of belief and each other; do not help, and facilitate each other to develop in all aspects. In addition, a husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child. This provision limits the husband’s right to request a divorce when the wife is pregnant or is raising children under 12 months of age and if the wife requests divorce, whether she is pregnant or raising children under 12 months of age, the court the court still accepts and resolves like other normal cases.

Documents to file divorce petition?

Documents required for unilateral divorce include: Unilateral divorce application form; Marriage certificate (original copy); Identity card of husband and wife (certified copy); Child’s birth certificate (if there are common children, certified copy); Household registration book (certified copy); Documents proving ownership of common property (if there is common property, certified copy).

In order to proceed with a unilateral divorce, the petitioner needs to file a lawsuit for divorce at the competent court. The Court where the defendant resides and works is competent court to settle according to the first-instance procedure disputes about marriage and family. Therefore, in the case of unilateral divorce, the Court where the competent jurisdiction is located is the place where the defendant resides and works. In case of foreigners being husband or wife, the provincial/municipal courts are competent courts to settle.

What is procedure of divorce petition?

Before accepting the divorce petition, the State and society encourage the mediation at the grassroots level when the husband and wife request the divorce with petition. Mediation is conducted in accordance with the Mediation at grassroots.

After receiving the unilateral divorce petition, the Chief Justice of the Court assigns the Judge to examine the application and relevant papers. In case of necessity, the plaintiff shall notify the applicant of additional papers and necessary information. If the dossier is complete and eligible to accept the case, the Court shall notify the plaintiff of the advance payment of court fees at the Civil Judgment Execution Bureau within 7 days and return it to the Court a receipt of court fee advances. The judge proceeds to accept the case upon receiving the receipt of payment of court fee advances and shall notify the plaintiff, the defendant and the persons with relevant rights and obligations regarding the acceptance of the case within 03 days. The defendant and the persons with relevant rights and obligations within 15 days from the date of receipt of the notice of acceptance have the right to make counter-claims to the plaintiffs’ requests.

After the petition has been accepted, the Court shall conduct conciliation according to the law on civil procedures. The judge assigned to solve the case conducts a meeting to check the handover, access, disclosure of evidence and mediation of divorce between the involved parties and analyze clearly the rights and obligations for the involved parties to reach an agreement on the resolution of the case. In case after mediation the husband and wife reunite, it is considered the plaintiff withdraws the petition, and the Court issues a decision to suspend their request. If they cannot reunite but reach an agreement on the divorce, property division and children custody, after 7 days from the date the Court makes the minutes of the mediation to the parties without changing their mind. The Court shall recognize the divorce agreement and issue a decision recognizing the agreement of the parties. In case of unsuccessful mediation, the Court shall issue a decision to bring the case to trial if it is not in the case of suspension of settlement as prescribed.

How court trial is opened for divorce petition case?

Within 01 month from the day on which the decision to bring the case to trial is issued, the Court must open a trial. In case of good reason, this time limit may be extended but for no more than 2 months. At the end of the trial, the result of unilateral divorce resolution will be decided by the civil judgment. In case of unilateral divorce, the settlement time may be longer, maybe from 04 to 06 months. In fact, due to possible child custody and property disputes, the time to resolve may be longer.

For cases with disputes over assets, apart from the court fee of VND 300,000, the involved parties must also bear court costs for the disputed properties, determined according to the value of the disputed properties according to the provisions.

It is important that the parties need to research and prepare for relevant documents and procedures in their case and consult with lawyers in civil, family and property division, child custody disputes in Vietnam before taking action.

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Recognize Father for Child in Vietnam | ANT Lawyers

 

How to Recognize Father or Mother for a Child??

It is a legal requirement in Vietnam to register the recognition of father, mother of a child regardless the child’s parents are married or not. Such recognition shall be made on the newly issued birth certificate of the child.

The recognition of the father, mother protects the legal rights of all involved parties. For the family involving foreign elements i.e foreigners, expatriates living in Vietnam, the procedure for recognition of father, mothers of a child have to follow the laws of Vietnam, through various steps at Vietnam Authority including People’s Committee, Provincial Department of Justice and at Consular of foreign country where the mother or father of the child comes from.

The dossiers of application for recognition of fathers, mothers or children shall include the following papers:

-The application for recognition of father, mother of the child;

-The copies of the ID (for Vietnamese citizens staying in the country), or passports or substitute papers (for foreigners and Vietnamese citizens in foreign countries);

-The copies of the birth certificates of the persons to be recognized as child;

-Papers, documents or evidences (if any) to prove that there is a blood relationship between the father or mother and the child;

-The copy of the household registration book or collective resident certificate (for Vietnamese citizens permanently residing in the country);

-The permanent residence card (for foreigners permanently residing in Vietnam) of the persons to be recognized as father or mother.

Documents issued in foreign language shall need to be translated into Vietnamese, notarized or legalized to conform with legal document requirements of Vietnam authorities.

The time for processing dossiers at various authorities depend on the submitted documents and the time taken by the authorities to validate the case and could range between two weeks to two months.

The Vietnam authorities will need to study and examine dossiers of application for recognition of father, mother of the child. In cases where there is any doubts, complaints or denunciation about the recognition of father, mother of the child, or whether it is deemed that the personal identification of the involved parties or papers in the dossiers of application need to be clarified, the Provincial Department of Justice shall carry out the verification, including interviews with the involved parties or request for the additional proof.

Once the application is processed, verified and confirmed, the revised birth certificate of the child will be issued to reflect the changes which will show the name of the father or mother added.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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How Foreigners Could Marry Vietnamese Wife?

  When a foreigner marrying a Vietnamese, this is cross cultural marriage with challenges and complexity in relationships which could be legally difficult. The Vietnam laws on Marriage and Family on marriage and family relations involving foreign elements provide legal grounds to avoid false marriages to gain citizenship or conduct human trafficking.

The following should be taken into consideration when a foreigner marrying a Vietnamese. However due to the complexity, it is suggested family lawyers in Vietnam to be consulted to ensure the correct processes and procedures are carried out in timely manner:

Marriage consultation:

If marriage registration between a foreigner and a Vietnamese belongs one of the following cases, Vietnamese citizen must be consulted by the provincial Marriage Consultancy Center: i) the age gap between two partners is 20 years or more; ii) this is the third marriage of the foreign partner, or the foreign partner has gone through a divorce with a Vietnamese citizen; iii) the partners do not completely understand about the families and backgrounds of each other; about the languages, traditions, customs, cultures, and laws on marriage and families of each other’s country.

After being advised on marriage consultation, Vietnamese citizen will be issued a certificate by Marriage Consultancy Center (hereafter referred to as Certificate) which is part of the application dossier.

When the Vietnamese citizens is fluent in a foreign language or foreigner is fluent in Vietnamese, and the interviews at the Justice Department show that both sides have an good understanding of family circumstances, personal situation, and the understanding of language, customs, traditions, culture, laws on marriage and family in each country, the Certificate will not be needed.

Submission for marriage registration

One of two parties would submit directly to provincial Department of Justice of province where the Vietnamese citizen applicant resides. A dossier of marriage registration is prepared including the following papers of each party:

a) The marriage registration declaration (standard form);

b) The papers of marriage status of each party:

Vietnamese shall provide the written certification of marital status issued by the People’s Committee where he/she resides.

Foreigner shall provide the documentary evidence on marital status of foreigners issued by a competent agency of the country of which the applicant is a citizen. In cases where foreign laws do not prescribe the certification of marriage status, it can be replaced by the certification of oath taken by the applicant that he or she concurrently has no wife or husband, in accordance with the laws of those countries; the written certificate of marriage eligibility issued by a competent agency of the country of which the applicant is a citizen (unless laws of this country do not regulate about this document); for foreigners who have already been divorced with Vietnamese citizens at foreign competent agencies, they must submit the written confirmation that the divorce which carried out abroad have been recorded in civil status book as prescribed by law of Vietnam.

c) The medical examination from a Vietnamese or foreign competent health organization, certifying that such person does not suffer from mental diseases or other diseases which make a person incapable to aware or control his/her acts;

d) Copies of personal papers, such as identity card or passport, passport or papers of substitute value such as travel document or residence card;

e) Copies of the household registration book, the temporary residence book (for Vietnamese citizens living in the country); permanent residence card, temporary residence card or temporary residence certificate (for foreigners residing temporarily or permanently in Vietnam).

f) Certificate of Marriage Consultancy Center on marriage to a foreigner that Vietnamese citizens have been given advice for marriage in compulsory cases mentioned above.

All documents provide by parties have to have valuation within 6 months to the date when the dossier is received.

Interviews for marriage registration to a foreigner in Vietnam

Within 15 days as from the date of receiving the complete and valid dossiers as well as fees, the provincial Department of Justice shall have the responsibilities to implement the direct interview at head office for both marriage partners in order to check, clarify personal matter, voluntary marriage and extent of understanding each other of both marriage partners.

If the interview result shows that two parties fail to understand status of each other, the provincial Department of Justice shall make an appointment for re-interview; the next interview shall be performed 30 days after the preceding interview.

In cases there are issues which need to be verified, the provincial Department of Justice shall carry out necessary procedures to verify.

Certificate of marriage registration in Vietnam

After interviewing both marriage partners, studying and verifying the marriage registration dossiers, opinions of police agencies (if any), the provincial Department of Justice shall report result and propose settlement of marriage registration to submit to provincial People’s Committees for decision, enclosed with 01 set of marriage registration dossier.

Within 05 working days, after receiving the written submission of the provincial justice department together with the marriage registration dossier, the chairman of the provincial People’s Committee shall sign in the certificate of marriage and return dossier to the provincial Department of Justice for holding the ceremony for marriage registration.

In case refusal for marriage registration, provincial People’s Committees shall have a document clearly stating reasons thereof and send it to the provincial Department of Justice in order to notify both marriage partners.

Ceremonies for marriage registration in Vietnam

Within 05 working days, after the Chairman of the provincial People’s Committee signs the marriage certificate, the provincial Department of Justice shall hold ceremony for marriage registration.

The marriage registration ceremony shall be solemnly organized at the office of the provincial Department of Justice. When the marriage registration ceremony is held, both marriage partners must be present. The representative of the provincial Department of Justice shall preside over the ceremony, requesting both parties to state their final intention on voluntary marriage. If they agree to marry each other, the representative of the Department of Justice shall record the marriage in the marriage registers, requesting each party to sign on the marriage certificate, the marriage register and hand over the original marriage certificate to the husbands and wives, each with one certificate.

The marriage certificate shall be valid from the date the marriage registration ceremony is organized as provided. The grant of copies of the marriage certificate from the original registers shall be implemented by the provincial Department of Justice at the requests of the wives or husbands.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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Child Adoption by Foreigners | ANT Lawyers

 Presently, there are many foreign people want to adopt a Vietnamese. Besides, the law of Vietnam also has strict regulations for child adoption by foreigners.

First is the adoption of specific child by foreigners. The Adoption Act 2010 defined that the Vietnamese residing abroad and foreigners permanently residing overseas are allowed to adopt specific child in the following cases:

As stepfather or stepmother of the adopted person;

As uncle or aunt of the adopted person;

Has adopted children who are siblings of the children that are adopting;

Adopt children with disabilities, HIV / AIDS or other fatal diseases;

As foreigners who are working and studying in Vietnam for at least 01 years.

In which the 4th case is a special case that are encouraged by the State with simpler procedures than other cases.

The order and procedures for adoption of child will be conducted as follows:

The profile of child adopting people includes:

+ Application for adoption by name;

+ A copy of the passport or replacing document that have the same value;

+ The written permission for child adoption in Vietnam;

+ The psychological and family investigation;

+ Documents certifying health status;

+ Documents certifying income and assets;

+ Judicial record;

+ Documents certifying marital status;

+ Documents evidencing eligible for child adoption by name.

+ In case of specific child adoption for children over 5 years old and two or more siblings, the record must clearly state the psychological preparation plan for children, preparing conditions for children to integrate into the new family, culture and society environments.

The above documents are issued and certified by the competent authority where the child adopting people permanently reside. To be certified by the State of Vietnam, it should be certified through the procedure of consular legalization.

The profile of children to be adopted includes:

+ Birth certificate

+ Certification of health issued by the district or higher health authorities;

+ Two full body and looking straight images, which was taken within 06 months

+ Documents about the noteworthy characteristics, preferences and habits of children.

These papers are issued by nurturing organizations or natural parents / guardians of children.

Profiles of the child adopting person and the child being adopted are submitted directly at the Bureau for adoption. The case that cannot submit the profile directly at the Bureau for adoption, the child adopting person have to authorize by written document their relatives residing in Vietnam to submit the profile at the Bureau for adoption or send the profile through post office in the form of guarantees.

In the procedure of adoption of specific children with disabilities, HIV / AIDS or suffering from serious diseases, Vietnam law allows the free implementation of procedures to find alternative families and introduce children for adoption. The meaning of this is to shorten the procedure, creating condition for these children to be adopted and nurtured in an enabling environment.

After receipt of the application for adoption, Bureau of adoption will check and appraisal the profile to determine that the child adopting people was certified by the competent authorities of the country where he or she resides that he or she satisfy the eligibility for child adoption under the laws of that country and under the laws of Vietnam.

Towards the child to be adopted, after receiving profile from natural parents or guardians of the child, Bureau for adoption has the responsibility to inspect children’s record, conduct consultation with the natural father / mother or the guardians of child about the child adoption for foreigner during 07 working days.

Within 07 working days from the expiration date of changing opinion about the child adoption for foreigner of the natural parents or guardians of children, if children are eligible to be adopted by foreigner, who are entitled to adoption by name, Bureau for adoption will report the Department of Justice, Department of Justice will certify by document that the children eligible for adoption by foreigner. Finally, Department of Justice submits to the Provincial People’s Committee decided to allow the foreigner to adopt the children.

Second is the adoption of child not by name with foreign element. The adoption of child not by name with foreign element is the cases when Vietnamese residing abroad, foreigners reside in the country in which that country is a member of international treaties on child adoption with Vietnam and adopt Vietnamese children; Vietnam citizens residing in Vietnam adopt foreign children; foreigners permanently residing in Vietnam adopt Vietnamese children.

For the adoption case that not by name, the order and procedures will include:

+ The profile of people that want to adopt children should be submitting to the Bureau for adoption through the adoption agencies of that country that are licensed to operate in Vietnam. If that country does not have adoption agencies licensed to operate in Vietnam, the adoption profile should be submitting to the Bureau for adoption through diplomatic representative offices or consular office of that country in Vietnam.

+ The profile of children being adopted will be submitted by natural parents or guardians of the children at the Bureau for adoption.

+ The Bureau for adoption receives, inspect and evaluate profile of the child adopting people and children being adopted.

Compared to the case of adoption by name with children with disabilities, HIV / AIDS or other serious diseases, the case of adoption not by name, the Department of Justice has to implement the procedure to find alternative family and introduce children for adoption. The meaning of these two procedures is to encourage local Vietnamese permanent residing in Vietnam to adopt Vietnamese children, enabling Vietnamese children to live, learn and develop in their own homeland. Only when the above procedure to find alternative family and introduce children for adoption have finished without any local people want to adopt that children, the Department of Justice will consider deciding for the children to be adopted by foreigner.

The notice period to find alternative family is regulated as 60 days, during this period, if any Vietnamese wants to adopt children, they should contact the Commune People’s Committee where children resides to consider and settle the adoption. If time runs out 60 days, the Department of Justice has to prepare a list of children who need to find alternative families and submit to the Ministry of Justice.

On the other hand, within 30 days after receiving profile from foreigner that want to adopt Vietnamese children, the Department of Justice has to review and introduce children to be adopted on the basis of children with no domestic adoption. After introducing children to be adopted, the Department of Justice reported the Provincial People’s Committee for comments.

The case that the Provincial People’s Committee disagrees, they have to send a written document stating the reasons and submit to the Department of Justice. On the other hand, the case that the Provincial People’s Committee agrees, within 07 working days, the Provincial People’s Committee decided for children for abroad adoption.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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Renewal of License for the Establishment of Branches Office in Vietnam | ANT Lawyers

  How to extend branch license in Vietnam?

The extension of the license for the establishment of a foreign trader’s branch in Vietnam shall be following the regulation of the commercial law and the relevant guiding decrees and circulars under Vietnam laws.

Preparation of dossiers for extension of license for the establishment of branches includes:

- Application for extension of license for the establishment of branches, made according to the form set by the Ministry of Industry and Trade, signed by a competent representative of the foreign trader;

- A copy of the business registration certificate or equivalent paper of the foreign trader that is translated into Vietnamese and certified by a Vietnamese diplomatic mission or consulate abroad consular legalization in accordance with the law of Vietnam;

- Copies of audited financial statements or documents certifying the fulfillment of tax or financial obligations in the latest fiscal year or papers of equivalent value issued by competent agencies or organizations (where the foreign trader established) to prove the existence and operation of the foreign trader in the latest financial year, it must be translated into Vietnamese and authenticated in accordance with the provisions of Vietnamese law;

- A copy of the license for the establishment of the branch.

The order and procedures for extension of the license for the establishment of the branch at a competent agency shall be as follows:

- A dossier for extension of the license for the establishment of the branch must be submitted within 30 days at the latest before the license expires;

- Foreign traders submit applications directly or via post or online (if applicable) to the Ministry of Industry and Trade;

- Within 03 working days from the date of receipt of the dossier, the Ministry of Industry and Trade shall check and request the supplement if the dossier is incomplete and invalid. Requests for supplementary records are made at most once during the process of processing applications;

- Within 05 working days from the date of receipt of the complete and valid dossier, the Ministry of Industry and Trade shall renew the branch establishment permit. In case of non-renewal, the reasons therefor must be clearly stated in writing;

- In case the extension of the license for the establishment of the branch is not governed in specialized legal documents, the Ministry of Industry and Trade shall send a written request for comment to the specialized management ministry within 03 working days from the date of receipt of a complete and valid file. Within 5 working days from the date of receiving the Ministry of Industry and Trade’s written request, the specialized managing ministries shall clearly state whether they agree or disagree with the license extension. Within 5 working days after receiving the opinions of the specialized management ministry, the Ministry of Industry and Trade shall extend or not extend the branch establishment permit to the foreign trader. In case of non-renewal, the reasons therefor must be clearly stated in writing;

- Within 15 days from the date of extension of the license for the establishment of the branch, the Ministry of Industry and Trade shall publish on the website of the Ministry.

Our lawyers in Vietnam constantly follow up with changes of law to provide the client with update for better decision making process.

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Enterprise establishment service in Vietnam | ANT Lawyers

ANT Lawyers provides enterprise establishment consulting service for domestic and foreign customers as the following services:

- To consult to establish Joint Stock Company;

- To consult to establish One member Limited liability company;

- To consult to establish Limited liability Company with Two or more members;

- To consult to establish Partnership company;

- To consult to establish Private enterprises;

- To consult to establish Sole trader;

- To consult to establish foreign invested company;

- To consult to establish the parent company, corporations.

Customers procedures established in the ANT Lawyers will enjoy some preferential services such as:

1. Contents of enterprise establishment consulting service:

- To consult legal regulation related to the establishment, operation and management of enterprises;

- To consult to set up personnel structure of the company;

- To consult to select types of enterprises;

- To consult to choose the name of company (lookup and select the appropriate name as the request of customers);

- To consult about the head office of the enterprise;

- To consult on capital, legal capital, investment capital;

- To consult on business lines (lines requires legal capital , professional certification or other conditions);

- To draft legal dossiers for setting up the company (Request for business registration, charter, founders list and other documents as prescribed by law);

- To consult for business on tax issues, financial obligations after the enterprise have been established and the process of production and business activities;

2. Our tasks in the enterprise establishment services:

ANTLawyers will on behalf of clients to perform the following tasks:

Drafting and preparation the enterprise establishment dossier as regulations;

- To apply the dossier for business and tax codes registration in the Department of Planning and Investment;

- To monitor progress and inform regularly results to clients;

- To obtain the Investment Certificate from the DPI;

- Filing and registration the seal for Company at the Police Department;

- To obtain the seal and the certificate of the seal for the Company at the Police Department;

- To guide the customers to follow procedures in the relevant state authority (as needed);

3. Documents required to provide by clients:

- Information requested form of business;

- A copy of ID / passport of members / founding shareholder who is individual (notarized);

- A copy of business registration / establishment decisions of members / founding shareholders who is organization.

4. Client’s benefits after establishment:

- To be consulted and offered free the activating annual tax dossier, records and procedures for billing the enterprise;

- To consult the necessary tasks of the new enterprise;

- To consult human resources management , provide free labor contracts and the forms of management personnel;

- To consult the procedures for salary scale registration, the social insurance registration of company;

- To consult on tax matters, tax refund, tax credit;

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Procedure to Change Birth Certificate in Vietnam | ANT Lawyers

 How to Change Name on Birth Certificate in Vietnam?

Changing family name, middle name, first name are considered changing civil status. Due to different reasons that an individual needs to change his/her name or his/her children’s name on the birth certificate. Such changes are civil status changes governed under the Law on Civil status.

However, not every case of civil status change registration is accepted by the competent authority.

Under the provisions Law on Civil status, individual can change of family name, middle name and first name of individuals in birth registration contents when there are grounds as prescribed by the civil law.

The “legitimate reasons” to change the family name is specified in the Civil Code on the right to change name include:

a) Changing the family name of a natural child from biological father’s to biological mother’s or vice versa;

b) Changing the family name of an adopted child from biological father’s or mother’s to adoptive father’s or mother’s at the request of the adoptive parents;

c) If a person ceases to be an adopted child and such person or his/her biological father or mother request to reclaim the family name which is given by the biological father or mother.

d) Changing the family name of a person whose biological parents have been identified upon the request on that father or mother or such person;

e) Changing the family name of a lost person who has discovered the origin of his/her bloodline;

f) Changing the family name of a person to his/her spouse’s in the marriage and family relations involving foreign elements in accordance with law of the country in which the foreign spouse is a citizen or retrieves his/her family name before the change;

g) Changing the family names of children upon the change of family names of their father’s or mother’s;

h) Other cases prescribed in by law on civil status affairs.

An individual has the right to request a competent authority to recognize the change of a given name in any of the following cases:

a) Where it is so requested by the person who has a given name which causes confusion or has an adverse effect on his/her feelings or on his/her honor, legitimate rights and interests;

b) Where the adoptive father or mother of the person wishes to change the given name of their adopted child; of if a person ceases to be an adopted child and such person or his/her biological father or mother request to reclaim the given name which is given by the biological father or mother;

c) Changing the given name of a person whose biological parents have been identified upon the request on that father or mother or such person;

d) Changing the given name of a lost person who has discovered the origin of his/her bloodline;

e) Change the given name of a person to his/her spouse’s in the marriage and family relations involving foreign elements in accordance with law of the country in which the foreign spouse is a citizen retrieves his/her family name before the change;

f) Changing of given name of a person whose gender identity is re-determined or a transgender person;

g) Other cases prescribed in by law on civil status affairs.

The changing of names for the person from nine years old must have the consent of that person. The changing of names of individuals does not affect and terminate the rights and civil obligations established under their old name.

Thus, if the use of one’s first name, last name and middle name cause confusion, affecting the family love, honor, rights and lawful interests, causing difficulties in the transaction, he/she may conduct the name changing.

Procedures to change name will be performed at the District People’s Committee where the person has registered the birth.

Dossier includes:

– Declaration (in the prescribed form);

– Presenting the original birth certificate of the person who need for change names and civil status;

– The relevant documents as a basis for the change or correction of civic status.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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Note on Setting up a Representative Office in Vietnam | ANT Lawyers

 Setting up a representative office is considered one of the simplest forms of investment in Vietnam.

The representative office will help the foreign trader to lease office, hire people, open bank account, and promote the business activities in Vietnam market. The chief representative if being foreigner will then could apply for work permit and temporary residence card to stay in Vietnam. There is no income tax as the representative office therefore the liability to maintain a representative office is less hassle. When the purpose of setting up representative office in Vietnam has been achieved, the closing down of the business shall be not as challenging as closing down a company.

According to Vietnam laws, representative office is a dependent unit, representing the foreign entity’s interests in Vietnam. Representative office is established by foreign entities to help them liaise, implement research activities, provide information and support them in seeking new partners as well as having understanding of the new market.

The foreign entity has to meet certain conditions before setting up representative office in Vietnam. It has rights and duties in accordance with Vietnam laws.

When preparing the application for license of representative office in Vietnam, the foreign entities have to note the following.

Prepare the application forms

The application forms as issued by Ministry of Industry and Trade. The application must be signed by legal representative of the foreign entity;

Notarize, legalize and authenticate documents

The foreign entity has to prepare and provide business registration certificate, audited financial report, charter, and office lease memorandum of understanding, passport of the legal representatives of the Representative Office in Vietnam. The documents issued in foreign countries have to be notarized, legalized and authenticated (apostille procedures) in accordance with Vietnam laws to be used in Vietnam. If the business registration certificate or alternative documents have expiry date for business entity’s operation, the remaining time must be at least one year;

Who should be the chief representative?

The Chief Representative of the Representative Office in Vietnam must be different from the Director of the foreign entity.

How long does it take?

It would take around 20 business days since application until receiving the business operation registration of representative office.

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How to Close a Business in Vietnam? | ANT Lawyers

 All corporations, companies, partnerships, branch offices, representative offices and other business entities are legal entities in Vietnam which can only be dissolved through formal procedures.

I. What are the major challenges with closing a business in Vietnam?

The main thing to remember throughout the process is that the dissolving company, a branch office or a representative office, one should pay close attention to the involvement of all key stakeholders, i.e. the employees, customers, creditors, business partners and relevant authorities.

The following are key information to gather for thorough analysis

Company size in terms of capital and number of employees?

Enterprise’s business sector?

Tax invoice usage declaration?

Annual profit?

Compliance with tax procedures?

Administrative violations in the field of taxation?

Any outstanding tax?

Tax document filing records?

Other tax matters?

II. What does the dissolution process involve?

Once an analysis has been through, the next procedures mostly deal with reporting and submitting the relevant documents to the various regulatories and tax authorities at each step of the process, terminating contracts, liquidating assets and settling liabilities, and general administrative work such as returning the corporate seal, registration certificates, and having the company’s name removed from the system of the license authorities.

III) How to prepare document to close a business in Vietnam?

1. Documents submitted to the licensing authority in Vietnam:

Liquidation notice of enterprise;

Minutes of the meeting of Management Board / Board of Directors decided on the dissolution of enterprises;

The company’s decision on liquidation;

Report on enterprise asset liquidation;

The list of creditors and the paid debt;

Documents evidencing that enterprise has fulfilled all of its tax;

Confirmation on social insurance for employees after the dissolution decision;

The seal and certificate of seal sample registration.

2. Documents submitted to the tax authority in Vietnam:

Liquidation notice of enterprise;

Minutes of the meeting of Management Board / Board of Directors decided on the dissolution of enterprises;

The company’s decision on dissolution;

Audit reports and tax settlements;

The financial statements for the year to date the decision on dissolution;

The company’s tax liabilities audited by tax authority;

Verification of tax obligations of the enterprise.

Closing a business in Vietnam might be a lengthy process and more complicated than setting up a company in Vietnam. Sometimes, it is important to make a decision to exit and start a new venture. As a law firms in Vietnam, we do assist clients to close the business, exit the investment and deal with pending issues with licensing authorities including department of planning and investment, department of labour, tax bureau and others.

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How to Terminate Representative Office in Vietnam

 Foreign Traders wishing to terminate the operation of representative office in Vietnam need to complete the procedure at Tax authorities, the Provincial Department of Industry and Trade and the procedure to return the seal at the police.

Pursuant to the provisions of the Vietnam laws, the termination of operation of representative offices of foreign traders in Vietnam at the Provincial Department of Industry and Trade shall be conducted as follows:

Preparation of dossiers for termination of operation of representative offices includes:

- Notice of termination of operation of the representative office, made according to the form set by the - - Ministry of Industry and Trade, signed by the competent representative of the foreign trader.

- List of creditors and unpaid debts, including tax debts and social insurance premiums;

- List of employees and their respective current interests;

- Original License for establishment of representative office.

- Documents evidencing that the representative office has fulfilled all tax and financial obligations to the State of Vietnam

The order and procedures for termination of operation of representative offices at competent agencies shall be as follows:

- The foreign trader submits a dossier for termination of operation of the representative office directly or via post or online (if applicable) to the Provincial Department of Industry and Trade (or the Management Board of Industrial parks, export processing zones, economic zones and hi-tech parks) where the representative office is licensed.

- Within three working days from the date of receipt of the file, the competent authority shall examine and request the supplement if the dossier is incomplete and invalid. Requests for supplementary records are made at most once during the process of processing applications;

- Within a time-limit of five (05) working days from the date of receipt of a complete and valid file, the competent authority shall be responsible to publish on its website the termination of operation of the representative office.

Foreign traders shall publicly post up the termination of their operation at the representative office.

Foreign traders whose representative offices have terminated of operation shall be responsible for performing contracts, paying debts, including tax debts and settling lawful interests for laborers who have worked at the representative office in accordance with the laws.

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Challenges in Preparing Documents for Representative Office Application | ANT Lawyers

The representative office (RO) is a popular foreign investment vehicle which investors utilize when wishing to enter the Vietnamese market without committing too much investment. The representative office could help the foreign entity to hire local employee to carry out market research, business promotion.

A foreign company wishes to establish a representative office in Vietnam must submit an application dossier for a license to the Provincial Department of Industry and Trade (DIT).

However, there are cases which the government agencies receiving the application would be different from department of industry and trade depending on the business lines carried out by the foreign entity.

Firstly, the trade service is bound in Vietnam’s Commitment in trade service in WTO but there are no existing specialized legislative documents:

When the trade service which the foreign entity provides does not fall under areas prescribed by specialized legislative documents in Vietnam, the licensing agency shall submit a written request for directions to the relevant ministries for opinions. The foreign entity shall wait for at least 15 working days for receiving a written notice of whether the license for establishment of the representative office is granted or rejected. This process not only extends duration of establishment of representative office but also rises risk of rejection.

Secondly, the trade service is not yet bound in Vietnam’s Commitment:

Where the scope of operation of the representative office is inconsistent with Vietnam’s commitments or the foreign trader is not located in the country or territory being party to treaties to which Vietnam is a signatory, there is an extra process in registration of representative office. The representative office shall be approved by relevant ministers, heads of ministerial agencies for establishment of the representative office.

Thirdly, trade services are supplied in foreign countries, but such does not exist in Vietnam

The foreign entity has to apply codes as following to Vietnam standard industrial classification system or CPC. If the foreign entity can not define a code, it is merely impossible to register the representative office.

In most of the cases, the foreign entity should consult with law firms in Vietnam whom lawyers have expertise in WTO laws, law on investment and experience in working with Vietnam state authorities, to prepare application right at the start and be ready to challenge the authorities when required to protect best interests of the clients.

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Benefits of Representative Offices in Vietnam | ANT Lawyers

 Following the trend of international economic integration, foreigners have been attracted by the benefits of doing business in Vietnam through setting up representative offices, setting up company, acquiring shares in Vietnam enterprise through M&A activity.

At the initial stage, foreign entity would try to research market, undertake due diligence on its clients, buyers, clients, or other business partners therefore many will be interested in establishing a representative office in Vietnam.

The foundation of representative office of foreign entity in Vietnam is governed under Vietnam Commercial Law 2005 and Decree 07/2016 / ND-CP dated 25 May, 2016.

Advantages of establishment of a representative office:

Establishing a representative office is a tool to research the market. For the first time, foreign enterprises entering the Vietnam market, the primary purpose is understanding the market, undertaking research on clients, or due diligence on their business partners, distributors, monitoring the performance of buyers and being familiar with the Vietnam market. The establishment of representative office in Vietnam turns out to be the most effective option both of cost and time.

The representative office in Vietnam is an effective tool to promote commercial activity, seeking partners, and increasing opportunities to expand business market in Vietnam.

Representative office form in Vietnam has allowed foreign entity to receive benefits such as recruiting Vietnamese employees, foreign employees working in offices whom could apply for work permit in Vietnam, then temporary residence card in Vietnam, opening bank accounts in foreign currencies or Vietnam dong at commercial banks, and to be allowed to use those accounts solely for their operations.

According to the laws of Vietnam, the establishment of representative offices does not require the investor’s capital. Instead, setting up a company in Vietnam, an economic organization requires capital contribution as per business plan, ranging from USD 50 k to million USD. Sometime, if the investment fall under conditional areas, setting up company seems more challenging. This relieves the foreign trader from advancing too much to achieve the purpose of expanding the market before the business plan has been proved to materialize.

Further, the establishment of representative office follows more simple procedures for licensing in Vietnam than establishing entity in Vietnam. Accordingly, the process has been taken less time which is more favorable for foreign traders.

Challenges of the establishment of representative office in Vietnam?

Vietnam law provides that, in order to establish a representative office in Vietnam, foreign traders have to prove the fulfillment of the financial responsibility in their country. In practice, the foreign entity is expected to provide audited financial statements. In some countries, the financial audited report is not available according to laws. The Vietnam Department of Trade and Commerce, which state authority would grand representative office operation certificate would require documents showing the fulfillment of tax liabilities or financial obligations of the last fiscal year, or equivalent documents as proof of existence and operation of the foreign trader issued or certified by competent authorities where such foreign trader is established. This provision may initially be difficult. However, if the foreign trader has been established and operated legally in their country, the implementation of this provision is not a major obstacle.

As a large potential market such a Vietnam, as well as the current rapid reform in administrative procedures, Vietnam Government has been more flexible to encourage foreign traders doing business in Vietnam, hence the establishment of representative offices is an optimal method to consider for market research, trade promotion and a stepping stone to penetrate the Vietnam market successfully.

The commercial law and other business laws in Vietnam are frequently changing toward attracting more quality investment projects into Vietnam. ANT Lawyers in Hanoi, Da Nang and Ho Chi Minh City continue to follow and provide update to its clients for their smooth operation in Vietnam.

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Conditions for Establishing Representative Office in Vietnam | ANT Lawyers

 Decree No. 07/2016 / ND-CP regulating the Commercial Law regarding representative offices and branches of foreign traders in Vietnam that have recently been issued by the Government.

Accordingly, foreign traders can establish their representative offices and branches in Vietnam under Vietnam’s commitments in international treaties to which Vietnam is a member. A foreign trader cannot establish more than one representative office or branch with the same name within a province or city under central authority.

Foreign traders are licensed to establish representative offices when they meet five conditions:

– Foreign traders can establish and register for business in accordance with law of nation and territories participating in international treaties in which Vietnam is a member, or recognized by the law of those nations and territories.

– Foreign traders that have been in operation for at least one year from the date of establishment or registration.

– In case the certificate of business registration or papers with equivalent value of the foreign traders have prescribed the time limit for operation, then the duration must be at least 1 year from the date of submitting record.

– The operation of the representative office must match the commitment of Vietnam in the international treaties in which Vietnam is a member.

– The case where the operation of the representative office is inconsistent with Vietnam’s commitments or foreign traders do not belong to any nations and territories participating in the international treaties in which Vietnam is a member, the establishment of representative offices must be approved by the Minister of specialized management.

The Decree also stipulates the conditions for foreign traders to be granted licenses to establish their branches. Specifically, foreign traders will be licensed for the establishment of branches when they meet 5 conditions:

– Foreign traders can establish and register for business in accordance with law of nation and territories participating in international treaties in which Vietnam is a member, or recognized by the law of those nations and territories.

– Foreign traders that have been in operation for at least five year from the date of establishment or registration.

– In case the certificate of business registration or papers with equivalent value of the foreign traders have prescribed the time limit for operation, then the duration must be at least 1 year from the date of submitting record.

– The operation of the branch office must be consistent with the market-opening commitments of Vietnam in the international treaties in which Vietnam is a member, and in line with the business lines of the foreign trader.

– If the content of the branch operation is inconsistent with Vietnam’s commitments or foreign traders do not belong to any nations and territories participating in the international treaties in which Vietnam is a member, the establishment of branches must be approved by the Minister of specialized management.

The license for the establishment of representative office and branch of foreign traders have a term of 5 years but does not exceed the remaining term of the certificate of business registration or papers of equivalent value of the foreign trader in the case that those papers contain provisions on the term.

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What Are Tax Obligations of a Representative Office in Vietnam? | ANT Lawyers

 Vietnam-based representative office of a foreign trader means a dependent unit of the foreign trader, which is established under the provisions of Vietnamese law to conduct market survey and a number of commercial promotion activities permitted by Vietnamese law.

Representative office of foreign trader in Vietnam has the rights and obligations in accordance with the law of Vietnam. Foreign trader is responsible before the law of Vietnam for all operations of its representative office in Vietnam.

Accordingly, representative office in Vietnam is not allowed to conduct business activities, nor carry out other activities for profit-generating purposes. The representative office in Vietnam only performs the activities for the right purposes, scope and duration specified in the certificate to establish the representative office. Besides, the representative office in Vietnam has the right to rent the head office, rent and buy the facilities and materials necessary for the operation of the representative office; to recruit Vietnamese and foreign employees to work at the representative office in accordance with the provisions of Vietnamese law; to use an account in foreign currency, in Vietnam dong of foreign currency origin opened by a foreign trader at a bank licensed to operate in Vietnam and only use this account for the operation of the representative office; to have a seal bearing the name of the representative office according to the provisions of Vietnamese law. Representative office in Vietnam can sign contracts, perform transactions with partners when authorized by the enterprise.

Hence, due to the limited scope of activities, the tax liability of a foreign representative office in Vietnam is narrower than that of an enterprise. As the representative office does not produce or trade in goods and services, it is not required to pay license fees as prescribed. Representative office of foreign trader in Vietnam is dependent unit of foreign trader, established to investigate the market and carry out some trade promotion activities permitted by Vietnamese law, does not carry out production and business activities, so it is not required to pay license fees.

The fact that the representative office has the right to recruit Vietnamese or foreign employees to work at the office is the basis for arising personal income tax obligation. At the same time, representative office of foreign organization is subject to personal income tax registration. For employees working at foreign representative office in Vietnam, the taxable incomes are based on salaries and wages. Declaring, withholding, paying taxes and settling personal income tax of employees working at foreign representative office is the responsibility of such representative office.

ANT Lawyers, a law firm in Vietnam with offices in Hanoi, Da Nang and Ho Chi Minh City could help client to set up representative office in Vietnam and advise on the compliance on regular basis.

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