Based on the provisions of Decree 39/2007 / ND-CP, there is not enough basis to assert that individuals owning houses / real estate leased to foreign traders as offices of their representative offices in Vietnam must register for business.

The Tri Minh Limited Law Firm's branch in Ho Chi Minh City has some questions when carrying out administrative procedures related to the Government's Decree No. 39/2007 / ND-CP dated March 16, 2007 on individuals conducting commercial activitiesindependently, usually do not have todo business registration.

According to the branch, when the representative office of the foreign trader or branch of the foreign business entity rents an individual's house to serve as a head office and registers its operation with the Department of Industry and Trade, a request for conditions for individuals who are landlords, that is, individuals must conduct business registration based on Clause 1, Article 3 of Decree 39/2007 / ND-CP.

In the opinion of the Tri Minh Law Firm's Branch in Ho Chi Minh City, the landlord has the right to rent out the house without a business registration. The reason given by the Branch is that business registration is not a compulsory condition applied to the lessor according to the current Housing Law. The Law on Real Estate Business 2014allows individuals to rent out their own real estate without having to register their business if operating on a small scale and infrequently.

At the same time, Clause 7, Article 5 of Decree 76/2015 / ND-CP detailing the implementation of a number of articles of the Law on Real Estate Business guides:

“Organizations, households and individuals conducting sale, transfer, lease, and lease purchase of real estate prescribed in Clause 2 Article 10 of the Law on real estate trading

Organizations, households and individuals conducting sale, transfer, lease, and lease purchase of real estate prescribed in Clause 2 Article 10 of the Law on real estate trading are not required to set up real estate enterprise and include:…

7. Organizations, households and individuals selling, transferring, leasing, or subleasing and purchasing their own real estate”.

From the above analysis, through the receiving and responding system to recommendations of businesses, the Tri Minh Law Firm's branch in Ho Chi Minh City would like to request the authorities to consider and confirm cases of individuals and households for renting houses is not subject to business registration for uniform application.

Regarding this issue, The Ministry of Industry and Trade gives the following opinions:

Regarding the change of the location of the representative office of foreign traders, Clause 6, Article 15 of the Government's Decree 07/2016 / ND-CP dated January 25, 2016 detailing the Commercial Law regarding documents representative offices and branches of foreign traders in Vietnam specifying that foreign traders must follow procedures for adjusting License for establishing representative offices when there is a “change of address of the head office of the office. representative offices in a province or centrally run city or within a geographical area under the management of a management board ”.

Point b, Clause 1, Article 16 of Decree No. 07/2016 / ND-CP stipulates the application for adjustment of the license to establish a representative office in the event that the address of the representative office is changed as follows:

“Copies of the memorandum of understanding or the agreement on renting the premises or the copy of documents proving that the trader has the right to exploit and use the venue to set up the representative office; Copies of documents about the location where the representative office is to be headquartered as prescribed in Article 28 of this Decree and relevant laws”.

Regarding the provisions of Decree 39/2007 / ND-CP, Clause 1, Article 3 of Decree 39/2007 / ND-CP:

“1. Individuals doing trade mean individuals who everyday themselves conduct one, several or all activities allowed by law on goods purchase and sale, service provision and other activities with purpose of profitability but do not register their business as prescribed by law on business registration and not be called as “trader” as prescribed by the Commercial Law. Particularly including individuals doing the following trade activities:

a) Street trading (trading in public places) means activities of purchase and sale without a fixed location (purchase on street, sale on street or both purchase and sale on street), includes even the receipt of books, news, magazines, cultural products of traders allowed doing business in these products as prescribed by law, for sale on street;

b) Petty trading means purchase and sale of small and odd items with or without a fixed location;

c) Petty-food trading means sale of fruits, cakes, candies, drinks (beverage) with or without a fixed locations;

d) The consignment trading means purchase of goods from other places according to each consignment to sell for wholesalers or retailers;

dd) Providing services: Polishing shoes, selling lottery tickets, repairing key, repairing vehicles, safekeeping for vehicles, washing for vehicles, barber, painting, taking photo and other services with or without fixed locations;

e) Other commercial activities done independently and regularly do not have to register for business”.

Therefore, based on the above provisions of Decree 39/2007 / ND-CP, there is not enough basis to confirm that individuals own houses / real estate leased to foreign traders as office buildings. His representative in Vietnam must register the business.

Business registration of business households is governed by the law on business registration (Decree 78/2015 / ND-CP).

Individuals and organizations leasing houses or real estate are governed by the Housing Law, the Real Estate Business Law and relevant specialized laws.

Therefore, the Tri Minh Law Firm is recommended to base on the law provisions in the above fields to have a basis to solve the Company's problems regarding the case of an individual leasing a house as a head office of foreign traders.

In case the Company's branch is still concerned about the regulations of law in the above fields, please request the branch of the Company to contact the branch-managing ministries for guidance on compliance with regulations.