Personal rights associated with property rights are determined on the basis of the subject's property rights determined on the basis of a certain personal relationship. Without personal rights, the subject's property rights cannot be established. Typical personal rights associated with property rights are intellectual property rights and the right to inherit property according to law.
Property rights associated with personal rights are understood as the property rights of a person that are exercised according to a certain legal event and that right cannot be transferred to another person. Property rights associated with personal rights often arise in cases where a person suffers damage to his life, health, honor, dignity, reputation, privacy, and the person has the right to receive support. That person has the right to receive compensation for damages, the right to receive support, and according to the provisions of law, these rights cannot be transferred to another person.
Property rights not associated with personal rights are property rights that are exercised independently and can be transferred by agreement. These are the property rights stated in Article 181 of the 2005 Civil Code.
This classification is consistent with the understanding of the concept of property rights in the broad sense, which is property rights that can be valued in money, including personal rights associated with property rights and property rights associated with personality.
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There is an opinion that property rights can be classified into property rights, personal rights and intangible rights. According to that point of view, " intangible property rights are understood as rights that do not have an object that can be recognized as a specific thing and do not correspond to the property obligations of any person, such as copyrights, industrial property rights, intangible elements of commercial enterprises, shares in companies with legal status..." [18, pp. 30 - 36]. In fact, this classification is similar to the second classification, but the scope of the third group of rights that this author proposes is broader, not only intellectual property rights but also other rights such as capital contributions in companies with legal status.
Legal entity. This author also feels that the name of the third group "invisible rights" is not accurate because in essence all rights are invisible. According to the author's point of view, the capital contribution in a company with legal status is a type of property right, but currently there are still many different views on this issue. First of all, it is necessary to determine that contributed assets and contributed capital in a company with legal status are two different types of assets and belong to different owners. Contributed assets belong to the property of the company receiving the capital contribution, while the rights to the contributed capital belong to the capital contributor. These two types of assets are closely related to each other because through the value of the contributed assets, the rights of the owner that the contributed capital brings will be determined. By contributing capital, the contributor receives a capital contribution with a value corresponding to the value of the contributed assets. “The value of the capital contribution is a parameter for determining many rights of the owner of the capital contribution such as having the number of votes corresponding to the capital contribution; being entitled to share profits corresponding to the capital contribution; receiving the value of net assets upon dissolution or bankruptcy of the company corresponding to the capital contribution…”[1]. The capital contribution to a company with legal status is the basis for determining the rights of the owner of the capital contribution in the company. Those rights can be property rights and other non-property rights. The property rights of the owner of the capital contribution to a company with legal status include: the right to share profits corresponding to the capital contribution after the company has paid all taxes and fulfilled other financial obligations; the right to receive the value of the remaining assets of the company when the company is dissolved or bankrupt; the right to transfer his/her capital contribution to another person (however, the principle of free transfer is limited by a number of exceptions stipulated in the LDN); right to pledge capital contributions in the company (except for voting preferred shares which cannot be pledged).
For the capital contribution in a joint stock company, the rights of the owner of the capital contribution are expressed by a type of confirmation document, which is the stock. According to the orthodox view of the lawyers who built the 2005 Civil Code, "stocks are a type of security that confirms the legal rights and interests of the owner to a part of the capital of the issuing organization, so stocks are considered a type of document.
valuable” [2, p. 361]. According to that point of view, in this case, the property rights of the capital contributors in a joint stock company are transformed into another type of property, which is valuable papers. The existence of different views in determining what type of property is the capital contribution in a company with legal status has further demonstrated that the 2005 Civil Code's provision that valuable papers and property rights are two separate types of property has raised many confusing and contradictory issues in practice, so a requirement is to rebuild the concept of property in Vietnamese law.
In summary, each of the above classifications of property rights is based on certain criteria and has reasonable points. Depending on the perspective of considering property rights, we will choose the appropriate classification.
1.1.3 Characteristics of ownership of property rights
Property rights are a special type of property because they are intangible, so it is difficult to recognize them. Intangibility is the biggest characteristic of property rights, making the exercise of ownership rights to this type of property very different from other types of tangible property. Intangible assets are assets that we cannot see with our senses (this definition originates from Roman law, the Romans often called tangible assets tangible assets; intangible assets are assets that cannot be touched). This characteristic is to distinguish property rights - intangible assets from tangible assets, which are assets that exist in a specific physical form that can be known by human senses or can be measured, weighed, or counted. Tangible assets are understood according to the provisions of law as objects. Objects
- a basic type of property under Vietnamese law - must meet the material or spiritual needs of humans and humans can perceive objects with five senses. However, the object does not necessarily have to exist, belong to a certain subject at the time of the transaction, but the 2005 Civil Code also recognizes property as an object formed in the future, for example, using the property to be purchased in the future as collateral for the performance of property purchase contracts or loan contracts. There is a view that an object can only be considered an asset if the subject of the object is
The legal relationship establishes the rights that allow the exploitation of material benefits from the object and those benefits have monetary value. Therefore, a tangible object is property under the condition that it is the object of rights that can be valued in money. In other words, a tangible object becomes property once it is legalized into rights that can be valued in money. Therefore, objects and rights are two inseparable aspects of property. "It can be said that if the concept of object is used to refer to property in terms of material aspects, the concept of rights is used to refer to property in terms of law" [15]. However, in fact, not all property rights are attached to objects. There are property rights that correspond to property obligations that others must perform (such as personal rights) or there are property rights that do not have a specific object as the object and do not correspond to the property obligations of any other person (for example, intellectual property rights), so the scope of property rights is much broader than that of objects. Also because of the intangible nature, the exercise of the rights of the owner of property rights is very specific and quite different when exercising those rights on objects. The basic content of ownership rights according to Vietnamese law includes the right to possession, the right to use and the right to dispose of. Because it is an intangible asset, the owner of property rights cannot hold that asset like an object. Whether or not there is a right to possession of property rights can only be the owner who manages the property rights under his ownership, however, in reality, the management of property rights is also very difficult, especially for intellectual property rights. Therefore, the law often does not mention much about the exercise of the right to possession of property rights. For property rights, the most important and meaningful power in reality of the owner is the right to use. The owner of property rights has the right to directly exploit and benefit from the property rights under his ownership or can also allow others to use and gain material benefits from that permission. For example, the owner of land use rights can lease that land use right to another person (in fact, land use rights are a special type of property right because Vietnamese law stipulates that land belongs to the entire people and is managed by the State. Other entities only have the right to use land through the State's allocation of land, land lease or through
Land use right transfer transactions, however, in reality, transactions related to land use rights often equate land use rights with the land itself, which is the subject of that right). For intellectual property rights, the right to use is even more meaningful and valuable. Property rights in intellectual property rights are divided into many different small branches of rights that the owner of intellectual property rights can simultaneously directly exploit or allow others to use each branch of property rights to profit from that exploitation (for example, the owner of property rights to an invention has the right to license or, in other words, transfer the right to use the non-exclusive invention simultaneously to many different entities and collect fees from that transfer). Therefore, it can be said that the right to use is the most meaningful and most exploited power of property rights.
The exercise of the right to dispose of property rights is also different from the exercise of property rights. Article 195 of the 2005 Civil Code introduces the legal concept of "the right to dispose is the right to transfer ownership of property or to abandon that ownership". In addition to the legal disposition, for tangible property, the disposition can also be a physical disposition, which is to terminate the actual existence of the object. For intangible property, such physical disposition cannot be exercised. The owner of property rights can only exercise the right to dispose of his property through the act of transferring property rights or abandoning ownership. However, for some specific property rights, the transfer of ownership of property rights is very strictly regulated by law.
So if property rights are intangible, how do people recognize the existence and protect those rights? The condition for property rights to be recognized and protected is that property rights must be identifiable and the beginning and end of that property right must be recognized. The identification of intangible assets can be done through some tangible evidence to describe that type of intangible assets. Recognizing the existence of property rights is also based on evidence, documents.
Some experts in the legal field believe that intangible assets are only intellectual property rights, but that is not enough because in fact intangible assets include all property rights because the nature of rights is intangibility.
In order to more clearly and fully recognize the specific nature of property rights under Vietnamese law, we need to distinguish property rights from other types of assets recognized by the 2005 Civil Code, such as money and valuable papers.
Money and property rights are both recognized as separate types of property in Vietnamese law. Similar to property rights, the owner cannot exploit the utility of money itself, but the exercise of ownership rights must be through actions prescribed by law. However, unlike property rights, money is a rather special asset because money is exclusively issued by the state through the State Bank, demonstrating national sovereignty. Money has three basic functions: a means of payment; a tool for accumulating assets; and money also plays an important role as a tool for valuing other types of assets. Money is a tool for valuing property rights and a criterion for a right to be considered a property right is that it can be valued in money. Because money has a great significance for the national financial system, the legal status of money as a type of property is also quite strict. Money owners exercise their rights within the limits permitted by law, such as not destroying money. The use of money through the purchase and sale of other assets, lending, contributing capital, etc. is considered an act of disposition, not an act of use. In some cases, money and property rights can be converted to each other, such as when one person lends money to another, at this time there is an obligation relationship between the two people and the lender has a property right, which is the right to claim debt from the borrower (this case is similar to depositing savings at a bank, in which case the savings book is not an asset but a document proving the property rights of the savings book owner). In fact, in the case of savings books, there are still many different opinions arguing about whether the savings book is a valuable paper or a document proving property rights, specifically here it is the right to claim of the savings book owner. However
However, the view that a savings book is a document proving the owner's right to claim is more reasonable.
Comparing property rights with valuable papers, we can see that property rights and valuable papers are closely related. Valuable papers are a fairly common type of property in transactions in the banking system and credit institutions. “In a broad sense, valuable papers are generally understood as certificates or book entries confirming the property rights of a certain subject in relation to other subjects” [60, p. 89]. The 2005 Civil Code does not provide a concept of what a valuable paper is, but through indirect regulations and through legal documents regulating secured transactions, “valuable papers are understood as papers that can be valued in money and can be transferred in civil transactions” (Clause 9, Article 3 of the Government’s Decree No. 163/2006/ND-CP dated December 29, 2006 on secured transactions). Valuable papers are divided into two types: valuable papers such as money and other valuable papers. Valuable papers such as money are issued by credit institutions to mobilize capital, confirming the obligation to repay a sum of money within a certain period of time, conditions for interest payment and other terms of commitment between the credit institution and the buyer. Valuable papers such as money include promissory notes, bonds, bills of credit, certificates of deposit, etc. In addition to valuable papers such as money issued by credit institutions, there are other types of valuable papers such as checks, securities and government bonds. The amended and supplemented Securities Law of 2010 recognized the concept of securities in Article 6, Clause 1, which is:
“Securities are evidence confirming the legal rights and interests of the owner to the assets or capital of the issuing organization. Securities are expressed in the form of certificates, book entries or electronic data, including the following types:
a) Stocks, bonds, fund certificates;
b) Stock purchase rights, warrants, call options, put options, futures contracts, groups of securities or stock indices;
c) Investment capital contribution contract;
d) Other types of securities as prescribed by the Ministry of Finance.”
Thus, according to the above concept, in essence, the content of valuable papers is property rights, the price of valuable papers is the value of property rights and this right is protected by law. Therefore, many scholars believe that valuable papers are also property rights. So, is it reasonable and correct for experts in building the Vietnamese Civil Code to separate these two types of assets? This issue needs to be carefully reviewed.
1.2. Characteristics of joint ownership of property rights between husband and wife and legal regulations on joint ownership of property rights between husband and wife
1.2.1 Characteristics of joint ownership of property rights between husband and wife
As analyzed in the Introduction, in marriage and family relations, personal relations play a decisive role. Only when personal relations are established will property rights and obligations between the subjects in this relationship arise. For example, the event of marriage according to the provisions of law gives rise to a legal marriage relationship between husband and wife; from that legal marriage relationship, property rights and obligations between husband and wife appear, such as the right and obligation to provide alimony between husband and wife; the right to own common property of husband and wife; the right to own separate property of husband and wife; the right to inherit property between husband and wife...) Of course, not all property relations between husband and wife are formed immediately after marriage, but must go through certain acts and legal events for those relations to be formed. Normally, the property relationship between husband and wife that is formed earliest is the common ownership relationship between husband and wife. So how is joint ownership between husband and wife understood?
After the marriage relationship is established between a man and a woman, to ensure the existence and development of that family, there must be a common property to ensure daily essential needs. Therefore, between