For a right to be considered property, it must first be worth money. This is a feature that distinguishes property rights from personal rights. Personal rights are recognized in the Civil Code as civil rights attached to each individual and cannot be transferred to others, unless otherwise provided by law (Article 24 of the 2005 Civil Code). Personal rights are rights related to spiritual values and attached to each individual. Personal rights are also the basic content of the human rights category. Therefore, personal rights cannot be valued in money, only property rights can be valued in money. The value of property rights is obtained through various legal forms such as: through civil contracts such as debt collection rights, leased property rights... or by competent state agencies such as land use rights, mineral exploitation rights or through creative work activities or recognized industrial property rights by competent state agencies... There are some property rights associated with personal factors such as copyright and related rights and in some cases personal factors greatly affect the value of that property right, for example, the work of a famous artist will have much greater value than the work of an ordinary artist. Intellectual property rights are intangible rights and the value of those rights can change over time and depend on many other factors, so it is very difficult to value intellectual property.
The second basic characteristic of property rights as prescribed by current civil law is that such rights can be transferred in civil transactions. This means that property rights must be the right to freely circulate in civil transactions. However, with this requirement of Article 181 of the 2005 Civil Code, there are many types of rights that are property in nature, meaning that they can be valued in money but cannot be freely transferred in civil transactions, such as property rights associated with personal status (rights to receive alimony, rights to inherit, etc.) are not property rights. Thus, the connotation of the concept of property rights in Vietnamese law seems to be different from the laws of other countries in the world. For example, in the Law on Property Rights of China promulgated on March 16,
In 2007, the concept of property rights was recognized as a type of right that is completely opposite to personal rights, that is, "property rights are rights that can be valued in money". The concept of property rights in Chinese law has a broader connotation than that in Vietnamese law because it also includes rights related to personal rights but have a property character.
According to the views of lawmakers, through the definition in Article 181 and other provisions of the 2005 Civil Code, unlike objects (tangible assets), property rights are intangible assets. To exist as intangible assets, in addition to meeting the two conditions stated in Article 181, intangible assets must also have the following characteristics [2, p. 426]:
First, intangible assets need to be identified. Identification of intangible assets can be done through some tangible evidence to describe that type of intangible asset. For example: a creative product in the field of culture, art, science - technology, if it is only formed in the mind of the creator, is not considered a work and the person with that idea is not protected by copyright, but that idea must be expressed in a certain material form to be protected (Article 737 of the 2005 Civil Code); or industrial property rights for inventions, industrial designs, trademarks, etc., the ownership of these objects is shown by certificates issued by state agencies. Land use rights or limited use rights of adjacent real estate are shown in land use right certificates and agreements on limited use of adjacent real estate registered with competent state agencies. Rights are recorded in contracts, in decisions of competent state agencies or some types of rights are recorded in licenses of competent state agencies such as mineral exploitation licenses... This is an important condition for an intangible right to be considered an asset because if it cannot be recognized, the law as well as other entities cannot recognize and respect the owner's rights to that type of asset and if it cannot be recognized, the owner of that asset himself cannot exercise the owner's power over his asset.
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Characteristics of Ownership of Property Rights
The second criterion is to recognize the beginning and ending time of that property right. Recognizing the existence of property rights is also based on evidence and documents confirming property rights as analyzed above. For property rights, in addition to the above bases, in some countries, there is a system of registration of property rights to facilitate all interested parties to know about the existence of that property right.
The third criterion is that the owner of intangible assets is protected by law when ownership rights are violated, the owner must also bear legal responsibility when exercising ownership rights of these types of intangible assets [58, p. 51]. In fact, this is a legal element that is not only a specific characteristic of property rights but also a characteristic of property in general.
The second understanding of the concept of property rights is that “property rights in a broad sense are the rights of individuals and organizations permitted by law to perform acts of conduct with respect to their property and to require others to perform an obligation that brings material benefits to them” [57, p. 7]. Through the above concept of property rights, we can understand that property rights are expressed in two forms: “ the rights of individuals and organizations permitted by law to perform acts of conduct with respect to their property” and “the right to require others to perform an obligation that brings material benefits to them” . However, the recognition of property rights as "the rights of individuals and organizations permitted by law to act on their property" makes people immediately understand that it is the right of ownership, but property rights are not only the right of ownership but also include many other property rights such as the right of usufruct (the right of usufruct is a limited-term property right on the property of another person), the right of servitude... which are not exercised on the property owned by that person but are exercised on the property of another person. Ownership rights are essentially a typical property right but cannot fully constitute the concept of property rights. The provision of property rights as "the right to require another person to perform an obligation to bring material benefits to oneself" has raised the nature of the rights of recourse, which are interpersonal rights. Thus
The above concept of property rights only includes two components: property ownership rights and personal rights, but lacks the recognition of many other types of property rights (other property rights besides ownership rights and intellectual property rights), so this concept is not really complete and accurate.
The third understanding of the concept of property rights is that property rights are understood as the way people behave with each other in relation to property. “In property rights, there is always the implication of concentrating control for one person, limiting and excluding that right from others. Property rights are understood as a set of many basic rights and interests such as the right to control the use of property, the right to enjoy profits obtained from the use of property, the rights to transfer and mortgage property” [34]. This is a fairly broad understanding of property rights, according to which property rights are the ability of the subject to obtain certain material benefits from the use and exploitation of his rights and that right limits and excludes other subjects. This understanding places property rights in the correlation between social relations, not considering property rights as a type of property placed next to other types of property as stipulated in the 2005 Civil Code.
The reason why there are still many different understandings of property rights is because the Civil Code has not yet provided a complete and accurate concept of property rights. “It can be seen that the concept of property rights stated in Article 181 of the 2005 Civil Code is a type of property that is opposed to tangible property and is a factor that serves as a basis for the construction of a specific property classification system, in addition to the classic classification systems - movable and immovable property, primary and secondary objects,... With that provision of the 2005 Civil Code, property rights become a very narrow concept and are not large enough to play a counterweight role to personal rights, which are rights without property value, in civil law” [15]. So what is property rights and how far the connotation of this concept is expanded is still a big problem that Vietnamese lawmakers must solve.
1.1.2 Classification of property rights
Currently in legal science in Vietnam there are many different ways of classifying property rights based on different criteria.
The first classification is based on the physical characteristics of the subject of property rights, property rights are divided into real estate and movable property. This is the traditional classification of property in the legal history of many countries and was formed in ancient Rome. The distinction between movable property and real estate has created two different legal regimes for property. Since property rights are also property, they can also be classified into movable property and real estate.
Current Vietnamese law also divides assets into movable and immovable. In Article 174 of the 2005 Civil Code, lawmakers have listed assets considered immovable, including:
a) Land;
b) Houses and constructions attached to land, including assets attached to such houses and constructions;
c) Other assets attached to land;
d) Other assets as prescribed by law
Except for the above mentioned real estate, all other assets are movable property.
Based on the above provisions, property rights can be real estate if they fall into two cases: first, the property rights are attached to land; second, the property rights are real estate when prescribed by law. Accordingly, property rights that are real estate include: land use rights; home ownership rights and other properties attached to land; mortgage rights to land use rights, etc. These are property rights whose objects are real estate, so these property rights are real estate. These are classifications of property rights based on the nature of the object of the property rights. Because the object of the rights is not a thing but an obligation, classifying the rights as movable or real estate becomes more difficult. However, in principle, the rights are movable. In the case of an obligation relationship between a creditor and a debtor for a sum of money, this is completely correct because money is movable property.
If the right is not a right to demand a sum of money but an obligation to provide a service, then this right is also a movable property because if the obligated party fails to perform the obligation, the obligation will also be converted into a sum of money, and the obligated party must compensate in money [47, p. 108]. According to French law, the obligation to do or not to do something is always movable property in nature, even in cases where the obligation is related to real estate (for example, the right to rent a house arising from a lease contract between the landlord and the tenant is a movable property right because its subject matter is not the house but the obligation of the landlord to let the tenant use the house in accordance with the agreement). The obligation to transfer ownership can be immovable if the subject matter is real estate. Vietnamese law has not clearly resolved this issue, but solutions in French law can be applied because they are not contrary to the spirit of Vietnamese law: the obligation to do or not to do something, if not performed, can become an obligation to compensate a sum of money because it is a movable property and the obligation to transfer ownership, if the obligated party does not transfer ownership, the transferee must perform to the end to establish this person's ownership of the movable property or real estate that is the subject of the transfer of ownership [18, p. 33].
For property rights that are intellectual property rights, the classification is based on the exclusion principle. Because the subject of intellectual property rights is neither an object nor an obligation, intellectual property rights cannot be real estate because the subject is real estate and intellectual property rights are not defined by law as real estate, so we can infer that intellectual property rights are movable property. However, there is also a view that intellectual property rights should not be classified as movable property or real estate because of its specific nature, so it is necessary to consider it independently alongside other assets.
The second classification based on the nature of property rights can divide property rights into 3 groups: property rights, also known as real rights, personal rights, also known as collateral rights, and intellectual property rights (previously, intellectual property rights were called intangible property rights). This classification is not recognized.
in the positive law of Vietnam that was formed and developed in legal science. According to the traditional understanding, a right in rem is a right whose object is a tangible object, that is why it is called a right in rem. A right in rem is a concept built in opposition to a right in rem and a right in rem and a right in rem are also tools for classifying assets like movable property and real property. This is the concept of a right in rem in ancient law, however, currently other views have been formed that the understanding of a right in rem must be expanded to include rights attached to other intangible assets such as land use rights, property rights arising from copyright, industrial property rights, rights to plant varieties, rights to exploit natural resources, rights to capital contributions in enterprises...[35, p. 24]. However, this understanding of the expanded scope of the connotation of property rights is not necessarily correct because the rights mentioned above by this author are not personal rights nor are they exercised on a specific object such as copyright and industrial property rights. In legal science, another concept of property rights has been formed, which is "property rights are understood as the rights of a subject to a property, allowing the subject to directly exercise the powers recognized by law over a property " [19]. This understanding originates from the concept of property rights of countries following the Romano-German legal culture. This concept of property rights appears to be quite complete and accurate, reflecting the true nature of property rights compared to another type of property right, which is the right to claim. From the above analysis, we can see that the concept of property rights itself is not yet unified by legal researchers. However, according to the general view of legal researchers, property rights can still be recognized based on the following characteristics:
Property rights are exercised directly on the object without the participation of a third party. Ownership is a typical property right in which the property owner can exercise his rights directly on the property (here there is an identification of ownership with its object). Even with property rights established on the property of others, the right holder can also directly exercise his power on that object without the action of a third party.
Three examples are mortgage rights, pledge rights... This is a characteristic to distinguish property rights from personal rights because personal rights can also be established in relation to property, but the subject with the right cannot exercise his or her right directly on the property but must go through the actions of a third party.
The right to property is an absolute right, meaning it is valid for everyone and requires everyone to respect it. And to oppose a third party, the third party must be aware of the existence of that right to property, which is why many countries in the world have established a mechanism to register property rights to make them public for everyone to know.
The right to property is limited in nature, meaning that it must be regulated by law. The reason why the right to property has this characteristic is because the right to property allows the right holder to exercise power directly over the property without the role of a third party, so the intervention of the law is necessary to ensure the prevention of property appropriation that causes disorder and instability in society.
To ensure the exercise of the right to property, the subject of the right to property has two special rights: the right of pursuit or the right of pursuit and the right of priority. The right of pursuit is understood as the person with the right to property can exercise his right to the property regardless of which third party the property is in. For example, the owner of the property has the right to sue to reclaim his illegally appropriated property even when the property has been transferred to a third party; the person with the right to the passage through the adjacent real estate has the right to use that passage even when the adjacent real estate has been transferred to another person... The right of priority is the right of the person with the right to property to have priority in exercising the right to the related property over all other subjects with personal rights or subjects with other rights to property (with the following order of priority). This right is especially meaningful in cases where the right to property is a measure to secure the performance of obligations such as pledge, mortgage, etc.