What Is an Intangible Personal Property?

Intangible assets: Non-monetary long-term assets without physical form held by an enterprise for the purpose of producing goods, providing labor services, leasing to others, or for management purposes. ^[1]

Intangible property

Origin of intangible property

(I) Traceability and Evaluation of Objectivity of Intangible Property

The emergence of early intangibles is actually the product of ownership and the thinking mode of things in legal theory. Since Roman law created the concepts of things and ownership, tangible things have been the sole measure of wealth, and other property rights (such as usufructuary rights and creditor's rights) have been difficult to understand because they are intangible. Therefore, when people are accustomed to turning rights into things, they have a more real sense of ownership of that right. By making rights into things, the transfer of rights is as vivid and easy to understand as the delivery of things. Such as

(I) Definition of benefits: the measurement function of intangible property

When the Romans formed a mindset, that is, "res in bonis meis est, res men est", absolute ownership became the domination of the Romans, and all property was measured by the actual possession of tangible objects To measure. With the complexity of land-use relationships, the right to make limited use of others' land (such as

(I) Evolution of intangible property legislation and contemporary legislative trends

The ancient Roman law system is mainly divided into three parts: human law, physical law and procedural law. When Tribonianusk formulated the Outline of Law, the physical law included property, property rights, inheritance, debt, private prisoners, and quasi-private Commit etc. It can be seen that Roman law's intangibles are all adjustments of physical law, and claims as intangibles have not been independent. The French Civil Code adopts the following system: general rules, human law, various restrictions on property and ownership, and various methods of obtaining property. From this, you can see the clear context of the Roman law system, intangible property (including equity and debt) ) Is still adjusted as the "intangible object" by the Property Law, and the independent legislative status of the creditor's rights has not yet been established, but only exists as a means of obtaining property rights. The German Civil Code establishes the concepts of "real right" and "debt right" in the true sense. They are regarded as two rights of different natures. In the legislative system, creditor rights are regulated before real rights, and creditor rights are no longer Being in the "intangible" status and becoming a major civil right is a major step forward in legislation for intangible property. However, in addition to creditor's rights, many other intangible properties (such as equity, bonds, etc.), although they are also considered as civil rights, do not resemble creditor's rights with independent legal status. Their specific characteristics and legal nature have been ignored accordingly, and are classified in theory. Shang is often reluctantly included in the categories of "property rights" and "debt rights", and is not treated as an independent type of property rights. For example, German civil law theoretically regards securities as a "tangible claim", and its essence should be real rights. China's civil legislation model is similar to German legislation, and the property law and creditor's law models have been established. Except for special provisions on intellectual property rights, other intangible properties have failed to make breakthroughs in their theoretical and legislative status.

(II) Conception of China's Intangible Property Legislation

China has followed the theory and legislative system of the civil law system, and has formed a relatively stable dual law model of property law and creditor's law. The civil rights system is also quite monotonous. Intangible property is often included in the category of real right or creditor's right for discussion. Independent theoretical and legislative status. This is not conducive to the theoretical research and legislative design of intangible property itself, but it also makes people doubt or even deny the relative rationality of traditional property classification theory. Therefore, Chinese legislation must have a correct positioning for intangible property.

The first problem is the legislative status of intangible property. According to the analysis above, intangible property as an independent right has the same nature and legal status as ownership and creditor's rights. Therefore, it should pay sufficient attention to the independence of its legislation. In the field of law, people have never had a clear conclusion about the real or debt type dispute over special intangible property. Therefore, in terms of legislative concepts, the method of covering intangible property by the rules of property law and debt law should be abandoned to a certain extent, the characteristics of intangible property should be re-examined, and specific legislation should be given. In fact, China has enacted separate laws such as the Company Law, Bills Law, Intellectual Property Law, and Securities Law. These laws have fully adjusted intangible assets such as equity, bill rights, intellectual property, and securities, and are not reluctant to include them in property law. And the principle of creditor's law, but it does not affect its effectiveness.

Secondly, it is worth pondering how intangible property will affect the property law that China is preparing to formulate. As far as the real right system is concerned, according to traditional theories, other real rights are also an "intangible thing" and intangible property. So, should it be legislated separately? Although intangible property is a category formed relative to ownership, from the perspective of rights, both ownership and other property rights are intangible. Because the ownership based on physical objects and other real rights have common basic principles, adjustment methods and main legal rules, the traditional real right system still has its rationality and stability in legislation, and ownership and other real rights should still be retained The traditional legislative framework should not be artificially separated.

Regarding the legislative design of the property law, there is a view that, as equity and other methods have become a new way to realize ownership, the traditional concept of property rights has been unable to adapt to the development and change of the form of ownership. It is suggested that the property law be changed to the property law. Therefore, some people think that the law on real property is divided into tangible property and intangible property. We believe that the above thinking is reasonable, but ignores the reasonable boundary between real right and intangible property, and still tries to solve the problem of legislation on intangible property through the expansion and modification of real right law. In fact, intangible property is not limited to equity and negotiable rights, but a huge system of rights. For example, intangible property also includes intellectual property rights, trust property rights, market operation freedom rights, and government concessions. Most of them do not belong to The scope of property law. If the property law is enacted through the expansion of the property law, on the one hand, intangible property is still tied to the theory of property rights and the legislative system, and on the other hand, the existing adjustment rules of the property law itself have lost their existing value.

As far as the intangible property's own legislative system is concerned, it should first realize a conceptual update in legislation, that is, intangible property should not be regarded as a special case outside the traditional civil rights system of the civil law system, so that it should be legislated with the traditional property law and Creditor law is split. In fact, intangible property is a kind of abstraction of property rights including real right and creditor's right from a higher level. It fully reveals the essence of the property rights of the right holder, and thus provides a brand-new for the construction of contemporary property rights system. Perspective. Therefore, it can be considered that the legislative issue of intangible property is the construction of the entire property rights legislative system. The property law and creditor's rights law are only two important components of them. They are integral and indivisible with the legislation of intangible property. Specifically, the property law and creditor's law respectively adjust specific property rights and creditor's rights, and other intangible property are adjusted separately by intellectual property law, company law, bill law, trust law, etc. Supplement, thus gradually forming a complete intangible property legislation system. ^[2]