Computer files are the foundation of the digital economy which in turn is the foundation of a modern economy. There are strong arguments to consider computer files being property and qualified as “things” (vật). However, in practice, it is not clear if the courts and other Government authorities will accept such arguments.

Article 105 of the Civil Code 2015 provides that property comprises things, money, valuable papers, and property rights. There is no legal definition of “things”. However, there are strong arguments that computer files are qualified as things:

According to Vietnamese Dictionary, things mean things which have shape (hình khối) and can be noticed (nhận biết). Since one can view a computer file using a computer and relevant software, it can be said a computer file has shape and can be noticed.
Recently, various authorities take the view that bitcoin can be considered as property. For example, the State prosecutor has charged a gang who robbed bitcoin from a businessman with the crime of robbery of properties under the Penal Code. The tax authorities also take the view that bitcoin is a kind of goods subject to value added tax. Bitcoin is not a computer file but they are closely related. So the view of the authorities regarding bitcoin can apply to computer files.
The view that computer files are property is consistent with the view of other jurisdictions (e.g., Italy, New Zealand, Germany). Vietnam is party to various investment treaties with countries which recognize computer files as properties. It would be difficult for Vietnam not treat computer files owned by investors of such countries as properties under Vietnamese law.
Under the Vietnam Constitution, Karl Max-Le Nin’s theory is the founding principle of the Communist Party which in turn is the leading force of Vietnam. Under Karl Max’s theory, material (vật chất) is something which exist independently from the human’s mind and does not depend on the human’s mind. Since they exist independently from the human’s mind, it is arguable that computer files are materials which could also be things.

Despite the above arguments in favour of computer files being a property, there are various suggestions that computer files may not qualify as property.

The requirement of things to have “shape” could be interpreted to mean that things must have a three dimensions. A computer files may not satisfy this requirement.
The traditional view of various legal scholar is that things are part of physical world and exist in solid, liquid or gas form. Accordingly, computer files may not qualify as things.
Unlike the tax authorities and State prosecutor, a provincial court in Vietnam has held that bitcoin is not property and rejected the tax authority’s opinion.

This post is written by Tran Duc Long and Nguyen Quang Vu.

Vietnam Business Law