Digital Assets: When the Virtual World Shakes the Foundations of Property Law

Legal Team, B2G Solutions

This short article invites readers to explore the intersection between technology and property law, an area increasingly challenged by intangible assets in the modern era, as outlined below:

1. Can “digital assets” be considered “property” under Section 138 of the Thai Civil and Commercial Code, which defines property as including tangible and intangible objects that have value and can be appropriated? Existing Thai law—such as the Emergency Decree on Digital Asset Businesses B.E. 2561 (2018)—does not clearly address this issue. Moreover, that decree covers only cryptocurrencies and digital tokens, leaving ambiguity around other open-ended categories of assets, such as Non-Fungible Property (NFP).

2. In the common law system of England, legislation has been enacted to recognize digital assets as personal property, without limiting them to “things in possession” or “things in action.” Instead, the law has created a “third category of things” to accommodate digital files, cryptocurrencies, and carbon credits, enabling them to be enforced through legal proceedings.

3. Continental Europe, particularly civil law jurisdictions, has also adapted:

   
   

   • France: Digital assets are interpreted as intangible movable property. If they have economic value and are transferable, they may be seized or enforced.

   • Germany: Although digital assets are not considered “things” (Sache) in theory because they are intangible, the law has created a “fiction of property” to allow them to be managed in commercial transactions, insolvency proceedings, or as digital securities.

4. The challenge of “ownership”: Blockchain technology removes intermediaries, making proof of ownership dependent on control of a private key rather than title documents. When damage occurs—such as hacking—identifying responsible parties or suing developers becomes difficult. An example is Tulip Trading Limited v. van der Laan & Ors, which raised the issue of blockchain software developers’ liability to users. The claimant alleged losses of several billion pounds due to hacking and sued developers maintaining the Bitcoin network, arguing that they owed fiduciary duties as controllers of the software and should restore the lost assets.

5. For Thailand, policymakers may need to decide whether to rely on interpretation of existing property law principles in the Civil and Commercial Code, or to enact specific legislation—similar to copyright law—to close gaps in asset tracing and enforcement, as England and Germany have begun to do. Alternatively, amendments could be made to the Emergency Decree on Digital Asset Businesses B.E. 2561 (2018) to provide greater clarity.

   
   

   Further questions arise: If errors occur in smart contracts (smart contract bugs), should developers bear legal responsibilities equivalent to real-world asset custodians? Under Thai law, what exactly is the legal status of a Non-Fungible Token (NFT)? If it is merely data on a blockchain without specific statutory recognition, how much legal protection does the true owner receive beyond contractual rights? Finally, as humans increasingly become “digital personas,” how should these digital assets be managed under inheritance laws that are traditionally tied to physical property?