우리나라 가등기제도의 문제점과 개선방안

Abstract

Korean provisional registration system was introduced by Japanese system introduced by German system. Therefore, there were lots of confusion for precedents and theories and irregularities/securities, so provisional registration security act was regulated for regulating them. Korean provisional registration system causes lots of problems for systematic interpretation and rational operation because of the defect of legistratively. For the regulation of current laws related to the effects of provisional registration, there is only the Article 91 of the Real Property Registration Act. And, although there is no actual effect for the provisional registration, a debtor of provisional registration can sell real estate completed by provisional registration. But, if a person who has right for provisional registration makes a deadline registration for provisional registration, the registration of the third acquisitor is disposed, but the effects have a contradiction the effects are not retroactive. During the main registration by provisional registration, the method to erase the registration of the third acquisitor based on the Article 92 of the Real Property Registration Act is biased to protect only a person who has the right of provisional registration. And, the disposal of a person who must conduct provisional registration is limited and it's insufficient that rights of the third acquisitor can be protected. It's necessary to make effects for protecting claim on provisional registration and introduce the registration of the second clause of Article 883 of Germany civil law (effects of claim protection and material effects) if making the interpretation whose logic is consistent. And, if main registration is registered after the register of the third acquisitor is completed before the main registration by provisional registration, it must be registered to the third acquisitor with the regulation for not only the second clause of the Article 883 of Germany civil law but also the first clause of the Article 888 of Germany civil law and the 19th clause of German Real Property Registration Act, not disposal of the third acquisitor's registration. For the method to write register, it must be same as material change non-retroactivity theory taken by Korean common view and precedent during the main registration by provisional registration. Also, while revising the regulation related to provisional registration, it will be proper to abolish the provisional registration security law. If improving provisional registration with the above methods, provisional registration will be used as the provisional registration whose purposes are original. So, the rights of a person who has rights of provisional registration can be protected and furthermore, it will actualize balance and equity of interests protection of not only a person who has duty of provisional registration but also the third acquisitor.