일반가등기의 효력

Abstract

According to article 88 of the Registration of Real Estate Act, Provisional registration shall be made if a right of claim for the creation, transfer, change or extinguishment of a right corresponding to any of the subparagraphs of Article 3(Ownership, Superficies, Easement, Rights to lease on a deposit basis, Mortgage, Pledge of rights, Security rights over claims, Leasehold interest) is to be preserved. The same shall also apply where such right of claim is effective when the time comes, is under condition precedent, or is to be determined in the future. This provisional registration is divided in general provisional registration and provisional registration security, so the divided reason is base on the substantial relation. And according to article 1 of Provisional Registration Security Act, “the purpose of this Act is to provide, with respect to the return of any borrowed object, the effect of a security contract and provisional registration or ownership transfer registration made for the purpose of such security.......”. On this paper, cases and theories concern effects of general provisional registration is explained. The provisional registration is regulated on BGB and so matters of those on GBO but above articles can be found on only Registration of Real Estate Act in Korea and in Japan. Effects of provisional registration need to be commented after and before of registration because of contents and effects of right on registration. First, effects of warning, itself and right's presumption is as effect of before of registration, and then itself effect is divided in substantial effect, preservative effect of claim's right, opposing power, effect against the third and satisfied effect. Through preform of provisional registration exist warning effect but don't exist substantial effect, opposing power, effect against the third(cases and theories). And so the satisfied effect in which is a kind of preservative effect of claim's right is recognized on cases and theories. Second, there are effects of preservative of registration's order, taking effect of right as effect of after of registration. Effects of preservative of registration's order is base on the article 91 of Registration Real Estate Act and also can be recognized through case and many theories. Taking effect of right through registration has no problem concern accepting as a kind of effects because of taking right after performed registration by provisional registration.