Overview
A provisional registration (gadeunggi) under Korean law is a preliminary registry entry that secures, in advance, the priority of a later main registration in order to protect a claim that will produce a change in real rights. For example, if a buyer who has signed a sales contract registers a provisional registration for the claim to transfer ownership before paying the balance, the buyer will rank ahead of anyone to whom the seller sells or mortgages the property in the meantime once the main registration is made. The general registry system is covered in real estate registration.
Object and application
- Object (art. 88): it is made to preserve a claim to create, transfer, change or extinguish a right listed in article 3 of the Real Estate Registration Act (ownership, superficies, servitude, jeonse, mortgage, pledge of rights, security right over claims and lease). It is also available where the claim is subject to a commencement date or condition precedent or will be fixed in the future. Claims under a promise to sell or a promise of substitute performance are typical.
- Application (arts. 89 and 90): the holder and the obligor normally apply jointly, but the holder may apply alone with the obligor's consent or under a court order for provisional registration, which the district court for the property's location issues when the grounds are shown prima facie.
- Cancellation (art. 93): the registered holder may apply alone to cancel it, and the obligor or an interested party may apply alone with the holder's consent.
Effect before the main registration
- No substantive effect: a provisional registration does not change real rights and does not bar the owner from disposing of the property.
- No presumption: the Supreme Court held that the existence of a provisional registration for a claim to transfer ownership does not raise a presumption that any legal relationship entitling the holder to transfer exists (Supreme Court, 22 May 1979, 79Da239).
- Warning function: a provisional registration on the register signals to third parties that they may later lose their rights, so it must always be checked before a transaction.
Effect after the main registration
- Priority preservation (art. 91): when the main registration is made on the basis of the provisional registration, its priority follows that of the provisional registration, so mortgages or transfers registered in between rank behind it.
- No retroactive change of rights: only priority relates back; the change in real rights caused by the main registration does not take effect retroactively from the time of the provisional registration (Supreme Court, 25 September 1992, 92Da21258).
- Ex officio cancellation (art. 92): on making the main registration, the registrar must cancel of their own motion later entries that infringe the right preserved. Article 147 of the Real Estate Registration Rules excludes, for a main registration of ownership transfer, entries such as provisional attachments or injunctions over the provisional right itself, compulsory auction entries based on attachments registered before the provisional registration, auction entries based on earlier security registrations, jeonse or mortgages, and housing or commercial lease registrations that can be asserted against the holder.
Security provisional registration
When a lender takes a promise that ownership of real estate will pass to them if a loan is not repaid and registers a provisional registration, this is a security provisional registration. The Act on Provisional Registration Security, enacted in 1983, imposes a liquidation procedure so that creditors do not gain more than the value of their security.
- Notice and liquidation period (art. 3): after the due date the creditor must notify the debtor of the assessed liquidation amount, and two months must pass from the date the notice arrives.
- Payment and main registration (art. 4): the creditor must pay the surplus of the property's value over the debt, and with a security provisional registration may claim the main registration only after the liquidation period. Special terms to the contrary that disadvantage the debtor are void.
- Auction and priority (arts. 12 and 13): the holder may request an auction, in which the right is treated as a mortgage ranking from the date of the provisional registration.
Practical points
- Before buying or renting, check the ownership section of the register for a provisional registration; rights entered after it may be cancelled by the main registration (see tenant rights).
- Whether a provisional registration preserves a claim or secures a debt is judged by the actual transaction, not the label on the register, so review the underlying contract.
- For a provisional registration based on a promise to sell, the option to complete the sale is a formative right; absent an agreed period it must be exercised within a 10-year exclusion period from the promise and then lapses (Supreme Court, 10 January 2003, 2000Da26425), so it is worth checking whether an old provisional registration can be cancelled.
References
- 「부동산등기법」 제88조–제93조 (법률 제20435호, 2024. 9. 20. 일부개정, 2025. 1. 31. 시행).
- 「부동산등기규칙」 제147조 (본등기와 직권말소).
- 「가등기담보 등에 관한 법률」 제3조·제4조·제12조·제13조 (법률 제3681호, 1983. 12. 30. 제정).
- 대법원 1979. 5. 22. 선고 79다239 판결.
- 대법원 1992. 9. 25. 선고 92다21258 판결.
- 대법원 2003. 1. 10. 선고 2000다26425 판결.
- 최명구 (2017). 일반가등기의 효력. 토지법학, 33(2), 1–32.