Research On The Mutual Recovery Rights Of Joint And Several Guarantors

Disputes on mutual recovery of joint and several guarantors prior to the Civil Code focused on hybrid joint and several guarantees,and with the enactment of the Civil Code,the disputes have come to cover all types of joint and several guarantees.The Civil Code itself does not expressly provide for the mutual recovery rights of joint and several guarantors,but Articles 13 and 14 of the Interpretation of the Security System of the Civil Code clearly distinguish between joint and several guarantors based on the existence of meaningful contact between them.After the introduction of the judicial interpretation,the theoretical issues and specific details of the mutual recovery rights of joint and several guarantors failed to obtain a unified opinion,and the relevant controversy has become more intense instead.This article distinguishes joint and several guarantees into joint guarantees and several guarantees based on the theoretical basis of joint and several debts,and explores the issue of mutual recovery rights among joint and several guarantors based on whether there is a meaningful contact between the joint and several guarantors.This paper is divided into four chapters for discussion.The first chapter examines the logical premise of mutual recovery rights of joint guarantors.This paper takes the typical guarantees such as guarantee,mortgage and pledge as the object of study.China differs greatly from foreign legislation in that it does not make special provisions for mutual recovery rights based on different types of joint and several guarantees,but is committed to constructing uniform rules for recovery of joint and several guarantors.Guarantees and mortgages and pledges have great similarity in function and legal application,and joint guarantees can be subject to the relevant rules of debtor majority.In an external relationship,whenever the guarantee shares of each guarantor overlap,the question arises as to whether and how they can be recovered,and even in a joint and several guarantee,the overlap may be caused by partial satisfaction of the principal debtor,partial discharge of the debt by the creditor,etc.The second chapter discusses the value basis of the mutual right of recovery of joint guarantors,i.e.,whether there should be recovery between joint guarantors.A distinction should be made between joint guarantees and several guarantees : in joint guarantees,there is an internal relationship between the guarantors and the value basis for the allocation of liability lies in the autonomy of the parties;in several guarantees,there is no internal relationship between the guarantors and the purpose of the allocation of liability is to eliminate the risk of arbitrariness of the creditor and the value basis is in equity or efficiency.Autonomy is not the only value basis of mutual recovery right of joint guarantors,and it is not justified to deny mutual recovery right between several guarantors by violating autonomy.Negative scholars give primacy to meaningful autonomy,but in many specific situations of joint suretyship,reliance on meaningful autonomy would not lead to proper conclusions and would lead to inequitable and inefficient results.The third chapter examines the theoretical construction and normative basis of mutual recovery rights of joint and several guarantors,i.e.,the question of how joint and several guarantors should recover from each other.One of the major reasons for the controversy of the right of joint and several guarantors to recover from each other is the lack of consensus on the composition and recovery of joint and several debts.From the types of joint and several debts explicitly provided by law,the establishment of joint and several debts does not take the same cause of debt,common purpose or the same level as the prerequisite for the establishment of joint and several debts.The rules of joint and several debts in our law can fully incorporate the so-called types of untrue joint and several debts,and there is no practical significance to distinguish joint and several debts from untrue joint and several debts.Both joint guarantees and several guarantees constitute joint and several debts.In joint guarantees,there is an internal relationship between the guarantors,which determines the scope and conditions of recovery,and the statutory right of recovery is not affected by matters such as the expiration of the guarantee period and the statute of limitations period in the external relationship.In several guarantee,there is no internal relationship between the guarantors and the liability is shared based on equity or efficiency,and the essence of the statutory right of recovery is a claim for unjust enrichment,which overlaps with the right of subrogation in terms of legal effect and is affected by matters such as the expiration of the guarantee period and the statute of limitations period in the external relationship.The basis for the regulation of the statutory right of recovery between joint and several guarantors is the first paragraph of the first sentence of paragraph 2 of Article 519 of the Civil Code.The statutory right of subrogation of the guarantor against the other guarantors arises through the combination of Article 700 and Articles 547 and 468 of the Civil Code.There are three paths to consider for the statutory subrogation rights of a physical guarantor against other guarantors.One is the application by analogy of Article 700 of the Civil Code;the second is the application or analogy of the latter part of the first sentence of paragraph 2 of Article 519 of the Civil Code;and the third is the application or analogy of Article 524 of the Civil Code.The fourth chapter discusses the specific issue of mutual rights of recovery of joint and several guarantees.The recovery relationship is most critical in determining the share of each guarantor.The amount of the claim is in a constant process of development and change,therefore,of practical importance is the determination of the share of each guarantor.Recovery by the guarantor is subject to the conditions that the liability for the guarantee exceeds its share,recovery is made in accordance with the share and the debt expires.In the order of recovery,for joint guarantees,the guarantor with the right of recovery has the right to choose,if not specifically agreed;for several guarantees,the guarantor with the right of recovery should first recover from the principal debtor,and then recover from the other guarantors in proportion to the portion that cannot be recovered.