Study On Mixed Co-guarantee

Mixed co—uarantee is a special form of guarantee, and it plays a very important role in financing and successful payment of debts. Up to date, many countries'legislations have already touched on this special form of guarantee. The P.R.C also has related laws. But because of the inherent complexities of Mixed co—uarantee itself and the lack of relevant theoretical research on it, neither the provision of P.R.C Guarantee Law(article 28) and related judicial interpretation nor the provision of P.R.C Property Law (Article 176) are conclusive reasonable and scientific. So in order to remedy the defects of the theory, this thesis, on the basis of previous research results, discusses various problems of the fundamental theory in great detail and in all perspectives. Furthermore, the author refers to other countries'experience and tries to do his piece to perfect our own legislation on mixed co-guarantee.The first section of this thesis gives a general introduction of mixed co-guarantee. First of all, the author starts with discussing the proper naming of this special form of guarantee, and then analyzing several names and definitions of this special form of guarantee, the author concludes that it's more proper to call this special form of guarantee "mixed co-guarantee" and gives the author's definition of this special form of guarantee that mixed co-guarantee refers to the kind of guarantee that both involves real security and guarantor's guarantee for a single debt. Secondly, the author propound on main characteristics of mixed co-guarantee. Thirdly, the author focuses on the precondition of the validity of mixed co-guarantee----------the validity of the principle contract liability. While when the principle contract is valid and with no defects, there is no need in discussing it, the author therefore discuss the occasions when the principle contract is invalid or revocable or the principle contract turns into natural debt.The second section of this thesis is about the types of mixed co-guarantee as well as the sharing of liability. Firstly, according to whether there is clear agreement on mixed co-guarantee, the author divides it into two types:Express mixed co-guarantee and implied mixed co-guarantee. As far as the express mixed co-guarantee concerned, liability shall be divided according to the agreement, and as to the implied mixed co-guarantee, liability shall be shared in accordance with the law or construction. Secondly, the author categorizes mixed co-guarantee into two kinds:guarantee without the debtor's property and guarantee with debtor's property. Generally speaking, if the debtor offers his own property for security, then the debtor's property shall be used to pay creditor's debt first. Thirdly, the author divides mixed co-guarantee into the mix of guarantee and real security and the mix of joint and several guarantee and real security. For general guarantee, the guarantor is entitled to the right of discussion, but for joint guarantee, the guarantor does not have this right. Lastly, the author also introduces some other ways of categorizing, and then point out rules of sharing liability under each category.The third section of this thesis talks about third-party guarantor as well as the sharing of liability. There are four different views concerning third-party guarantor in theory:the relatively privileged position of third-party guarantor, absolutely privileged position of third-party guarantor, equal position and mixed position. After analyzing each point of view, the author concludes that it's more appropriate to treat guarantor of real security and general guarantor equally; the law should confer a right of choice to the creditor. Of course, the author opposes apply this method without differentiation. That is to say, when general guarantee and real security both exists, the creditor may demand general guarantor to pay, but the general guarantor's right of discussion can still be used. Furthermore, when the debtor offers real security and as well as third-party's real security, the debtor's real security shall be used to pay creditor first.The fourth section of this thesis is about the guarantors'reclaim rights. The author first introduces the positions our Property law and judicial interpretation and guarantee law takes. After accessing the relevant provisions of property law, the author thinks it is not proper for property law to avoid this question and property law should approve the rights of reclaim among different guarantors. Meanwhile the author gives a scientific calculation method for sharing liability and makes it more practicable.The last section of this thesis, the author makes a conclusion about mixed co-guarantee and puts forward some suggestion for legislation...