Study On Reclaim Right In Mixed Co-guaranty

There is a risk in claims naturally. Therefore, there usually will be kinds ofguarantees coexist on the same claim in order to effectively guarantee the realization ofcreditor’s rights. Mixed co-guarantee consists of personal guaranty and materialguarantee coexist together. Mixed co-guarantee is a common and important form ofguarantee. However, there are different rules in current laws and regulations about theexercise of security rights in mixed co-guarantee. National legislation varies insubordinated obligations of the guarantor, and whether the guarantor can recourse toother guarantors, and how to recover after he assumes the responsibility, scholars alsohave different views exist. In judicial practice, differences in legislation and theoriesmakes it has different judgments which the case is the same in legal application.This paper demonstrates whether the guarantors can release of the recoursebetween each other, and attempts to explore the specific recovery rules through analysisour country present civil legislation on the provisions on mixed co-guarantee and somecourt judgments about the recovery of mixed co-guarantee, the inside and outsidedomain theory and legislation, overall responsibility and legal relationship of theguarantors in mixed co-guarantee, etc. In addition to the introduction, this paper dividedinto six parts.The first part is present of the problem. It introduces mixed co-guarantee andcurrent situation of legislation in our country, analysis the selected cases, and concludetwo points: the first is whether the guarantor can recourse to other guarantors after heassumes the responsibility and the second is how to determine the specific recoveryrules.The second part is the analysis of overall responsibility and legal relationship ofthe guarantors. Overall responsibility and legal relationship of the guarantors in mixedco-guarantee judges whether the guarantor can recourse to other guarantors. Byanalyzing the outside and inside theories and legislative model when personal guarantyand material guarantee coexist together, the paper demonstrates that it is reasonable thatdoes not distinguish between general assurance and joint guarantee in Property Law. It means personal guaranty equals to material guarantee. It defines the legal relationshipbetween the guarantors based on different ideas on legal relationship between theguarantors in theory and specific criteria.The third part rebuts the negativism of mutual recourse between the guarantors inmixed co-guarantee. It rebuts the negativism of mutual recourse between the guarantorsin theory individually from the opposite side to demonstrate it is reasonable to recoursebetween the guarantors.The fourth part affirms it is reasonable to exercise of right of recourse among theguarantors. Based on personal guaranty equals to material guarantee, the guarantor whopays the principal obligation is subrogated to the rights of the creditor and otherguarantors in joint guarantee. The guarantors can exercise of right of recourse becauseof the right of the claim for unjust enrichment.The fifth part ascertains the detail rules of mutual recourse between the guarantors.Due to the guarantee share decides the rules of recourse and the sum of guarantee shareis greater than the total amount of obligation, the guarantors can exercise of right ofrecourse between each other. Then analyzing outside legislation on the way of recovery,it believes that we can consult the legislation of TaiWan. According to the total amountof obligation and the value of the guaranty or the proportion of the numerical ceiling,we can determine how to bear the share among the guarantors.The last part is conclusion. Based on the legislative mode of personal guarantyequals to material guarantee in mixed co-guarantee, it should be affirmed that theguarantors can exercise of right of recourse between each other when the guarantyprovided by the third part. By reference to the legislation of TaiWan, we can determinethe share of the guarantor can recover from other guarantors.