Study On Recovery Of The Third Person In Mixed Co-guarantee

The guarantee system is a legal tool which is indispensable to the process of development of the market economy.There is a kind of guarantee system called mixed co-guarantee,that is,a kind of mix co-guarantee which real security and guarantee are both existed in the same creditor realationship.At present,the mix co-guarantee law is imperfect in China,conflict of law(《Real Right Law of the People’s Republic of China 》article 176 、《Guarantee Law of the People’s Republic of China》article 28 and 《Judicial interpretation of Guarantee Law》article 38) has especially appeared on the conpensation problem of the third person which is proposed in this thesis,there is no theory dispute in the reclaim right that one of guarantors who assumes guarantee liability could claim compensation to others,but sometimes the principal may be insolvent,sometimes the third person recourses nothing from the principal,does the secuiity on property or guarantor who has assumed the guarantee liability have a right to request the allocation from the other ruarantees who has not assumed the guarantee liability? It is a big controversy in theory circle,there is no common theory so far.This thesis is focusing on the recovery matters between secuiity on property and guarantor and trys to solve this problem..This thesis contains four parts,each content mainly relies on guarantee system of China and discuss around the recourse realationship between secuiity on property and guarantor.The first part is a summary of mix co-guarantee system,focus on the basic concepts of mixde co-guarantee and the basic type,the main content concludes:the function of mixed co-guarantee,the different treatments in three different types,etc,point out the main object of this thesis is the combination of property and credict guarantee.Under this type,chaotic condition appears,more differences of property and credict guarantee also appear in theoretical circle.Some scholars insist on“secuiity on property prior to guarantor” while others insist the opposite view,my thesis insists “secuiity on property equals guarantor”based on fairness.The second part makes detailed elaboration on the core issue--the right of recourse between the third person should be admitted by the law,and analysis the views which deny the right of recourse and affirm the right of recourse,to affirm the right of recourse with the theory “secuiity on property equals guarantor”and “the same hierarchy theory”.The third part focuses on the legal nature of the right of recourse,this thesis proposes two concepts, right of recovery and subrogated right,the recourse right should have the two rights above at the same time.This chapter also provide some explanations for the range of the right.The forth part analyses the three methods of recovery,to match the “secuiity on property equals guarantor”,we’d better adopt the method which relies on the proportion of the guarantee amout.Also,this chapter proposes the view wheather the recourse right should be limited on cis-position.