Research On The Institution Of Guarantee's Right Of Recourse In Joint Guarantee

According to the form of the guarantee, the joint guarantee can be divided into three kinds of situations, which are mutual guarantee, common mortgage or pledge, and the mixture of the guarantee of the person and the guarantee of the object. After performing his obligations and assume responsibility for security according to the contract, the guarantor enjoy the right of recourse includes two, one is foreign to recourse against the debtor guarantee responsibility, the second is to exceed the burden beyond the limits of guarantee liability within other guarantor recovery, the guarantor can choose one to exercise. After introducing the research background, and the literature review of the paper,this paper is divided into four main parts to discuss the right of guarantor' recourse in co-guarantee:The first part outlines the basic theory of co-guarantee system, theoretically, the concept of joint guarantee is in a fight in narrow sense and broad sense,the narrow sense of joint guarantee refers only to joint guarantee, generalized joint guarantee includes joint guarantee and several joint guarantee, in view of various countries' legislation and the judicial experience and practice, the paper adopts the generalized concept of common security. Joint and several liability and unreal joint liability theory provides reasonable support to the relationship of rights and obligations between clear common guarantor, guarantor and the debtor. The theory provides surpport for the right of common guarantor (especially to joint guarantor). After that, the article analyses the guarantor's "recourse" qualitative dispute.The second part introduces the domestic and foreign civil law provisions on joint guarantor's right of recourse. The attitude of the foreign civil law to common guarantor's right to recover through the joint guarantee to ensure that people of the right of recourse against the provisions of a certain understanding. China's "guarantee law"?"judicial interpretation of Guarantee Law" and "property law" specified joint guarantee's right of recourse provisions.In general, according to the above three laws, the right of recourse system is not complete,uncertain and even conflict. Legally,our common guarantor's rights of recourse are required to improve and perfect.We should do further theoretical research on it.The third part introduces the common right of recourse guarantor against the principal debtor. The article discusses the scope of recourse against the principal debtor in joint guarantee and whether the guarantor can recourser against the principal debtor after the limitation of action has expired.The fourth part discusses the common guarantor's right of recourse to each other. First of all, the artical sorts out the legal relationship between the common guarantor to provide support for the shared responsibility of the guarantor,meanwhile, the article distinguishs between common guarantee and common mortgage, pledge of two forms of security. Secondly, the paper introduces the method to determine the internal recourse and inner share between mixed joint guarantees. Finally, this section discussed whether the guarantee has the right to recover when he or she gives up the prescription defenseIn the endthe paper analyses creditor's reliefing or giving up part of the guarantor responsibility and it's impact on other security responsibility, the creditor's "reliefing" or "giving up" behavior should not only in the literal meaning of rigid understanding,but also be considered fault or negligence and other factors due to creditor.