The Research On Mixed Co-guarantors Internal Recourse Problem

With the development of our country's economy by leaps and bounds,the capital market also render scene of prosperity.Due to the capital operation of the financial market,the urgent need for the accommodation of funds,capital transaction in order to ensure the safety and the smooth realization of the creditor's rights,mainly by the debtor or a third party debt guarantees become a common phenomenon in many trades.And mixed guarantee the widespread use of unique characteristics become an important way of guarantee.This paper mainly through four parts to analysis and study of all the issues related to the guarantor in the mixed jointly guaranteed,such as the guarantor of responsibility between the sequence,the legal relationships between the guarantor and the guarantor between whether there is a right of recourse against the,if there is a recovery,how to determine the recovery.The first part,the paper expounds the basic concept of mixed jointly guaranteed,at the same time introduce the existing provisions on mixed jointly guaranteed in theory,the present situation of the legislation and judicial practice,and the relevant laws and regulations were discussed and analyzed.The second part,the paper puts forward hybrid joint guarantee responsibility preference between the guarantor and the guarantor is the issue of the legal relationship between.Among the guarantor the responsibility and the legal relationship is line to determine whether there is a right of recourse against the premise between the guarantor.Insurance coexist in this paper,the danger things responsibility priority list the three kinds of educational world widespread view-content absolute priority said,content with relative priority,and said,and content the applicant said equality,analyzed one by one and three kinds of views,relative priority thing buy absolute priority and content of unreasonable place,this article does not support,and the support of danger to protect equal say make theoretical arguments.For mixed jointly guaranteed the legal relationship between the guarantor,the paper mainly according to the different views of academia to not really joint and the joint relationship between the guarantor to distinguish,and connecting with the concrete decision criteria to establish the guarantor relations between joint debt law.Between the guarantor in the third part,the mixed jointly guaranteed whether right of recourse against the existing problems are discussed,in this paper,we enumerate community against the right of recourse against the existing views and theoretical basis.And based on thetheoretical point of view from the reverse side against the right of recourse against the spread,theory proof against the right of recourse against the existence of unreasonable place,at the same time for mixed jointly guarantee the legitimacy of right of recourse against the existence of a reasonable reason.The fourth part,this section is divided into two sections in total,the first paragraph in the mixed together the guarantor salved exists between,on the basis of analysis on the fulfillment of certain conditions responsibilities may exercise the right of recourse against the guarantor to the fulfillment of no responsibilities-the premise of recourse against the guarantor guarantor provide the guarantee amount is greater than the total amount of the claims,only the basis of the existence of recourse against the guarantor within the scope of the guarantee amount is greater than the total amount of the claims set up joint and several liability,in the second paragraph,in this paper,the calculation of amount of recourse against the list of academic circles popular three calculation formula,through the analysis concluded that the average allocation method and average first,then according to the proportion method has significant flaws,can better reflect the fair,between the guarantor in this paper,the liability for guaranteeing the burden of support by the guarantor/issuer and the collateral value or limit the scope of the proportion of the guarantee amount.Surety shall be liable to the applicant to provide guarantee share in the internal logic of proportion,should be treated differently,according to the proportion between in calculation the guarantor/issuer and the applicant bear the share of the guarantee,it is very appropriate.In the fifth part,summarizes the common in mixed guarantees,based on the surety shall be liable guarantee liability and the liability for guaranteeing the equal position,and according to the joint debt relationship between the guarantor to determine the guarantor between salved,and gives the calculation method of computing the guarantor guarantees between share.