A Study On The Accountability Of Mixed Co-guarantee

The mixed co-guarantee emerges with enhancement of requirement for financing safety,where creditors require giving both security and pledge or mortgage of the same creditor's right so as to more efficiently guarantee the realization of creditor's right.Since China only briefly stipulates such special guarantee form,the author expects to provide reference for perfecting Chinese legislation and solving difficulties in juridical practice via researching the accountability of mixed co-guarantee.The first part of this paper is the theoretical foundation of mixed co-guarantee.Firstly,“mixed co-guarantee” provides most people with combinations of multiple guaranty styles.By selecting the narrow concept,the author classifies the type of mixed co-guarantee according to different providers of real security,different undertaking methods of guarantee liability,and whether the party prescribes clearly,which defines that,the premise of discussion in this paper is the situation that third party provides real security and the party did not prescribe share.Secondly,the three different legislation modes of mixed co-guarantee show the change of attitude toward status of personal guarantee and real security in academic circle;it is the theoretical foundation for researching guarantors' right of recovery,and provides theoretical support for researching the legislation evolution of Chinese mixed co-guarantee as well as selection of existing legislation.At last,based on the concept of mixed co-guarantee,the author respectively researches the responsibility assignment of joint mortgage and joint co-suretyship,which proposes new imaginations for the claim right of mixed co-guarantee and subrogation right system of secondary guarantee sequence person.The second part of this paper introduces the status and problems of Chinese mixed co-guarantee.In terms of legislation,when sorting existing legislation in time sequence,it can be known that,Chinese legislation attitude transits from guarantor absolute privilege to egalitarianism.In the level of justice,by means of case research,the author extracts three prominent problems: Is it available to change into mixed co-guarantee when real security cannot be realized(debtors provide their own properties)? In mixed co-guarantee,how to identify the responsibility scope of guarantor when creditors abandon partial or all guarantees? Whether mixed co-guarantee recognizes that there is claim right among guarantors? Meanwhile,according to court's judicial document,the accountability rules of above problems in judicial practice are summarized.In the third part,the author generally divides the international relationship of debtors into the debt relations between principal debtor and guarantor,and among various debtors.Firstly,started with German scholars' different theories of joint debt,and from the perspectives of development of “theory of purpose common” and “obligatory theory in the same layer”,the author elaborates the rationality of establishing joint debt among debtors.Secondly,based on abovementioned join debt theory,and combining with the rule of Chinese supplementing debt,the author considers that the supplementing debt relationship between guarantor and principal debtor is true.The fourth part is the claim right among guarantors in mixed co-guarantee.Whether the guarantors enjoy claim right is the key point of Chinese judicial practice.By referring to opinions of Chinese scholars while implementing study of comparative law,the author believes that,it is inevitable to endow guarantors with compensation claim right.Meanwhile,the recognition of claim right among guarantors definitely proposes the requirement that relevant legislations shall determine the standard of calculating the responsibility share of each guarantor.Thus,the author compares two different calculation methods of calculating in proportion and share out equally with the expectation of obtaining the calculation standard that is mostly suitable for Chinese responsibility share.Finally,the last part is conclusions obtained by this paper.It is expected that,the conclusions can contribute to the theory of Chinese guarantee system.