A Study On The Exercise Of The Right Of Recovery Of Mixed Joint Guarantee

There is a big dispute about whether the guarantor has the right of recourse between the guarantor of the mixed guarantor,as compared with the other kind of common guarantee.In the case of the recognition of the right of recourse of the mixed guarantor,there are different views on the basis of the right of recourse and how to exercise the right of recourse of the mixed guarantor.The problem of the right of recourse in the mixed guarantee is studied extensively and deeply,and the related problems in the mixed guarantee are clearly defined,so as to provide more accurate reference for the related behavior of the civil subject.There are mainly negative statements and affirmative claims for the right of recourse between the joint guarantor.It is more reasonable to say that it can better balance the rights and interests of the guarantor,realize the fair and fair between the guarantor,avoid the abuse of the creditor's rights and increase the transaction cost of the society.The mixed guarantor is on the same level as the creditor,and gives the creditor a certain payment,which is consistent with the same hierarchy theory,and there is a connection between the owner and the guarantor.On the basis of the establishment of the right of recourse for the mixed guarantee,there are mainly joint and several debt theory,unjust enrichment and the right of subrogation of the guarantor.The recognition of the right of recourse between the two can better balance the responsibility of each other,and the establishment of the right of recourse based on the joint debt relationship can not only achieve the balance of interests but also the relatively simple and easy to do.The exercise of the right of recourse of a mixed joint guarantor is on the premise of a certain responsibility.As long as the responsibility of the joint guarantor exceeds its share,it can make certain recourse to the other guarantor without harm to the creditor.In the order of the responsibility of the mixed guarantor,in theory,there are the main points of view of the absolute priority of the material insurance,the relative priority of the material and the security and the equalitarianism of the material and the human protection.The main concern of the first two views lies in the difference between the material and the human protection,and then the greater protection of the rights and interests of the witness.There is no focus on the protection of the rights and interests of the creditors.The latter view is centered on creditors,which embodies the essence and rationality of the guarantee system.The liability of the guaranty should be weighed by the rights and interests of the creditor,so the difference between the provider and the way of guarantee should not be a factor to restrict the rights of the creditor.The calculation of the scope of the right to recover the right of recourse of the mixed guarantor,that is,the calculation of the proportion of recourse,is mainly based on the number and proportion of the two methods,and some scholars have subdivided the proportion calculation,but it is more reasonable and operable to calculate the proportion of the total responsibility and property of the guarantor and the material insurer to calculate the share of the internal burden.When a guarantor and a guarantor are considered to be one person,they shall be regarded as a whole and share their share in the scope of liability guaranteed.The value of the guarantor's Guaranty should be determined when the creditor takes the responsibility to any Guarantor.At this time,the determination of the share of internal recourse is more fair and reasonable.The responsibility guarantor has a certain right of recourse to both the debtor and the non responsible guarantor.In the relationship of recourse,the guarantor should focus on the protection of its rights and interests.The order of the exercise of the right of recourse should be determined by the guarantor of the burden of responsibility,and the different guarantee methods of the guarantor should not affect it.The guaranty debt belongs to the main debt,and the guarantor may not be responsible for the limitation of the main debt,which is the right of recourse to the guarantor,which limits the exercise of the right of recourse of the mixed guarantor.