Research On The Right Of Compensation Among Mixed Guarantors

The current legal provisions concerning mixed co-guarantees currently in force in China mainly focus on Article 28,Paragraph 1 of the "Guarantee Law," Article 38,Paragraph 1 of the Judicial Interpretation of the Security Law,and Article 176 of the Property Law.However,this The three provisions are not exactly the same.The earliest "Guarantee Law" negates the existence of mutual recourse rights among mixed co-guarantors.As most scholars criticized the Article of the "Law of Security,"the judicial interpretation of the Security Law formulated by the Supreme People's Court made a limited interpretation on the "Guarantee Law," and the principle of absolute priority in the guarantee of goods was limited to the debtor's provision of collateral.In the case of a third party acting as a guarantor on the goods,it has an equal security status with the third party as a guarantor,and more importantly,it clearly acknowledges the right of the mutual guarantors to recover each other.However,although the "Property Law" enacted in 2007 inherited most of the relevant contents of the "Judicial Interpretation of the Security Law,"it showed a silent gesture on the question of whether mutual guarantors could recover each other.There is no clear negation.The ambiguity in the legal provisions will inevitably reflect the judicial practice.Regardless of the Supreme People's Court or the Method Institutes,they have made completely different explanations on the issue of internal recovery of mixed and joint guarantees.The basis for their legal provisions is the direct interpretation of the "Judicial Interpretation of the Security Law" No.38.Article 1 is based on the judgment,and there is also the existence of the internal recourse right of the hybrid joint guarantee on the ground that the "Property Law" does not provide for the purpose.Even the Supreme People's Court,the highest judicial body in China,has not seen a consistent judgment before and after dealing with the issue of internal recovery of mixed guarantees.Based on the provisions of China's current law,this article combines the specific practices of the judicial practice community in China to carry out research on the right of internal recourse for mixed joint guarantees,with a view to being able to make logical and normative interpretations of the current inconsistent legal provisions in China.We look forward to helping our country's judicial practice.This article is divided into four parts:The first part is mainly about the summary of the mixed co-guarantee and introduces the controversial issues in the academic community about the mixed co-guarantee.As the mixed guarantees span across multiple sectoral legal areas,the handling of legal relationships is more complex,and the existence of multiple guarantee methods determines the practical problems of which guarantee methods are prioritized.Due to the silence of the "Property Law",whether it is allowed to allow mutual guarantors to recover from each other has become a primary controversial issue.In addition,there are how to determine the responsibilities of guarantees,how to determine the share of the guarantor's mutual recovery,and some guarantors.Has been given up to assume responsibility for the impact of other guarantors and other issues.The second part mainly discusses the priority of responsibility in the mixed joint guarantee.In mixed co-guarantees,the different solutions that give priority to the realization of the issue of guarantees and guarantees on the object of the person are directly related to the solution of the problem of mutual recovery of the right of the mixed common guarantors.There are three kinds of claims in each country's legislative examples and doctrines:the absolute priority of the guarantee responsibility of the object,the relative priority of the guarantee responsibility of the object,the guarantee responsibility of the object,and the equality of the person's guarantee responsibility.This paper uses the egalitarianism of the "Judicial Interpretation of the Security Law" and the "Property Rights Law" as the basic positions discussed below.The third part is mainly to prove the existence of the right of internal recourse of the hybrid joint guarantee.First we examine negation,negate the rationality of negation,and agree with the basic position of affirmative theory.However,we reflect on the theoretical basis of affirmative theory,the theory of joint debt,and substitute it with the theory of subrogation as an internal recourse for mixed joint guarantees.Theoretical basis.The fourth part is the specific system design of the internal recovery of the joint guarantee,which mainly includes the determination of the share of recovery,the calculation time point of responsibility sharing,the method of determining the share of dual identities,and the principle of handling when rights conflict occurs.