The Study On The Right Of Recourse In Mixed Co-guarantee

To ensure the security of the transaction and realize claimssmoothly,the creditor always requests the debtor to provideeffective guarantee.According to the subjects which the guarantors provide,there are two different types of guarantee: property guaranty and personal security.When both property guaranty and personal security guarantee the same claim,there is mixed co-guarantee.The legal relationships in mixed co-guarantee are very complex,cause it not only involves multiple parties but also across two legal systems——property law and debt law.Article 176 of the Property Law only regulates that the one who bears the burden of guarantee has the right to recover toward the debtor,but not regulates that whether does the guarantees have the right to recover each other.This paper studies only on the right of recourse in mixed co-guarantee,of which both property guaranty and personal security are provided by the third party.This paper contains the following three parts.The first sectionoverviews that there is space for autonomy of will under the principle ofreal right.Article 176 of the Property Law give rights to the parties to make an agreement freely and does not limit the scope and content of the agreement.So the parties can make an agreement about the right of recourse or the relationship of them.The second section is about whether does the guarantees have the right to recover each other when they don't make an agreement about the right of recourse or they don't make it clearly.Firstly,overviewing the concept of the mixed co-guarantee and the status quo of legislation in our country,arranging the different points of scholars towards the question of whether the guarantors have the right to recover each other and analyzes the practice of questions of recovery in the mixed co-guarantee in judicial practice.Secondly,starting from the study of the legal relationships between the mixed co-guarantors,and exploring the legal basis and premise of the mixed co-guarantors to recover each other.Introducing the theory about the criterion to distinguishjoint relationship from unreal joint relationship.Thirdly,making the conclusion that we should take the relationship between the mixed co-guarantors as joint relationship so that they can have the right to recover each other.The right is in the joint relationship and occurs with it conditionally.On the basis of confirming the existence of the right of recourse,the third section discusses the appliance of the right of recourse.On the one hand,analyzing the elements of the right of recourse,which are the claimant have paid off the debts in part or in whole,other co-guarantors have been relieved and the claimant have paid more than he should share.On the other hand,the recover share is the balance of the pay and the share one should bear.The share one should bear is calculated by the proportion between the amount of one's guarantee and the total amount of guarantee.