Study On Reclaim Right In Mixed Co-guaranty

Creditor's rights bear inherent risk.In order to guarantee the realization of creditor's rights,the creditors often require the debtor to provide multiple guarantees,among which the guarantee of coexistence between human guarantee and property guarantee is defined as mixed co-guarantee.However,there are different rules in the existing law for the exercise of a security right in a mixed co-guarantee.The conflict between the "Judicial Interpretation of Guarantee Law" and the "Guarantee Law of the People's Republic of China" and no regulation in the "property law" make the liability order and the exercise of recourse rights in the mixed co-guarantee are theoretically controversial.The disagreement between legislation and theories also makes the judgments in judicial practice not unified,and also results in the situation of different judgment on same case.When the human guarantee coexists with the debtor's property guarantee,the "Property Law" has made detailed provisions,which makes it simpler without any controversy.But this paper focuses on the situation when human guarantee coexists with the property guarantee from third party.This paper will make detailed explanation in five parts.The first part begins with the concept of the mixed co-guarantee and briefly discusses the difference between the independent guarantee and the co-guarantee.Besides,it introduces that the legal concept is collectively called mixed co-guarantee when human guarantee coexists with property guarantee.And then it carries out classification on mixed co-guarantee.The property guarantee can be divided into the property guarantee provided by the debtor and property guarantee provided by a third party according to different legal rules.The second part discusses the responsibility order in the case of mixed co-guarantee.Firstly,it discusses the case when property guarantee by the guarantor coexists with of the property guarantee by the debtor.If there is no dispute in the law,it is determined that the debtor's property is given priority.The creditor must first realize the debtor's property guarantee.Secondly,it discusses the responsibility order in case of coexistence between property guarantee by third party and guarantee.By comparing the advantages and disadvantages of several theories in the legislation,it is concluded that "property guarantee and human guarantee are equal" is more reasonable.In addition,it is necessary to conduct comparative studies from the provisions of the German Civil Code and the Taiwan Civil Code to support the creditor's right to choose and that the property guarantee by third party is in the same position with human guarantee.The third part is mainly study of relationship between the guarantor and the guarantor of the property,which is the focus of this article and the basis of problem whether the third party has the recourse right.Academic disputes are mainly about their relationship is unreal joint and several liability or joint and several liability,or just no relationship.And on the basis of that,it distinguishes joint and several liabilities and unreal joint and several liabilities.This paper recognized the development of “theories on same level”,but from the current situation of our rule of law,the use of China's existing civil law theory is more suitable.There is no relationship between the guarantor and the guarantor of property.The fourth part discusses the focus of this paper,whether the guarantors have the right of recourse.It agrees with the view of no recourse rights from Law Committee of National People's Congress and some scholars.It also makes critical comment on the reasons for recourse rights form some scholars.Combined with the relevant judicial cases,it is recognized that the recourse right needs legal basis,and the "Property Law" provides no regulation for the right of recourse.Mutual recourse right is not conducive to civil transactions,and easy to increase the litigation exhaustion.Besides,it is not in accordance with the principle of fairness and is violation of the principle of autonomy of the parties.Rules of law for coexistence of physical and personal security have been developed for a long time in our country and progressively become more and more mature.The rules established in §176 of Real Right Law need to be further expanded from the view of interpretation theory.Under the spirit of autonomy of private law,when physical and personal security coexist,choices of oblige should be respected in the first place,following the principle of priority of agreement.When there is no agreement between the litigants,the obligee's choice right should be restricted only if the obligor has provided his own property for the security.Furthermore,there is no recovery right between the guarantors who have assumed the guaranty liability;When physical and personal security coexist.Rules of §176 should be permitted to be followed.