Deconstruction And Reconstruction Of Mixed Joint Guaranty System

Creditors always seek all kinds of media to guarantee the full realization of their claims.Therefore,the combination of debt and property rights is gradually becoming the normal state of guarantee.The historical origin of the system is studied,and its development in the legislative style has undergone the succession from the absolute preferential treatment of the guarantor to the succession of egalitarianism.In the course of our country's codification of the Civil Code,it is necessary to learn from the experience of existed legislation and summarize the existing disagreements.Based on the review and improvement,the codification of the Civil Code shall meet the needs of the social market economy and realize the legislative purpose of good governance of the country.In order to deconstruct and reconstruct the co-guarantee system,the text consists of four parts except the introduction and the conclusion:The first part aims at clarifying the existing legislative rules,clarifying what the system was,what it is and what it will be.Based on the differences of judicial decisions,and the integration of the judicial judges,it outlines the legislative focus of the system and the judicial debates.Specifically,there are two major issues in the theory and practice of the hybrid joint guarantee system: In interpretation theory,the logical relationship between Article 176 of the Property Law and Article 28 of the Guarantee Law,paragraph 1 of Article 38 of the Interpretations of the Supreme People's Court on Several Issues Concerning the Application of the Security Law of the People's Republic of China,according to the provisions of Article178 of the Property Rights Law of the People's Republic of China,whether the former clause can deny the validity of the latter.? On the legislative side,in the case of co-guarantee,it's a matter of what kind of legislation should be applied to the issue of responsibility.Material security shall be provided by whether the main debtor or the third party? Should different legal rules be adopted? After the third party who provided the guarantee undertakes the guarantee responsibility,does he has the right to seek recovery from other joint guarantors? It is based on the answer to the above question,the following text will gradually present a clear outline of the mixed co-guarantee system.The second part aims to look around the knowledge of comparative law,combined with the current legislation in our country,to deconstruct our country's mixed joint guaranteesystem.The legislative body of this system is summarized the protection for guarantor into four kinds: absolutely,correspondingly,equally,and mixedly.Based on the legislative tradition and practical needs,and when the hybrid joint guarantee system is included in the Civil Code,it is appropriate to adopt the egalitarian legislative system.The third part tries to reconstruct the mixed co-guarantee system in our country from two aspects including the responsibility sequence and the share of responsibility.Encapsulated,the sequence of the responsibility,convenient for the fulfillment of the creditor's rights,protecting the interests of creditors and the property law chapter of the civil code of editor should abandon their own the property security priority argue that “the debtor's own provision of security priority claim”,perfect choice to creditors by entiling creditors to choose,and turn to the "absolute egalitarianism".On the share of responsibility,the hybrid joint guarantee is different from the joint guarantee and the common mortgage(pledge).It is not the debt,but the responsibility,that the sponsor bears.The creditor can claim the right of compensation for the collateral,but has no right to claim the guarantor to engage in the payment.However,as a guarantee responsibility for guarantee,guarantee has not only the responsibility that should be borne by the main debt,but also needs to fulfill its own debt.In addition,the joint mortgage(pledge)is based on the same creditor's right and the same payment,both of which are specific property.In the same way,the joint guarantee is the same creditor's right,the payment content is the same,all is the payment behavior.However,in the case of mixed joint guarantee,although all of them are the same creditor's rights,the object of the guarantee(real right)is the object,and the object of the person's guarantee(guarantee)is the payment behavior.Therefore,the two are not the same,common mortgages(pledges)and co-guarantee rules do not apply naturally to mixed co-guarantees.Therefore,there is no joint debt relationship between the guarantors.The repayment of a guarantor does not constitute the unjust enrichment of his guarantor,and the essence of the guarantee is still the transfer risk rather than the spread risk.The current law also does not recognize the guarantor's system of subrogation,and the probability of each guarantor's liability is equal.Therefore,the system has no right of recourse against the guarantor,and the "ostrich policy" has been abandoned in the legislative attitude.The fourth part intends to show that the right of recourse against the guarantor is not to disregard the interests of the guarantor.The guarantor intends to avoid the risk of recovery,which may not only provide counter-guaranty to the principal debtor,but also enter into aninternal agreement with other guarantors.In the latter case,although the result of processing is consistent with the legal effect of the law that "each guarantor can recover from each other",the legal spirit of the two is very different.At this point,it can not only reflect the principle of private law autonomy,respect individual autonomy,but also can play the promotion and guiding function of legislation.Finally,for the benefit of the equity guarantor,the legislation should restrict the right to the right of creditors.Although there is no relationship between the guarantors,the guarantors and the debtors are actually connected.In view of this,the creditor waives the property insurance provided by the debtor himself,and the other guarantor is exempt accordingly.In addition,if the creditor violates the public order good morals or the honest credit principle,or abandons the security property right or guarantees the creditor's right,the legislation and the judicial appropriate exploitation right system,makes the negative appraisal to the creditor's behavior,in order to balance the rights and interests of all parties.