Research On The Internal Right Of Recourse Among Guarantors In Mixed Co-guarantee

As an important guarantee mode for creditors to fully secure their own interests under complex economic situation,Mixed co-guarantee reflects the great progress of China's guarantee system.It brings creditors multiple guarantee for their right.However,the difference and ambiguity caused in the process of drafting relevant mixed co-guarantee provisions have aroused disputes in both theoretical and practical circles,which results in negative influence in further enforcing,improving and developing the guarantee mode directly.As one part of the mixed co-guarantee need to be resolved urgently,internal recourse right refers to a guarantor' right on recovering from other guarantors who impose no or only partial repayment obligation instead of a debtor when the guarantor has taken all repayment obligation towards the creditor.Based on an opinion on some of the guarantors who undertake all repayment obligation enjoying the right of recourse,we confirm that a just and equitable share of repayment obligation within all guarantors is a key to balancing the majority's benefit.Based on defining mixed co-guarantee clearly,this paper extends to prove the rationality of internal recourse right in several aspects combining the analyzation of related court decisions in judicial practice and disputes in theoretical circle.Then,the paper focus on selecting one much more reasonable and effective sharing rule meeting majority's benefit from other three rules by analyzing some specific examples.Therefore,there are four parts of the paper to be addressed:In the first part of the paper,we will distinguish several concepts like joint guarantee and mixed co-guarantee in broad and narrow senses and confirm that the internal recourse right discussed in this paper issues from the mixed co-guarantee in a narrow sense,so as to lay the foundation for further discussion later.Then,the paper elaborates the current legislation status of China on this issue,disputes on recovery in the theoretical circle and disposal situation of the issue in judicial practice.As a first key point of the paper,the second part focus on discussing the rationality of internal recourse right from 5 aspects: 1.all guarantors within the same mixed co-guarantee constitute the relationship of joint and several liability;2.we confirm that the right of recourse reflects principle of fairness in civil law;3.we confirm that the right of recourse can prevent the guarantor from resulting in unjust enrichment;4.we confirm that the right of recourse can prevent creditors fromabusing right;5.we confirm that the right of recourse reflects efficiency value of civil law.All the five parts fully justify the rationality of the internal recourse right.The third part refers to issues on establishing internal obligation sharing rule within the mixed co-guarantee.For some preconditions for excising internal recourse right,the paper focus on that we confirm the internal recourse right as well as the subrogation right of guarantors who have undertaken all or part obligation.Creditors shall perform reasonable disclosure obligation to unwitting guarantors.Meanwhile,guarantors who share debt obligation are entitled to enforce the right of recourse if there is no special agreement from both creditors and guarantors and the mixed co-guarantee is over-collaterlization.The second key point of the paper is elaborating four internal obligation sharing rules of the mixed co-guarantee by analyzing some examples,and we decide that the fourth rule,distributing guarantors' share in the light of their maximum of anticipated obligation when creditors may exercise the security right,meets the need of justice and balance all parties' benefit.Then,we confirm that the internal obligation sharing should be calculated as soon as the debtor fail to pay off debts in due time because of breaking the debt contract.The paper also focus on discussing the sharing of obligation in the special case where the guarantor is also the guarantor of the guaranty.Finally,we further introduces the fourth sharing rule.We confirm in the fourth part that the rationality of internal recourse right and specific internal obligation sharing rule.If the creditor withdraws a claim of part guarantee sharing to some guarantors,other guarantors shall be exempted from corresponding guarantee liability.Then,for the limitation of the right of recovery,the guarantor who have undertaken debt obligation shall recover from the debtor who is the ultimate owner of the debts before exercising the right of recovery to other guarantors.Finally,there are two resolutions including egalitarianism and creditors' priorityism if conflict is caused between the creditor's claim to part guarantors and the guarantor's right of recourse when the creditor could not get all recovery from guarantors.We believe that the resolution of creditor's priorityism is more reasonable.As a summing-up,the writer believes that the beneficium ordinis to general guarantor would not make influence in exercising the right of recovery.