Research On The System Of Mixed Joint Guarantee Recourse

In a modern market economy,mixed co-guarantee plays an important role in a common way.Compared to pure real right guarantee and guarantees,mixed co-guarantee has more complexity in real life because it involves two types of guarantees.At present,China's relevant legislative and judicial interpretations have different regulations on the mixed co-guarantee repayment system,and whether there is any right of recourse between the hybrid guarantors,the amount of guarantees borne by the guarantor,and the order of the repayment,therefore there are conflict and ambiguity in the theoretical community and judicial practice.Through the analysis of the theoretical and judicial cases,combined with domestic and international relevant legislative provisions,the paper puts forward some perfect suggestions for improving the system of mixed co-guarantee recovery.The detailed are divided into the following five chapter.The chapter one is general theoretical research on the mixed co-guarantee recovery system.Firstly,the basic concepts of the mixed co-guarantee are statemented.At the same time,the common classifications of mixed co-guarantees are summarized.Secondly,the internal legal relations of mixed co-guarantee were collated and analyzed,and then explore the guarantor's internal recourse right.The chapter two analyzes the legislative status of China's mixed co-guarantee recovery system.The paper holds that there are the following legislative deficiencies,through the analysis of the legislative provisions of the "Property Law","Guarantee Law" and " Interpretation of the Guarantee Law ".First,There is a conflict between the provisions of Article 38 of the " Interpretation of the Guarantee Law " and Article 176 of the " Property Law",which leads to great disagreement between the hybrid guarantors on the right to recovery and the theoretical community,and the result of different judgments in the same case in judicial practice.Again,the sequence of the internal recoupment of the hybrid cosponsor is unclear.The guarantor who has fulfilled his obligations has a certain order in recourse to other guarantors and debtors,and the theoretical community has different opinions.The chapter three elaborates the regulations of different countries and regions on the mixed co-guarantee recovery system from the different perspective.It mainly introduces the legal provisions of Germany,Japan,Switzerland and China's Taiwan region,and analyzes and learn from them.The chapter four puts forward some suggestions for the system of mixed co-guarantee.Firstly,the legislation should clearly grant the mixed co-guarantees the right of recovery,thereby eliminating the disputes and harmonizing judicial standards.Secondly,the rules the calculation of the internal reimbursement share of the joint guarantor.Mixed guarantors have agreed directly to claim compensation directly.Where there is no agreement within the hybrid guarantor,and whether there is an agreement between the creditor and the type of the security,the calculation rules generated are different,and finally the order of recovery under different circumstances is distinguished.The fifth part: the conclusion.In conclusion,we have made some superficial suggestions for the improvement of the mixed joint guarantee recovery system,hoping that in the future civil code,the mixed guarantee joint recourse system can be further improved.