Research On The Recovery System Between Guarantors In Mixed Guarantees

Private lending practices become the social widespread economic communication.In order to ensure the realization of the final creditor's rights,the obligee usually sets up a security interest for his creditor's rights,law in China on mixed guarantee is becoming more and more mature,Various forms of guarantee,in a whole can be divided into two types.The first is the guarantee system for the third person,The second is the third party guarantee system.When the third party guarantee and the third person guarantee exist simultaneously,it can obviously reduce the creditor's risk.Our country law stipulates,when guarantor assumes guaranty responsibility,have authority to undertake to debtor counterclaim.The main dispute focus is,when the third party guarantee(hereinafter referred to as the guarantor)and the third person guarantee coexist,the guarantor or the guarantor on the property bears the guaranty liability,whether the guarantor or the guarantor on the property can recover from the guarantor or the guarantor on the property who is not required to perform the guaranty liability.This is controversial in theory and different in practice.This paper holds that the guarantor and the bondsman do not belong to the joint and several relationship,and the guarantor and the bondsman form a civil legal relationship with the debtor at the same time,but there is no legal relationship between them.The ultimate bearer of the debt is the debtor.In the case of mixed guarantee,the guarantor or a third person shall require the debtor to perforin the obligation after assuming the liability,and there is no right of recourse between them.This paper denies the existence of the right of recourse between non-agreed guarantors,but,according to the principle of autonomy of will,recognizes the right of recourse between non-agreed guarantors under the condition of mutual agreement.Through the analysis of their rights and obligations,this paper tries to construct a system of proportion of recovery,so as to conform to the principle of legal fair responsibility.