Research On The Internal Recourse Of Mixed Joint Guarantee

The creditor's right naturally has many uncertainties.In judicial practice,the creditor will require the debtor to provide multiple guarantees in order to guarantee the realization of the creditor's right.At the same time,with the advent of the era of stranger society,the credit crisis is deepening day by day,and multiple guarantees have become a standing choice for creditors.Therefore,mixed co-guarantees have become an indispensable system in economic exchanges.However,due to the inconsistency of the provisions of the mixed co-guarantee system in China's laws,there is a great controversy on the understanding of this problem in the practice circle and the academic circle,which has not yet formed a general theory.At present,the compilation of civil code is in full swing,and the inclusion of this system into the code also needs to be improved on the basis of learning from the existing experience,in order to adapt to the progress and development of today's society.This article is divided into four parts:The first part is asking questions.By introducing a case and related cases of the supreme people's court,the author summarizes the focus of the dispute and the reasons for the judgment,and puts forward the main issues discussed in this paper.That is to say,whether the mixed joint guarantor can recover from other guarantors after assuming the guaranty liability,and if so,how to determine the internal shares between guarantors.The second part is the institutional evolution of the internal recourse of the mixed co-guarantee.Firstly,it is clear that the mixed co-guarantee discussed in this paper is the combination of real right and personal security in the narrowest sense;secondly,it combs the current effective provisions on mixed co-guarantee;finally,it introduces the provisions of the system in the drafting process of the Civil Code sub-rules.The third part is the certification of the internal recourse of the mixed co-guarantee.Firstly,this paper makes a comparative analysis of the two different viewpoints held by the theoretical and practical circles on this issue,and points out the irrationality of the reasons for denying the right of recourse between guarantors from the theoretical level;secondly,it observes the provisions of relevant countries on this issue from the perspective of comparative law;lastly,from the perspective of value concept and legal relations.The affirmative affirmation of the right of recourse between the joint guarantor and the legal basis for exercising the right of recourse.The fourth part is the system design of the internal recourse of the mixed co-guarantee.In determining the right of recourse between mixed co-guarantees,it is necessary to clarify how to recourse in practice.Firstly,the determination point of the value of the collateral in the mixed co-guarantee is the time when the creditor first requests the guarantor to undertake the security responsibility or the time when the guarantor exercises the right of recourse.Secondly,it clarifies the criteria for recovering share between guarantors,how to assume responsibility when the guarantor and guarantor are more than one person,and whether one person or two should be adopted when the guarantor is both guarantor or.Thirdly,determine the priority interest of exercising the internal right of recourse and other related rights of the guarantor.Finally,according to the principle of proportional risk sharing defined above,determine that if the creditor abandons part of the guarantee,the rest of the participants will be exempted from liability within the scope of risk sharing by the waived.The fifth part is the summary of the thesis.Creditor's rights are naturally risky.In order to guarantee the realization of creditor's rights or require debtor to provide different combinations of security methods,mixed co-guarantee is one of the main means for debtor to obtain huge amount of financing and one of the main ways of risk sharing.Therefore,the compilation of civil code is in full swing.Under the background,when making the real right of security,we should affirm the right of recourse between mixed co-guarantors,and design and improve the corresponding recourse mechanism.