Study On The Internal Recovering Rights Of Guarantors In Mixed Joint Guarantee

After the promulgation of the Property Law,it is not explicitly guaranteed in Article 176 that the person and the guarantor can recover each other,and the provisions of this article are inconsistent with Article 38 of the Interpretation of the Guarantee Law,and in Article 178 of the Property Law.The rules that apply to conflicts of law have been made,and such regulations have led to a lot of controversy in the theoretical and practical circles.Moreover,because the division of the responsibility share of the mixed guarantee in China's law has been in a blank,the practice circle has rarely mentioned the internal recovery of the guarantor.The internal recovery right is based on Article 176 of the Property Law,Article 12 of the Guarantee Law-and Articles 38 and 75 of the Interpretation of the Guarantee Law.It has a legal basis.Professor Larenz's "The Same Level Theory of Obligation"and Professor Cheng Xiao's joint responsibility constitute the legal basis for internal recovery.The internal recovery right should abandon the party's autonomy and establish a fairer principle that is more in line with civil law.For the share of responsibility for internal recovery,it can be divided by the principle of proportionality in the spirit of "equity of guarantee of goods and equality of guarantees of persons".When exercising internal recovery rights,the order of exercise should not be restricted,the right holders are free to choose the duty bearers,and the right to information sharing of the mixed joint guarantor must be guaranteed.When the joint guarantor obtains the internal recovery right due to the waiver of the statute of interest,the right also loses the right to win because the original right has passed the statute of limitations.Although the internal recovery right has some legal attributes of subrogation,it is still an ordinary legal credit in the book,so its scope of rights does not include the exercise of security interest.