Study On The Recovery Problem Between Guarantors In Mixed Joint Guarantee

In real life,there is a natural risk that creditor's rights cannot be repaid,and it needs to be a guarantee system of an important legal system to ensure that creditor's rights can be realized.China's law has not clearly stipulated the guarantee of the establishment of the same creditor and the guarantee of the guarantee of the person,but in the theoretical circle it is called the mixed joint guarantee.At present,China's legal and judicial interpretations of this form of guarantee are in Article 28 of the Guarantee Law of the People's Republic of China(hereinafter referred to as the Guarantee Law)and the Application of the Guarantee Law of the People's Republic of China in 2000.In Article 38 of the Interpretation of Several Issues(hereinafter referred to as the "Guide to the Guarantee Law")and Article 176 of the Property Law of the People's Republic of China(hereinafter referred to as the Property Law),centralized provisions were made.However,it is not difficult to find that the provisions are not consistent,and the issue of recovery between guarantors in the mixed guarantee is the most prominent.Article 28 of the Guarantee Law adopts the “absolute priority principle of the guarantee of the object”,negating the ability of the guarantor to recover.Since Article 28 of the Guarantee Law has been condemned and criticized by most scholars,Article 38 of the Interpretation of the Guarantee Law limits the scope of the “absolute priority principle of guarantee of goods”,that is,only if the debtor provides the collateral.Be applicable.When a third person is a material security person,the property insurance and personal insurance are equal at this time.At the same time,for the first time,in the form of provisions,it is clearly stated that the guarantors can recover.In 2007,the Property Law passed on many relevant contents of the Interpretation of the Guarantee Law,but it did not mention whether the guarantor could recover it.This kind of ambiguity in the law will inevitably lead to the consequences of "different judgments in the same case" in judicial practice.After the guarantor has replaced the debtor to pay the debt,whether it can recover the other guarantors,China's legal and judicial interpretations have inconsistent provisions.At the same time,if there are related issues such as whether the guarantor can recover,the order of recovery,and the determination of the recovery share,there is no provision in the legal and judicial interpretation of our country.So far,China's theoretical and practical circles still have major differences and disputes over the issue of guarantor recovery,and have not formed a consistent view.After the guarantor has paid off the debt in lieu of the debtor,it can recover the other guarantor's share of the share of the guarantee liability.On the basis that the guarantor can recover,the recovery can be made to the debtor first,or to the other guarantors at the same time.At the same time,how to determine the recovery share and solve related problems is the key to solving the problem of recovery between guarantors.From the perspective of foreign regulations and the “regulations” of Taiwan in China,the determination of the recovery share is determined in accordance with the scope of the guarantee liability assumed by the guarantor and the guarantee value of the goods or the proportion of the limited amount.In addition,in the recovery of guarantor restrictions,meaning autonomy,guarantee period,and guarantee methods will have a certain impact on them.