The Internal Claim Of The Guarantor In The Mixed Joint Guarantee

The mixed joint guarantee is invaluable in promoting capital financing(hereinafter referred to as mixed co-guarantee),maintaining transaction security and promoting economic development.The provisions of the current law on mixed co-guarantees are mainly embodied in PRC Guarantee Law(Article 28),the Judicial Interpretation of the PRC Guarantee Law(Article 38),and the PRC Property Law(Article 176).Because there are few provisions on mixed co-guarantees in the relevant laws and regulations in China,there is a constant dispute between the theoretical circles and the practice on the internal recovery of the guarantors in the mixed co-guarantee.In the absence of a clear agreement between the litigants,the first is the order of responsibility of the material guarantee and the personal guarantee,China's legislation has gradually shifted from "material guarantee absolute priority" to conditional "material guarantee and personal guarantee egalitarianism" Secondly,from the aspects of legal system,autonomy of will,procedural economy and fairness,the theory of denying the internal claim of the guarantor is lack of rationality;Finally,judging from the legal relationship inside the guarantor,the legitimacy of seeking the guarantor's internal recovery should not be sought from the theory of joint debt relationship,but should focus on the principle of fairness and the third-party subrogation system.The guarantor obtains the status of the original creditor on the basis of the third-person subrogation system,and the guarantor's recovery from other guarantors over the share he should bear is no doubt ? The guarantor's internal recovery right generally exists in the over-mixed co-guarantee provided by the third person for the provision of the material guarantee.The share of the guarantor's internal share shall be calculated on the basis of the proportion of the share of the guarantee liability,and in the calculation,it shall be noted that the debtor's own provision of the property insurance and the creditor's waiver of the partial guarantee result in a decrease in the total debt.Finally,the guarantor can recover from the debtor and recover from other guarantors.The law should not limit the order of the guarantor to recover,and should allow it to freely choose the beneficial way to exercise the right of recovery.