Research On Internal Recovery Of Guarantors In Mixed Joint Guarantee

The mixed joint guarantee is a special form of guarantee,which plays a very important role in financing the funds and ensuring the smooth realization of the creditor's rights.At present,many countries in the legislation of the special security system is designed,the law of our country also have the corresponding provisions,but because of the lack of theoretical research and the complexity of the problem,at present there are still some deficiencies.Whether it is the "guarantee law "(1995implementation),or the " guarantee law interpretation"(2000 implementation),or "property law"(2007 implementation)176th,also a lot of system design of mixed co guarantee is incomplete,unreasonable and unscientific,resulting in judicial practice before and after the use of relevant laws and regulations are not consistent or contradictory.On the defects of the legal system,to provide some reference for the future revision of the relevant laws and regulations,this paper discusses the background,practical application of regulations,mixed joint guarantee problems of defects,how to regulate,in order to improve the relevant legislation work contribution.In the first chapter,the crux of the problem is put forward.First the concept and characteristics of the mixed joint guarantee is expounded,and then according to thestatus quo of China's current legislation--from the "security law",the supreme law of the "security law interpretation" and "property law" the relevant legal provisions are equal to analysis,pointed out the existence of the law between ambiguity and contradiction.With vivid cases,it vividly illustrates that there are three controversial focuses in the trial practice: first,whether the guarantor can recover from the case when the insured and the insured coexist Second,what is the method of calculating the share of recovery? Third,are there any restrictions on recourse?In the second chapter,this paper expounds the main types and responsibility relations of mixed joint guarantee,and clarifies the interrelation among various types.The main types of mixed guarantee in accordance with the parties entered into a security contract that can be divided into mixed guarantee agreement and no agreement in accordance with the different circumstances;the responsibility of the guarantor,can be divided into general liability guarantee mixed with other guarantee,the guarantor to provide collateral guarantee and joint liability guarantee mixed other guarantor guarantees the mixed guarantee collateral;according to different people can provide collateral for the debtor to provide collateral and third people;in addition to guarantee the number of different,can be divided into single mixed guarantee guarantor,the guarantor of the majority;in accordance with all the guarantor's guarantee amount and creditor's rights total,can be divided into mixed guarantee guarantee,mixed excess matching;according to different guarantee way,can be divided into.Mixed guarantee with liability and supplementary liability,etc..This paper mainly discusses the former three types of mixed guarantee,which lays the groundwork for the analysis of the feasibility and rationality of the right of recourse.The third chapter of this paper analyzes whether or not to retain the right of recourse between guarantors.First of all,put forward two different opinions on whether or not to retain the right of recourse,and sum up the reasons for their respective opinions.According to the different views of various opinions,discusses the author's opinion,the first detailed legislation from theoretical point of view,ifallowed the guarantor enjoys the right of recovery,not only can reduce the risk of security interests,but also can effectively improve the property insured or guarantee the enthusiasm to fulfill the responsibility of the security of creditors;and then the region outside the law compared with that of material guarantee and security between each other from the current recovery;finally the judicial case summary,dialectically put forward their views: should be allowed to fulfill the responsibilities of the guarantor fails to fulfill the responsibility to guarantee compensation.The fourth chapter analyzes the amount and order of the recovery.A guarantor between the amount of compensation,there are two ways to deal with the main judicial and legal theory: one is the guarantor according to the amount assessed,the guarantee amount in proportion to another basis provided by the guarantor.From the listed cases,the trial results show that the proportion method is more convenient for the court judge and the parties to accept,is conducive to the judgment results to achieve the unity of legal objective value and social effect value.With regard to the analysis of the recovery order,the author first puts forward the different views,and lists the reasons for their support.Then from the three aspects of the analysis that there should be no limit order recovery: first,back from the legal provisions,the "security law" interpretation of mixed joint guarantee,joint guarantee and joint mortgage recourse are clearly defined in any order,to maintain consistency of the law,the "property law" article 176 th of the fuzzy definition no order shall be interpreted as limiting.Secondly,if the right of the guarantor's direct recourse is denied,the interests of the guarantor who actually performs his obligations are impaired.Finally,the analysis of the limitation of the recovery order does not simplify the recovery procedure,and concludes that the order of the recovery should not be limited.