On Right Of Contribution Claim In Mixed Joint Guaranty

Compared with traditional forms of single guaranty,such as mortgage,pledge and surety,mixed joint guaranty,as a special form of guaranty,is characterized by several advantages,including larger autonomy,lower risk and faster claim of contribution,which makes this form of guaranty widely recognized by economic activitiy participants and accepted in legal practices.However,on this concept,the Chinese laws have different definitions that are sometimes controversial.The Article 28 of the Guaranty Law of the People's Republic of China clearly respects the priority of real right guaranty in the mixed joint guaranty,and authorizes creditor the right to claim contribution from guarntor for debt in addition to real right guaranty.The Article 38 of the Legal Interpretation on the Guaranty Law has improved the mixed joint guaranty,recognizing that joint guarantors of one guaranty have the right to claim contribution from each other.However,the Article 176 of the Property Law of the People's Republic of China doesn't make clear provision on the right of mutual claim of contribution;while in the Interpretation on the Property Law,promulgated by the Legal Affairs Commission of the Standing Committee of the National People's Congress,the right to contribution claim is clearly denied.Against this,scholars take strong reaction,and in legal practices some courts of law ignore the Article176 of the Property Law and still supports the right of joint guarantors to mutual claim of contribution.This thesis is dedicated to analysis on the controversy of the provisions of Chinese laws on the right to claim of contribution in the mixed joint guaranty,focusing on three aspects of the same problem: the establishment and theoretical foundation of such right,the debate on adopting or abolishing such right,and the implementation of claim of contribution.Through historical and comparative approaches,as well as data analysis,the author has provided her reason for the existence of the right to mutual claim of contribution,and proposed concrete opinions on regulation of contribution claim with corresponding reasons.The thesis holds that although,from legislative perspective,there isn't clear provision on the right to mutual claim of contribution in the Article176 of the Property Law,the law doesn't clearly deny the such right.In the principle that activitiy could be legal if the law doesn't forbid it,applying the provision of the Item 1,Article 38 of the Judicial Interpretaion on Guaranty Law is still appropriate,since the Property Law doesn't make negative provision on the same issue.Therefore,the Article 176 of the Property Law cannot be adopted a source to deny the right of joint guarantors to mutual claim of contribution.In terms of party autonomy,for how to realize debt right,the Article 176 of the Property Law adopts the principle of priority of agreement,which means creditor should,at the first place,realize the right to debt according to the agreement made before.In terms of legal relation between joint guarantors,because the liability-taking guarantor pays the debt for other joint guarantors,whose liabiity is therefore exempted,there is a real relationship of joint liability between liability-taking guarantor and liability-exempted guarantor.This is the theoretical foundation ofthe existence of the right to mutual claim of contribution.However,for implementating such right,there must be some conditions,including that the joint guarantors don't have the agreement on excluding the right to mutual claim of contribution,that the liability-taking activity of guarantor has really taken place,and that the major debt is effective.In case that one of the conditions doesn't exist,it is impossible to implement the right to contribution claim.For the calculation of the joint guarantors' liability shares,the thesis has presented three ways:equally sharing,equally sharing plus proportion of collateral value,and sharing according to guarantors' proprotions of guaranty.After comprehensive comparison and analysis,the author believes that the third way is fair and reasonable.