Research On The Internal Recovery Right Of Mixed Co-guarantors

In the process of establishing and disappearing the creditor-debtor relationship between the parties,the mixed co-guarantee system plays an irreplaceable role.Whether the guarantor can exercise recourse against other third-party guarantors after assuming the liability,whether the order of recovery is limited,whether the calculation method of recovery share is determined,Chinese laws have inconsistent provisions on these three issues,there are not even provisions for certain issues.Therefore,it has caused difficulties in the debates of the theoretical circles in China and the judicial decisions,and has continued to this day,and it continues to this day.Based on the provisions of Chinese laws and related practical operations,the article carries out research on the internal recovery problem under this kind of guarantee.The author's purpose is to demonstrate the existence of recourse between the guarantors.The guarantor who bears the guarantee responsibility should be subject to the order of recovery restriction,and then make a normative and reasonable answer to the calculation of the recovery share between the guarantors.This paper is divided into four parts:The first part,the author has sorted out the different legal provisions of the current law concerning the issue of mixed co-guarantee.And through the analysis of the relevant legal provisions summed up the system existed three main issue about legal disputes.The second part,the main argument is that the guarantor's internal recourse should be recognized and protected by law.Although the scholars who affirmed and denied have a strong basis to support the views of the school,both have shortcomings.Combine the views of these two schools,draw on the advanced experience outside the domain,and carefully summarize the opinions of judicial judges.On this basis,the existence of such rights can be demonstrated from three aspects: the guarantor's responsibility relationship level,the two theoretical viewpoints and the judicial practice effect level.The third part,demonstrate that the guarantor should be subject to the limit of order of recovery when carrying out internal recovery.In this regard,the author fully demonstrates the view that internal recovery should be restricted by order of recovery from three aspects: legal relationship,economic point of view and legal system.The fourth part,on the basis of the internal recovery right should be recognized and protected by law,studying the problem of internal share calculation.The guarantor's internal recovery share has a corresponding calculation method and is not so complicated,And the specific calculation method can be used to clarify the guarantees share that each guarantor should bear.Moreover,there may be problems in the guarantee system that the creditor's exemption guarantee or guarantee liability,part of the guarantee contract is invalid or is revoked,etc.These issues may affect the calculation of the guarantor's internal recourse share.This section also made a detailed analysis of the above issues to perfect the mixed co-guarantee system.