On The Internal Right Of Recourse Of Mixed Co-guarantors

Creditor's rights inherently have risks that cannot be realized.In order to reduce risks,guarantees have become an important means of guaranteeing the realization of creditor's rights.There are many kinds of guarantee methods,and the mixed guarantee of the combination of property insurance and personal insurance is one of various guarantee methods.When the debtor provides the guarantee of the property itself and the third party provides the property insurance,since the debt is ultimately borne by the debtor itself,the guarantor recovers the liability after the guarantee liability.This situation is not controversial..This paper mainly discusses the issue of internal recovery provided by the third party other than the debtor and the guarantee provided by the guarantor.Article 38 of the Interpretation of the Guarantee Law stipulates that after the guarantor assumes the guarantee responsibility,it can recover the debtor from the debtor,or it can recover the compensation from other guarantors.However,in the mixed property guarantee,the guarantors can recover each other.The problem is silent,and this attitude also makes the results of such problems in judicial practice different.When different courts treat cases of mixed internal guarantor's internal recovery rights,the judgments made are also different.Some courts use the provisions of Article 38,paragraph 1,of the Interpretation of the Guarantee Law as the basis for judgment;The court held that the "Property Law" as the new law does not clearly stipulate this,so the internal recovery right of the mixed joint guarantor does not have a legal basis.At the same time,some people believe that the legal relationship adjusted by the Property Law is property rights,and the right of recovery as a legal relationship of creditor rights,the Property Law can not adjust the right to recover,so the Guarantee Law and its judicial interpretation still have Applicable space.The first chapter of this paper mainly analyzes the status quo of the right of recourse.When the existence of the right of recourse is demonstrated,on the one hand,it should be analyzed from the law,and at the same time,it should be based on the legitimacy of the existence of rights.Analyze.In my opinion,its existence has its intrinsic value and rationality.Therefore,in the second chapter,the paper mainly emphasizes the rationality of the existence of the right of recourse from the improperness of the negative and the rationality of the affirmation,and clarifies the real reason for the existence of the recourse.Due to the existence of many legislative gaps in the current law of China on the issue of mixed guarantees,the German civil law and the "civil law" of Taiwan in China have a profound impact on the formation and development of China's guarantee law system.Therefore,in the third chapter,this paper mainly studies the comparative law from these two extra-domain laws,in order to be able to be inspired,which can be beneficial to the improvement of our country's laws.Finally,on the basis of affirmative recovery rights,how to recover the recovery right,what restrictions exist in the exercise process,which will be discussed in the last chapter of this article.This part mainly includes how to determine the recovery share,how to determine the recovery order and the restrictions imposed in the process of exercising the recovery right.