The Research On The Recourse Right Of The Third-party Mixed Guarantors

Article 38 of the Judicial Interpretation of the Guarantee Law and Article 176 of the Property Law shows the inconsistency on the question of whether the third-party mixed guarantors have the recourse right towards each other.The former has a positive attitude,while the latter holds a silent attitude.The academia develops the affirmative theory and the negative theory.The courts' attitude towards this question is not very clear either.This paper,based on the analysis of the differences between the two theories,puts forward a compromise theory in the third chapter,which holds that only when the guarantors and the creditor do not have the agreement of guaranty share or the agreement is not clear,the third-party mixed guarantors establish a joint relationship and share responsibility according to a certain proportion and internal recourse right exists.When all the guarantors agreed to share the amount or amount of security,the guarantors establish a sharerelationship and the right to recourse does not exist.On the basis of confirming the existence condition of the right of recourse,the third chapter solves two specific problems.First,the“three-stage” method of calculating the share of responsibility under the compromise theory is clarified.Second,it is clear whether some of the mixed guarantors' liability relief affects other guarantors,which concludes that if the creditor has intentional or negligent negativity towards that liability relief,then the other guarantor's warranty responsibility should deserve a corresponding waiver.