Research On Internal Recovery Right Of Mixed Co-guarantees

Mixed co-guarantee means that both the person and the person are covered by the same debt and debt.The emergence of a mixed mutual guarantee system has greatly broadened the way debtors provide guarantees and also enhanced the protection of creditors' interests.Although the term “mixed joint guarantee” is not mentioned in the direct legal article in our legal system,Article 28 of the Guarantee Law,Article 38 of the Judicial Interpretation of the Guarantee Law and Article 176 of the Property Law respectively are mixed.The joint guarantee system provides for provisions,while Article 176 of the Property Law and Article 38 of the Judicial Interpretation of the Guarantee Law do not clarify the provisions of the compensation system for mixed joint guarantees.Nowadays,with the promulgation of the "General Principles of the Civil Law of the People's Republic of China",the various codes of the Civil Code are also being compiled intensively.Among them,whether the guarantee law exists in the civil code in an independent chapter is a whole and macro chapter structure problem,and how to design a mixed and common guarantee recovery rule is a specific and microrule problem.The mixed joint guarantee recovery right is a derivative right in the mixed mutual guarantee system,because it has the unclear basis of the rights of the guarantor to recover,the legal relationship between the guarantors is not clear,and the legal basis is unclear.There is a contradiction between the merger of the joint guarantee recovery right or the lack of legal provisions,or the legal provisions and judicial interpretation.Through the study of the referee case,it is found that the internal recovery of the mixed joint guarantee is a controversial issue.It is embodied in the following questions.1.In the issue of whether there is any right of recourse between the guarantors in the mixed joint guarantee,although the theoretical negation has formed the two camps of "negative" and "affirmative",it has become a controversial theory of legislation and the judiciary.Foundation,however,no doubt "positively speaking" should be the state of the pursuit of the law;Second,on the issue of whether there is a recovery order for the mixed joint guarantee,the recovery rules without order should be determined.The sequential recovery is not conducive to protecting the vital interests of the guarantor who has already assumed the guarantee responsibility,while the non-sequence recovery ensures that the guarantor who bears the guarantee responsibility can claim responsibility to the other guarantor in no order or the debtor claims responsibility,thus ensuring its own Third,on the issue of the amount of mixed guarantees,although there are many calculation methods in judicial practice,it is imperative to unify the national trial standards.Only in this way can the rights of the guarantors be more equitable.By combing the general theory of the hybrid joint guarantee recovery system,it is possible to have a basic understanding of its concept and legislative process.Then,it puts forward and analyzes the above three specific problems,and studies the extraterritorial law of the joint internal liability recovery system of Germany,France,the United States and Taiwan,and provides ideas for the above three specific problems.Finally,the third A specific issue presents concluding observations and analyzes the reasons,providing reference and direction for relevant legislation in China.