The Study On The System Of Recourse In Mixed Co-guarantee

At present in China,the market economy is booming.In order to seek the liquidity and efficiency of market transactions,credit guarantee transactions are a common transaction method in the field of civil and commercial affairs.In credit guarantee transactions,in order to achieve the successful realization of their own claims,creditors often require the debtor to establish different forms of guarantees for a same claim,which is called mixed co-guarantee.The mixed co-guarantee has the characteristics of both physical and human security,and the legal basis spans the second part of the civil law material debt,and its legal application has certain complexity.However,in Chinese civil basic law and judicial practice,the legislative attitude and interpretation of the mixed co-guarantee recovery system have changed several times,which has affected the application of law in judicial practice to some extent.There is also a great deal of controversy in the academia over the system of recovery of mixed co-guarantees.This article intends to use the theory of absolute egalitarianism in the doctrine of liability under the mixed common guarantee recovery system as the logical starting point of the recovery system in the mixed common guarantee,to sort out the legal relationship in the mixed common guarantee recovery system,and to adopt the current law and the codifying Civil Code(Draft)published in full on December 28,2019 are summarized.A comparative study of the system of recourse in mixed co-guarantee in extraterritorial law is attempted to make some immature suggestions for the improvement of system of recourse in mixed co-guarantee in the Civil Code of the People's Republic of China in the future..The paper is divided into five parts:The first part is the introduction,which mainly briefly introduces the research background,research purpose and research significance of this article,and elaborates the current research status of this issue in domestic and foreign academic circles,as well as the research content and research purpose of this article.The second part is an overview of the system of recourse in mixed co-guarantee.First,the paper defines and classifies concept of the mixed co-guarantee.The theory of the liability of the system of recourse in mixed co-guarantee is explained.The theory of the legal relationship between the co-guarantors of mixed co-guarantee is evaluated.It also briefly introduces and distinguishes the guarantor's right of recovery and guarantor's subrogation to the debtor.The third part is the summary and existing problems of system of recourse in mixed co-guarantee of China.Based on the summary of Chinese legislative and judicial interpretations of the system of recourse in mixed co-guarantee,with reference to the views of scholars from various academic circles,it concludes the current mixed co-guarantee.The recovery system has the problems of ambiguous legislative attitudes,the lack of arbitrary rules for the calculation of the share of liability between guarantors,and the lack of subrogation rights of guarantors.The fourth part makes a comparative study of the system of recourse in mixed co-guarantee in extraterritorial law and the law of Chinese Taiwan,and summarizes the legislative and academic experience worthy of reference in extraterritorial law and the law of Chinese Taiwan for our reference.The fifth part is some suggestions for improving the system of recourse in mixed co-guarantee of China.It mainly starts with the legitimacy of logical evolution.It is justified that the system of recourse in mixed co-guarantee should be justified and the joint recovery of the mixed co-guarantee should be established with joint liability rules.Restrictions on recovery rights and rules for calculating liability shares,and advocates that the subrogation right of the guarantor be incorporated into the system of recourse in mixed co-guarantee to guarantee the guarantor's recovery of the debtor.It not only attempts to provide some solutions to the problems of the system of recourse in mixed co-guarantee in Chinese current law.Superficially,it also tries to provide some reference for the mixed co-guarantee recovery system in the Civil Code of the People's Republic of China in the future.