Study On The Right Of Compensation Among Hybrid Co-guarantees

Because of its different nature,security can be divided into person’s security and thing’s security.For the purpose of Protecting Creditor’s rights,the creditor often pursues the superposition of multiple guarantees when seeking security.When the creditor realizes his creditor’s right,whether the guarantor who has undertaken the guarantee responsibility can recover from other guarantors of different natures is not clearly stipulated in the property law of China and the subsequent civil code(Draft).As a result,because of the possible conflict between it and the pre-set laws and regulations,it has led to the continuous controversy between the academic and practical circles.Various affirmative and negative theories alternate on the stage,which also causes the differences in the judgment in the trial practice.This paper attempts to take the theoretical controversy and the background of relevant legislation as the starting point,focus on the core issues and mainstream views of internal recovery,demonstrate the avoidance of existing defects in relevant systems in the existing discussions,and draw the conclusion that based on fair consideration,mutual recovery should be supported by joint guarantors,and the revised "same level" theory of joint and several debt and the legal subrogation system can be the rule route of responsibility sharing,and put forward the specific benefit distribution scheme that can be accepted by all interested parties.In this way,this paper aims to provide a help for the coming civil-code-era to solve the internal recovery problem of mixed joint guarantees.This paper consists of three chapters:The first chapter is mainly from the existing legislation,draft and trial reference rules,combined with the differences between theory and practice,to define the scope of this paper to demonstrate,that is,whether the common guarantors can recover from each other and the legal basis behind the relevant views.The second chapter is the focus of the whole paper,which is different from the previous discussion on the division of specific system and value.Starting from the former,this paper discusses the deep-seated value proposition of both sides behind the specific confrontation point of affirmative and negative theory.Specifically,this chapter is divided into four parts,starting from the four specific categories of true meaning,unjust enrichment,joint and several debt and subrogation.On the one hand,it corrects the previous discussion,on the other hand,it proposes that the revised theory of "the same level" joint and several debt can be combined with legal subrogation,which can become the institutional habitat and reasonable legal principle for the exercise of internal recourse Route.At the same time,it is also closer to the fair value of law in essence.The third chapter is to explore the feasible share allocation scheme which can be accepted by all interested parties in practice.Specifically,through combing the existing claims,based on the logic behind the recovery,it supports the allocation scheme of "expected responsibility after the event" proposed by scholars.In addition,this chapter also responds to some special situations that may exist in practice.