Study On Reclaim Right In Mixed Co-Guarantee

The mixed co-guarantee studied in this paper refer to various guaranty styles with different character coexisted on the same claim,including persona guarantee and material guarantee.Take whether the parties agree on the sequence and share of guarantee liability as standard,it could be divided into following types: agreement reached,no agreement or unknown agreement.If there was one,it must be decided according to the agreement reached absolutely,therefore the premise of this paper was no agreement or unknown agreement reached between the parties.Besides,considering whether the security of substance is provided for the debtor,the mixed co-guarantee could be classified into two kinds : the guaranty coexists with the guaranty of the thing provided by the debtors and the guaranty coexists with the guaranty of the thing provided by a third party.This paper would focus on the study of the second one.In terms of the positive law in China,the relevant law of the mixed co-guarantee including Article 28 th of the Guarantee Law,Article 38 of the Interpretation of the Guarantee Law and Article 176 of Property Law.The earliest Guarantee Law denied the existence of internal right of recourse.The Interpretation of the Guarantee Law pointed out under the circumstance that where a third party provided the collateral,persona guarantee and material guarantee enjoyed equal effect,moreover it accepted the opinion that the right of recourse existed among the mixed co-guarantee parties.However when it came to the latest Property Law the legislators made no remarks upon whether the right of recourse was accepted.The inconformity of the former and the later law rules led to huge space for legal interpretation of academic world and judicial circles.In terms of the right of recourse scholars formed two sides known as affirmance theory group and denial theory group,both had itsown reasons to support themselves from different perspectives and result with a dispute on theory.In judicial circles because of different standpoints of judges even the Supreme Peoples Court had not been able to form an unanimous verdict till today.To clarify theoretical disputes mentioned above and provide thoughts for the improvement of judicial practice,this paper conducted a study with the current law in China as basis,illustration of various academic viewpoints,analysis of current judicial situation,substantive consideration of the issue whether to recognize the right of recourse from a double perspective of fairness and efficiency and finally led to an explanation of the necessity of accepting the right of recourse.This paper tried to conduct legal interpretation of the existing law rules and regulations corresponding with its purpose and logic,in that way seek the theoretical foundation of the opinion that the right of recourse existed among the mixed co-guarantee parties.About the arrangement of this paper,it could be divided as the following four parts.Part one clarified the concept and connotative meaning of mixed co-guarantee as well as the liability priority of mixed co-guarantee parties,found out the current situation and deficiency of legislation actuality in China,analyzed our judicial practice with a focus on its difficult problem,pointed out that the research design of this paper was surrounded with following issues on a basis of accepting the idea that persona guarantee and material guarantee enjoyed equal effect as elaborated on the Interpretation of the Guarantee law and Property Law: tried to resolve internal conflict among articles of law,explained possible reasons people for or against the right of recourse.For the parties with the idea,we attempted to find legal basis of its existence and construct the relative rules of exercising the right of recourse.Part two concentrated on the question of whether the right of recourse could be applied between guarantees and warrantors,by illustrating existing theoretical dispute,organizing respective opinions and reasons of the parties for and against the right of recourse,on a basis of contrastive analysis came to a conclusion for this paper.In terms of whether should admit the right of internal recourse among the mixed co-guarantee parties,it was not enough only to conduct dogmatic of law analysis from interpretative theory angle.Prevailing opinion treated determination on the nature as supporting reason which was a common mistake.The resolutions to the problems like accepting the right of recourse etc were related to the application of purpose and value judgment.In short,the principle of fairness and efficiency codetermined the right of recourse could be applied between guarantees and warrantors.In part three,within affirmance theory group itself opinions on what the legal basis of the right of recourse among the mixed co-guarantee parties were various,which could be briefly concluded into joint and several debt relationship or application by analogy joint guarantee perspective,subrogation liquidation perspective,unjust enrichment perspective,efficiency principle perspective etc.This part firstly conducted opinion illustration of different discovery perspectives as well as its demonstration introduction,later came with reflection and reexamination of discovery perspectives above and finally reached to the conclusion opinion of this paper which listed as follows.Firstly,in terms of the legal relationship between persona guarantee and material guarantee,the author thought the relationship between the two was joint and several debt relationship.Secondly,in seek of the legal basis of the right of recourse among the mixed co-guarantee parties we could start with the interpretation of existing law and regulations.The interpretation demonstrated that Article 38 th of the Interpretation of the Guarantee Law should remain effective with the appearance ofArticle 176 th of Property Law.Article 178 th of Property Law itself had space for legal interpretation.At present we could still use Article 38 th of the Interpretation of the Guarantee Law as legal basis of the right of recourse.As to the nature of this right,the author disagreed with the opinion the statutory assignment of creditor's rights from subrogation liquidation perspective but new legal creditor's rights produced from legal provisions.Part four focus on the explanation of questions related with recourse rules,to be specific,questions like recourse share calculation standard,the ordering restriction of dual right of recourse,whether the general guarantor should be given beneficium excussionis and the influence to other guarantee from the waiver behavior of creditor.