Research On The Right Of Contribution Among Security Providers In Mixed Joint Guarantee

At present,the right of contribution among security providers in mixed joint guarantee in China is mainly stipulated in Article 28 of the Guarantee Law,Article 38 of the Judicial Interpretation of the Guarantee Law and Article 176 of the Property Law,but the three provisions are not consistent.Article 38 of the Judicial Interpretation of the Guarantee Law affirms the right of contribution among security providers in mixed joint guarantee.However,since Article 176 of the Property Law has not made a clear provision on this issue,there has been a heated theoretical discussion on whether the right of contribution among security providers in mixed joint guarantee should be recognized.From the aspect of legal interpretation,the reasons opposing the right of contribution are not sufficient.Based on the literal meaning of Article 176 of the Property Law,it cannot be concluded that the Property Law has already denied the right of contribution among security providers in mixed joint guarantee.From the aspect of legislative purpose,the recognition of the right of contribution can not only conform to the purpose of setting up multiple guarantees to spread risks,which conforms to the principle of justice,but also prevent the occurrence of moral risks.Regarding the priority of the responsibility between the guarantor and the third party providing the guaranty,Article 38 of the Judicial Interpretation of the Guarantee Law and Article 176 of the Property Law are not inconflict.They both adopt the position of " third party property guarantee is equal to personal guarantee ".It cannot be concluded that the legislation has abandoned Article38 of the Judicial Interpretation of the Guarantee Law according to the provisions of Article 178 of the Property Law.Under the current legislative provisions,it is appropriate to claim the right of contribution according to Article 38 of the Judicial Interpretation on the Security Law,which has been recognized in our judicial practice.In the mixed joint guarantee,in case the property guarantor,personal guarantor and creditor have not made a clear agreement on the scope of the guarantee,each guarantor shall jointly and severally bear the guarantee responsibility.Guarantors who have assumed the guarantee responsibility may not only claim recourse from the debtor,but also have the right to claim recourse from other guarantors and demand repayment of their share.There are differences and connections between the right of contribution and the right of subrogation.Recognition of the solidary debt relationship between the guarantee of property and the guarantee of person is not only helpful to prove the existence of the right of contribution,to confirm the share that each guarantor should bear,but also to realize the system connection and to prove the exemption scope of other guarantors when the creditor waives the security right.The right of subrogation can enhance the effectiveness of recourse,but it is difficult to find the proof of existence of the right of subrogation.Because of the difference between the guarantee of property and the guarantee of person in terms of the responsibility,the value proportion distribution should be adopted,and the recovery share should be determined according to the value of the collateral and the proportion of the guarantor's responsibility.When calculating the internal share amount between the security providers,they should bear the responsibility based on the limit of their guarantee responsibilities.The property guarantor should bear the responsibility based on the lower of the value of the collateral and the amount of its secured creditor's rights.When the same guarantor has the dual status of personal guarantor and physical guarantor,it shall recognize the dual responsibilities that the guarantor must bear internally.If the creditor waives hisright,other security providers shall be exempted from the security liability.After assumed the security liability,the security provider can choose the way to exercise his right of recourse against the debtor and other guarantors,and there should be no order restriction.