Research On The Issue Of Mixed Joint Guarantee Settlement

Is the personal guarantee and guarantee in rem can be combined together as joint guarantee existing in same creditor's rights,this is technically called a hybrid co-guarantee,It plays a vital role in the guarantee for the realization of creditor's rights and promotion of the trade.Hybrid co-guarantee in the existence of personal and property guarantee at the same time across a number of laws regulate it,such as Guarantee Law,The Interpretation Of The Guarantee Law,Property Law and so on.It has the features of guarantee?mortgage and pledge lead to the rule of law and the legal relationship is quite complicated.In addition,current legal provision are not perfect or even different provisions exist.Which leads to different disputes or doctrine about the hybrid co-guarantee in theory and practice.This article takes the hybrid co-guarantee as the research object,the key to article 176 of the property law in China as the center and combining the theory and practice of controversies theory,based on the analysis of their respective advantages,this paper puts forward the views supported by them comprehensively,and sorts out the existing laws and regulations in China and puts forward some Suggestions on their shortcomings.This article will try to resolve the following disputes and issues in the hybrid co-guarantee: the main debtor fails to perform the due debt or the situation that the creditor and the guarantor agree to realize the security right,what is the liquidationorder of each guarantee responsibility? Or is there a sequential restriction on the creditor's realization of security rights? Is it possible for a guarantor to seek internal recovery from other guarantors other than the principal debtor after a guarantor has assumed security liability to the creditor? On what basis is the internal recourse between the guarantors? What is their internal relationship? What are the standards of recourse if they can be pursued? How is the share of recourse to other guarantors who should bear the security liability calculated? If the creditor waives its security to a guarantor,can the remaining guarantors be exempt? How to determine the security of the renounced property? Is there a limit to the extent that the creditor waives a guarantee and the remaining guarantors are exempt from liability?There are three theories about the liquidation sequence of each guarantee liability in the Hybrid co-guarantee:The content of the liability for guaranteeing the absolute priority say?The property security responsibility relative priority say and the property security responsibility and Guarantee liability of equal say.The Interpretation Of The Guaranty Law and The Property Law hold that the guarantee responsibility of the object is equal to the guarantee responsibility of the person,However,the prerequisite for the equality of property protection and human protection is the property security provided by a third party.The author advocates a complete theory of equality between the guarantee responsibility of things and the guarantee responsibility of people,No distinction is made as to whether the property protection is provided by the debtor or by a third party.The question of whether the guarantor who bears the responsibility of guaranty has the right of recourse,there is a dispute between negative and positive,In practice,the interpretation method avoids the legislative interpretation of article 176 of the property law,Numerous judgments affirmed the right of recourse between the guarantors.Some scholars put forward that there is a "joint and several liability relationship" in the internal relationship between the guarantors,so that the right of recourse between the guarantors can be affirmed by applying the provisions of joint and several debts.According to the existing judgment opinions in practice,the author advocates invoking the theory of subrogation right,and takes the article 38 of theinterpretation of security law as the theoretical basis of claim,The guarantor who has assumed the guarantee responsibility subrogates to exercise the secured claim which it has performed,based on the original creditor's right may claim its share of security liability to the remaining guarantors.There are two ways of calculating the guarantor's share,namely,average distribution and proportional distribution.I support the pro rata distribution,the specific calculation method has been discussed in detail in the text.In guarantors be exempt from liability? The present law limits the scope of liability exemption,that is,only when the creditor abandons the property guarantee provided by the principal and the debtor,the guarantor is exempt from the scope of the loss of priority compensation.the author advocates for extensive interpretation and expanded to the creditor waives the guarantees,No distinction shall be made between the abandonment of the property insurance provided by the principal debtor ?the property insurance provided by the third party and Guarantee responsibility,The remaining guarantors are exempt from the creditors' loss of priority.If the creditor abandons the security,he shall go through the formalities of cancellation of registration.Otherwise,it will not produce the effect of change of real right.If the creditor abandons the special movables,he can not oppose the third party in good faith.The abandonment of the security is based on the principle of expressness.The abandonment of the value of the security caused by the creditor's fault is regarded as the abandonment of the creditor to the security,and the abandonment of the security property caused by the creditor's fault is regarded as the abandonment of the creditor to the security property.Based on the settlement of the above disputes,theories and the treatment methods of practice,Critically select the most reasonable way to reach a reasonable conclusion about the issues in the hybrid co-guarantee.