A Study On Internal Responsibility Sharing Rules For Mixed Guarantee

In modern social and economic activities,accommodation of funds is one of the essential needs.Accommodation of funds requires support of credit,and the guarantee system can provide credit guarantee by means of the force of law.Therefore,the economic significance of guarantee law system is dominant.In practice,to guarantee full realization of the creditor's rights,the creditor may ask the debtor or guarantor to provide a guarantee for a debt that includes both personal guarantee and real thing guarantee.This kind of guarantee is technically called “mixed joint guarantee”.Mixed guarantee involves four subjects and two levels of relations.The four subjects include the creditor,debtor,warrantor and real thing guarantor respectively,and the two levels of relations respectively include the external debt service relation among the debtor,creditor and guarantor,and the internal guarantee responsibility sharing relation between the mixed guarantors.Mixed guarantee falls in between the real right and creditor's right and implicates conflicts between new laws and old laws when it comes to law application,and that is why it has now become one of the challenges in judicial practice.In particular,a general doctrine has been established for the law applicability rules for circumstances where the creditor is involved in an external relation which has both real thing guarantee and personal guarantee.However,discrepancies still exist as to the guarantee responsibility sharing and pursuing of recovery betweenmixed guarantors involved in the internal relation.There have frequently been widely different results of judgment in judicial practice.Without clear clarification of the internal relation and interest distribution among the mixed guarantors,the mixed guarantee system of China can hardly be improved.Given such a context,the paper focuses on the reasonability of the priority of autonomy of will of the parties,application of related laws and regulations,foundation of the right of recourse and calculation of responsibility share through the analysis of the weigh of legal interest in the mixed guarantee system,based on the legal status of different subjects in the mixed guarantee.It is hoped that the related disputes can be solved,behavior guidance be provided for market subject,and advisory opinions be provided for the improvement of legislation and jurisdiction.This paper includes two parts.The first part centers on the external relation among the creditor,debtor and the guarantor.Though the two levels of relations of mixed guarantee have different subjects and rules,they are closely related and should not be separately analyzed.The second part is the research emphasis of this paper and centers on the internal relation among the mixed guarantors,based on the equal legal status of the guarantors.It attempts to demonstrate the jurisprudential basis for establishment of the right of recourse among mixed guarantors.Specific suggestions on establishment of rules for pursuing of recovery among mixed guarantors are also proposed.The discussion in this paper is divided into the following four parts:The first part includes an overview of the mixed guarantee system and an introduction to related disputes.The concept and characteristics of mixed guarantee are also briefly described.A certain length is devoted to analysis of the legal relation and disputes on the first level of mixed guarantee,i.e.,the effect order when there is both real thing guarantee and personal guarantee.It covers the entire process of disputes from their origination to termination.Article 176 of the Property Law has established an equal legal status of the real thing guarantee and personal guarantee.Based on this,this paper establishes sound law application rules for circumstances where there is both real thing guarantee and personal guarantee.The second part focuses on establishment of the internal right of recourse ofmixed guarantee,and is mainly devoted to the internal responsibility share.There have been constant disputes regarding this issue and no general doctrine has been formed by now.This pose certain impacts on performance of the functions of the mixed guarantee system.The core dispute related to internal responsibility share of mixed guarantee lies in whether the guarantor that undertakes the liability to guarantee has the right to pursue recovery against other guarantors.The negative party argue that there is no will contact between mixed guarantors,hence no right of recourse should be established;the positive party think that the mixed guarantors involve key components of joint obligation and proportional liabilities should be established among mixed guarantors.As such,the right of recourse should be established.In this part,the reasonability of internal right of recourse among mixed guarantors is demonstrated from perspectives such as the legal relation among the mixed guarantors,their legal status and weigh of legal interest,in an ultimate effort to establish the right of recourse.In the third part,construction of internal pursuing of recovery rules is discussed in terms of exercise of internal right of recourse in the mixed guarantee and related restrictions.Construction of internal right of recourse is essentially a part of establishment of right of recourse.This is because that people who argue against the right of recourse believe that it is difficult to build a practical and reasonable mechanism of internal pursuing of recovery.This paper argues that the mechanism of right of recourse should be built up on three levels.On the first level,the priority of autonomy of will of the parties should be established;on the second level,this paper mainly discusses the exercise of the right of recourse from two perspectives including prescribed period for litigation and calculation of responsibility share;on the third level,the paper discusses the restrictions of the right of recourse.Disputes related to the right of recourse that should be solved include the dispute between the right of claim of the creditor and the right of recourse of the guarantor,and the warrantor and the real thing guarantor being the same person.The fourth part is the conclusion,in which the opinions are summarized.It is pointed out in this part that the disunity of theories and conflicts between laws andregulations do not only cause chaos in juridical practice,but also result in confusion of market subject.Clear laws and regulations are badly needed.The author argues that uniformed provisions should be made with respect to general issues related to the joint guarantee system on the legislation level.Also,judicial interpretation should be given for Article 176 of the Property Law,so as to eliminate the disputable interpretation that the guarantor has the right to pursue recovery against the debtor while it is not clear whether he/she has the right to pursue recovery from other guarantors.Only with explicit stipulation regarding related issues through legislation or judicial interpretation,can a value orientation be set up and rules of adjudication be established.We should not always expect the judicial persons to properly use the legal interpretation to make proper and fair judgments,and should not allow the judgment disunity to continue to exist.