Research On The Right Of Recovery Among The Mixed-Joint Guarantees

The first part mainly analyzes the predicament of the current establishment of the internal remedy rights of the mixed joint guarantee.One is to show the lack of current legal norms based on the evolution of legal norms.The other is to start with a typical case of the Supreme People's Court in recent years to reveal the current judicial practice.The focus of the dispute between China and the mixed joint guarantee recovery disputes is compared with its internal differences and the views of the Minutes of the Ninth People's Conference to show the dilemma of law application in current judicial practice;the third is to summarize the current doctrine differences and reflect the current strong The problem that has not yet been formed in general;specifically,there are three main areas that do not form a unified understanding:first,the interpretation of Article 176 of the Property Law,whether the article is explicitly negative or not specified,and how to interpret and applyDoubts;the second is the dispute over the nature of the internal legal relationship of the mixed co-guarantor.The internal legal relationship of the mixed co-guarantor is a prerequisite for the establishment of the mixed co-guarantor's right of recourse.Whether joint liability or subrogation or other legal relationships are in dispute;The issue of value measurement.There are also disputes on the principles of fairness and efficiency.The second part mainly analyzes the internal recovery right of th e mixed co-guarantor.The first section mainly proves that the intern al co-guarantee right of the mixed co-guarantee can be logically self-consistent with the existing law,but does not deny that the current law claimed does not stipulate that the internal co-guarantee's inte rnal recovery right is negated.Specifically,the first is to make a detailed analysis from the change of liability order in Article 176 o f the Property Law,and then to conclude that the current law adopts an egalitarian conclusion on the issue of liability order.From this,the actuality of the mixed co-guarantor's right of recovery can be d erived It is in line with the spirit of this legislation;the second is the interpretation and analysis of Article 176 of the Real Right L aw,which is mainly analyzed through legal interpretation methods suc h assemantic-interpretation,system-interpretation,etc.Analysis,it is tactually impossible to conclude that the current law is a fallacy th at negates the internal recovery right of the mixed co-guarantor;the second section mainly demonstrates the legitimate basis of the inter nal recovery right of the mixed co-guarantor.The first is to derive from the external legal relationship of the mixed co-guarantor.The a nalysis is mainly based on the theory of subrogation.In the mixed jo int guarantee,that is,each guarantor joins the main debt as a thirdparty based on the guarantee contract,and as a third party of inter est,he has the right to recover from the debtor.The performance of the guarantor of debts complies with the constituent requirements of subrogation by a third party.The debtor's debt is not of course exti nct,and the legal transfer of creditor's rights occurs in terms of l egal effect.As a new creditor guarantor,claiming against the debtor or other guarantor shall be the effect of the creditor's right.Howe ver,it should also be noted that the right of recourse and the right of subrogation are side by side and cannot be the sole justification for the establishment of the right of recourse.The second is to exa mine the internal relationships of mixed co-guarantors.Mainly from t he application of the joint and several liability theory system and t he existing regulations on joint and several liability in China,it i s concluded that the strict application of joint and several liabilit y is obviously untenable.Through comparison and reference of extrate rritorial "same level",it is certainly reasonable However,it is sti ll inappropriate to apply it to the area of mixed joint guarantees.The third is to start from the value measurement of the question of whether the joint co-guarantor exists and compare the positive and ne gative,to explore the value consideration of applying the fairness p rinciple.Negative argument strives to recognize the internal recover y right if it is meaningless.This article demonstrates that the reco gnition of the right of recovery is actually conducive to fairness in the sense of results.In addition,the value of market transaction s ecurity cannot be ignored.Recognition of the right of recovery is mo re beneficial to the whole Realization of benefits.The third part mainly discusses the co-guarantee's right of recovery.The first is to examine the different legislative models.Compared to thecommon rules for extracting common guarantees,the specific provisions are more in line with the nature of the internal legal relationship of mixed joint guarantees,and the application of laws is more convenient.The second is to explore the scope of the internal co-guarantor's internal recovery exercise,mainly discussing the differences in the determination of shares from general and special situations.In general,there are mainly disputes over specific calculation models.From the common practices in judicial practice and the overall perspective of individual guarantors and groups in the doctrine,they are divided into different calculation methods.After weighing the authors above,It favors the approach based on individual guarantors,and advocates that the principle of distinction is more appropriate in specific calculation models.In addition,it focuses on the impact on the scope of recovery under special circumstances.Specifically,it discusses three possible situations in which creditors may waive part of their security rights,inability to recover,and guarantee provided by the guarantor at the same time,combined with judicial practice and related disputes Specific treatment.