Research On The Right Of Recovery Between Guarantors In Mixed Co-guarantee

As a special existence in joint guarantee,hybrid joint guarantee covers both people's insurance and property insurance,and crosses the two major areas of debt law and property law,so the legal relationship is particularly complex.China's hybrid joint guarantee system is still in an imperfect stage from article 28 of the original security law to article 38 of the explicit interpretation of the security law to article 176 of the controversial property law.Article 38 of the interpretation of the security law holds a positive attitude towards the right of recourse between the mixed co-guarantors,but the provisions of article 176 of the property law are vague,which leads to the dispute about whether the mixed co-guarantors can recover from each other.According to the different views on the right of recourse,the theoretical field can be divided into "affirmative theory" and "negative theory".Although the summary of nine people negated the right of internal recourse in a "one-size-fits-all" way,the theoretical dispute still did not stop.The key to the dispute of the right of recourse between the mixed co-guarantors lies in the interpretation of article 176 of the property law.In terms of theory,it is more dominant to interpret article 176 of the property law as negating the right of recourse or being vague.Therefore,scholars holding this view have tried to deduce the legitimacy of the right of recourse among the mixed co-guarantors through the theories of joint debt,unjust enrichment,autonomy of will and subrogation,but it is difficult to be convincing.Or we should return to the interpretation of article 176 of the property law and explore its true meaning through various interpretation methods.After trying many kinds of explanation methods,the only way is objective teleological explanation,and the key of objective teleological explanation lies in value judgment.The legal system is designed to be both lucky and open to abuse by creditors,which is grossly unfair to guarantors.When the guarantee is realized,the system is designed to give the option to the creditor for the convenience of the realization of the guarantee,so the guarantor should have the right to claim compensation from other guarantors after performing the guarantee liability in excess of his share,which is the due meaning of the fairness principle.Denying the right of internal recourse is also easy to trigger the speculative behavior of creditors,which will lead to the rise of non-productive social transaction costs.From the social point of view,the production and growth of non-productive social transaction costs do not accord with the principle of efficiency.Affirms that the right of recourse between the mixed co-sponsors conforms to both fair value and efficiency value.Since the provisions of the civil code(draft)on the mixed joint.On the premise of recognizing the right of recourse,the shares of each guarantor shall be calculated separately according to their respective liability risks.It needs to be emphasized that it is the premise of exercising the right of internal recourse that the guarantor bears the guarantee responsibility in excess.The guarantor can only seek compensation from the debtor for the guarantee liability in its share,and shall have the right to choose whether to seek compensation from the debtor or other guarantor first for the part in excess of its share.When there is a special case that the creditor has only realized partial guarantee,and some of the guarantor has actually assumed the responsibility,for the purpose of protecting the realization of creditor's right,the creditor's claim priority.When the creditor abandons the material insurance or guarantee provided by the third party,the other guarantor shall be exempted from liability within the scope of internal share that should be reduced.At the same time,in order to save the litigation resources as much as possible and avoid being trapped in the litigation cycle,the internal recourse right should be exhausted at one time.