The Research On Mixed Co-guarantors Internal Recourse Problem

Creditor’s rights use the right of claim as the core power to achieve the reliance on the debtor’s performance.With the increase of property with guarantee responsibility,the mixed co-guarantee system has become an important means of maintaining transaction security.The mixed co-guarantee system can achieve the purpose of safeguarding the interests of creditors,but ignores the balance of interests between the guarantors.When the mixed co-guarantor is the debtor,because the debtor bears the ultimate responsibility,the guarantor assumes the secondary responsibility.If the guarantor takes the responsibility of the debtor,the right to recover can be obtained.When the mixed coguarantor is a third party,if the creditor’s right expires,the creditor should realize the creditor’s right;whether the guarantor can negotiate with the creditor to assume the degree of the guarantee liability,such as the agreed responsibility order and the guarantee liability Shares,etc.If there is no agreement or the agreement is not clear,whether there is a debt repayment sequence between the guarantors;how to carry out the specific recovery after the guarantor is settled.This article starts with the above questions and expands the following four sections.The first part is mainly about the status quo of the mixed co-guarantee system.Firstly,it introduces the basic concepts,combines the legislative model with the legislative changes in China,and sorts out the attitude of China in dealing with the relationship between guarantors and guarantors.Finally,it collects the judgments of China in recent years.From the affirmative and negative aspects to analyze the reasons for the referee,inductive referee differences.The second part mainly introduces the theory of the internal compensation right of mixed co-guarantee system.Critique of procedural economic theory,system explanation theory,legal relationship theory,meaning autonomy theory,real right legalism theory,and fairness principle.From the perspective of comparative law,the author analyzes the systems of Germany,Japan,France,and Taiwan.The rationality of the internal co-guarantor’s internal recovery rights.The third part mainly proves that the internal reconciliation right of the mixed coguarantee system is established.Firstly,it is analyzed that the guarantor and the guarantor in the mixed co-guarantee are in the same settlement order,and there is no order benefit between them.Secondly,from the theoretical analysis of "same level theory",it is concluded that the guarantor and the guarantor belong to the joint debt relationship.In the case that the law does not clearly stipulate,the legal rules for co-guarantee can be applied.Finally,from the perspective of recourse,subrogation and unjust enrichment,the source of internal recovery rights is studied.The fourth part mainly proposes the rules for exercising the internal recovery right of the mixed co-guarantee.Including the determination of the share of guarantee liability,the estimation of the value of the collateral,the advantages and disadvantages of the "simple average method",the "first average re-distribution method",the "proportional distribution method",and finally the "proportional distribution method" to determine the recovery share.There is also a discussion about the priority of the recovery order.