Study On The Apportionment Rules Of Guarantor’s Internal Recourse Liability In Mixed Joint Guarantee

In this paper,the concept of "mixed joint guarantee" is limited to the guarantee legal relationship between the guaranty of coexisting persons and the real right of security.Under the definition of this paper,"mixed" can also refer to the situation that there are different guarantees for the same creditor’s right,that is,the property guarantee and the person guarantee are mixed,but the guarantor of the property guarantee and the person guarantee are the same person.For example,after a guarantor signs a guaranty contract,he establishes mortgage with a specific property at the same time.Because the focus of this paper is the internal recourse right of the guarantor in the mixed joint guarantee,the situation that the guarantor and the guarantor are the same person is meaningless.Therefore,the "mixed joint guarantee" used in this paper will be limited to the situation that the guarantor and the guarantor are different subjects.In terms of the current legislative situation of our country,although the Civil Code has come into effect,the provisions concerning mixed joint guarantee in the Civil Code are still very weak.In order to clarify the attitude and consideration of mixed co-guarantee in legislation,it is still necessary to sort out the legal provisions of mixed co-guarantee all the time.It mainly includes Article 28 of the Guaranty Law,Article 38 of the Interpretation of the Guaranty Law,Article 176 of the Property Law,and Article 392 of the current Civil Code.The earliest "security law" deny the existence of the internal right of recourse against the mix together the guarantor,the security law explanation,points out that in the third person to provide confirmed cases,protect and preserve have equal status,and on the basis of mixing together between the guarantor shall enjoy the right of recourse against,in the latest of the property law,lawmakers it showed silence on the issue of whether recognition salved can’ t buy,and the civil code completely the continuation of the "property law"regulation,so to speak.It is the "inconsistency" of the laws before and after that leaves a great space for the academic and judicial circles to explain.Judicial practice circles have simultaneously affirmed and negated the internal recourse right of guarantor.The academic circle also appears around this dispute "affirmation theory" and "negation theory" opposition.In order to clarify this problem and provide reference suggestions for judicial practice,this paper is divided into four parts to explain this problem.The first part is to define the concept of mixed co-guarantee and the responsibility order of mixed co-guarantor,as well as the academic views on the legal nature of internal recourse.This paper focuses on the following problems:try to resolve the internal contradictions and conflicts in the law articles,show the reasons for affirming or denying the recovery;if the viewpoint of affirming internal recovery is held,try to find the legal basis to prove the existence of the right of recovery,and finally construct the relevant rules for the exercise of the right of recovery.The second part,based on the current law of China,carries out research,combs the existing theories and views,analyzes the current judicial situation,and sorts out and compares the judgments in judicial practice that support and deny the right of internal recourse.The third part compares the views of Japan,Germany,Switzerland and Chinese Taiwan on mixed co-guarantee,which provides reference and experience for the legislation of our country.The fourth part:after the substantive consideration of "whether to recognize the right of recourse",the final point of view of this paper:this paper puts forward the necessity of the existence of the internal right of recourse of mixed joint guarantee on the basis of the legal basis of "joint relationship theory"and the right of claim under the theory of "the same level".At the same time,in order to apply the logic consistency,this paper puts forward the specific rules of the exercise of the right of recourse,including the order of the right of recourse,the share calculation,the limitation of action,the general guarantor’s right of defense and the creditor’s abandonment of the negative impact on the internal right of recourse.