Negation Of Internal Recourse Of Hybrid Joint Guarantee

To better secure the realization of claims,the underlying debt relationship is often accompanied by security.In a mixed joint guarantee,a guarantee in personam and a guarantee in rem coexist.The legislation has given different attitudes as to whether the guarantor can recover from other guarantors who have not performed their duties after the debtor fails to perform the debt as it becomes due and the guarantor assumes the liability of the guarantee.This article analyzes the intent of Article 13 of the Judicial Interpretation of the Security System by interpreting the provisions of successive legislation on the right of recovery within a mixed joint guarantee,and concludes that the judicial interpretation takes the principle of denying the right of recovery and the exception of affirming the right of recovery on this issue.In the case that the parties do not agree to recover from each other,the denial of the right of recovery is in line with the principle of fairness,risk and own responsibility,and helps maintain the uniformity of legal application,while the affirmation of the right of recovery is controversial in jurisprudence,cumbersome in practice and low in operability.This leads to the conclusion that the principle provision of the article achieves logical self-consistency and is in line with jurisprudence.At the same time,this article considers that paragraph2 of Article 13 of the Judicial Interpretation of the Security System is flawed,as the external behavior of the guarantors’ signature,seal and fingerprint on the same contract is forcibly interpreted as the guarantors’ agreement to recover from each other without the parties’ agreement on mutual recovery,which is a reversal of logic and contrary to the overall value orientation of the provision on the right of recovery within the hybrid security.The author believes that paragraph 2 should be amended or deleted.