Research On The Right Of Recourse Among Mixed Joint Guarantors

Financial transactions are always accompanied by risks.The establishment and standardization of a guarantee system is an important way to reduce financial transaction risks and find certainty in uncertainty.As an important form of guarantee in the commodity economy and society,hybrid joint guarantee is favored by creditors because of its ability to provide multiple guarantees.However,in hybrid joint guarantees,whether the third party who has undertaken the guarantee liability can recover from other guarantors for the part that exceeds its share has always been the focus and difficulty of the theoretical and practical circles.This dispute from the era of security law extends beyond property law to the era of civil code,and there is still no conclusion.Looking back on the standardization process of my country’s guarantee legal system,it has gone through the 1995 "Guarantee Law",the 2000 "Guarantee Law Interpretation",the 2007 "Property Law",the 2019 "Minutes of the Nine Peoples" and the 2020 "Civil Code" And the 2021 Law Interpretation [2020] No.28 has been issued one after another,and several legal adjustments have been gradually improved.However,the regulation of the right of recourse between mixed co-guarantors has not been able to effectively settle disputes in theory and theory in the long process of system evolution,nor has it effectively responded to the needs of judicial practice.In the past judicial practice,the legal application of the right of recourse between mixed co-guarantors is divergent,and there is a phenomenon of "different judgments in the same case".The reasons for breaking the conventions of the debts stipulated by the debt law,the complicated recovery procedures and poor operability,etc.This article will refute one by one.It is certain that the joint debt theory held by some critics will be reviewed and adopted in the mixed joint guarantee.The right to provide theoretical support for affirming the right of recourse between the guarantors.This article mainly discusses from the following parts:The first part is intended to study the current status of judicial adjudication in the current mixed joint guarantee system,to carry out typological research on related cases of recourse between guarantors,to sort out the judgment positions of typical cases,to conduct overall research and judgment on the judgment conclusions of existing cases,and to explore judicial practices There are reasons for conflicts in the application of laws and inconsistent judgments.The second part is the theoretical analysis of the right of recourse between the mixed joint guarantors,which mainly includes four aspects: firstly,the research on the sequence of liabilities of the mixed joint guarantor is used as a pre-problem to explore the existence of the right of recourse;secondly,from prevention Moral hazard,risk diversification,and incentive guarantees discuss the necessity of affirming the right of recourse between guarantors;thirdly,comb the legislative evolution of the hybrid joint guarantee system to explore the legal logic behind it;finally,through the rebuttal of the negative theory and the joint debt The said review is to explore the system tool for the right of recourse between the mixed joint guarantors of the certification-subrogation,that is,the guarantor who has exceeded the guarantee responsibility subrogates the creditor’s claims and ancillary rights,so as to give it the right to recover from other guarantors.The third part is the design of the internal recovery system for mixed joint guarantees,which should balance the interests of all parties and consider the operability and economy of the system.It is divided into the following four aspects:clearly affirm that the mixed joint guarantors enjoy the right of recovery;guarantees The exercise of the right of personal recovery should not restrict the order of recovery;the sharing of internal shares should adopt the "proportional theory";when the guarantor is also the guarantor,the "modified qualification choice theory" is proposed to solve the problem of internal responsibility sharing.