Research On The Right Of Internal Recourse In Mixed Joint Guarantee

In the course of transaction,in order to protect the interests of creditors,there is a mixed joint guarantee provided by the third party,in which the property insurance and the people’s insurance coexist on the same creditor’s right.With regard to mixed joint guarantees,in the absence of agreement by the parties,whether the guarantor can recover internal compensation from other guarantors who are not liable for security after assuming the responsibility for security,China has made clear provisions on this issue in the newly issued Interpretation of the Supreme People’s Court on the Application of the Civil Code of the People’s Republic of China <the Relevant Guarantee System(hereinafter referred to as the Interpretation of the Civil Code Guarantee System)> the Civil Code.However,this provision is different from the provisions of major comparative law countries or regions,and from the two major views that have been formed by the theoretical community.Therefore,it is still necessary to discuss whether the mixed co-guarantor should be given the right of internal recovery and,if so,how to exercise the right.In this paper,the internal right of recourse in mixed common guarantee is studied by means of literature analysis,comparative analysis and data analysis.In the absence of agreement,the rationality of the internal recovery right should be given to the mixed co-guarantor,and the specific rules for the exercise of the internal recovery right are put forward.On this basis,the existing problems and suggestions for improvement in the current regulations of our country are expounded in order to make the internal recovery system of our country more reasonable and perfect.The main structure of this paper includes the following five parts.The first part introduces the concept of mixed common guarantee and the right of internal recourse,after that,it is proposed that the mode of equal responsibility between material security and people’s insurance should be adopted in the mixed joint guarantee.Then the rights related to the guarantor’s right of recourse,that is,the subrogation of the guarantor,are expounded,and the relationship and difference between the two are clarified.The second part introduces the main comparative law countries and regions of the internal right of recourse,in addition,the academic views of our country are explained.Through the summary and analysis of the views of other countries and our academic circles,the affirmation of the right of internal recourse has formed a more sufficient reason.The third part is to affirm the rationality of the internal right of recourse,the specific reasons include the legal relationship between the guarantors and the affirmation of the internal right of recourse,which is more in line with the principle of fairness and the value of efficiency.The fourth part discusses the emergence and exercise of the right of internal recourse on the basis of the third part.For the exercise of this right,it includes the precondition of the exercise,the calculation method of the internal share,the determination when the same guarantor has dual identity,the calculation of the security share when the creditor waives part of the guarantee,the order of realization when the double recovery right of the guarantor exists at the same time,and the realization of the right of recourse of the guarantor and the creditor’s claim.The fifth part first introduces the relevant regulations of our country,then puts forward the shortcomings of the current regulations in our country,and finally puts forward some suggestions for improvement according to the contents discussed above.The main suggestions include: our country should be based on the legal relationship of joint and several debts must not be agreed upon when the internal right of recourse;also should be the guarantor’s subrogation into the recovery system to ensure the exercise of the right of recourse.