Research On The Internal Recourse Rights Of Mixed Joint Guarantors

In the economic exchanges of daily life,there are situations where individuals are short of money or companies are having difficulties in their operations.Borrowing is the best option to overcome the “economic crisis”.But debtor’s property or creditworthiness alone may not be able to successfully obtain assistance.At this point,if a third party can provide a guarantee,the chances of obtaining a loan will be greatly increased.As a bridge between debt and credit,the guarantee system can better facilitate the realization of debt and credit relationship.For the efficient and healthy operation of the market economy,the guarantee system also play a self-evident role.Then,how to improve the Guarantee Law system and balance the complex tripartite relationship have become problems that the law has to face.In this regard,the key issue whether hybrid guarantors should enjoy the right of internal recourse among themselves needs to be resolved.Judicial Interpretation of Guarantee law gives the mixed joint guarantor the right of recourse.But the previous original Property Law 176 deleted this content and tuned that if issues surface here,priority shall be given to Property Law.The provisions of the Civil Code on this issue also followed the previous Property Law.As a result,the issue whether a mixed co-guarantor should have the right to recover has been highly controversial in both practice and academic circles.In practice,different judges have made conflicting decisions on similar cases.Theoretically,scholars also have different views for and against whether hybrid joint guarantors have the right to mutually recourse.The enactment of the Civil Code means that the civil law in China is more complete and systematic.The law should not always avoid the issue.Whether from the perspective of perfecting the guarantee system or promoting the market economy,the law should affirm the right of internal recourse of hybrid joint guarantors,and add corresponding provisions,so that the judicial practice can find operational provisions.And that requires law to clarify the theoretical justification of the right of recourse firstly.Although the mixed co-guarantors do not enter into a guarantee contract with creditor at the same time,but as long as any guarantor will be fully paid off,the other guarantors to the creditor’s guarantee debt is also eliminated.But at this time their internal division is not finished.This is similar to the indivisible debt,in which arbitrary debtor is also paid to the creditor and then shared with all the debtors.Theoretically the indivisible debt is quasi-applicable to the provisions of the joint-and-several debt,so the substrate of the right of recovery can be constructed by using the indivisible debt combined with the joint-and-several debt.Second,a prior procedure for the preferential realization of the debtor’s self-security should be established.In addition,it is also possible to put disputes over recovery rights into the similar necessary joint action.Calculating the share of each guarantor’s property in the total amount of the debt,and then it assume the corresponding responsibility and guarantor pay the homologous amount according to its proportion in the total amount of the debt.Finally debtor will assume the corresponding responsibility to each mixed guarantor.According to above paths,the Civil Code should add the provisions on indivisible debt in the part of contract,and replace the middle of Article 392“If the debtor provides its own security for the debt,the creditor shall first realize that security”with“If the debtor provides its own security for the debt,regardless of the order of engagement,the creditor shall first realize that security”.The end of Article 392“The third party who provides the security shall have the right to recourse from the debtor after taking the liability of the security”revised to“The third party providing security shall have the right to recover from the debtor after taking the security liability;It may also be permitted to apply the provisions of the undivided obligation to recover its share from other guarantors in a form which similar to a joint action,each guarantor shall recover from the debtor after determining its share of guarantee,unless they agree not to recover”.Accordingly,Article 13 of the interpretation of the security system should also delete the provision of non-recovery and modify it.