Research On Internal Recourse Right Of Mixed Joint Guarantee

Whether hybrid co-guarantors can recover from other non-guarantors for the part that exceeds their share after assuming the guaranty liability has always been a difficult problem in the theoretical and judicial field.The attitude of mixed joint guarantee on the internal right of recourse in our legislation has been wavering.Article 392 of the Civil Code continues the provisions of Article 176 of the original Property Law and does not make a clear statement on this issue.The academic circle affirms the right of recovery between the mixed co-guarantors by the concept of equity,joint and several debt and the system of unjust enrichment.The negative view holds that neither unjust enrichment system nor joint and several debt system can provide sufficient theoretical support for the internal right of recourse of hybrid co-guarantors.The reason for the above-mentioned disputes lies in different interpretations of the "silence" in Article 176 of the Property Law（Article 392 of the Civil Code）.In view of this problem,we should summarize and reflect the needs of current judicial practice from the perspective of interpretation,and interpret the relevant provisions of "Property Law" and "Civil Code".By discussing the structure of article 392 of civil Code,this paper analyzes the true meaning of "silence" in legislation,and lays a foundation for constructing the right of recourse between guarantors.Based on legal doctrines and supplemented by relevant value judgments,this paper expands the interpretation path of the internal right of recourse of the hybrid co-guarantors,and applies the analogy of article 700 of the Civil Code to the hybrid co-guarantee system.In order to better protect the realization of creditor’s rights and balance the interests of all parties,it constructs the recovery relationship between the guarantors through the system of subrogation right,and proves the legitimacy of the internal recovery right of the mixed co-guarantors with the value judgment of freedom and efficiency as evidence.