On The Internal Recovering Right Of Joint Guarantee From The View Of "Civil Code"

The right of recourse within the joint guarantee refers to the right of a certain guarantor to recover compensation from other joint guarantors after assuming the guarantee responsibility in the joint guarantee.As a right that has existed stably in the "Guarantee Law Era",the internal recourse right of joint guarantee has always played a role in balancing the risk responsibilities among the guarantors and realizing the internal fairness of the joint guarantor.However,the "Civil Code of the People’s Republic of China"（hereinafter referred to as the "Civil Code"）promulgated in 2020 does not clearly stipulate the joint guarantee of the right of internal recourse,it will bring confusion in application to a certain extent.Therefore,under the new legislative background,it is of great practical significance to study whether and how the internal right of recourse should exist in the joint guarantee.First of all,through a comprehensive review of the relevant provisions of the guarantee liability part of the,,it can be found that the "Civil Code" does not clearly stipulate the internal recourse right of joint guarantee.Although the Interpretation on the Application of the "Guarantee System of the Civil Code of the People’s Republic of China"（hereinafter referred to as the "Guarantee Interpretation of the Civil Code"）briefly confirms the internal recourse right of the joint guarantee.However,there are internal contradictions and disputes in this confirmation method,and it also lacks sufficient theoretical support.Therefore,in the "Civil Code Era",there is no reasonable conclusion on whether the internal recourse of joint guarantee exists.Secondly,under the circumstance that the legislation of the "Civil Code" is unclear,through the research on the legitimacy of the internal recourse of joint guarantee,it can be found that the existence of the internal recourse of joint guarantee can effectively curb the abuse of the creditor’s right of choice and the malicious collusion between the guarantor and the creditor,which can not only promote the internal fairness of the co-guarantor,but also conform to the autonomy of the parties,and effectively reduce the operating cost of the co-guarantee,which is line with the pursuit of values such as freedom,fairness and efficiency in my country’s civil law,so it is necessary and reasonable to grant the coguarantor the right of recourse internally.On the premise that the internal recourse of joint guarantee lacks a direct legislative basis but should exist,in order to play the role of the internal recourse of joint guarantee,it is necessary to find a suitable claim basis for it.After sorting out and comparing theories of unjust enrichment,legal transfer of creditor’s rights,and joint and several debts,it can be found that the theory of unjust enrichment is lacking in the degree of fit and support,and the full transfer of rights from the theory of legal transfer of creditor’s rights also conflicts with the purpose of jointly guaranteeing the sharing of responsibilities for internal repayment rights.But the theory of joint and several debts,under the background that the concept of joint and several debts is clearly legislated in the "Civil Code",and relying on the principle of joint and several debts,can provide strong normative support for jointly guaranteeing the right of internal recourse,which is the most appropriate basis for claiming rights to jointly guarantee the right of internal recourse.Finally,on the premise of confirming the internal recourse of joint guarantee,by consulting relevant domestic and foreign legislation and documents,it is possible to put forward suggestions for improving the exercise rules of the joint guarantee of the internal recourse right: in the determination of the share,each guarantor should calculate the share based on the ex post proportion theory;In the order of recovery,the creditor’s right of recovery and the guarantor’s external recovery right should take precedence over the joint guarantee’s internal recovery right;in terms of litigation optimization,the debtor should be given the obligation of notification to reduce execution errors caused by errors or omissions of the guarantor’s information,and at the same time It is also possible to gradually introduce a one-time litigation rule to avoid repeated claims by the co-guarantor and reduce the litigation cost of the co-guarantee’s internal right of recourse.