Research On Kelson’s Theory Of Validity Of Law

Mixed joint security usually refers to the establishment of several guarantees on a claim,in which both person’s guarantee and material guarantee exist simultaneously.Mixed joint guarantee is frequently applied in practice because of its function of multi-protection for creditors to realize their claims.From “The Security Law of the People’s Republic of China”（hereinafter referred to as “The Security Law”）,“The interpretation of the Security Law of the People’s Republic of China”（hereinafter referred to as “The interpretation of the Security Law”）,“The security law of the People’s Republic of China”（hereinafter referred to as “The security law”）,“The security law of the People’s Republic of China”（hereinafter referred to as “The Property Law”）and “The Property Law of the People’s Republic of China”（hereinafter referred to as “The Property Law”）,there have been various disputes about the right of recourse within the joint security in China.In the process of judicial practice,the result of judgment is usually quite different.The most discussed and disputed issue in the academic circle is the right of recourse within the mixed coguarantors.There are two different viewpoints in the discussion of this issue,one scholar supports the “Affirmative theory”,the other scholar holds the “Negative theory”,both theories try to prove their rationality.In the “Positive theory”,the academic circles also put forward different ideas for the specific recovery rules of the internal recovery right of the guarantor.After the promulgation of the Civil Code of the People’s Republic of China（hereinafter referred to as the Civil Code）and the interpretation of the Civil Code of the People’s Republic of China（hereinafter referred to as the interpretation of the Civil Code of the People’s Republic of China）on the application of the security system,the legislator has made clear its legislative attitude,that is,except for the two situations prescribed by law,the internal exercise of the right of recourse by the guarantor will not be supported by the court,and at the same time,it has also stipulated the way of recourse according to the principle of proportionality in the case of recourse.This article will provide some reference for the construction of our country’s system through the study of the relevant system of extraterritorial law,and summarize the historical evolution of our country’s legal provisions on the right of recourse in mixed joint security,to explore the impact of different legal provisions on judicial decisions in China,so as to gain insight into the past judicial practice on the guarantor’s internal recourse attitude and value orientation.Sum up the different views of affirmative and negative,refute the negative,and further affirm the necessity of the right of recourse.Affirming the right of recourse not only violates the principle of autonomy of will,but also eliminates the risk of creditors’ abuse of their rights and is more efficient.On the basis of affirming the right of internal recourse of the mixed guarantor,this paper analyzes the foundation of establishing the right of internal recourse.In the end,the author enumerates different calculation methods of the share of internal recovery right and makes a comparative analysis,affirms the combination of proportional method and average method,in order to construct a concrete and definite internal recovery rule.