Research On The Rules Of Internal Recovery Right Of Mixed Joint Guarantee

The right of internal right of recovery of mixed joint guarantee is a controversial issue in theory and practice.This dispute existed before the implementation of the civil code of the people’s Republic of China(hereinafter referred to as the civil code).The civil code and judicial interpretation denied the internal recovery right of mixed joint guarantee except for three special circumstances,thus ending the debate in legal theory and practice,which burst out new vitality in the new era.However,there are some problems in the application of the rules.Therefore,based on the theoretical research results of domestic and foreign scholars on mixed joint guarantee,this thesis combs and analyzes the relevant disputes on the internal right of recovery of mixed joint guarantee,evaluates the rationality and shortcomings of the rules,and focuses on the problems faced by the internal right of recovery rules in the application of law,and puts forward the improvement path accordingly.In addition to the introduction and conclusion,this thesis has three chapters:The interpretation of the rules of internal recourse of mixed joint guarantee under the background of civil code is the first chapters.The first section interprets the internal recourse rules of the mixed joint guarantee,and expounds in detail the three types of recoverable situations:agreement recovery,agreement to undertake joint and several joint guarantee and joint signing,as well as the subrogation and limitation of the mixed joint guarantor.The second section comments on the rationality of the internal recourse rule of mixed joint guarantee,which denies the internal recourse in principle.However,on the basis of the principle of private law autonomy,it is insufficient to take "co signing can recover" as a compromise outside the agreement,because if there is no specific agreement between the joint guarantors,but they have the intention of joint recovery,then it can be determined that the guarantors can recover from each other.The second chapter demonstrates the practical problems of the mixed joint guarantee right of recovery rules under the background of the civil code.Combined with the judicial operation,the main problems are as follows:firstly,after the promulgation of the civil code,some scholars are still trying to apply the internal recovery right of mixed joint guarantee by analogy through some provisions of the code;Secondly,there are disputes on the application of the law before the civil code;Third,there are different schemes for the distribution of responsibility share of internal recovery right under the condition that the contents of the parties’ agreement are respected in the current judicial interpretation.The third chapter puts forward the improvement path for the problems existing in the rules of the right of recourse of mixed joint guarantee under the background of the civil code,mainly including:first,the "guarantor subrogation clause" and "performance on behalf"clause in the civil code can not be analogized,and the provisions on the internal right of recourse of mixed joint guarantor are applicable,The second is to deal with the conflict of judgment rules of legal facts before and after the civil code.The third is to provide the calculation rules of the internal recovery share of mixed joint guarantee,including the general calculation rules,the determination of the internal recovery share when the security right has priority,and the determination of the internal recovery share when the guarantor is also the material guarantor,In order to build a fair and efficient recovery mechanism and improve the enthusiasm of the third party to provide guarantee.