Empirical Study On The Right Of Recovery Of Mixed Co-guarantors

The guarantee system is designed to guarantee the realization of creditor’s rights more smoothly.Hybrid joint guarantee mainly appears under the loan contract in the current society,which is an important form of guarantee in China’s market.Therefore,most creditors will choose hybrid joint guarantee to guarantee their creditor’s rights.When the creditor establishes the loan contract with the debtor,the creditor will require the debtor or the third party to provide guarantee for him in most cases.When the debtor becomes insolvent by the end of the term,the creditor shall have the right to demand the guarantor to assume the corresponding part of the guarantee liability provided by the guarantor.After assuming the responsibility,can the guarantor exercise the right of recourse against other guarantors who fail to fulfill the obligation? If it can be recovered,how to determine the recovery rules and specific share calculation?Now generally recognized by the legislation and theory to provide mortgage sequence of the third person and the surety shall be relieved of his responsibility,equality,the third person to protect and preserve equal view is needless to say,for the convenience of discussion,the paper set up a specific condition,namely in a loan contract relationship exists in the guarantee of the mixed together,If both the third guarantor and the guarantor provide a general liability guarantee,can one of the guarantors exercise the right of recourse against the other guarantors after assuming the liability? Of the right of recourse against the remaining waste problem has been the emphasis and difficulty in theory and judicial practice,the author compiled about mixing together the guarantor between right of recourse against the deposit of the legislation history of the waste,found that the legislative attitude from the security law era to the era of the civil code of the larger changes,and explore the guarantee of the civil code of explain the legal logic behind the article 13,Because the regulation of this problem in the long river of institutional evolution has not effectively pacified the debate in academic circles.From the perspective of legal theory,the author analyzes the necessity of the attitude towards the existence or abolition of the right of recourse between the hybrid co-guarantors and explores the basis of the right of claim.The author believes that the affirmative right of recourse is more consistent with legal theory and reason.Based on the legal theory analysis and the reference of overseas legislative experience,Think of liability of the guarantor behavior can apply article 524 of the civil code article 547 of the rules of the third party pay,article 700 of the creditor’s rights transfer rules and guarantor right of recourse against the rules,the subrogation as mixed common basis as the guarantor for the right of recourse,this must be the guarantor between the right of recourse against,and carries on the judicial empirical analysis on the issue,Judicial practice existence "the different connection with the sentence" phenomenon,this paper draws on judicial practice merit and the insufficiency,and the relevant improving Suggestions of recourse against the rules,for example for "ratio method" as a guarantor between share share calculation standard,the guarantor as the third object when the applicant and the guarantor/issuer identity,Discuss separately and calculate the share that should be borne by the guarantor is more in line with the guarantor’s real intention and psychological expectation.