Research On Internal Recovery Of Mixed Joint Guarantee Under The Background Of Civil Code

The existence of the guarantee system plays an important role in promoting the financial integration and commodity circulation of various commercial entities in the socialist market economy.It has become an increasingly common security method to set both property insurance and personal insurance for the same creditor’s right,which is called mixed joint security.Whether the mixed co-guarantor can recover compensation from the other guarantors after over-assuming the guaranty responsibility,there have always been two camps in the academic circle of "positive theory" and "negative theory",and the position of relevant laws and regulations in our country has been fluctuating for a long time.It is difficult to unify the adjudication standards of such cases in China.Article 392 of the current "Civil Code" still does not respond positively to this issue,and Article 13 of the "Interpretation of the Supreme People’s Court on the Application of the Guarantee System of the Civil Code of the People’s Republic of China" issued later has made up for the legal gap to a certain extent.It is not clear that the qualified mixed co-guarantor has the right of internal recovery,but the scope of recovery,the order of recovery and the recovery rules in some special cases are still not clarified.On the Judgment Documents Network,a full-text search was conducted using "property protection and life insurance" as the keywords of the full text,and a total of 2,030 documents appeared.It can be seen that mixed joint guarantee disputes emerge one after another in real life.Therefore,it is of great significance for both theory and practice to carry out further research on the internal recovery of mixed joint guarantee.The existence of the right of recourse within the mixed guarantee is reasonable.On the one hand,it can protect the legitimate rights and interests of all guarantors equally,and can also bring more economic benefits,which is in line with the legal values of fairness and efficiency.It is consistent with the commercial customs and is conducive to the realization of the functions of the guarantee system.Through the research and analysis of our country’s legislative evolution,past judicial practice cases,and relevant legal systems of overseas countries(regions),it can be found that our country’s mixed joint guarantee system has unclear basis for claim rights,inconsistent exercise sequence,and unclear calculation method of recovery share.Several issues need to be addressed urgently.In terms of the order of recovery,it should be determined that the creditor’s right to claim has priority over the guarantor’s right of recovery,and the recovery from the debtor should be set as the pre-procedure for the guarantor to carry out internal recovery.In the distribution of the guarantee share,the "proportional method" should be used to calculate and share,and the time when the creditor first requires the guarantor to perform the guarantee obligation shall be the time point for determining the value of the collateral.For the part that cannot be recovered internally,it should be allowed to be re-shared among the remaining solvency guarantors.The guarantor who provides both guarantee and property insurance shall confirm its identity according to the time and amount of guarantee provided.If the interests of other guarantors are damaged due to the guarantor’s waiver of part of the guarantee,the remaining guarantors can be exempted from corresponding liabilities within a reasonable range.If there is a partial agreement between the guarantors,the guarantors participating in the agreement may make a secondary contribution according to the mutual agreement after all the guarantors participating in the agreement,but the agreement should not damage the legitimate interests of other guarantors.