Study On Mutual Recovery Between Guarantors In Mixed Guarantee

With the prosperity and development of socialist market economy,economic exchanges between various subjects have become more and more frequent.It is quite common for different subjects to have creditor and debtor relations between individuals,enterprises and individuals,and enterprises,such as private lending and commercial financing.In these economic activities,in order to protect the creditor’s rights,promote the transaction,the guarantee relationship is inevitable.The relevant legal provisions of mixed joint guarantee first appeared in The Security Law of the People’s Republic of China issued in 1995,which follows the core view of absolute priority of property guarantee.In the Interpretation of The Supreme People’s Court on Some Issues concerning the Application of the Security Law of the People’s Republic of China issued in 2000,it added that the Security Law did not clearly distinguish between the situation of personal security and the provision of property security by a third party or the provision of property security by a debtor,and followed the core point of view that property security takes priority.It has played a great guiding role in the judgment of the internal right of recourse of each guarantor in the mixed joint guarantee in the actual judicial trial.Subsequently,the Property Law of the People’s Republic of China in 2007 stipulated the order of security liability in accordance with the principle of autonomy of will,resolving the disputes arising from low procedural efficiency and economic efficiency under the implementation of the Interpretation of The Supreme People’s Court on Some Issues concerning the Application of the Security Law of the People’s Republic of China.However,the aforementioned legal provisions do not clearly express the right of recourse between guarantors,nor does the Civil Code which comes into effect on January 1,2021,provide a response in the Interpretation of The Guarantee System in the Civil Code.But it only affirms that guarantors have the right of recourse,and there are no specific provisions in the implementation rules.The lag of legislation inevitably leads to such a result,but the development of society has gradually put forward requirements for the specific implementation rules of the right of recourse,which has become an unavoidable problem in legislation,judicature and law enforcement.In addition,in judicial practice,there are frequent disputes caused by the mixed co-guarantors taking responsibility and then recovering from others.It is clear and uncontroversial that guarantors take responsibility and then recover from debtors,but there is no unified understanding on whether to recover from other guarantors in the absence of an agreement.This problem affects the proper settlement of relevant disputes in judicial practice and increases the uncertainty of market transactions.There are also great differences between "affirmative theory" and "negative theory",and there are fierce debates on the system of intentionalism,joint and several liability,subrogation and so on.At present,the understanding of the internal right of recourse is not clear and precise due to the unclear legal norms,practical application dilemma and theory dispute.A total is divided into four chapters in this article,from the concept of hybrid joint guarantee and basic type derivation is mixed jointly guaranteed legislation present situation,analyzing the evolution of the legal norms,based on the practice in the case of excavation and combining with the theory,the latest progress of card into internal salved,and discussed the recovery range: contains its calculation method,and recover the order.Therefore,the author’s point of view should be affirmed the right of recourse between guarantors in the hybrid joint guarantee.It also expounds the evolution of mixed joint guarantee legislation and compares the differences before and after,so as to improve the rule system of current legislation,so as to play a certain reference role in future legislation,judicature and law enforcement.