Research On The Guarantor’s Internal Recourse In Hybrid Guarantee

Guarantee can be divided into different types according to its different nature,and in a creditor’s right,several different types of guarantee exist at the same time,that is,mixed guarantee.The main purpose of mixed guarantee system is to strengthen the protection of creditors’ interests.However,whether the guarantor who has undertaken the guarantee liability can recover from different types of other guarantors has been in a very chaotic state in China’s legislation.The interpretation of the security law first clearly stipulates that the guarantors of mixed guarantee have the right of internal recovery,while the property law later deleted the provision of internal recovery in the provisions of mixed guarantee.Therefore,whether the internal right of recovery exists and whether the guarantors can recover has aroused continuous disputes in the academic and practical circles for several years.The civil code,which came into force in 2021,also takes the same attitude towards this issue as the property law,and keeps silent on the internal right of recourse system.The "interpretation of security system" has made new provisions on the internal right of recourse system.However,such a provision is not completely convincing because of the great controversy.Taking the views of "affirmative theory" and "negative theory" in the academic circles as the starting point,combined with the rules determined in the current civil code and the interpretation of guarantee system,this thesis evaluates and analyzes the mainstream views and the treatment methods in practice,and explores the core problems of the internal right of recourse system.Because the internal right of recourse system has the functions of realizing fair value,dispersing risks,encouraging guarantee and preventing moral hazard,based on full consideration,it should support the mutual recovery between guarantors.This thesis consists of four chapters:The first chapter first defines the concept and connotation of mixed guarantee and internal recourse.Then it combs China’s relevant legislation and judicial interpretation in chronological order,analyzes the problems existing in legislation,leads to the dispute focus of internal recourse,expounds the existing dispute focus of "negation theory" and "affirmation theory" in academic circles,and deeply analyzes the different value propositions of the opposite parties on the same issues.Finally,the internal right of recourse system is investigated in comparative law.The second chapter explores the rationality of the internal right of recourse system from the perspective of the system itself and legal practice.Combined with the analysis of theory and practice,it is concluded that the establishment of internal recourse system in legislation is not only more reasonable from the overall structure of the legal system,but also achieve a more positive and positive social impact.Finally,it comes to the conclusion that a complete internal right of recourse system should be established in legislation.The third chapter explores the claim basis of the internal recovery mechanism of mixed guarantee.This thesis analyzes and verifies the rationality of its claim basis from the perspectives of unjust enrichment theory,subrogation theory and joint and several debt theory,and finally finds that the mixed guarantee and joint guarantee system are similar to each other to a great extent and can be presumed to be applicable.And the theory of joint and several debt should be used as the right basis of internal recourse between guarantors.The fourth chapter combines the theoretical analysis of the first three chapters,explores a reasonable share distribution scheme for the internal recourse system,and puts forward the specific calculation formula.Then it discusses the construction of specific system,including the establishment conditions of internal recourse,the specific rules of responsibility and the specific rules of internal recourse.At the end of the thesis,it evaluates the current interpretation of guarantee system,points out the inadequacies of its provisions,and further puts forward practical suggestions for modification.