Research On The Internal Recovery Of Mixed Joint Guarantees In China

Whether a co-guarantor in a hybrid joint guarantee can recover from other non-liable guarantors after assuming the guarantee liability for the part other than its share of liability has always been a dispute between academic and practical circles.Since the promulgation of the Guarantee Law,the attitude of Chinese legislators and judicial interpretation makers on the issue of internal recourse rights of mixed joint guarantees has undergone repeated changes,and Article 392 of the Civil Code continues to follow the provisions of the original Property Law,and does not make a clear statement on this issue.Although the Judicial Interpretation of the Guarantee System issued by the Supreme People’s Court clarifies that there is no recovery relationship between the guarantors in a mixed joint guarantee under the circumstance that the contract stipulates is absent,this negative conclusion still needs to be supported by a strong legal basis.In judicial practice,adjudication positions are often different at different stages due to different considerations on the application of laws and the self-consistency of the system.In the theoretical circles,there are two controversial factions around the internal recovery rights of mixed joint guarantees: positive theory and negative theory.Under the background of the era of the Civil Code,the discussion of internal recovery of hybrid joint guarantees has also emerged with new characteristics.By summarizing the needs of current judicial practice,this article analyzes the legal connotation of Article 392 of the Civil Code at four levels: textual interpretation,system interpretation,historical interpretation and legislative purpose interpretation,and concludes that this "silence" provision essentially denies the meaning of the internal recovery rights of hybrid co-guarantors.Under the premise of following the argumentation method of combining legal hermeneutics and value measurement,this paper examines the basic argumentation paths of the joint and several debt system,subrogation system and unjust enrichment system proposed by the affirmative theory,and argues that they are inappropriate,not only lack a clear legal basis,but also do not conform to the value pursuit of the guarantee system,and violate the spirit of private law autonomy of autonomy of will.As for the attempt to seek a legal basis for application by analogy in the current law,so as to give the guarantor who has already performed its obligations to recover internally,the provisions of Articles 518,524 and700 of the Civil Code do not give rise to the possibility of application by analogy due to the absence of legal reference provisions,lack of similarity and misalignment of legal relationships.In terms of fairness,the realization of efficiency value and the prevention of moral hazard,the denial of internal recovery rights of hybrid joint guarantees also reflects greater advantages.The article ultimately proved that there was no right of recourse between the mixed co-guarantors in the absence of an agreement.