On The Internal Recovery Right Of Guarantors In Mixed Joint Guarantee From The Perspective Of “Civil Code”

Borrowing is one of the ways to get through the personal shortage of funds or the difficulty of running a company.Sometimes,however,the debtor’s property and reputation alone would not be sufficient to successfully obtain assistance,and the probability of successful borrowing would be effectively enhanced if there were a third party willing to provide security for the debtor.As a result,the guarantee system acts as a bridge between creditors,debtors and guarantors,enabling lending relationships more effectively and guaranteeing the smooth and healthy functioning of the market economy.In the guarantee system,there exists a special kind of guarantee,mixed co-guarantee,whose internal right of recovery has always been disputed in theoretical and practical circles.China has different legislative models at different times,and the related dispute has not stopped under the view of the Civil Code.Article 176 of the Code of Property Rights was retained in article 392 of the Civil Code,neither of which responded positively to that question,followed by article 13 of the Judicial Interpretation of the Guarantee System,which identified three situations in which the guarantor could exercise internal recourse,respecting the autonomy of the parties.Although the problem of judicial application has been further solved,the theoretical differences have not stopped and there are still some arguable points in the legislative system.In daily life,the absence of prior agreement between guarantors is a normalized phenomenon,if the total denial of internal recourse rights,it is contrary to the principle of fairness and justice,and may also trigger speculation by guarantors.In order to balance the interests of all parties,this paper analyzes the concept of mixed co-sponsorship,clears up the legal relationship between the parties,summarizes the relevant legal norms existing at different times,and analyzes the academic disputes that have existed for a long time,expounding the theoretical basis behind the two camps of "affirmation" and "negation" in academia.This paper holds that there is joint and several liability among the guarantors,and analyzes it from the perspective of articles 518 and 392 of the civil code,and then proves the validity of the right of recourse within the guarantors.In order to make the internal recourse right feasible and effective to solve the practical problems,the most urgent task is how to perfect the related system of mixed mutual guarantee.The existing system does not make detailed provisions on the practical implementation of the internal recourse rights,and the determination of the internal recourse sequence,the division of the recovery share and the determination of the share to be borne by the dual status guarantors are not specified.Based on the theory of the same level and the negation of the order of recovery,the law should not restrict the internal order of recovery,which can not only protect the rights and interests of the guarantor,but also simplify the recovery procedure.In the determination of recovery share,if the burden of some guarantors may be too low or too heavy,it is advisable to adopt a more scientific and reasonable "after-the-fact responsibility" allocation scheme.In the case of dual status guarantors,the scope of recovery is determined according to the different types of surety provided by them.