Negation Of Internal Recourse Of The Mixed Co-guarantor

The issue concerning the existence of the internal right of recourse among hybrid joint co-guarantors is one of the hot topics of heated controversy in the academic circle and judicial practice.There has been no general theory so far,but two opinions affirming and denying the right of recourse.In this thesis,from the perspective of traditional legal theories and legal economics,the author starts from the conditions of establishment of the internal right of recourse,adopts the cost-benefit analysis and provides the legal and rational basis for denying the internal right of recourse.The research content can be divided into four parts.The first chapter introduces and analyzes the legal argument of the internal right of recourse among hybrid joint co-guarantors.Firstly,the three legal theories with more controversy between positive and negative opinions are summarized,namely the joint and several liability theories,the subrogation theories and the unjust enrichment theories.Then,the conclusion that there are logical fallacies in the application of non-joint liability relationship and subrogation theory to hybrid joint co-guarantors as well as the absence of "profit" and "damage" factors in the application of unjust enrichment theory,through which the three legal bases of the positive opinion are denied.The second chapter is mainly an investigation of the adjudication differences of the internal right of recourse within hybrid joint co-guarantors.There are differences among judges in judicial practice on the applicable laws in dealing with such cases,resulting in two opposing cases.One is the positive right of recourse as set forth in Article 38 of Judicial Interpretation of Security Law,while the other is the negative right of recourse by invoking Article 176 of the Property Law or Article 392 of the Civil Code and its judicial interpretation.In the meantime,the legal views supported by judges in affirming and denying the right of recourse are also different.The third chapter is an analysis of the legality of denying the internal right of recourse among hybrid joint co-guarantors.The premise of the existence of the internal right of recourse among hybrid joint co-guarantors shall be the per-share relationship taken by each guarantor,which requires the joint ownership of the internal relationship of each guarantor.This internal relationship,however,cannot be automatically established by hybrid joint co-guarantors.The main reasons are as follows: first,there is no natural inherent joint ownership among the hybrid joint co-guarantors,with no natural requirement for the per-share guarantee in terms of nature and function.Second,when hybrid joint co-guarantors have no expressed or implied intention of mutual right of recourse and cannot form joint and several joint guarantees,the internal joint ownership relationship cannot be established.Third,there is no fictional consignment or obligatory regulation regarding the internal relationship among hybrid joint co-guarantor in the existing law.Through the method of legal hermeneutics,it is found that there is no fictional consignment on the internal joint ownership among hybrid joint co-guarantor in article 392 of the Civil Code,and the existence of a legal right of recourse of hybrid joint co-guarantors is denied in Article 13 of the Interpretation of the Guarantee System of the Civil Code.As can be seen from above,no internal right of recourse exists among hybrid joint co-guarantors.The fourth chapter gives a more reasonable argument in justification of denying the right of recourse from the perspective of law and economics.According to the principle of economics,social resources are scarce and should be maximized.The hybrid joint guarantee system has economic functions and characteristics,and therefore the system design regarding the existence of the internal right of recourse among the guarantors is also related to the allocation of social scarce resources.From the perspective of law and economics,efficiency is the core value and standard of the evaluation system and also the fundamental measure of the rationality of public policies,which should not be inconsistent with the justice value followed by the traditional law.Specifically,the internal right of recourse among hybrid joint co-guarantors will not damage the justice value.Therefore,efficiency should be the key to evaluating the internal right of recourse among hybrid joint co-guarantors.According to the cost-benefit analysis method,legal efficiency is the ratio of legal benefits and legal costs and by analyzing the legal costs and benefits arising from positive and negative proof formation respectively in the process of legislation,judicature,law-abiding and law enforcement,it is evident that the costs of legislation and judicature are both greater than those of the negative proof formation,while the benefits of legislation of negative proof formation are greater than those of the positive proof formation.The legal costs and benefits of the two theories are comparable in the process of law-abiding and law enforcement,which shows that the efficiency of the proof formation is greater than that of positive proof formation,which means that the system design of denying the internal right of recourse among hybrid joint co-guarantors can reduce the costs,improve the benefits and realize the optimal allocation of rights.