Research On The Mixed Co-guarantor’s Right To Internal Recovery

In order to guarantee the smooth realization of the creditor’s right,the creditor will increase the ways of guarantee as much as possible,so that there are both guarantee and guarantee provided by the debtor or the third party on the same creditor’s right,the academic circles of our country often call it “ Mixed joint guarantee”.Article 392 of the Civil Code of our country stipulates that when there is not only guarantee but also security rights in rem on the same creditor’s right,the guarantor has the right of recourse against the debtor after the third party who provides the guarantee pays off the debt,there is no provision for the guarantor to have other recourse.In response to this provision,some scholars hold the view that "no provision means no prohibition",this article denies the mixed co-guarantor’s right to internal recovery;there are also scholars who hold the opposite view,arguing that since the article does not explicitly deny the hybrid joint guarantor the right to internal recovery,it is still possible to interpret the hybrid joint guarantor’s right to internal recovery in terms of jurisprudence.Article 13 of the Interpretation of the Security Regime of the Civil Code,which came into force at the same time as the Civil Code,provides that a mixed co-guarantor with an internal right of recovery should be contacted in advance,and it also specifies that a guarantor with a "co-signatory" has an internal right of recovery.Academics have mainly studied the following aspects of the internal recovery right of the hybrid joint guarantee: first,the existence or abolition of the internal recovery right of the hybrid joint guarantee;second,the theoretical basis of the internal recovery right of the hybrid joint guarantee;the third is the rationality of Article 13 of the Interpretation of the Security System of the Civil Code;the fourth is the order and share of the internal recovery right.The controversy in the theory has led to the situation of "different judgments in the same case" or "different judgments in similar cases" in judicial practice.This paper will analyze and summarize the specific problems existing in judicial practice,combine the existing judicial practice experience and the essence of German and Japanese experience,and put forward specific proposals to solve the problems,in order to enrich the existing research content and achieve the purpose of encouraging guarantee,alleviating social conflicts,and guaranteeing social justice and fairness.This paper consists of four main chapters.The first chapter introduces our country’s laws and regulations in detail,according to the sequence of time,there are the abolished Security law,Judicial interpretation of security law,Property Law and the current effective Civil code,Interpretation of the security system of civil code.The second chapter takes the cases of mixed joint security recovery cases published on the website of China Judicial Documents as the object of study,analyzes the case data,summarizes the specific situations of "different judgments in the same case and similar cases" reflected by the cases,and identifies the problems existing in judicial practice.The third chapter mainly introduces the relevant legislation in Germany and Japan,and summarizes the contents that can be learned from China.Chapter 4,based on the first three chapters,puts forward proposals to improve the regulation of the exercise of the right to internal recovery of mixed joint guarantees in China,firstly,to clearly affirm the existence of the right to internal recovery in the legislation,and secondly,to clarify the specific contents of the right to internal recovery,including the order of recovery and the share of recovery.