On The Denial Of The Right Of Recovery Among Mixed Joint Guarantors

The question of whether guarantors can recover from each other after the realization of the security when multiple guarantors are imposed on the same claim has been debated.The complexity of this issue is reflected by many shifts in legislative and judicial positions and opinions on this issue in our country.The publication and implementation of the Civil Code of the People’s Republic of China continues the legislative spirit of the Contract Law of the People’s Republic of China,and has not clearly stipulated the right of recovery between guarantors.There are two problems in the current system that are worthy of consideration and discussion.On the one hand,the Civil Code does not take a clear attitude on the issue of mixed joint guarantor’s right of recovery,so it not only fails to ease the disputes in the academic circles,but intensifies the theoretical disputes.The academic circles hold different interpretations of the provisions of the Civil Code on the Mixed Joint Guarantors recovery rights viewpoints,thus impacting the completeness of the Civil Code.On the other hand,the academia and judicial practice of mainstream countries such as Germany,France,and the United States have recognized the affirmation theory,and China’s current recovery system is contrary to the international legislative trend.Starting from the three basic principles of civil law,such as autonomy of will,relativity of contract,and fairness,this article explains and demonstrates the negative point of view of mixed joint guarantee recovery rights;using the theory of interpretation,comprehensively evaluate the relevant provisions of the general provisions and sub-provisions of the Civil Code,combined with the logical analysis of legislative terms,analyzing the original intention of our country’s current legislation,finally come to the interpretation conclusion that there is no right of recovery between mixed joint guarantors.This article attempts to clarify domestic theoretical disputes and compare and review overseas legislative cases,in order to promote scholars to gradually reach a consensus and form a common theory in the academic circles,to maintain the legitimacy the system of recovery rights and the completeness of the Civil Code.