Realization Of Internal Recovery Rights Of Hybrid Co-Guarantors

With the rapid development of the economy,the mixed joint guarantee,as a common way of financing security,is chosen by more and more creditors.All along,due to the unclear provisions of relevant laws and regulations in China on the right of recovery among mixed joint guarantees,it has caused differences in the recognition of this right by the courts in judicial practice,and then made inconsistent judicial decisions.The current Civil Code and the Interpretation of the Supreme People’s Court on the Application of the Civil Code of the People’s Republic of China Concerning the System of Guarantees(hereinafter referred to as the Interpretation Concerning the System of Guarantees)have been issued and implemented,among which,Article 392 of our Civil Code does not clearly provide for the right of recovery between guarantors,while Article 13 of the Interpretation Concerning the System of Guarantees provides for two situations in which guarantors have the Is this particular situation reasonable? How should the specific rules of recovery be calculated? These questions need to be addressed.This article firstly summarizes and analyzes the legislative provisions and academic views on the issue of mixed joint guarantees.In addition,the specific rules on recovery are also missing.Therefore,this paper compares and analyzes the relevant laws and regulations of China’s recovery system with those of foreign countries,and absorbs and draws on the useful provisions for China to improve the mixed joint guarantee system.In particular,firstly,the right of subrogation is determined as the basis of the claim of the mixed security system.Secondly,the scope of the recovery situation identified in Article 13 of the Interpretation of the Security System should be broadened.Finally,the specific rules of recovery,such as the share of recovery and the order of recovery,should be determined in order to better improve the mixed joint guarantee recovery system.