| Mixed Co-guarantee has merged all the advantages of Real Security and General Guarantee together. On the one hand, the plurality of guarantee not only reduce the risk brought by single one, but also strengthen the security of creditor’s rights. On the other hand, the combination of Co-guarantee has enriched the feasible programs which could be used by creditors when their rights grow mature. That brings out the best in each other of Real Security’ exclusiveness and General Guarantee’ simplicity.Based on the outer credit addition attributed by Mixed Co-guarantee, creditor lends a deal to debtor, then the transactional risk will arise due to this deal. Once debtor’s credit deteriorates so that creditor rights can not be satisfied, creditor will suffer loss. As needed by the principle of good faith, civil law allow creditor transfers the loss he suffered to Mixed Co-guarantors, thereupon the Mixed Co-guarantors will be a Risikogemeinschaft, make amends to creditor according to how much they forcing the deal. But the burden sharing which based on the fairness doctrine can only be valid among this Risikogemeinschaft, the first criterion to play in market which Mixed Co-guarantors and creditor should obey is efficiency. At last creditor has wined the right of choosing any guarantor for payment at full of what the debtor had in debt.There is a broad crack between the full payment burden of Mixed Co-guarantors to creditor and the responsibility sharing system during of guarantors in Risikogemeinschaft. The method to bridge this crack can only resort to the exercising of recourse by Co-guarantors. Henceforth, the core problem of this paper is how to establish a fair, rational and simple recourse exercising system of Mixed Co-guarantors to make sure the burden sharing of Co-guarantors.The whole paper is planed as follow:The first paragraph of this paper holds the entry point of the judgment on preferred responsibility between Real Securitor and General Guarantor, settles the fundamental of equality which the whole paper based on, and then casts the theme of establishment in recourse exercising system of Mixed Co-guarantors. This paragraph also ravels out the point that our building task should focus on through the way of carding the legal system of our country.This paper’s second paragraph fixes the source that our Co-guarantors’ recourse could derive from. Then it holds the line that there is no legal reason between performance guarantor’s loss and exemption guarantor’s profit. According to the contrast with Unjust Enrichment System, we can reveal the truth that there is actually an tunnel of interest movement between Mixed Co-guarantors. Based on the thinking to solve the dilemma of “Right rent seekingâ€, it concludes the necessity that civil law should endow Mixed Co-guarantors the right of recourse. At last, this paragraph educes the legal relationship of recourse between guarantors, and takes a pondering upon its nature or characteristic.The third paragraph of this paper mainly discusses the concrete building task of Mixed Co-guarantee. Due to the core status that Mixed Co-guarantor’s responsibility quotient has occupied, this paper discriminates the relative merits of all the responsibility quotient computing methods via specific data and case, proposes the best one at last and detail its scope of application. Afterwards, this paper exerts itself to solve the problems of information asymmetry, limit of amount, restrict on sequence of double recourse when the right would have been exerted, sets up the platform provided for the exertion of the recourse right. Ultimately, this paper takes the influence which creditor’ abandoning guaranteeing right could affect Mixed Co-guarantor’s recourse scope as the foothold, makes sure the steady running of Mixed Co-guarantee system and reduces uncertainty. |
