Research On The Guarantor’s Right Of Recourse In Mixed Joint Guaranty

The guaranty system as an important legal system, plays an important role in protecting the performance of debts, maintaining transaction security, and promoting the market financing. In the real transaction, especially in the bank’s credit trading practice, in order to ensure the safety of the realization of the creditor’s right, the creditor tends to request several guarantees in the same debt. In the most cases, the same debt is secured by both security on property and credit guarantee. Because the current laws and regulations of PRC about the mixed joint guaranty is not perfect, which leads to many disputes on the mixed joint guaranty. The guarantor’s right of recourse in mixed joint guaranty is the most controversial issue between theorists and practitioners. The debtor provides security on property, and the third party provides credit guarantee for the same debt, because the debtor is the ultimate obligor, when the third party actually has paid the debt, there is no doubt that he can recourse to the debtor. The third party provides the security on property and credit guarantee for the same debt, the problem of the right of recourse between guarantees becomes the focus of the dispute. This paper studies on this situation.The first chapter briefly describes the mixed joint guaranty. First of all, it introduces the concept and the characteristics of the mixed joint guaranty, and then analysis the current situation of legislation in our country, researches on the selected cases about the right of recourse between guarantees in the mixed joint guaranty which were trialed by the courts of Zhejiang province from 2009 to 2014, and conclude two questions. The first is whether the guarantor who has performed the guaranteed responsibility can recourse to other guarantors. The second is when the guarantor has the right recourse, how to determine the specific recourse rules.The second chapter studies whether the guarantor who has performed the guaranteed responsibility can recourse to other guarantors. First of all, it analysis the different opinions on this issue between theorists and practitioners. Then, from the aspect of theory, comparative law and the judicial practice, proves the right of recourse between guarantees, and points out that it is unreasonable to object the right of recourse between guarantees. The right of recourse between guarantees is not only benefit for mixed joint guarantee, but also can control the occurrence of moral risks.The third chapter studies the detail rules of the specific recourse rules. First of all, analyzing the two methods of determining the share among the guarantors, it believes that we can consult the legislation of Taiwan region, the allocation of recourse between guarantees will be shared in accordance with the proportional principle. And then analysis another question that when the guarantor has the right to recourse to other guarantors and the debtor, whether he shall recourse against the debtor at first. From the perspective of the consistency of law and protecting the interests of the guarantor, it proves that the creditor has the right to choose either or both to recourse.