Research On The Internal Recourse Of Mixed Co-guarantee

As China’s economic development has entered a new normal,the security of the capital has become the focus of attention,in order to better ensure the safety of the funds,the Creditors prefer to the general choice of mixed common security guarantee.There are many parties in the mixed co-guarantee,and its legal relationship is more complex than the single guarantee.Therefore,whether or not the guarantor who has assumed the responsibility enjoy the right of recourse to other guarantors has always been the focus of dispute in the legal relationship of mixed co-guarantee.This thesis focuses on the problem and has been divided into following four parts:The first part expounds the basic theory of the legal relationship of the mixed co-guarantee and the current legislation.The second part analyzes theoretically whether there is a legal relationship between guarantors,and confirms the nature of the legal relationship on the basis of confirming the existence of legal relationship.In this part,the author firstly from China’s relevant laws and regulations level,function level of the guarantor set purpose and mixed joint guarantee,and the comparative law of the guarantor’s right of recourse by internal three aspects,there is a legal relationship between the justification of the guarantor.Then again,as a starting point,the nature of the legal relationship of the guarantor’s right of recourse internal analysis and explanation from two aspects: subject and content,drawn between the various joint guarantee the establishment of joint debts conclusion.The third part mainly discusses the concrete construction of internal recourse in mixed co-guarantee.Due to the poor operability in practice,it is necessary for us to design the rules that determine the share of recourse of the guarantors.This part first defines the scope of application for the right of recourse,and makes clear that the existence of mutual recourse exists only in the excess amount of co-guarantee.Secondly,the paper makes a demonstration about the determination of the internal share,which means that we should adopt the theory of distribution according to the proportion of value,that is,according to the value of the collateral and the proportion of the liability of the guarantors.Finally,I illustrate how to regulate the operation in the judicial practice drawing lessons from the specific provisions on the right of recourse between the guarantors in Taiwan civil law.In the fourth part,the author briefly introduces the specific problems in practice of the double recourse of the guarantors in the legal relationship of the mixed co-guarantee,and then divides and demonstrates the different theories.The author believes that the exercise on the right of double recourse should not be subject to the limit,the freedom of choice of the right holder should be fully respected.There is no need to impose restrictions on the law.