Study On Recourse Right In Mixed Co-guaranty

In order to guarantee the smooth realization of the creditor’s rights,the creditor may request both guaranty and real security in the same debt.The situation in which both guaranty and real security exist on the same creditor’s right is called mixed co-guaranty.When the real security is provided by the debtor himself,the creditor shall give priority to the real security to realize the creditor’s rights.This kind of mixed co-guaranty is relative simple and without many disputes.Therefore,the mixed co-guaranty discussed by this thesis is limited to the situation where the real security is provided by the third party.In the mixed co-guaranty,since the guarantee responsibility is a kind of alternative responsibility.Whether the guarantor or the guarantor of real security undertakes the guarantee responsibility at the request of the creditor,both of them are entitled to recover from the debtor.At this point there is no dispute between the guarantor and the debtor concerning the recourse right.And the question of the recourse rights between the guarantors is controversial because of the lack of clarity in the legislation and the disagreement of the judicial practice.On the one hand,except for recovering from the debtor,Article 38 of the Law on Judicial Interpretation of the Guarantee Law expressly affirms that the guarantor who undertook the guaranty liability may recover from the other guarantor.but Article 176 of the Property Law promulgated later only provided that the guarantor has the right to recover from the debtor,whether it can recover from other guarantors are not set.On the other hand,judicial practice is not consistent with each other regarding the existence of the recourse rights among the guarantors in the mixed co-guaranty.Moreover,in the case of affirmation of recourse rights,the criteria for determining the specific share of recourse are also different: by the average numbers of guarantors or by the proportion of the share of the share of security.This is also the two core issues to be discussed in this paper,namely,whether the guarantors of the mixed co-guarantee can recover from each other and how to determine the proportion.The relationship between the guarantor in the mixed co-guarantee is the prerequisite for judging the recoverability of the guarantor.The difference between the priority of the guarantor will directly determine the system design of the mixed co-guarantee.There are three different doctrines about the relationship between the guarantor in the mixed co-guarantee: the guarantee responsibility of the real security is absolutely prioritized,the guarantee responsibility of the real security is relatively prioritized and the guarantee responsibility of the real security and the guaranty responsibility of the person are equal.By combing the legal provisions of the mixed co-guarantee in our country,we can find out the relationship between the guarantor of the mixed co-guarantee,and our legislation has undergone an increasingly scientific and rationalized process.Article 28 of Guarantee Law adopted the doctrine that the guarantee responsibility of the real security is absolutely prioritized;Currently Article 38 of the Law on Judicial Interpretation of the Guarantee Law and Article 176 of Property Law provides that the security of the responsibility and the responsibility of the people are in equalitarian position to give creditors the right to freedom of choice when they realize their claims.The value orientation of this legislation is also a prerequisite for the existence of the right of recourse between the guarantor.The design of the recovery mechanism between the guarantors in the mixed co-guarantee is the core of the mixed co-guarantee system.From the point of view of the system design,the legal basis of the recourse right between the guarantors and the system of the specific exercise of the right of recourse are two basic problems that need to be solved.From the perspective of comparative law,the theory and judicial practice in Germany and China Taiwan region approbate the right of recourse between the guarantor in mixed co-guarantee,but the legal basis lies in the subrogation of the original creditors,which is a kind of legal transfer of the debt.However,the right of recourse in our country is a legal debt,there is no subrogation of the original creditors of the situation.In fact,in the mixed co-guarantee,a guarantor to assume the guarantee responsibility will make other guarantors of the guarantee responsibility and risk to be released,the two sides there is a clear relationship of interest changes.In this respect,this thesis concentrating on the fact that the guarantor who assumed the liability and suffered losses as well as other guarantors exempted from liability and benefit from this as a result,by comparing with the constituent elements of unjust enrichment in order to construct the legal basis of the recourse right between guarantors.On the other hand,the right of recourse to the guarantor is not only a direct manifestation of the guarantee responsibility of the material and the egalitarianism of the guarantors,but also in the interests of the guarantors’ mutual responsibility to share the risk,to prevent the situation in which the guarantor who does not want to bear the guarantee responsibility and conducts malicious collusion with creditors,causing the creditors abuse his right to choose other guarantors to avoid responsibility.At the same time,there is no law in our country which explicitly denies the recourse right between the guarantors.The law shall not be expressly permitted by expressly prohibited,and the judicial practice is more likely to recognize the recovery between the guarantors right.The foothold of the recovery mechanism lies in how to exercise the right of recourse and how to determine the proportion of the recourse rights.Therefore,it’s necessary to determine each guarantor’s share of responsibility,the exceeded part is recoverable part.Combined with the academic viewpoints and legislations on mixed co-guarantee in other countries and regions,there are several ways to calculate the specific shares of responsibility of guarantors.I believe that according to the guarantor of the scope of responsibility and the proportion of the value of collateral to determine the share of responsibility to share more scientific and reasonable and the formula can be expressed as: the share of the responsibility of each guarantor = total debt ×(the guarantee amount of each guarantor ÷ the total guarantee amount of all the guarantor).It should be clear that the formula is applicable to the fact that the sum of the total amount of the guarantee of the total secured person in the mixed co-guarantee is greater than the total amount of the debt.In addition,in order to ensure the smooth realization of the right of recourse of the guarantor,the guarantor of the guarantee liability shall be given the right of free choice on the exercise of the right of recourse,and shall not be subject to the prevailing restrictions or affected by the establishment of the guarantee.To this end,this thesis consists of four chapters analyze and discuss:The first chapter summarizes the current situation of the legislation of the mixed co-guarantee and the processing situation in the judicial practice,and then puts forward the controversy focus of the mixed co-guarantee right of solicitation: First,the guarantor who undertakes the guarantee responsibility The guarantor of the responsibility to recover;the second is if the existence of the right of recourse,the specific right of recourse how to exercise,including the recovery of the share of how to determine the debtor’s recovery and other guarantor of the recovery of any restrictions.The second chapter discusses the relationship between the guarantors in the mixed co-guarantee and the three different doctrines,and then combs the legislative value orientation of the relationship between the guarantor and the guarantor in the mixed co-guarantee.Then this thesis points out that both Article 38 of the Judicial Interpretation of the Guarantee Law and Article 176 of the Property Law adopt the egalitarian position of the responsibility of real security and the responsibility of guaranty.This is also the basis for further discussion of the issue of the right of recourse between the guarantors.The third chapter discusses the first controversial focus,that is,the guarantor of the responsibility to guarantee the possibility of other non-responsible guarantor to recover.In the mixed co-guarantee,a guarantor to assume the guaranty liability will make other guarantors of the guarantee responsibility and risk to be released,the two sides there is a clear relationship between the interests of improper profit,in order to build the guarantor between the legal basis The And certainly between the guarantor of the right of recourse,not only with the guarantee of the material and the guarantor of the responsibility of the equality of the fit,but also conducive to the sharing of responsibility between the guarantor risk,put an end to do not want to assume the guarantor of the guarantor and The creditors are maliciously collusion.And our law does not explicitly deny the mutual compensation between the guarantor.The forth chapter discusses the second controversial focus on how the right of recourse between the guarantors is exercised.I believe that the proportion of the guarantor’s liability and the value of the collateral to determine the share of the share of responsibility is more scientific and reasonable,but it should be clear that the formula is the premise of the mixed co-guarantee in the sum of the total amount of the guarantor is greater than the total debt situation.At the same time,the guarantor who undertook the guaranty liability was freely chosen on the exercise of the right of recourse and should not be subject to the prevailing restrictions,without having to first recover from the debtor,nor should it be affected by the establishment of the security.Based on the above analysis,the author finally concludes that in the mixed co-guarantee,the guarantor who undertakes the guaranty liability may recover from the other guarantor,except that it is entitled to recover from the debtor.The guarantor’s share of the guarantor may be determined by the ratio between the guarantor’s liability and the value of the collateral,and the guarantor who undertook the warranty shall not be subject to the prevailing restrictions or the exercising time of the right of recourse.