Study On Legal Issues Of Internal Recovery Of Mixed Joint Guarantee

Along with the continuous development of our country’s economy since the reform and opening up,the needs of economic development should guarantee business development,enrich the species and the form of guarantee.Mixed joint guarantee plays an important role in financing and credit enhancement because of its diversified and flexible forms of guarantee,and can coexist the guarantee of compatible materials and guarantee guarantee,which makes up for the defects of their respective guarantee methods to a certain extent.Therefore,this kind of guarantee is favored in practice.But there is a great deal of controversy about the mixed joint guarantee,and there are also great differences in judicial practice.China’s provisions on mixed joint guarantee have been continuously improved through article 28 of the guaranty law,article 38 of the interpretation of the guaranty law and article 176 of the property law,but there are still some conflicts.There are many problems with hybrid co-guarantees that need to be clarified.The first is whether the internal mixed joint guarantee has the right of recourse.Mixed joint guarantee involves a complex legal relationship and the interests of all parties are intertwined.The "property law" promulgated in 2007 has a vague attitude about whether the internal party has the right of recourse,while the previous interpretation of the "security law" holds a positive attitude.Legislative chaos leads to judicial practice in a mess.Secondly,the calculation method of the specific recovery share is not clear.Although the interpretation of security law clearly stipulates the existence of internal right of recourse,there is no specific scheme of recourse.At present,there are two main ways in this aspect,namely,the model of equal distribution,the model of collectivism,and the model of proportional sharing.This level of problem can be seen from various judgments in judicial practice.In addition,the theoretical research on this aspect is not systematic enough,and there are many problems.In view of these disputes,this paper tries to clarify the relationship based on the existing theoretical basis and combined with the process of legislative evolution in China,and tries to put forward a reasonable recovery calculation scheme,so as to provide theoretical reference for the solution of this kind of problems.