Study On The Application Of Law To Internal Recourse In Mixed Joint Guarantee

With the continuous development of social economy,people pay more and more attention to the security of funds.In the same creditor-debtor relationship,in order to better guarantee the security of funds and the realization of creditor’s rights,creditors often require to establish multiple guarantees on the same debt,and the mixed form of joint guarantee comes into being.However,the description of mixed joint guarantees in our existing laws only exists in Article 28 of the Guarantee Law,Article 38 of the Judicial Interpretation of the Guarantee Law and Article 176 of the Property Law,and there are conflicts and contradictions among these three provisions.It can be said that China’s current mixed joint guarantee mechanism is not perfect,so whether the right of recourse is established among the guarantors in the mixed joint guarantee has aroused considerable controversy both in theory and in judicial practice.This paper studies and explores this issue in order to provide some suggestions for the improvement of China’s mixed joint guarantee system.In addition to the introduction and conclusion,this paper consists of four parts:The first part briefly introduces the related theories of mixed joint guarantee,including basic concepts and responsibility sharing,which leads to the problem of internal recourse.Because mixed joint guarantee involves many departmental laws,the legal relationship among them is more complex,especially the priority of the guarantor’s responsibility,which affects the solution of the problem of internal recourse.This paper elaborates on the basic theory and discusses how to divide the responsibility for analysis in order to better demonstrate the problem of internal recourse among guarantors.The second part mainly through the reappearance of the real cases of mixed joint guarantee,leads to the differences and dilemmas encountered in judicial practice,briefly describes the current situation of legislation in China,analyzes the causes of differences and dilemmas,throws out problems,and then through the following chapters to further analyze and demonstrate the guarantors in mixed joint guarantee.Whether there is internal recourse right between them.In the third part,by introducing the academic discussion on the internal recourse in the mixed joint guarantee system,the author elaborates the two views of"affirmative" and "negative" respectively,and tries to prove that there should be internal recourse among the guarantors in the mixed guarantee system through the analysis.The fourth part mainly elaborates the internal recourse system among the guarantors in the mixed joint guarantee,tries to construct its application rules in the judicial practice,and makes a thorough study from the aspects of the establishment requirements,the share of recourse and the order of recourse.