Research On Internal Recovery In Mixed Co-guarantee

From practice,to ensure the realization of claims,creditors usually use a variety of different types of guarantees.As a result,there are cases where the same claim has multiple guarantees of different nature,which are so called “mixed co-guarantee”.Mixed co-guarantee means a number of different types of guarantees guarantee the same claim,such as guarantee coexistence with mortgage,guarantee coexistence with pledge.The current legal provisions concerning mixed co-guarantees in force in China mainly focus on Article 28,Paragraph 1 of the Guarantee Law,Article 38,Paragraph 1 of the “Judicial Interpretation of the Guarantee Law”,and Article 176 of the Property Law.China's attitude towards the internal right of recovery in mixed co-guarantee has undergone a negative – affirmative –undecided three stages.This article explains the various methods of Articles 176 and 178 of the Property Law through textual interpretation,system interpretation,historical interpretation,negative interpretation,interpretation of principle,and objective teleological explanation.It is concluded that Article 176 of the Property Law does not provide any provisions for the internal right of compensation of the guarantors.From the perspective of legal interpretation,it seems that the internal right of recovery of the mixed co-guarantors should be affirmed in accordance with Article 38 of the“Judicial Interpretation of the Guarantee Law”.However,judging from the opinions of the legislators,Article 176 of the Property Law seems to deliberately ignore the internal right of recovery of the mixed co-guarantor and negate it.Therefore,in legislation,this issue is still in a controversial state.Since the judicial judgments in our country are still not uniform,and the academic circles have always criticized the internal recovery system,we need to elaborate on this issue.The academic circles have different views on the internal recovery of co-mixed guarantees.The NPC Law Committee believes that there is no meaning contact andlegal relationship between the guarantors,and there is no legal basis for the recovery rights.This paper believes that if the guarantor is considered to be a self-interested rational person,then the guarantor will undoubtedly believe that since there are other guarantors,their own guarantee responsibility should be correspondingly alleviated and share the guarantee responsibility.And because the creditor has the right to choose between the guarantors.As long as one guarantor assumes the guaranty responsibility,other guarantors can be exempted from liability.When the creditor waives the security right,the guarantor can obtain the corresponding exemption.Therefore,there should be a legal relationship between the guarantors.We have to find an explanation path for the internal right of recovery of the co-mixed guarantee.This paper mainly takes the joint responsibility and the guarantor's subrogation as its theoretical basis.Regarding joint responsibilities,because legislation in China is still not perfect,we mainly draw on the views of German legislation and academic circles.Finally,the same level theory of Professor Larenz was used to explain the mixed joint guarantee.But the joint responsibility theory also faces some challenges.For example,the nature of the guarantee and the property insurance are different,it does not constitute joint responsibility.The guarantor's subrogation means,in order to satisfy the guarantor's right to recover the principal debtor,it is allowed to obtain the creditor's status,the creditor's rights and subsidiary rights are obtained.So The guarantor also has the right of recovery to other guarantors.This paper believes that the theory of subrogation rights has long matured and is clearly stipulated in the laws of various countries,which is convenient for China to learn and learn from.There are four options for determining the share of responsibility of each guarantor.They are(1)sharing the share of responsibility equally according to the total number of guarantors;(2)firstly sharing the total number of guarantors to determine the guarantor's share,and then sharing the share of responsibilities within the guarantor at the guarantor price;(3)the proportion of the guarantee scope determines the share of responsibility;(4)share the share of responsibility according to the expectation responsibility of each guarantor.After argumentation,this paper believes that both Option 3 and Option 4 can be adopted.