Research On The Internal Reclaim Right In The Mixed Co-guarantee

Guarantee plays an important role in civil and commercial transactions,and the civil and commercial entities are more in favor of mixed co-guarantee as it can provide the maximum protection for the realization of creditor's rights.However,as there are many parties involved in the mixed co-guarantee and the legal relationship is quite complicated in it,the mixed co-guarantee may cause a lot of arguments.The theoretical and practical circles have launched a heated discussion on the relevant issues of internal reclaim right in the mixed co-guarantee(hereinafter referred to as“internal reclaim right”),the arguments between them are still exists nowadays.The relevant issues of internal reclaim right contains three aspects: first is whether the internal reclaim right exists,second is the legal structure of the internal reclaim right,the third is the share calculation of the internal reclaim right.On the basis of sufficient research,this thesis analyses the relevant issues respectively in the interpretation angle and the legislation angle.The intention of this thesis is to make a contribution to the solution of such issues stated above.The first chapter of this thesis mainly explains the relevant issues on the internal reclaim right.This thesis firstly discusses the definition of the mixed co-guarantee,which should be determined by the difference between a guarantee and tangible security,and regardless of the subjective element of security provider.Then this thesis states that the cause of the relevant issues on the internal reclaim right is that Article176 of the Real Right Law of the People's Republic of China(hereinafter referred toas “the Real Right Law”)has no statement about this issue.After that,this thesis shows the adverse effects of the relevant issues on the internal reclaim right through the introduction of the differences in judicial practice.Based on this,the thesis raised the three core issues of the internal reclaim right stated above and made a certain summary of such issues,moreover,the viewpoint of this thesis on such issues are stated at the same time.The second chapter of this thesis mainly demonstrates the existence of the internal reclaim right.The first part criticized the “negative theory” from the interpretation angle and the legislation angle respectively.Under the interpretation angle,the conclusion that Article 176 of the Real Right Law denies the internal reclaim right won't be made by applying the method of textual interpretation and historical interpretation.What's more,this thesis proves that the Real Right Law does not object the internal reclaim right by analyzing the responsibility reduction and exemption regulations stipulated in Article 194 of the Real Right Law by applying the method of system interpretation.Besides,Article 38 of the Judicial Interpretation of the Security Law(hereinafter referred to as “Judicial Interpretation”)won't be invalidated due to the conflicts between Article 28 of the Security Law of the People's Republic of China(hereinafter referred to as “the Security Law”)and Article 176 of the Real Right Law.All in all,under the interpretation angle,by analyzing the textual meaning of Article 178 of the Real Right Law,the correct conclusion is that the Real Right Law and the Security Law has no statement about the internal reclaim right,what's more,there is no “inconsistency”(as stipulated in Article 178 of the Real Right Law)between the Security Law and the Real Right Law on the internal reclaim right.Based on this,Article 38 of the Judicial Interpretation is applicable to affirm the internal reclaim right.Under the legislation angle,this thesis proved that the affirmation of the internal reclaim right is not “uneconomic” and has no contradiction with the principles of fairness and autonomy.On the contrary,it is certain that the affirmation of the internal reclaim right is conducive to promoting market transactions,avoiding immorality and more in line with efficiency values.After proving the existence of the internal reclaim right,the third chapter of this thesis specifically discusses the legal structure of the internal reclaim right.Firstly,the“view of joint debt” is not applicable due to the nature of tangible security is not debt.What's more,the elaboration of the “view of co-existence of guarantee” on the specific constituent elements is not clear,whether it is still in the scope of the view of joint debt is in an uncertainty situation,therefore the application of this viewpoint is in doubt.Moreover,the view of efficiency value is too weak to be the claim basis of the internal reclaim right,it can only be used as a corroboration of the affirmation of the internal reclaim right.After the criticism of above viewpoints,this thesis proves that the unjust enrichment is reasonable to be the legal structure of the internal reclaim right by applying Article 38 of the Judicial Interpretation in the interpretation angle.Besides,legal transfer of creditor's rights is the best tool for constructing the legal relationship of the internal reclaim right.The fourth chapter of this thesis discusses the share calculation of the internal reclaim right.The basic principle of share calculation is to calculate according to a certain ratio rather than distribution equally.In the calculation of specific proportions,the theory of “single guarantor share calculation” should be adopted.At the same time,when calculating the internal share of each guarantor in the mixed co-guarantee,the share calculation of the provider of the tangible security shall be based on the lower one between the amount of the secured credit and the value of the tangible security it provides,and the share calculation of the guarantor shall be based on the guaranteed share provided by the guarantor.After that,this thesis proposes a formula for calculating the share of the internal reclaim right and shows an example to illustrate it.Last but not least,this thesis discusses the calculation method of the share when the guarantor and the provider of the tangible security are the same person,which the "two people separately calculation theory" shall prevail,for it is fair and clear although seems cumbersome apparently.