| This article mainly discusses whether there is a right of recovery and whether there is an order limitation in the recovery of mixed co-guarantees.Regarding the first question,most of the judicial practice in China uses the system purpose of mixed co-guarantees to affirm the right of recovery.However,the reasons for affirming the right of recovery are not sufficient based on the principles of the system,and Article 38 of the "Interpretation of the Security Law" also has disputes on the application of the law.Therefore,whether there are other theoretical foundations is an urgent problem to be solved.A series of problems brought about and what kind of legal relationship between the parties.Based on what kind of legal effect has the right to recover.Are there any restrictions on the order of exercising the right of recovery under different legal effects?This article first seeks the theoretical basis for the existence of recovery rights from the current domestic legal norms.By analyzing the legal relationship between the parties to determine the basis of theoretical recovery rights.In the mixed coguarantee,the guarantor’s internal joint and several debts.The right of recovery occurs from the effectiveness of the debtor’s internal recovery in the real joint debt.On the other hand,from the analysis of the overall legal relation,it is concluded that the guarantor’s right of recovery to the guarantor is actually a third party who obtains the creditor status after the liquidation on behalf of the guarantor.Regarding whether the guarantor’s recovery is based on the premise of debtor’s recovery,this article is guided by judicial practical experience,affirming the value of order restriction,and theoretically prove that the guarantor’s recovery must have preconditions.The theoretical basis is that the guarantor and the debtor and the guarantor constitute an unreal joint and several debt.The debtor is at the final level.Based on the principle of efficiency,it is certain that the guarantor in the hybrid joint guarantee should be based on the premise of recovering from the debtor.Since the order of the guarantor’s recovery is not specified in the legislation,it is necessary to construct a guarantor’s recovery specifications.By looking for common principles in mixed co-guarantees,the guarantor’s recovery order specification is also based on these principles.Autonomy of will is the first principle,which is manifested by an agreement in accordance with the agreement.In theabsence of an agreement,based on the principle of saving judicial resources and guaranteeing efficiency,the guarantor must recover the debt from the debtor first. |
