Proof And Development Of Mixed Co-guarantee Recovery Right

Whether the guarantor can exercise the right of recovery after bearing the guarantee responsibility in the mixed joint guarantee has not yet reached a conclusion after the Guarantee Law,the Judicial Interpretation of the Guarantee Law,and the Property Law.Article 700 of the current Civil Code(Draft)(third review)grants the guarantor the rights of the creditor to the debtor after undertaking the guarantee responsibility,but the object of the subrogation right does not extend to the physical guarantor.In practice,before the publication of the Minutes of the Nine Minutes,the court mostly recognized the right of recovery among guarantors by using Article 38 of the Interpretation of the Security Law,and only made judgments based on the inference that the interpretation is not clearly defined equal to the unclear negative,Lack of persuasion.After the Nine Minutes was released,the referee’s position could be unified,but the theoretical dispute could not be resolved.In the future,the following rules should be established: 1.The design of the guarantee system must take into account the commonality of the guarantee system,and the connotation of the concept of debtor should be expanded to include the guarantor in the civil code real estate compilation;Establish a subrogation system to balance the conflicts of interest between creditors and guarantors.Third,analogize the subrogation system to common mortgages and joint guarantees to achieve the integration of the guarantee system.