Internal Claims In The Mixed Jointly Guaranteed Class Case Study

Hybrid joint security refers to a creditor’s right at the same time the person’s guarantee and the thing’s guarantee,in order to guarantee the realization of the creditor’s right.Law and judicial interpretation about mixed jointly guaranteed "property law" the one hundred and seventy-sixth and the security law interpretation of article 38 of this law,but "property law" article one hundred and seventy-six after a liable for the guarantor is entitled to the rest of the guarantor advocates claim not make clear a regulation,in judicial practice,there are serious problems of guarantor internal claims "different connection with the sentence" "with the method of different solution" phenomenon.Three typical sample cases were selected from the 56 overall sample cases: gu xx et al.V.a property company in hubei province for the retrial of the right of recourse dispute;Ruijin huaxang sihai automobile co.,LTD.And an investment company in jiangxi province;The appeal case of a certain road and bridge engineering company in nanjing and a certain wang,etc.In combination with the claims of the parties in the sample case and the judgment opinions of the court,the three controversies are summarized as follows: whether the guarantor can claim compensation from the other guarantor after performing the repayment obligation;How to determine the legal relationship within each guarantor;How to determine the claim share.On the question of whether the guarantor can claim the right of compensation from the other guarantor after performing the repayment obligation,a party claims that the right of internal claim should be denied according to the principle of autonomy of will.However,from the perspective of the interpretation of article 176 of the property law,it cannot be concluded that the guarantor’s right of internal claim is denied.From the perspective of system interpretation,the guarantor can claim compensation from other guarantors in the joint guarantee and joint mortgage,so the guarantor can claim compensation from other guarantors in the mixed joint guarantee.From the point of view of self-interpretation,affirming the right of internal claim conforms to the principle of fairness can also guarantee the autonomy of guarantor’s will.There are two opinions on the determination of the internal relationship among the guarantors,that is,the relationship of joint and several debts or the subrogation of the guarantors.As for how to determine the share of internal claim right,there are mainly disputes between the parties in proportion tothe responsibility and in equal proportion to the number of people.From the perspective of the difference of liability between the material insurance and the people’s insurance and the fairness of the responsibility bearing,combined with the comparative interpretation and analysis,the claim share should be calculated in accordance with the proportion of the liability of the guarantor.Article three hundred and ninety-two of the civil code(draft)of mixed jointly guaranteed regulation is still the continuation of the "property law" regulation,the issue has not be explicitly,advised to keep under the premise of article three hundred and ninety-two of the draft,add paragraph two,respectively,the guarantor of internal claims and claims share by responsibility share ratio,and after the two sentence clear can be separately agreed by the parties and eliminate the rule applies.