Research On The Responsibility Bearing Rules Of Mixed Guarantee

Among the many legal systems in China,the "Real Property Law","Guarantee Law" and "Judicial Interpretation of the Guarantee Law" regulate the mixed guarantee system.However,these laws are inconsistent due to their time differences.This has caused some difficulties for judges to judge cases in judicial practice.Although the newly promulgated Civil Code(Draft)continues the provisions of Article 176 of the Property Rights Law,many scholars believe that the provision on mixed guarantees is not completely reasonable,so it is necessary to carry out More in-depth research is expected to promote the continuous development and improvement of China’s mixed guarantee system,and provide clearer and clearer guidance for the determination of disputes in theory research and the judgement of cases in practice.This article applies the case analysis method to analyze the relevant cases in practice,and summarizes the focus of disputes in the judicial practice of the mixed guarantee system,that is,the realization order of physical security and people’s insurance,and the internal claim of the guarantor.And the impact of creditors’ waiver of guarantees.Under the legislative model of equal liability between the property protection and the people’s insurance,creditors can choose to be held by any guarantor,regardless of whether the provider of the property protection is the main debtor.At the same time,each mixed guarantor enjoys the right of mutual recovery.The specific recovery rules can refer to the comparison between the value of the collateral and the total amount of creditors’ inability to perform,and 1/2 of the total debtor’s inability to perform.This situation determines different ways of taking responsibility.When a creditor waives a certain guarantee,it does not distinguish whether the property is waived as a physical security or a people’s insurance,and other guarantors can be exempted accordingly within the limit that the creditor waives its rights.