Research On Internal Recovery Of Mixed Co-Guarantee

Regarding the issue of whether a guarantor of a mixed joint guarantee can recover from another guarantor,in the case where Article 38 of the Judicial Interpretation of the Security Law clearly grants the guarantor the right of recovery,Article 176 of the Property Law Set clear text,causing controversy.Many judgments still apply the provisions of Article 38 of the Judicial Interpretation of the Security Law.Some judgments and the Minutes of the National Civil and Commercial Trial Work Conference issued in November 2019 tend to not support the guarantor in recovering from other guarantors.In addition,there is also a dispute between the theory of affirmation and negation.Although the aforementioned Article 56 of the Minutes of Civil and Commercial Trial Work Conference of the National Court is clear,it is not a judicial interpretation,and Article 392 of the Civil Code(Draft)has not made clear provisions and is still in progress.Necessity and space for explanation and discussion.This article is divided into four parts except the introduction,the main contents are as follows:The first part summarizes and reflects on the reasons for opposing the internal recovery of the guarantor.There are basically three reasons for denying the internal recovery of the guarantor: the internal recovery of the approved guarantor does not meet the requirements of the system interpretation,it violates the principle of the guarantor ’s autonomy and the principle of fairness.In this regard,it is difficult to find through interpretation methods such as textual interpretation and system interpretation that Article 176 of the Property Law does not allow a guarantor who has performed security obligations to request other guarantors to share the risk of not recovering from the debtor;the guarantor and the property The guarantor shares the risk,and only recovers from the other guarantor for the excess range,which does not exceed the scope of the guarantor ’s responsibility to undertake when establishing the guarantee contract,and the guarantor should give up clearly if he wants to give up the right of recovery,otherwise,the guarantee is allowed Intra-person recovery meets the expectation of the economic person to share responsibilities;allowing the guarantor to internally recover can eliminate the unfairness caused by the creditor’s choice of any guarantor and claim the rights,and demonstrate fairness.The second part examines the feasibility of subrogation.In the view of recognizing the internal recovery of guarantors,there is a theory that the internal recovery issue can be solved by subrogation without setting internal recovery rules.However,China’s legislation does not stipulate the feasible subrogation rules related to it.Moreover,even if the guarantor who has fulfilled the guarantee responsibility is granted subrogation to obtain the main creditor’s right through interpretation,the other guarantor is required to perform the guarantee responsibility based on the status of the creditor.It is difficult to solve the practical dilemma of sharing the final responsibility.Therefore,the issue of internal recovery of the guarantor cannot be solved through subrogation.The third part justifies the validity of the guarantor’s internal recovery.The legitimacy of the internal recovery of the guarantor is that,first,referring to the provisions of Article 178 of the General Rules of the Civil Law,multiple guarantors bear the same payment obligation for the same claim and the payment obligation is at the same level,which is consistent with the characteristics of joint and several debts.In addition,the analogy applies to the internal guarantee of joint and several liability,and the guarantor should be allowed to recover internally.Second,based on the claim of the equal status of the guarantor and the physical guarantor and the reasonable sharing of risks by the guarantor,it is recognized that the internal recovery of the guarantor meets the requirements of fair value.The third is to recognize the internal recovery of the guarantor,which is conducive to preventing the creditor from arbitrarily choosing the guarantor to take responsibility,colluding with the guarantor to damage the interests of some guarantors,and exempting the guarantor from their own responsibilities through the transfer of creditor ’s rights,and increasing the moral risk borne by other guarantors.The fourth part discusses the specific exercise path of the guarantor’s internal recovery rules.How to determine the recovery share is the core issue to be solved by applying the internal recovery rules of the guarantor.Compare the pros and cons of the three different share calculation standards of the average sharing method,the proportional sharing method,and the combined method of equal sharing and proportional sharing,based on not only fully considering the value of the collateral,but also avoiding the burden of the guarantor on the weighted object,while solving the collateral value Insufficient and the unfair problem caused by the disparity in the value of the collateral,this paper believes that the proportional sharing method should be selected.After determining the proportional sharing method as the standard for determining the recovery share,the issue of determining the share when the guarantor is also the guarantor on the property must be considered.The key is whether the guarantor guarantees all claims or only part of the claims.If the guarantor provides guarantees for all claims,the share of shares is calculated based on the guarantee responsibility;if the guarantor provides guarantees for only part of the claims,the total amount of the combined guarantee and physical guarantee guarantees shall be calculated and compared with the amount of claims.If the total amount after the merger is greater than the creditor’s right,the shareholding will be calculated based on the creditor’s right.If the combined amount is less than the creditor’s right,the shared share will be calculated based on the combined amount.