| It is true that The Guaranty Law of the People’s Republic of China and Several Issues Concerning Application of the <PRC,Guaranty Law> Interpretation had stipulated the right of indemnity to protect the legitimate rights and interests of the guarantors.While there is no such word “Subrogation of guarantor” in them.Different scholars have different views on whether the law of China provides for this right.And in judicial practice all levels of People’s Court have their own standpoint when deciding the nature of this kind of cases and handling them.The divergences focus on the following issues: firstly,if the right of subrogation was exist and is it necessary to exist;secondly,what kind of relationship it is between this right and the right of indemnity;thirdly,what can the guarantors do to exercise their owen right in judicial practice.In this paper,start from the different standpoints and handling ways in legislative,judicial practice and theories,and after analyzing these we can know that: there are three kinds of phenomenon influencing each other,and also has certain influence on the protection of the guarantors’ rights and interests.The above three kinds of phenomenon are the unclear legislation,different solving ways and trial points in the same kind of cases in judicial practice,different scholars’ different understandings of the contents provided by law.The author holds that the existence of the guarantors’ right of subrogation is necessary.By comparing the guarantors’ right of subrogation with the right of indemnity,summing up the relationship between these two in general guarantee,joint guarantee and mixed co-guarantee,the author holds that the subrogation right of the guarantor should exist,and the connection is supplementary and supplemented.The guarantors have a certain degree of choice when they exercise their rights.They can choose a way to maximum their rights and interests.In addition,< the Civil Law of the People’s Republic of China> provides for the guarantors’ right of subrogation,but it lacks certain circumlocution which means lacking the provision for the sureties to have the right of subrogation.And the author considers that the draft should on the basis of the guarantors’ right of subrogation to make up for it. |
