| The Guaranty Law of the People’s Republic of China stipulates the guarantor’s right to claim from the debtor.On this basis,the interpretation of the Guaranty Law further clarifies the rules for the realization of the right of indemnity,which requires the judge to clarify the right of indemnity while judging the liability of the guarantor,so as to solve the dispute of the right of indemnity between the guarantor and the debtor in a lawsuit.However,due to the rough rules of indemnity,and the logic of the rules itself is difficult to be self consistent,so that the discretion of the judge in the application of the rules is too large,how to apply the rules depends entirely on the judge’s understanding of the rules.As a result,the application standards in judicial practice are not unified,and there is a confusion of procedures,which makes it difficult to play a positive role in protecting the right of indemnity of the guarantor.The essential reason is that the right of indemnity stipulated in the substantive law needs to be realized by the way of separate litigation,which is lack of efficient ways to exercise,so that the efficiency of litigation is low and the cost of litigation is high.In order to cope with the real pressure of litigation explosion,the current indemnity rules try to achieve one-time settlement of disputes under the lack of reasonable procedure.Based on the current procedures of indemnity,this paper demonstrates two ways for joint guarantors to realize the right of indemnity:through independent litigation procedure and through main creditor’s rights and debts litigation procedure.In the main creditor’s rights and debts litigation process,the indemnity disputes are solved together,which overcomes the litigation burden and the waste of judicial resources caused by the circular litigation of the indemnity rights disputes.In order to solve the indemnity disputes in the main creditor’s rights and debts litigation procedure,it is necessary to allow the joint guarantors to put forward the recovery claims in this litigation procedure through the cross claim rule.The court will try the recovery claims together and fix them in the form of future payment judgment.In this way,the joint guarantors can realize the right of indemnity through the judgment without further prosecution.However,based on the respect for the procedural choice right of the joint guarantors,the disputes of indemnity should not be forced to be solved in asingle litigation procedure.The joint guarantors should also be allowed to pursue the right of indemnity through another recourse.In the aspect of the realization of the right of recourse of joint guarantors,only by strictly following the procedural norms and giving the joint guarantors the right to choose the procedure freely,can we adapt to the different needs of different obligees in judicial practice for the settlement of disputes and provide fair and efficient procedural guarantee for the realization of the right of indemnity of joint guarantors. |
