Research On The Internal Recovery Rules Of Mixed Joint Guarantee

In order to enhance the opportunity of realizing the creditor’s rights,the mixed form of joint guarantee of the thing guarantee and the person guarantee can be established on the same creditor’s rights.Many current laws,such as the property law,stipulate the mixed common guarantee rules,but there is still a legal dilemma for the internal recovery between guarantors.After the guarantor assumes the guarantee responsibility,whether the law recognizes that the guarantor who has undertaken the responsibility has the right to recover from other guarantors.If the recognized guarantor is entitled to internal recovery,what rules should be applied and how to allocate the responsibilities of the guarantor if the internal recovery is not recognized.Before the promulgation of the property law,the internal recovery rules,as the legal basis of the guarantor’s internal claims,have been widely used in judicial decisions.After the promulgation of the property law,article 176 of it does not stipulate whether to allow the guarantor to recover internally.There are two opposite views in academic circles about whether the internal recourse of guarantor should be stipulated explicitly.In judicial practice,when the court deals with the guarantor’s internal recourse litigation,it also reflects different judgment positions and different judgments.Based on the analysis of the current legal norms,this paper examines the judicial position of internal recovery in practice,and explores the legitimate basis of the legal internal recovery right in the mixed joint guarantee.After exhausting the methods of literal interpretation and historical interpretation,it is still difficult to obtain the answer in the normative sense to affirm the claim,and the legal internal claim is lack of legal basis.As far as the legal basis of the internal recovery rules is concerned,there are obvious differences between the internal relations of the mixed joint guarantors and the joint and several debts.It is impossible to apply the joint and several debts rules of Article 178 of the general principles of civil law by analogy to construct the legal relations between the guarantors.At the same time,the current law does not clearly stipulate the guarantor’s subrogation,and the system of subrogation is not enough to support the legal internal recourse.In addition,the guarantor who is not responsible does not constitute unjust enrichment,and the guarantor who is already responsible cannot claim the guarantor who is not responsible to share the legal debt according to the unjust enrichment rule of Article 122 of the general principles of civil law.In fact,if the right of internal recourse is defined as the legal right of the guarantor,it will be against the original intention of the guarantor to establish the guarantee and the principle of autonomy of will.From the perspective of system interpretation,we can find that the guarantors should follow the principle of their own responsibility and only bear the guarantee responsibility for their own secured claims.If there is no special agreement,there is no internal recovery relationship between guarantors.Therefore,there is no legal internal recourse between the mixed co guarantors,and the internal recourse can be divided into two types.There is no recourse agreement between the guarantors and they are jointly and severally liable.Under the framework of autonomy of will,the guarantors can reach an agreement of recourse with each other,and then carry out internal recourse after assuming the guarantee responsibility.However,if the amount of the guaranteed debt provided by the guarantor is greater than the amount of the principal debt,the agreement of recovery is still valid.Therefore,if the guarantor has not agreed on specific recovery rules,the recovery share can be determined by "guarantee proportion plus average share".In the order of recovery,the responsible guarantor shall first recover from the debtor.If the debtor is unable to repay completely,he shall then claim from other guarantors.In the determination of the share of the guarantee liability,the time when the creditor claims the guarantee liability from the guarantor shall be taken as the starting point.In special circumstances,the scope of liability of the guarantor will change.When a surety is also a surety on the property,its share of liability shall be determined according to the relationship between the surety liability and the surety liability.If the debtor waives the property security provided by a third party,it will not affect the guarantee liability of other guarantors.