| In the era of Civil Code,there are more and more regulations to protect the interests of guarantors.Although the Supreme People’s Court about the guarantee system of < the People’s Republic of China civil code > applicable interpretation of article 13 the provisions prescribed recourse,jointly and severally joint guarantee or together on the same contract signature of the guarantor shall enjoy the right of recourse,but in the judicial application is still leave room for interpretation and perfect.The nature of the presumption application of the right of recourse of mixed guarantee is not clear.In order to reduce the burden of guarantor’s proof and reduce the litigation cost,the presumption application of the right of recourse of mixed guarantee should be identified as a refutable presumption norm.Against the speaker,explains theory level is not in conformity with the Chinese designing,ignore the importance of logic and reality check,improper court to exercise the right of recourse against actively,according to the power will play eyes confined to signature,stamp,will not guarantor meaning said defects circumstances into consideration factors,subjective exclusion can be refuted the possibility of the existence of the facts.Regarding the determination of the recovery share of mixed guarantee,there are different responsibility sharing schemes.In order to give consideration to the interests of all guarantors,if there is a partial agreement to share shares,it shall be recognized that the partial agreement is only valid for the agreed subject,and the guarantor shall be allowed to share responsibilities in proportion to the agreed amount.The rest responsibility sharing schemes ignore the rationality of the existence of part of the agreement,restrict the true expression of the guarantor’s intention,break through the relativity of the legal act,and admit that the effect of part of the agreement is fair to all the guarantors.If the agreed share exceeds the outstanding debt,the liability shall be shared in proportion to the agreed amount,so that the liability to be borne by each guarantor does not exceed the psychological expectation and reflects substantial fairness.If there is no agreement on the amount to be shared,the liability shall be shared in proportion to the maximum guarantee liability at the time of conclusion of the contract and the amount of the secured creditor,so as to exclude the risk of malicious collusion caused by the change of the time of realization of the creditor’s right and the amount of repayment,which is in line with the real intention at the beginning of conclusion of the contract.The order of recovery for mixed guarantee is not clear yet.In order to ensure that the guarantors who bear the responsibilities can achieve the purpose of responsibility sharing,it should be recognized that the guarantors who agree to share have the right to choose the order of recovery at will,and the guarantors who do not agree to share should have the priority to determine the part that cannot be recovered from the debtor.For the determination of the part that cannot recover from the debtor,it can choose to Sue the debtor and other guarantors together as the priority scheme,and Sue the debtor first until the execution is completed as the candidate scheme.Under special circumstances,it is not necessary to Sue the debtor to determine that the recovery can not be achieved. |
