| Supposing the same creditor’s right has both credit guarantee and material guarantee,whether the guarantor can claim compensation from other guarantors after bearing the guarantee responsibility is a controversial issue that needs to be responded by legislation and justice.The incomplete state of legal rules increases the difficulty of judicial application,which has led to considerable differences in the handling of related disputes in China’s judicial practice.Through a quantitative analysis of relevant public rulings,courts supporting guarantors can recover from each other are currently in the majority.Most of these courts take Article 38 of the Interpretation of the Guarantee Law as the basis for the parties’ right of claim and take the principle of fairness,joint obligation,risk prevention and other reasons as evidence.By examining the judgment logic of affirmative theory in judicial practice,it can be seen that the assertion is not persuasive enough.The reason is that under the theory of legal interpretation,Property Law does not recognize the claim relationship between the guarantor and the guarantor on the property,so Article 38 of the Interpretation of the Guarantee Law loses its space of application due to the inconsistency with the relevant provisions of the Property Law.In addition,the mixed co-guarantee system within the scope of the autonomy of private law should fully consider the parties ’autonomy and expectations,and the law should not arbitrarily extend the parties’ expression of will.Furthermore,there are huge obstacles to the establishment of the recovery relationship between the mixed co-guarantors,which collides with the established logic of the Civil Law and punctures the barrier of the relativity principle of debt.The associated liabilities and fairness theory identified by judicial practice are also difficult to establish in the internal legal relationship of mixed co-guarantors.Therefore,in the absence of an agreement between the parties,the court should not support mutual recovery between mixed co-guarantors. |
