Research On The Internal Recourse Of Guarantor In Mixed Joint Guarantee

The complex legal relationship of mixed joint guarantees and the lack of uniform standards in judicial practice have led to a lively discussion on this issue.Whether the guarantor has the right to recover from other guarantors has become the core issue of discussion in theory and practice.Through comparative analysis,from the theoretical level,the institutional value of the right of recovery within a mixed co-guarantor is studied: it belongs to the scope of the guarantor’s commitment,which is in line with the psychological expectation and original intention of the guarantor to share the risk;the requirement of equal treatment between physical and personal guarantees;the prevention of power abuse and the elimination of rent-seeking space through the signing of false contracts.From the level of judicial practice for comparative analysis,listing the recent five years,all regions,all levels of courts on the mixed common guarantee internal recovery case,support for mutual recovery accounted for a large proportion.Throughout China’s various laws,there is no right basis for the right of recovery,which is the basis and base for the guarantor to make internal recovery.The issue is argued from different perspectives.The first is in line with the joint and several debt relationship,using the German Civil Law Professor Larenz "the same hierarchy theory" for logical arguments;the second is "unjust enrichment",using its composition of the elements to reverse the existence of the right of internal recovery is reasonable,but the guarantor is not the ultimate debt However,the guarantor is not the ultimate bearer of the debt,there is no so-called "damage" and "gain",the explanation is too far-fetched,there is a suspicion of forcible application.Third,it is in line with the subrogation relationship,and its jurisprudence is based on the legal effect of "third party satisfaction" by the guarantor who assumes the responsibility of guarantee.The order of exercising the right of recovery within the mixed common guarantor is confusing,and the comparative analysis of the two methods of "sequential restriction" and "nonsequential restriction" has some justification and also has defects.The former can simplify the legal relationship and save the cost of relief,but sequential recovery is against autonomy.Judicial practice often uses three methods of calculating the share of guarantee: "average distribution","average and proportional combination",and "proportional".The advantages and disadvantages of each method are analyzed through mathematical formulas and specific cases.The average distribution method: It does not need to distinguish between physical and personal guarantees,but only needs to calculate the average value of each guarantor,which is simple and easy to use,but leads to imbalance of guarantors’ rights and obligations.The second one: calculating according to different criteria to make up for the disadvantages of equal distribution,but it violates the principle of equal liability of physical and personal guarantees.There are more parties in the mixed joint guarantee and the legal relationship is complicated,how to properly balance the interests of all parties and make up for the legislative defects becomes a major problem in the system design.Drawing on the civil law systems of Germany,Japan and Taiwan,we improve the civil legal norms in China.The existence of internal recovery rights among guarantors is clearly affirmed to provide legal basis for court decisions,thus eliminating the phenomenon of different judgments in the same case.Referring to the civil law of Taiwan,China,the right basis of the guarantor’s right of recovery is constructed as subrogation,and further determines the scope of the guarantor’s subrogation right: the primary and subordinate rights of the creditor against the debtor.The innovative method of recovery combining with order and without order is proposed,taking into account the existence of general guarantee,prior agreement and other conditions.It can be summarized as follows: the agreement takes precedence;when there is no agreement or the agreement is unclear,the debtor will be satisfied on the debtor’s own provision of physical security;when there is a third party to provide physical security or the guarantee security of joint and several guarantors,the same subordinate recovery;the last part,then the general guarantor to provide the guarantee of satisfaction.In practice,most scholars prefer a single order to avoid cumbersome procedures,and seldom insist on combining the two.Giving up fairness due to procedural economy is bound to be a bit putting the cart before the horse.The prerequisite for providing for the existence of internal recourse between guarantors is the excess security provided.When the creditor waives the guarantee,the other guarantors are accordingly relieved of their guarantee liability,and the waiver of the guarantee is interpreted in an expanded manner,either explicitly or implicitly.When the guarantor’s right to recover conflicts with the creditor’s right to claim,the "creditor priority doctrine" is adopted.Finally,the proportional method is used to determine the share of the guarantor’s liability to prevent the imbalance of rights and obligations between guarantors.The value of the collateral can only be finally determined by agreement,auction,or appraisal,and the predicted value at other points in time is not meaningful for reference.