Research On The Internal Recourse Right Of Mixed Joint Guarantee

When the same creditor’s right is guaranteed by both a person and a guarantee provided by a third party,it involves the question of whether there is a right of recourse between the guarantor and the guarantor on the property.With the advent of the "Civil Code" era,the issue of mixed joint guarantees for internal recourse seems clear,but in fact it is more complicated.On the one hand,Article 392 of the Civil Code follows the provisions of Article 176 of the Property Law to indirectly express the attitude of denying the right of internal recourse.Subsequently,the Supreme People’s Court further clarified through a judicial interpretation: only when the guarantors have clearly agreed or can be inferred to form a joint debt before they can recover each other.Therefore,in the absence of the contractual agreement,there is no internal right of recourse between the guarantors in the mixed joint guarantee.On the other hand,Article 699 of the Civil Code deletes the provision that mutual recourse can be made between joint guarantors,which also makes the "fire of war" on the issue of internal recourse rights spread from mixed joint guarantees to all guarantees provided by third parties.The research on the issue of the internal recourse of mixed joint guarantee is full of books,but the interpretation theory under the new era background and new legal rules is still lacking.The change in the legislative attitude may not be able to eliminate the long-standing differences in understanding between the practical and academic circles.First,in judicial practice,there are different judgment positions and reasons for whether there is a right of recourse between the guarantors in the case of mixed joint guarantees.Most judicial judgments in the past believed that although Article 176 of the Property Law did not clearly stipulate that the guarantors shall enjoy the right of internal recovery in the case of mixed joint guarantees,the lack of provision does not mean that the existence of the right of internal recovery is directly denied.Therefore,Article 38 of the "Interpretation of the Security Law" shall be applied.Article as a supplementary stipulation that the guarantors can be mutually reclaimed.However,the change of the current legislative attitude and the implementation of relevant laws and judicial interpretations will inevitably lead to the possibility that this judgment reason will not continue to exist.When the PICC and the property protection provided by a third party coexist,Article 392 and the Civil Code shall apply.The provisions of Article 13 of the "Guarantee System Interpretation" deny the existence of internal recourse rights among guarantors.This also requires an interpretation of the provisions of Article 392 of the Civil Code from the perspective of interpretive theory.It is demonstrated from the basic theory of civil law,law and economics and the principles of private law autonomy that there is no relationship between the guarantor and the guarantor in the case of mixed joint guarantees.Internal recourse.Secondly,the academic circles have shifted from the discussion of legislation to the theory of interpretation.It must be said that scholars have explored the existence of mixed joint guarantees of internal recourse rights by proposing new interpretation paths,that is,first proceeding to Article 700 of the Civil Code.According to the legal interpretation,it is recognized that the joint guarantors enjoy the right of internal recourse,and then this rule is applied to the mixed joint guarantee situation by analogy.This also brings new challenges to the denial of the doctrine of internal recourse.In the context of the new era,we should respond to the new argumentation path of affirmative scholars justifying the right of internal recourse from the following perspectives.First,based on the principle of autonomy of will,there is no legal relationship between the guarantors without a joint agreement,let alone joint liability.Second,the non-performing guarantor did not obtain benefits,and the performance guarantor did not suffer losses due to the assumption of the guarantee liability,let alone the non-performing guarantor did not constitute an improper gain relative to the performance guarantor.Third,due to the essential difference between the right of subrogation and the right of recourse,the system of subrogation and settlement cannot be applied analogously to a mixed joint guarantee.As for Article 700 of the Civil Code in the context of the new era,it no longer empowers mutual guarantors to enjoy the right of internal recourse,let alone the provision of joint guarantee itself does not have the possibility of radiation,nor can it be applied by analogy to the case of mixed joint guarantees.