Research On The Right Of Recourse In Mixed Joint Guarantee

Guarantee is an important means to ensure creditor to realize successfully rights.In practice,it is the fact that both debtor and the third party are responsible to offer the guarantee of things or make a pledge.This situation is called mixed joint guarantee.The Chinese Civil Law is not clear about the relevant issues of the mixed joint guarantee recovery right,which has brought about controversy theoretically and practically.Although the Interpretation of the Supreme People’s Court on the Guarantee System that conforms to Chinese Civil code has established the principle of "an agreement can be pursued,but no agreement can be pursued" in its attitude towards this issue,it is extremely difficult for the guarantor to agree on the recourse in advance.Rarely,in the absence of prior agreement by the guarantor,it is unreasonable to completely deny the right of recovery for mixed joint security.This thesis mainly discusses the related issues of the mixed joint guarantee right of recourse from two aspects of theory and practice,and proposes that the right of recourse should be recognized conditionally and has a corresponding legal basis in the mixed joint guarantee.,the legislative purpose of balancing the interests of all parties can be achieved.Besides introduction,there are four components in the chapter setting.The first part is an overview of hybrid joint security recovery rights.This part mainly discusses the mixed co-guarantee and its right of recourse in which these details are involved,such as the concept,establishment conditions,characteristics,classification about the both.The second part is the typical case of my country’s mixed joint guaranty recovery right and the focal issues it embodies.Based on judicial practice,the article selects two typical cases,compares and analyzes them,and finds the disputes between different judgments in the same case.How should it be determined.The third part is the legitimacy of the mixed joint security recovery right and its applicable limitations.The thesis focuses on academic debates,sorts out researchers’ different views on related academic issues,and proposes that the affirmative theory of the mixed joint guarantee recovery right should be supported,and believes that the unjust enrichment theory is the theoretical support for the mixed joint guarantee recovery right.On this basis,the article further discusses the establishment conditions and the limitations of the existence of the mixed joint security recovery right.The fourth part is the exercise of the right of recovery of mixed joint security.This part focuses on the description of the recovery order of the mixed co-guarantor and the determination of the recovery share,mainly covering whether the double recovery rights of the mixed joint guarantor are limited in order,the calculation standard of the recovery share in different situations,and the creditor’s "abandoned" part of the guarantee.Influence of other guarantors,etc.