On The Guarantor’s Internal Recovery Right Of Mixed Joint Guarantee

The internal right of recourse of mixed co guarantors has been controversial since the beginning of the provisions of the security law,and reached a climax when the property law was enacted.However,even today,the promulgation of the civil code and supporting judicial interpretations may not be able to settle the dispute.Throughout the development process of this dispute,it has roughly experienced three levels:The first is the ranking dispute based on the priority of the liability between the material guarantee and the human guarantee.With the deepening of the thinking and practice of the principles of the guarantee legal system,the "material guarantee priority" that has been adhered to for a long time has been abandoned.Based on the function of guarantee system is to ensure the realization of creditor’s rights,different ways and types of guarantee are essentially "the same way".Therefore,the current mainstream view is the "theory of equality",and it can be said that the views of various commentators are also unified.The second is the dispute over the retention or abolition of the guarantor’s internal right of recourse under the mixed joint guarantee.The two views of "affirmative theory" and "negative theory" have been at loggerheads for a long time,which is the core dispute.From the subtle legal language,the interpretation and analysis of relevant legal norms,and even the legal principles and basic principles of civil and commercial law,the two sides are engaged in fierce debate around these.However,looking at the arguments of both sides,they all focus on the legal norms and legal principles,rather than thinking about what the guarantee system function should do with the protection of the debtor’s credit and the creditor’s rights as the core? At the same time,there is a lack of in-depth exploration of the diversified needs of all parties in the current investment and financing market,especially creditors.In addition,market players trying to evade their responsibilities must not be allowed to take this opportunity to "fish in troubled waters".Therefore,comparative analysis is not difficult to find out whether they are willing or not.In fact,both of them have a "place to use".The third is the dispute on how to recover under the space of "affirmation".This section of the dispute is relatively trivial,but it can also draw a suitable conclusion based on legal theory.Some of the more important systems should be properly clarified.For example,the principle of sharing should be based on the principle of proportionality;If the guarantor has the identity of different types of Guarantor at the same time,he shall bear dual responsibility;The exercise of the guarantor’s right of recourse should not conflict with the interests of creditors.Finally,looking at the whole problem,we can see that the values presented by the basic principles of civil law such as autonomy and fairness should run through the whole problem.And the way to solve the problem should not only be limited to the study of laws and regulations,but also pay enough attention to the grasp of the different needs of the market and civil subjects.