Research On Denial And Response Of Internal Recourse Between Guarantors In Hybrid Joint Guarantee

As an important legal system,guarantee system plays an important role in ensuring the realization of creditor’s rights,maintaining the security of transactions and promoting the financing.In market activities,especially in the practice of bank credit transactions,in order to ensure the smooth realization of the creditor’s rights,the creditor usually requires the debtor to set up a personal guarantee and a material guarantee on the same creditor’s rights at the same time,which is called mixed joint guarantee.As the debtor is the ultimate obligor of the debt,the guarantor can naturally recover from the debtor after paying off the debt on his behalf.Since the creditor has the right to choose any Guarantor as the object of claim for the security right,there has been a great controversy over whether the guarantor who pays off the debt on behalf of the creditor can recover from other non performing guarantors.The discussion on the existence of the right of recourse involves the implementation effect of the civil code and the role of private law on market transactions,which is still very necessary.Focusing on this issue,this paper combs and analyzes the relevant legislation of internal recovery of mixed joint guarantee,and then demonstrates the rationality and necessity of denying the right of internal recovery from the perspective of value judgment and legal interpretation.In addition to the introduction and conclusion,this paper is divided into four parts.The first part,on the basis of combing and explaining the relevant legislation,analyzes the focus of the debate on the internal right of recourse of the mixed co guarantor and the reasons behind these debates.Article 176 of the property law does not stipulate whether the guarantor can make an internal claim,which is the origin of the debate on the existence of the right of recourse in China.Article 392 of the civil code inherits the provisions of article 176 of the property law,and does not stipulate that the guarantor and the surety in rem have the internal right of recourse to each other.Although Article 13 of the interpretation of the civil code on security system denies the right of internal recourse in principle,some scholars still try to prove that the guarantors bear the right of recourse to each other from different argumentation perspectives.Therefore,the dispute over the existence of the right of internal recourse still exists.The second part mainly analyzes the legal basis of the denial of the internal right of recourse of the mixed co guarantor.The mixed joint guarantee system belongs to the field of private law.It should be decided by the guarantors themselves whether they can make internal claims,and respect the true expression of the civil subject.Only in this way can it meet the internal requirements of the principle of will autonomy.In addition,if it is recognized that the guarantors have the right of recourse against each other,the obligations of the guarantors are intrinsically linked,and the guarantee contract has legal effect on the third party,which is contrary to the principle of relativity of debt,and does not conform to the existing logic of our civil law.Each guarantor independently assumes the guarantee responsibility,which is consistent with its own expectation when making the guarantee decision,and meets the requirements of its own responsibility principle.Therefore,there is no internal right of recourse between the mixed co guarantors,which conforms to the principle of autonomy of will,the principle of relativity of debt and the principle of self responsibility.The third part analyzes the rationality of the mixed co guarantors’ failure to conduct internal recovery from the perspective of value judgment and legal interpretation.The internal right of recourse between guarantors is closely related to important value judgments such as fairness,efficiency and morality.The mixed co guarantors cannot have internal recovery among themselves,which does not conflict with the concept of fairness and justice;Negating the right of recourse meets the requirements of procedural economy,can reduce transaction costs,effectively save social resources,and is a more efficient system design.From the perspective of interpretive theory,neither the textual interpretation nor the system interpretation in the theoretical interpretation can draw the conclusion that the internal right of recourse exists.As for the analysis from the perspective of legal interpretation of joint and several liability,unjust enrichment and the recovery rules of joint guarantee,it can only draw the conclusion that the mixed co guarantors cannot recover from each other.Therefore,it is more persuasive to deny the right of internal recourse no matter from any angle.The fourth part is the response analysis of the denial of internal right of recourse.In view of the moral hazard that may be brought about by the negation theory,this paper puts forward corresponding countermeasures at the judicial level.The guarantor and the creditor maliciously collude to damage the legitimate rights and interests of other guarantors,which can be dealt with by the malicious collusion system,and can also be handled flexibly by "one case,one discussion" case.In order to avoid the imbalance of interests between the guarantors,the corresponding equity scheme is put forward.If the guarantor wants to avoid the risk of being unable to obtain repayment from the debtor after paying the debt on his behalf,he may require the debtor to establish a counter guarantee or sign an internal agreement with other co guarantors.