Research On Internal Recovery Of Joint Guarantee

Civil code is not clear to the guarantor shall enjoy the right of recourse against the internal,the Supreme People’s Court in the form of judicial interpretation provisions of a common guarantor shall enjoy the right of recourse against the internal situation and how to exercise the right of recourse against the internal joint guarantor shall,with the situation there is no substantial difference between joint guarantee,should be the guarantor shall enjoy the right of recourse against the internal.According to article 700 of the Civil Code,the guarantor enjoys the right of recourse against the debtor,which should not be the normative basis for the co-guarantor to enjoy the right of internal recourse.The joint and several debtors enjoy the right of mutual recourse stipulated in Article 519,which can serve as the normative basis for the joint guarantors to enjoy the right of internal recourse,that is,the guarantors enjoy the right of internal recourse under the circumstance of forming joint and several guarantors.Where the guarantors provide guaranty at the same time or separately but it is agreed that internal recourse can be made,it shall be deemed to constitute a joint guaranty.When exercising the right of internal recourse,the co-guarantor shall first determine the scope of guarantee liability.If there is an agreement between the parties,it is necessary to distinguish the types of security provided by the guarantors according to the agreement,and if there is no agreement,the scope of security liability borne by the guarantors shall not exceed the value range of the security and the amount of the principal creditor’s right.If the guarantor provides guaranty,the guaranty liability shall be the amount of the principal creditor’s right;Where a guarantor provides both real right of security and guarantee,the scope of guarantee liability shall be determined according to the rules of competition and cooperation,and shall not exceed the amount of the principal creditor’s right.As for the part that cannot be recovered from the debtor,the co-guarantors shall share it internally as a whole in accordance with the proportional method,and the guarantors who bear more than the share shall enjoy the right of internal recourse.For the part that cannot recover from the guarantor,the remaining co-guarantor shall share it again.When exercising the right of internal recourse,the guarantor shall first Sue the debtor,and other guarantors shall enjoy similar right of first appeal and defense.