Research On The Internal Recovery Right Of Mixed Joint Guarantee

It has been debated for a long time on the internal right of recourse of the mixed mutual guarantee in our country.Whether the guarantor enjoys the legal internal right of recourse,whether the court can apply to the legal internal recourse by analogy of other rules in adjudication,and how to allocate the internal responsibilities of the guarantor are debated constantly,At the level of legal norms,the provisions of internal recourse rights are constantly changing,which gives rise to different judgment views in legal practice.Mixed joint guarantee has the dual nature of real right and creditor’s right,and its internal recovery is more complicated than that of single guarantee.Based on the experience and research results of domestic and foreign legal norms and practices,and based on the status quo of mixed joint guarantee law and law practice,this paper proves the reasonableness of the current legal regulations on whether mixed co-guarantors can enjoy the internal right of recourse,points out the difficulties that the standard of mixed joint guarantee law is applicable in our country,and improves the relevant rules of mixed joint guarantee internal right of recourse.Apart from the einleitung and peroration,the thesis includes four chapters.Firstly,it summaries where the controversy lies as to whether a mixed joint guarantor can enjoy the statutory right of recovery in China at this stage.At present,the academic community is mainly divided on whether a mixed joint guarantor can enjoy the statutory right of internal recovery under two value areas,namely the principle of fairness and the principle of efficiency,and different courts have given different views and reasons for their decisions on this issue in law practice.Secondly,the current legal regulation of the right in China is reviewed.At present,China’s law adopts the attitude of "if there is an agreement,there is no agreement,there is no statutory right of internal recovery" in relation to the internal right of mixed joint security.In the absence of prior agreement,the guarantor should not enjoy the right of internal recovery based on the nature of the guarantee,risk sharing,social and judicial costs,evasion of liability and substantive fairness;in the absence of prior agreement on internal recovery,the interpretation of the law allows the guarantor to recover internally in consideration of the principle of autonomy,the value of efficiency and the prevention of moral hazard.Thirdly,the dilemma in China is pointed out.The lack of clarity in the norms of the law of mixed joint guarantees has led to a fragmented position in court decisions.The existence of civil law rules such as joint and several debts,unjust enrichment and subrogation rights,which are applied by analogy to the existence of the statutory internal right of recovery for mixed joint guarantees,is a theoretical misconception and logical discomfort in our academia,and thus misleads the law practice.In addition,there is no uniformity in the scheme of sharing of guarantors’ liability.When the identity of the guarantor in rem and the guarantor do not overlap,there are four options in law practice:equal distribution,proportional distribution,modified egalitarianism and group distribution;when the guarantor in rem is also the guarantor,there are three options in law practice:one person,two persons and the search for true meaning,resulting in "different judgments in the same case" in mixed joint guarantee law practice.This has led to a situation of "different judgments in the same case".Fourthly,to improve the rules of internal recovery of our mixed joint guarantee.Law theory and law practice cannot apply the rules of joint and several debts,unjust enrichment and subrogation in the Civil Code by analogy to the right of recovery within a mixed joint guarantee.The code needs to clarify that guarantors have the right to internal recovery in the case of joint and several joint guarantees,prior express agreements to recover from each other and substantive agreements to recover from each other such as signing and stamping on contracts.Where mutual recovery is possible,it is appropriate to say that the share of liability is proportionate where the identity of the guarantor in rem and the guarantor do not overlap;where the guarantor in rem is also the guarantor,the share of liability is to be calculated equally for the guarantor.