Research On The Right Of Recourse Between Guarantors In Mixed Guarant

Commercial activities breed market rules,trading rules derivative hybrid guarantee system,in order to stabilize the economic order.If the mixed guarantee system is to protect the realization of creditor’s right,the guarantor’s right of recovery is an important system to safeguard the guarantor’s right.Under the legal conditions,the guarantor enjoys the legal recourse right to the debtor is beyond doubt;In the mixed guarantee that is both guaranteed by someone and provided by a third party,the Civil Code does not make clear provisions on the guarantor’s right of recovery,but it makes a provision in judicial interpretation that "negating the right of recovery is the principle and affirming the right of recovery is the exception".Are the provisions of judicial interpretation reasonable?What are the problems arising from denying the right of recourse?If the right of recovery between guarantors is affirmed,what is the theoretical basis?Should there be clearer limits on recourse?By analyzing different scholars’ opinions on guarantor’s right of recovery and consulting people’s court’s judicial judgment on guarantor’s right of recovery,this paper summarizes the issue of guarantor’s right of recovery between guarantors.While the judicial interpretation stipulates the right of recourse between guarantors,it also has the problem of understanding and application.First of all,the misunderstanding of the term "contract" in Article 13,paragraph 2 of the Judicial Interpretation of the Guarantee System.Secondly,the same case may appear in the judicial adjudication of different sentences.Finally,the principle of denying the right of recovery is contrary to the system of subrogation prescribed by the civil Code,and it is also inconsistent with the principle of fairness and efficiency.In view of the above problems,this paper puts forward the following suggestions.First of all,on the premise of respecting the autonomy of the parties’ will,the term "contract" in judicial interpretation should be standardized and clearly explained.Secondly,the recovery share of the mixed guarantor is clarified,and the value of the collateral provided by the third party and the scope of the guarantor are used as the basis for calculating the recovery ratio.Thirdly,it should clarify the order of recovery when the guarantor who assumes the responsibility exercises the right of recovery to the debtor and other guarantors.Finally,the number of guarantors exercising the right of recourse should be limited to avoid falling into the predicament of circular recourse.