| The security system plays an important role in the civil legal system of our country,and plays a great role in the formulation of civil and commercial creditor’s rights and debts.When both parties of civil subjects conclude their claims,creditors often require the debtor to provide certain property as security or require the guarantor to ensure the smooth realization of the creditor’s rights,and the combination of material security and human security,It is called a hybrid co guarantee.Mixed common security is not uncommon in daily transactions,because of the diversity of security methods,creditors are sometimes more willing to choose this kind of security method,and gradually the application efficiency of mixed common security in practice is greatly improved.For many years,there have been disputes over whether the mixed co surety can exercise the right of recourse in our country.However,in the latest judicial interpretation issued this year,it broke the fuzzy boundary of the internal recovery system of mixed common guarantee.It was proposed that only in the two cases stipulated by law can the guarantor be allowed to recover each other and deny the rest situation in a comprehensive way,Whether the regulations are reasonable and how to deal with the specific problems in the implementation process is all to be discussed.Therefore,this paper studies the internal recovery system of mixed common guarantee in a deeper level,and clarifies how to establish a fair and reasonable internal recovery system to ensure the maximum realization of the effectiveness of the mixed co guarantee itself.The first part of this paper puts forward the questions.This paper lists the specific contents of the provisions of the internal recourse right of mixed common guarantee in China for many years,and puts forward some unreasonable points in the current judicial interpretation: to deny the internal right of recourse for no agreement is too absolute,and to allow the four defects of the specific rules when internal recourse is allowed-is there any order requirement for the guarantor to exercise the right of recourse The proportion of the guarantor’s internal share of responsibility,how the guarantor exercises the right of recourse does not harm the interests of the creditor,and what legal consequences the creditor will have when giving up part of the security.The second part analyzes the legal basis of the mixed co surety to exercise the internal right of recourse.It is not joint and several debts,nor subrogation,and explains the reasons.Finally,it is proposed that the internal recourse of the guarantor should belong to the rights clearly stipulated by law,and can not arbitrarily apply the existing system.The third part analyzes the duty order between the guarantors.When the person guarantees and the debtor provide the material security,the different situations of the general guarantor and the joint guarantor are divided;When the human security and the third party provide the material security,three viewpoints of the theoretical circle are put forward: the absolute priority of the liability for material protection,the relative priority of the liability for material protection and the equality between the material and the human protection.In turn,the author points out the unreasonable of the absolute priority of the liability of the material security and the relative priority of the property protection responsibility.Finally,it holds that when the same creditor has both the human and the material security,The legal status of the two should be equal,and the responsibility and the order of internal recovery should be the same.The fourth part puts forward two views on whether the internal recourse should be recognized by theorists,and puts forward their own opinions: the guarantors should be recognized to enjoy the internal recourse,and refute the negative views one by one,and analyze the rationality of establishing the internal recovery system.The last part puts forward the corresponding solutions to the four problems that may be faced in practice when the current law provisions pointed out in the first part allow internal recourse.The first guarantor should have the restriction of order in the recovery,that is,it should claim from the debtor first and then recover from other guarantors.The second guarantor shall distribute internal responsibilities in proportion to the value of the specific thing provided by the property insurer and the specific amount guaranteed by the guarantor,in which the sum of the amount insured and the amount of guarantee is less than the total amount of the creditor’s rights;The sum of the amount of the guarantee and the amount of the guarantee equals the total amount of the creditor’s rights;The three cases where the sum of the insured amount and the guarantee amount are greater than the total amount of the claims are listed respectively in the different cases where the sum of the insured amount and the guarantee amount is greater than the total amount of the claims.Third,the creditor can only exercise the right of recourse after the creditor’s rights are fully paid off;Fourth,if the creditor waives part of the security,other guarantors shall be exempted from the corresponding liability within the scope of the creditor’s waiver of the liability. |
