Research On Internal Recovery Of Hybrid Joint Guarantee

From the perspective of the current judicial system,the internal recovery legal system related to mixed joint guarantee has been changed and amended for many times.From the perspective of legislation,the guarantee law of the People’s Republic of China(hereinafter also known as the former Guarantee Law)and the property law of the People’s Republic of China(hereinafter also known as the former property law)previously implemented in China do not give clear provisions on the relevant contents,The only legal system that restricts the internal recovery of the mixed joint guarantee is Article 38 of the guarantee law.The minutes of the civil and commercial trial meeting of the national court(hereinafter also referred to as the "minutes of the Ninth People’s court")issued since then clearly states that unless the mixed joint guarantors have the right to recover from each other,the recovery request will not be protected by the law,which is not expressly stipulated in article 392 of the civil code,However,Article 13 of the interpretation of the guarantee system of the Civil Code stipulates that there is no right of internal recovery,except in some cases.The above situations reflect the long-standing discussion on the internal recovery of mixed joint guarantee.Although the dispute can be temporarily settled in practice according to paragraph 13 of the interpretation of the guarantee system of the civil code,whether to follow the principle of equal rights and whether there are theoretical disputes will lead to the cognitive deviation of the mixed co guarantor in the process of internal recovery,which should be gradually improved.Through the in-depth analysis and demonstration of the discovery of cases in practice and the theory,this thesis defines the right of recourse between mixed co guarantors,and further discusses the specific scope of application of the legal system.The first part deeply discusses the specific rights between mixed joint guarantors,expounds the current legislative situation of mixed joint guarantee,and studies and analyzes the relevant legislative provisions.The second part focuses on the core concept of the right of recourse within the mixed co guarantor.The first section focuses on the analysis of the responsibility order of the internal recourse of the mixed co guarantor.Through the evolution of the concept of responsibility order in the legislative implementation,it infers the basic premise of the internal recourse right of the mixed co guarantor.The second section focuses on the legal legitimacy of the joint Guarantor at the internal level.Firstly,the derivation basis of mixed joint guarantee and external legal relationship.The second is to consider the internal relationship of mixed joint guarantee.Third,carry out an in-depth analysis of the core value of the co Guarantor from the mixed view,extract valuable content from the positive and negative views,seek the principle of fair value,and analyze it in combination with the principle of fair value.The third part focuses on the legal mechanism structure of compensation right in mixed joint guarantee.The first is the planning and integration of the management mode,refining the rules with common characteristics,and clarifying the legal system and legal basis suitable for the mixed joint guarantee relationship,which makes the application of its provisions more convenient.The second is to study the scope of responsibility for the exercise of internal recovery of hybrid guarantee,focusing on the difference between the determination of share under normal circumstances and specific circumstances.In general,the focus is on the dispute over the specific calculation mode.In addition,we pay attention to the restriction and impact on the specific scope of compensation under specific circumstances.From a specific point of view,there may be the following three situations in the process of recovery: the first is that the relevant subject gives up the right of recovery,the second is that the recovery is unable,or the PICC puts forward the material protection at the same time,which are described according to the relevant disputes in the current judicial practice...