Research On The System Of Internal Recourse In Mixed Joint Guarantee

In modern market transactions,security is a significant way to guarantee the fulfillment of a creditor’s rights.Compared with simple common security,hybrid joint security has become a complex and special security method due to the coexistence of personal security and property security,and the provisions of the internal recourse system in hybrid joint security have also become the focus of research in recent years.As for the provisions on the system of internal recourse,there are also some inconsistencies between the current legislation and judicial interpretation in China.There are still debates on whether to provide for the internal recourse,the provisions on the share of recourse for exercising the internal recourse are still unclear,and the provisions on the order of recourse are still not uniform,which has resulted in academic disputes and differences in judicial practice.In order to solve the problems of unclear legal provisions and unclear judicial decisions of the internal right of recourse system,it is necessary to focus on the theoretical research of the internal right of recourse system,make clear legal provisions for the system,and reasonably regulate the specific issues and matters such as the order of recourse and the share of recourse in the internal right of recourse system,so as to ensure that the internal right of recourse issues in the future have perfect and uniform judicial application rules.This article is divided into five parts:The first part is the introduction,focusing on the research background and significance of the internal recourse system,and combs and studies the current research situation at home and abroad.It studies the internal recourse system by identifying literature analysis,case analysis,and comparative analysis methods.The second part is an overview of internal recourse rights in mixed joint guarantee.It begins with an exposition of the concepts,classification,and characteristics of mixed joint guarantee systems,followed by an introduction to the theory of internal recourse in mixed joint guarantee systems and a discussion of the functional value of the system.Finally,it reviews the two academic disputes of internal recourse rights,namely,the affirmative theory and the negative theory,to lay a theoretical foundation for the later affirmation of this system.The third part is about the current situation and defects of the internal recourse system in mixed joint guarantee.It sorts out the legislative provisions on the internal recourse system in China,summarizes the attitudes and regulations of China towards the system at various stages,and analyzes the judicial precedents related to the system in recent years.Combining the judicial difficulties existing in the judgments,it summarizes the legislative and judicial defects at the current stage in China.The fourth part is devoted to a comparative legal study and exposition of the system of internal recovery rights in mixed joint guarantees.It collates and analyzes the provisions of the internal recovery rights system in the hybrid joint guarantees of Japan,Germany,France,Taiwan,China and other countries and regions,and compares it with the internal recovery rights system in China.It absorbs its advantages,finds its defects,and obtains the legislative enlightenment of the provisions of various countries and regions in China,and uses it for reference.The fifth part is suggestions for improving the internal recourse system of mixed joint guarantee in China,which aims to improve the legislative defects of this system in China.Firstly,the system should be clearly affirmed,and secondly,the specific rules for exercising the system should be specified,including the provisions on the share of internal recovery,the unification of the recovery order,and the specific provisions on the exemption situation and calculation method when creditors waive their guarantees.