| The rules of mutual recovery of co-guarantors have undergone the evolution of the original Property Law,the original Security Law and its judicial interpretation,the Jiu Min Ji,the Civil Code and the judicial interpretation of the guarantee system.In the early stage,due to the inconsistency between the original Property Law and the original Guarantee Law,the academic circle had a fierce debate on whether the internal recourse right of mixed co-guarantors was available.After the introduction of the Jiu Min Ji,the debate once died down,and the academic circle looked forward to the end of the debate on the Civil Code.However,the Civil Code not only continues the original Property Law without clarifying the stipulation of mutual recovery of mixed co-guarantors,but also makes a great breakthrough in the stipulation of internal recovery of joint guarantee compared with the original Security Law and its judicial interpretation.As a result,the issue is no longer confined to the level of hybrid co-guarantee,and the discussion of related issues has gradually expanded to the broader concept of "co-guarantee".The Civil Code and its Interpretation of Guarantee System have the same provisions on the internal right of recovery of mixed joint guarantee and joint guarantee,which shows that it is necessary to focus on the discussion,so as to adapt to the trend of unified provisions in the Civil Code.What’s more,it has lost the significance of legislation to study the internal recovery of mixed joint guarantee alone,and it is more realistic in the long run to explain it in the system of internal recovery of joint guarantee.There are various types of joint guarantee,including mixed joint guarantee,joint guarantee and joint property insurance.Limited to the research purpose of this paper,this paper mainly starts from the two types of joint guarantee,mixed joint guarantee and joint guarantee,and focuses on the related issues of mutual recovery of co-guarantors.The reasons for this paper to focus on hybrid co-guarantee and co-guarantee are as follows: first,hybrid co-guarantee is the most complex,because it has both human and property insurance and is the most representative,and the disputes about mutual recovery of guarantors are the largest.Secondly,the Civil Code has obvious changes to the common guarantee internal recovery rules,and there is a theoretical space worthy of further legal interpretation.Finally,since the promultion and implementation of the Civil Code and its Guarantee System Interpretation,the internal recovery problems of guarantors of mixed joint guarantee and joint guarantee are the most concentrated.According to the author’s judgment documents statistics,there are a lot of different judgments in the same case in judicial practice,which shows that this issue has both theoretical and practical research value.This paper consists of five parts except the introduction and conclusion.The first part is the summary of the statistics and the differences of judgment.According to the judgment documents collected on the Internet since the promulgation and implementation of the Civil Code,85 judgments of internal recovery disputes of joint guarantee were sorted out and summarized.The internal recovery of joint guarantee under the background of the Civil Code is mainly reflected in two aspects: 1.Do the co-guarantors have the right of recovery between each other? 2.How to realize the right of recourse when there is the right of recourse?The second part analyzes the internal recovery of the joint guarantee.It mainly starts from two aspects: one is to elaborate the causes of the application of law in judicial practice by combining the legal provisions of joint guarantee internal recourse since the dispute;The second is to start with the first problem in judicial practice,namely whether the co-guarantors have the right to recover from each other,and to interpret the law mainly from the provisions of the Civil Code on joint guaranty and mixed joint guaranty.The main point of this paper is to deny the co-guarantor has the internal right of recovery as the principle,with the co-guarantor agreement as the exception.The third part examines the relevant legal provisions of countries and regions outside the region,especially the civil law countries represented by Germany clearly stipulate that co-guarantors can seek mutual compensation according to the provisions of creditor’s rights transfer through the German Civil Code.However,the common law countries represented by the United States emphasize the substantial fairness,and the claim depends on the specific circumstances of the case.Whichever kind of legislative mode can bring enlightenment to the perfection of the internal recourse rule of mutual guarantee.The fourth part starts from the second problem in judicial practice,on the basis of principle negation,mainly discusses the application of law in the case of exception with recourse by centering on the relevant provisions of Guarantee System Interpretation.The legal interpretation of the existing recovery rules is carried out,so as to clarify the specific recovery methods such as the recognition of the effectiveness of recovery agreed between guarantors,the determination of the proportion of internal share of guarantors and the recovery sequence.In the fifth part,based on the analysis of the internal recovery of joint guarantee in the fourth part,this paper will put forward suggestions on the legal application of the internal recovery rules of joint guarantee,in order to provide ideas for the unified legal application of this issue.The last part is the summary and conclusion. |
