Research On Legal Issues Of Mixed Co-guarantee

The complexity of the relationship between creditor and debtor makes the types and situations of guarantee over the same debt more and more complicated.The most typical one is the coexistence of property insurance and personal guarantee on the same debt.Due to the great difference between guarantee for person and property,it is difficult to deal with the relationship between creditors and guarantors and guarantors in the mixed co-guarantee,and many key issues in dispute emerge.Therefore,it is of great significance to study the key issues of mixed co-guarantee through in-depth study of the theoretical basis and judicial practice of mixed co-guarantee.First,there is the controversy over the concept of mixed co-guarantee.This dispute focuses on the definition of "commonality" in the mixed co-guarantee,which only refers to the guarantee of the same debt,or requires the guarantor to have the meaning expression of "common" for the co-guarantee.By comparing with the concepts of co-guarantee and co-mortgage,found "intercommunity" of mixed co-joint guarantee shall be limited to the same debt to guarantee,and whether has the meaning of "co-guaranteed" that is the important standard to distinguish between joint mixed co-guarantee and shared mixed co-guarantee.Secondly,the problem of responsibility sequence of mixed co-guarantor.There are three theories about this problem: absolute priority of property insurance liability,relative priority of property insurance liability and equal guarantee liability of property insurance and personal guarantee.However,the law in our country,the three theories can’t separate as the basis of solving the problem of responsibility sequence of the mixed co-guarantee,but should be comprehensive consideration of property providers,the applicant status of the guarantors that guarantee for person or property,the time node of creditor’s claim of security right and so on,analysing the guarantor to assume responsibility in different circumstances.Because the responsibility sequence of all kinds of guarantors is not invariable,factors such as the provider of property insurance and the time for the creditor to claim rights may lead to different responsibility sequence of guarantors.Thirdly,whether there is a right of recovery between the mixed co-guarantors.This issue has been a big controversy,formed the "affirmative" and "negative" two different views.However,these two viewpoints have been in a game all the time,and the newly issued Civil Code also fails to solve this problem.It is necessary to prove the necessity and rationality of the existence of the right of recovery through unjust enrichment,abuse of power and the principle of fairness.Although the right of recovery between mixed co-guarantors can be realized through subrogation according to the relevant provisions of Article 524 and Article547 and Article 700 of the Civil Code,the direct provision of the right of recovery can be more effectively guaranteed the realization of the right of recovery between the mixed co-guarantors.Finally,the division of share of responsibility of mixed co-guarantors.The division of share of responsibility between guarantors has been caught in the dispute of sharing by share and sharing equally.Under the premise that the guarantee scope of guarantors is the same,there is no substantial difference between the two ways of dividing liability.However,when the guarantee scope of guarantors is different,it is against the principle of fairness to apply the method of sharing equally.In addition,identifying the guarantor’s share of responsibility for the guarantor has a dual identity,its computation rules in the "One person says" "Two people say" "Qualification choice says" three different points of view,but these theories attaching too much importance to the guarantor the cognizance of identity,while ignoring the guarantor’s guarantee scope,leading to the unfair result.Therefore,for the special situation that the guarantor has dual status,the division of liability share should be based on the guarantee scope.