Affirmation Of Mixed Co-Guarantors’ Right To Mutual Recover

Whether mixed co-guarantors have the right to mutual recover has been a highly contentious civil issue in recent years.has been a highly contentious civil issue in recent years.Although the current judicial interpretation has been issued,it seems that the dust has been settled.However,there are still some scholars expressing strong opposition to the current recovery rules,arguing that it needs to be ensured by means of legal interpretation that guarantors can mutual recover under any circumstances,while in judicial practice,different courts are still trying different cases of mixed co-guarantors’ right to recover before the judicial interpretation is issued,which profoundly reflects from both theory and practice that the judicial interpretation has not achieved the effect of fixing points and stopping disputes.Through the analysis of the cases and the sorting out of the legislative evolution,in addition to the controversy of whether there is a right of recovery among the mixed co-guarantors,there are also a lot of arguments on how to exercise the right of recovery,specifically: first,the conditions for the exercise of the right of recovery by the mixed co-guarantors are unknown;second,the order of the exercise of the right of recovery by the mixed co-guarantors is controversial;third,the share of the exercise of the right of recovery by the mixed co-guarantors cannot be determined.Therefore,in order to solve these problems,it is necessary to start from the root of the divergence between the two major views of the academic community on the issue of mutual recovery of mixed co-guarantors,namely,the ‘affirmative view’ and the‘negative view’.To this end,two new perspectives are introduced: the cognitive limitation perspective of guarantors and the duty of care perspective of civil and commercial subjects.In terms of the guarantor’s cognitive limitation perspective,the‘negative view’ looks at the guarantor as a ‘rational person’ who enters into the guarantee agreement as a rational act of discretion.The ‘affirmative view’ looks at the guarantor as an ‘ordinary person’ that there is a cognitive gap between the ‘ordinary person’ and the ‘rational person’ and ‘ordinary people’ is easily influenced by the environment,and the cognitive gap between guarantors can be bridged by affirmative recovery.In terms of the duty of care of commercial and civil subjects,the ‘negative view’ looks at the guarantor from the perspective of a commercial subject and requires it to have a duty of care,i.e.,to be aware of the terms of the guarantor’s inability to recover and to take responsibility for its own inability to recover.The ‘affirmative view’looks at the guarantor from the perspective of a civil subject,and does not blame the guarantor for being imprudent when signing the guaranteed contract.In the current situation,China’s market economy system is not perfect,the credit system has not been fully built,the lack of qualified commercial subjects,and ‘civil law is the law of the people’,in order to maximize the protection of people’s rights and interests.The optimal solution to the question of whether mixed co-guarantors have the right to mutual recover under the civil law system is to affirm the right of recovery between mixed co-guarantors and make provision arbitrary.However,the provisions of the judicial interpretation have been clearer,and the interpretation clearly allows for recovery between mixed co-guarantors in agreement and ‘special practice’.In contemporary practice,it is more favorable to the guarantor to follow the relevant provisions of the judicial interpretation,but the imperfection of the legislation on the exercise of the right of recovery also leads to the phenomenon of different judgments in the same case in practice.Therefore,to solve this problem,firstly,the positive and negative conditions for the exercise of the right of recovery by mixed co-guarantor should be clarified;secondly,the sequential limitation of recovery should be adhered to and the principle of one-time exhaustion of the right of recovery should be established;thirdly,the right of recovery by mixed co-guarantor should be established in steps.