Denial Of The Establishment Of The Internal Recovery Right Of The Mixed Guarantee

The combination of mixed co-guarantee with different nature guarantee methods arises from the need to guarantee the realization of creditor’s rights.Whether internal recovery can be carried out between hybrid co-guarantors who have provided security for the same claim successively and have no interesting communication with each other has been the subject of litigation since the era of the Property Law.The Civil Code provides greater room for interpretation of the issue of partial inheritance and deletion of the provisions of the old law into internal recovery of mixed joint guarantees.The Civil Code provides greater room for interpretation of the issue of partial inheritance and deletion of the provisions of the old law into internal recovery of mixed joint guarantees.Although Article 13 of the Interpretation of the Guarantee System of the Civil Code basically establishes the rule of "no recovery without agreement",whether the provision itself is in line with the normative system of the Civil Code and whether it can provide an accurate and unified application basis for judicial practice has also been questioned by scholars.In the new context of the Civil Code,it is still of great theoretical and practical value to study the internal recovery of hybrid joint guarantees.The "affirmative theory" of internal recovery of hybrid joint guarantees,arguing that the principles of fairness and efficiency cannot justify the internal recovery rights of hybrid guarantees;At the same time,affirmatives apply the provisions of Articles 518,700 of the Civil Code by analogy to the relationship between hybrid co-guarantors to prove their internal recourse rights,or because the relevant provisions are over-interpreted,or because the rules themselves are not comparable to the internal recovery of mixed co-guarantees,so these provisions cannot be used as a theoretical basis to support the existence of internal recovery rights.In fact,there is no "conflict" in the relevant provisions of the Civil Code and the Interpretation of the Guarantee System of the Civil Code,and it is substantially appropriate to deny the internal right of recovery of the mixed co-guarantee.First of all,the issue of the internal right of recovery of the mixed co-guarantee is related to the value judgment of the law,and the negative theory is more in line with the spirit of private law and the purpose of the guarantee system.Secondly,in essence,the mixed joint guarantors have an independent legal relationship,so the establishment of the internal right of recourse is like water without a source.Finally,the rules of denying the internal recourse right of the mixed joint guarantor and the creditor abstention and exemption system support each other,which have logical consistency and jointly maintain the systematic requirements of legal norms.The negation of the guarantor’s internal right of recourse does not mean that the interests of the guarantor are ignored.The prior rule of the debtor’s self-property security right and the creditor’s waiver exemption system both reduce the guarantee liability as a whole,which is the embodiment of the law’s protection of the interests of the guarantor.As for the issue that the negative theory may trigger speculation by creditors and some guarantors,Article 14 of the Interpretation of the Guarantee System of the Civil Code and the principle of good faith can protect the interests of other guarantors to a certain extent.At the same time,in the legal context of the negative argument,a rational guarantor should take the initiative to take remedial measures to reduce or avoid its own risks,such as requiring the debtor to provide a counter-guarantee or sign a sharing agreement with other guarantors,or agree with the creditor on the share and order of the guarantee.