중국의 혼합 공동담보 구상권에 관한 연구 - 한국 민법의 시사점을 포함하여 -

Abstract

With the development of society, mixed joint guarantee has become the main guarantee method in China's economic life, but there is still controversy over whether mixed joint guarantors can conceive of each other. There is no clear legal provision in China regarding whether there are claims between mixed joint guarantors, and there is no unified trial standard in court practice. In order to unify the trial standards in academic disputes and practice, it is necessary to clarify whether mixed joint guarantors recognize the right of recovery. In order to achieve this research objective, this study investigates the recourse rights between mixed joint guarantors in China in the following order. Firstly, based on the theoretical and case analysis of the recovery rights of mixed joint guarantee in China, a legal analysis is conducted on the recovery rights of mixed joint guarantee. Article 392 of the Chinese Civil Code holds a silent attitude towards whether mixed joint guarantors conceive of each other, and Article 13 of the Interpretation of the Supreme People's Court on the Application of the Guarantee System of the Civil Code of the People's Republic of China (hereinafter referred to as the Interpretation of the Guarantee System of the Civil Code) does not stipulate mutual conception. Without an agreement on joint and several guarantee obligations, and without joint signatures on the same contract, even if a guarantor assumes guarantee liability, it cannot compensate other guarantors. This result leads to creditors choosing guarantors who can only assume full guarantee responsibility, which goes against balance and undermines the balance of interests between guarantors. As a prerequisite for proposing a solution to this, conduct a comparative study. This is a comparative study of the recovery rights of Korean and Chinese joint guarantors. The Chinese Civil Code does not provide for the right of recourse and subrogation of the claimant, while the Korean Civil Code does not recognize the right of recourse between mixed joint guarantors, but provides for subrogation of the claimant. In South Korea, the guarantor who bears the guarantee responsibility requests the repayment captain to subrogate the burden to other guarantors, thereby substantially protecting the guarantor who bears the guarantee responsibility. Finally, in response to various disputes regarding the recovery rights of mixed joint guarantors, drawing inspiration from the Korean Civil Law in the Compensation Commission, this article emphasizes the necessity of revising Article 392 of China's Civil Code and Article 13 of the Interpretation of the Civil Code Guarantee System from a legislative perspective, and draws a specific legislative plan as a conclusion.