中国法上共同担保人内部追偿权问题研究

Abstract

Whether the internal recovery rules between co-guarantors should be established has been a long-standing controversial issue in Chinese law. Legislation and judicial interpretations have gradually changed from affirmative theory to negative theory, and the latest judicial interpretation of the Civil Code clearly adopts negative theory. There are three legislative reasons, one reason is if the joint guarantors have not agreed to bear joint and several guarantee responsibilities for each other, the statutory internal recovery right violates the principle of private autonomy; secondly, requiring the guarantor to bear the guaranty responsibility promised by himself does not violate the principle of fairness. Finally, the establishment of the internal recovery rules between co-guarantors will increase the cost of judicial procedures, and it is also necessary to establish some operational detail recovery rules, which are uneconomical. However, the clarity of the legislative attitude still cannot settle the theoretical controversy, not only because the negative theory deviates from the mainstream theory of comparative law, but also because it lacks legitimacy. The co-guarantor’s internal recourse right is an arbitrary norm, which legislative setting should be based on the mainstream transaction model. However, due to the particularity of secured transactions, it is difficult to investigate and make statistics on mutual recovery agreements between guarantors. By comparing double insurance rules which structure is similar to joint guaranty, it can be found the fair value of civil law behind the co-guarantor’s internal recovery rules. The guarantor’s internal recovery rules will not reduce the efficiency of legislation and justice, but will facilitate credit extension. China should abolish the judicial interpretations about the negative theory. From the perspective of legal interpretation, the internal recovery rules of the joint and several debts can be applied by analogy.