混合共同担保中担保人的追偿问题研究

Abstract

With the continuous acceleration of financial innovation in China, the cases of mixed jointly guaranteed emerge one after another. In the practice of private lending, it is very common to set multiple guarantees on the same claim. The article 176 of China Property Law has provided for mixed jointly guaranteed, however, there are still some controversies about this regulation. According to the provisions of this article, first of all, the property law puts the principle of party autonomy as the first priority, when the debtor is unable to pay off his debts, the creditor shall liquidate his claims in accordance with the contract. Secondly, according to the following rules, when the agreement is unclear or not. One is when the debtor himself provides guaranty of property, the creditor shall first liquidate his claims to the property. While the property is not sufficient to pay off the claims, the guarantor shall be responsible for the supplementary liability. The other is when the third party provides property, securities and egalitarian stance between guarantor shall be applied. That is the guaranty of person has the same liquidation order as the property, giving the creditor the option. The problem is that, the property law only regulated the guarantor may exercise the right of recourse against the debtor after he has shouldered the guarantee liability. However, it does not stipulate that the third party may exercise the right of recourse against other guarantors after he has shouldered the guarantee liability. The author puts forward the following views on this question. First, in accordance with article 176 of the property law, the position of securities and egalitarian stance between guarantor has been clearly defined. Therefore, if the parties fail to make a specific agreement, the guaranty between securities and guarantee is joint liability. The guarantor who bears the responsibility for security may exercise the right of recourse against other guarantors, but the extent of the recovery scope shall be in the share that should undertake. Second, the author advocates adopting proportional distribution principle about the recovery scope of mixed co-guarantors, that the responsibility of each guarantor shall be calculated according to the proportion of their respective shares. Third, with respect to the sequence of recovery right, the author thinks that should not be forced. The guarantor who undertakes the guarantee liability shall have the right of recourse against the principal debtor or other guarantors who did not undertake the guarantee responsibility.