摘要:由于我国目前立法对混合共同担保内部追偿的相关法律问题持回避态度,导致该问题在各界引起了较大的争议。本文认为,首先在内部追偿的前置性问题即混合担保的担保责任实现顺位上,应当坚持“物的担保责任与保证责任平等”原则,在此基础上基于法律解释论以及保证人与物保人的法律关系分析可证成混合担保的内部追偿权。就内部追偿规则而言,在先担责的担保人在追偿权的实现过程中不应当受追偿顺序的限制,追偿的数额应按照价值比例进行确定。25929 毕业论文关键词:混合担保;物保;保证;内部追偿
Study On Recovery in mixed co-guarantee
Abstract:Due to the fact that the current legislation in China has been evasive on the relevant legal issues in the mixed co-guarantee, the issue has caused considerable controversy in various circles. This paper argues that, the prevenient problem of the recovery in mixed co-guarantee is the order of how to realize the guarantee responsibility, for this problem ,we should adhere to the "the property security responsibility and guarantee responsibility are equal" principle.On this basis, based on the theory of legal interpretation and the analysis of the legal relationship between different guarantors ,we can prove the the guarantors of mixed co-guarantee have the right to recover among other guarantors after undertaking the responsibility of guarantee.In terms of the legal rules of recovery in mixed co-guarantee,there shouldn’t be any restriction in the order of the guarantors how to realize their recovery right ,also the amount of recovery should be carried out in accordance with the proportion of value.
Key words:Mixed co-guarantee;Real security;Guarantee;Recovery
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