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Study on Reclaim Right in Mixed Co-guaranty

Author: FengJing
Tutor: JinKeKe
School: East China University of Political Science
Course: Civil and Commercial Law
Keywords: guarantee real security mixed co-guaranty reclaim right
CLC: D923
Type: Master's thesis
Year: 2011
Downloads: 208
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Abstract


The guaranty system can be divided into guarantee and real security. To ensure the complete realization of the creditor’s rights, the creditor usually requests both guarantee and real security in the same debt. The guarantor undertakes the responsibility not for himself but for the debtor. When the guarantor already takes the guaranty responsibility to pay the debt of the debtor, the guarantor has the right to ask the debtor to compensate. Sometimes the real security is provided by the debtor himself, and another person provides guarantee for the same debt. This kind of mixed co-guaranty is relatively simple and there is almost no dispute. This paper studies on reclaim right in mixed co-guaranty, of which the guarantee and real security are both provided by third party. The thesis contains five parts.The first section briefly describes the concept of the mixed co-guaranty and the relative laws in our country. There are mainly two questions on reclaim right in mixed co-guaranty. One question is whether one guarantor who has performed the guaranteed debt can ask for indemnification toward the other guarantor and how to calculate the amount of the indemnification. The other question is when the guarantor has the right to ask for indemnification toward the debtor and the other guarantor, whether he must ask the debtor to pay at first.The second section analyzes the legal relationships between the debtor, the creditor and the two guarantors.“The Same Level Theory”from Germany is helpful to clarify the relationships between these parties. The guaranty responsibilities undertaken by the two guarantors are on the same level. The two guarantors are jointly liable for the guaranteed debt. This is joint debt. If one guarantor has double reclaim rights, the guarantor who has already paid the debt is the creditor, and the original debtor and the other guarantor are both debtors. The compensation responsibilities undertaken by the original debtor and the other guarantor are not on the same level. This is quasi-joint debt.The third section studies on the first question. The two guarantors are jointly liable for the guaranteed debt. Therefore, when one guarantor actually has paid the debt, he can claim indemnification toward the other guarantor. The legal statuses of the two guarantors are equal. The other guarantor has the duty to share the responsibility. Otherwise, one guarantor may collude with the creditor, and then the creditor only asks the other guarantor to pay the debt. If so, one guarantor pays nothing, but the other guarantor pays the whole. This result is unfair. The reasons against the indemnification between the guarantors are not valid. The amount of the indemnification can be determined reasonably.The forth section studies on the second question. The two guarantors share the guaranty responsibility, either of whom should bear a certain party of the debt. If one guarantor pays more than he should share, he can claim the exceeded part toward the original debtor and the other guarantor. The original debtor and the other guarantor are quasi-jointly liable for the indemnification of the exceeded part. On the external effect, the joint debt and the quasi-joint debt is almost the same. The creditor has the right to choose either or both to indemnify.The fifth section is the conclusion. When real security provided by third party and guarantee coexist in the same debt, one guarantor who paid more than his share has the right to claim indemnification toward the debtor and also has the right to claim indemnification toward the other guarantor. To exercise the reclaim rights is not limited by order.

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