학술논문
중국법상 공동보증인간 구상권에 대한 연구
Research on Internal Recovery Rules between Co-guarantors in Chinese Law
Research on Internal Recovery Rules between Co-guarantors in Chinese Law
Document Type
Article
Text
Text
Author
Source
중국법연구, 07/31/2023, Vol. 52, p. 91-111
Subject
Language
Korean
ISSN
1738-7051
Abstract
共同担保人内部追偿权的存废是中国法上长期争议不休的问题. 立法与 司法解释逐步从肯定说演变至否定说,最新《民法典》相关司法解释明 确采否定说. 其立法理由在于:在共同担保人无约定互相承担连带担保责 任的情形下,法定内部追偿权违背了意思自治原则;其次,要求担保人 独自承担他所承诺的担保责任,并不违反公平原则. 最后,设立担保人内 部追偿权会增加司法程序成本,还需要细化有可操作性的追偿规则,这 都是不经济的. 然而立法态度的明晰仍不能平息学说上的争议,不仅仅因 否定说与比较法上主流学说相背离,更因其缺少立法正当性. 共同担保人 内部追偿权系任意性规范,其立法设置本应以主流的交易模式为取向. 但 由于担保交易的特殊性,担保人相互追偿的意思难以被考察与统计. 通过 比对与之类似的重复保险制度可发现共同担保人内部追偿符合民法公平 价值. 担保人内部追偿权制度不会降低立法、司法效率,反而有助于资金 融通. 中国应废除否定说相关的司法解释,解释上可类推适用连带责任人 的内部追偿制度.
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.
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.