混合共同担保人相互间无追偿权论

同一个债权被数个担保措施保障,应当区分情况而定担保人相互间是否享有追偿权:在共同保证、共同抵押的场合可存在追偿权,在混合共同担保关系中,物上担保人之间、物上担保人与保证人相互间不应享有追偿权,除非当事人之间另有约定或法律另有规定。反对此说者,在解释论层面不合中国现行法及法理,在立法论层面不宜被采纳,因其未能证成担保人相互间存在着各项义务间具有内在联系的共同关系,利益衡量时未能全面而平等地照顾到担保人的全体,不当地限制了意思自治原则作用的发挥,未把债的相对性和自己责任等原则及规则纳入权衡因素,将目光局限于单一的交易关系,忽视了系列交易、一组交易中各个子交易之间环环相扣、处处衔接的特殊安排。其所谓公平理念及标准以及当事人预期,明显带有解释者的主观偏好,似不中立。至于将降低交易成本作为混合共同担保人相互间享有追偿权的根据,更是偏离了路径。

On the Non-recourse Among Mixed Joint Security Parties

When the same creditor’s right is guaranteed by several security measures,the question of whether the guarantors have the right of recourse against each other should be determined according to the circumstances in each case.In the case of joint guarantee and joint mortgage,there may be a right of recourse;in the mixed joint guarantee relationship,there should be no right of recourse between the guarantors on real right,or between guarantors on real right and obligational guarantors,unless otherwise agreed upon between the parties or provided by law.The opposite view should not be adopted,because it does not conform to the current laws and legal principles of China at the level of interpretation,and fails to prove that there is a common relationship among the obligations of guarantors at the level of legislation.It also fails to take into full and equal consideration all the guarantors in the process of interest measurement,improperly limits the function of the principle of autonomy of will,does not bring the principles and rules of debt relativity and self-responsibility into the trade-off,focuses only on a single transaction relationship,and ignores the fact that various sub-transactions in a series or a group of transactions are closely linked to each other and specially and coherently arranged.Its so-called concept and standard of fairness and the expectations of the parties obviously have the subjective preference of the interpreter and do not seem to be neutral.As for the practice of taking efficiency as the basis of the right of recourse,it deviates obviously from the correct path.