混合共同担保中第三人追偿问题之研究

发布时间：2018-06-04 03:31

本文选题：混合共同担保 + 人保　；参考：《华东政法大学》2015年硕士论文

【摘要】：担保制度是市场经济发展过程中必不可少的法律工具。在民法理论上有一种担保制度称之为混合共同担保,详释之,是指在同一个债权债务关系上既存在物的担保又存在人的担保的混合型担保制度。目前我国关于该担保制度的法律规定还不完整,尤其是在本文所提出的第三人追偿问题上还出现了法条之间(《物权法》176条与《担保法》28条及《担保法司法解释》第38条)的冲突,承担了担保责任的物上保证人或保证人有权向主债务人追偿自无争议,但有时主债务人会丧失偿债能力,有时第三人向主债务人追偿无果,在这些情况下承担了担保责任的物上保证人或保证人对其他未尽担保责任的担保人有无担保责任的分摊请求权?理论界对此问题的争议也较大,至今未形成通说观点,本文即针对混合共同担保中物上保证人和保证人之间的追偿问题进行研究以期对此问题作出解答。本文在内容上可分为四个部分,各章节所述内容以我国担保制度为主要依据,并围绕物上保证人和保证人之间(本文所称第三人)的追偿关系为中心进行论述。第一部分为混合共同担保理论界定,以混合共同担保的基本概念和基本类型为重点,论述了混合共同担保降低成本、促进融资的作用,并对混合共同担保三种类型作出区分,指出本文以第三人物保和人保的结合为重点研究对象。在该种类型下,我国立法出现了混乱的状态,理论界对人保和物保之间的地位也存在较大的分歧,有的学者坚持物保优于人保说而有的则坚持物保与人保平等说,本文基于民法的公平原则赞同物保与人保平等说。第二部分对本文核心问题即第三人之间的追偿权能否得到法律的认可作出了详细的论述并对理论界否定追偿权利和肯定追偿权利的观点进行优缺点分析,依本文所持物保与人保平等说以及第三人之间依义务的同一层次理论构成连带债务关系从而肯定混合共同担保中第三人之间的追偿权。第三部分重点论述了该权利在法律的性质。本文提出两种权利:追偿权和代位权,代位权给追偿权的行使带来保障,法律应当对承担更多担保责任的第三人施加更多的保护,因此第三人之间的追偿权利应当同时具备追偿权和代位权这两种权利属性。第四部分对第三人追偿的三种方法进行了分析,认为依照担保额度的比例分担各担保人的担保责任比较符合物保与人保平等说的观点。并且,无论是从程序的简便性上还是在实体意义上第三人追偿权的行使都不应当有顺位上的限制。
[Abstract]:Guarantee system is an indispensable legal tool in the development of market economy. In the theory of civil law, there is a kind of security system called mixed joint guarantee, which is a mixed security system, which refers to both the existence and the existence of the security in the same creditor's rights and liabilities relationship. At present, the legal provisions on the guarantee system in our country are not complete. In particular, there is also a conflict between the legal articles (Article 176, Article 28 of the Law of Guaranty and Article 38 of the Judicial interpretation of the Law of Guaranty) on the issue of recourse to the third party raised in this paper. The guarantor or guarantor who is liable for the security has the right to recover from the principal debtor without dispute, but sometimes the principal debtor becomes insolvent, and sometimes the third party recovers from the principal debtor without success, In these cases, does the surety or guarantor have a claim for the apportionment of the secured liability against other guarantors who are not covered by the security? There is also a great controversy on this issue in the theoretical circle, so far no general view has been formed. In this paper, the problem of recovery between guarantor and surety in the mixed co-guarantee is studied in order to answer this question. The content of this paper can be divided into four parts. The contents of each chapter are mainly based on the guarantee system of our country, and the relationship between guarantor and surety (the third party in this article) is discussed as the center. The first part is the definition of mixed co-guarantee theory, focusing on the basic concepts and types of mixed co-guarantee, discusses the role of hybrid co-guarantee to reduce costs and promote financing, and makes a distinction between the three types of mixed co-guarantee. It points out that this paper focuses on the combination of the third person and the people's insurance. Under this kind of situation, the legislation of our country has appeared in a state of confusion, and there is also a great difference between the position of PICC and real insurance in the theoretical circle. Some scholars insist that the real estate insurance is superior to the personal insurance theory, while some insist that the property insurance is equal to the people's insurance. Based on the principle of fairness in civil law, this paper agrees with the theory of equality between real estate insurance and personal insurance. The second part discusses the core problem of this paper, that is, whether the right of recourse between the third party can be recognized by law, and analyzes the advantages and disadvantages of the theory circle's view of negating the right of recourse and affirming the right of recovery. According to the theory of equality between real and personal insurance and the theory of liability between the third parties, the joint and several liability relationship is formed and the right of recovery between the third parties in the mixed joint guarantee is confirmed. The third part focuses on the nature of the right in the law. This paper puts forward two kinds of rights: the right of recourse and the right of subrogation. The right of subrogation brings security to the exercise of the right of recourse. Therefore, the right of recourse between the third parties should have the attributes of both the right of recourse and the right of subrogation. The fourth part analyzes the three methods of the third party's recovery, and thinks that sharing the guaranty liability of each guarantor according to the proportion of the guarantee amount is more in line with the viewpoint of the equality between real insurance and personal insurance. Moreover, the exercise of the third party's right of recourse should not be restricted in order, either from the simplicity of procedure or from the substantive point of view.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923

【共引文献】