| 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. |
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