共同担保中的推定规则与意思自治空间

Presumption Rules and Space of Autonomy of Will in Joint Guarantee

共同保证、共同抵押以及混合共同担保三种担保类型具有同质性,可以构建统一的共同担保规则。我国现行法针对共同担保中债权人、债务人与担保人的三方关系,如担保人承担责任的顺位与份额、人保与物保的关系、共同担保人对债务人的外部追偿和代位、共同担保人之间的内部追偿等问题有一系列推定规则。在推定规则之外,共同担保中存在广阔的当事人意思自治空间:债权人可以与各担保人就责任承担的顺位与份额、就人保与物保的责任顺序和分担范围进行特别约定;债权人有权放弃部分担保以及与共同担保人约定放弃担保的效力;共同担保人之间可以约定内部追偿的责任比例份额。当事人通过意思自治丰富、延展和变异了三方关系,影响了共同担保的责任承担与追偿规则。

As co-suretyship,joint mortgage and mixed joint guarantee are homogeneous,they can together form a unitive rule of joint guarantee.The current Chinese laws contain a series of presumption rules regulating various relations among the creditor,the debtor and the guarantor,such as the sequence or the share among the guarantor,the relationship between the guarantee of property and the guarantee of person,the external recovery or the subrogation of the joint guarantor to the debtor and the internal recovery of the joint guarantor.Apart from the presumption rules,the parties have broad room to achieve their autonomy of will.The creditor and every guarantor may agree on the sequence or the share of guarantee liability as well as on special rules on the sequence and scope of property and guarantee;the creditor may waive part of the guarantee and reach an agreement with the guarantor on the effect of such waiver;and joint guarantors may jointly determine the proportion of the guarantee liability.The amount of internal recovery should be calculated on the basis of the proportions of the guarantee liability contracted,without the need to consider the amount of the obligation and the value of the guaranteed property.