Original Xie Hongfei Shanghai Law Society
Xie Hongfei, Research Fellow and Doctoral Supervisor, Institute of Law, Chinese Academy of Social Sciences.
synopsis
The right of recourse of joint and several debtors is the same as that of statutory subrogation, and whether the latter is established and its scope depends on the former. In traditional theory, the legal effects of the two are quite different, because the former is the debtor’s inherent right, and the latter is derived from the legal succession of creditor’s rights. The two should not constitute a competitive relationship, and the right holder should choose one to apply, but should apply as one, and the latter should supplement and strengthen the effectiveness of the former, which is also in line with the literal meaning of the civil code. After the termination of the contract that gave rise to the joint and several debts, if the creditor is unable to perform the obligation of return, the joint and several debtors who perform the debts in excess of the share shall enjoy the right of recourse. The creditor’s rights exercised by the debtor during recourse and subrogation are all creditor’s rights in installments. When claiming or exercising the right of security, the debtor should distinguish between the guarantee of joint and several debts and the guarantee of the whole joint and several debts. If the creditor abandons the collateral rights such as the guarantee, and the obligee cannot recover, it shall be liable for damages. The right of recourse should also be inferior to the creditor’s right. The scope of legal subrogation is determined by the right of recourse, and the limitation of action and the reasons for preventing the exercise of the right of claim should be unified.
Keywords: the legal subrogation right of joint and several debts; Article 519 of the Civil Code; the legal relationship of competing claims
First, the question raised
Joint and several debts include the external legal relationship between debtors and creditors and the internal relationship between joint and several debtors. In the internal relationship, the most important thing is the right of recourse and legal subrogation of joint and several debtors. Countries have different legislative cases. First, only the right of recourse is stipulated, such as the second paragraph of Article 1317 of the French Civil Code, Article 442 of the Japanese Civil Code and Article 1154 of the Spanish Civil Code. However, these countries often recognize the debtor’s legal subrogation by using the subrogation rules (such as Article 1346-5 of the French Civil Code and Article 500 of the Japanese Civil Code). Second, only the statutory subrogation right is stipulated, such as Article 1522 of the Chilean Civil Code. The third is to stipulate two kinds of rights at the same time, such as Article 426 of the German Civil Code, Articles 148 and 149 of the Swiss Debt Code, and so on, as well as Article 4: 107 of Part 3 of the draft European Model Civil Code.
In China’s law, the right of recourse and legal subrogation of joint and several debtors has gone through a development process. Article 87, paragraph 2, of the former General Principles of Civil Law and Article 14, paragraph 2, of the former Tort Liability Law only stipulate the former, not the latter. Paragraph 2 of Article 178 of the Civil Code of People’s Republic of China (PRC) (hereinafter referred to as the Civil Code) stipulates the right of recourse in joint and several liabilities, but paragraph 2 of Article 519 recognizes both: "A joint and several debtor who actually undertakes more than his share has the right to recover the excess from other joint and several debtors within the scope of their unfulfilled share, and accordingly enjoys the rights of creditors …" Similarly, Article 700 stipulates that the guarantor is undertaking the guarantee. Systematically, Article 178, paragraph 2, is a general rule, while Article 519, paragraph 2, is a contract rule, and the former is "joint and several liability" and the latter is "joint and several debt", which gives rise to a problem of legal interpretation: whether the latter can only be applied to joint and several debts arising from contracts, and debtors who exceed their share of performance enjoy two rights; However, the joint and several debts (liabilities) arising from legal facts such as infringement can only be applied to the former, so the debtor who exceeds the share performance can only claim the right of recourse and cannot obtain the legal subrogation? When there is no general part of the debt law in the civil code, its article 468 stipulates that the relevant contract code can be applied to non-contractual debts, unless it cannot be applied according to its nature. There is no substantial legal difference between joint and several debts and joint and several liabilities.The core legal issue of majority debts or liabilities arising from different reasons is whether joint debts (liabilities) can be established, but after joint debts (liabilities) are established, joint debts will not have different effects due to different reasons for their establishment. Therefore, the second paragraph of Article 519 applies to all joint and several debts, and the debtor who exceeds the share performance has both the right of recourse and the right of legal subrogation.
The second paragraph of Article 519 of the Civil Code connects subrogation and statutory subrogation with "combination", which can only be interpreted as that the joint debtor enjoys both rights at the same time, rather than choosing only one right. The problem is that these two rights have the same purpose, both of which are to make the joint debtor recover from other debtors after exceeding the performance, so it is unnecessary and impossible for them to exercise the other right after exercising either right to achieve the purpose of recovery. On this basis, Professor Wang Yuanzhi pointed out that this provision actually created a double recourse for the joint debtor, which was "not only unnecessary, but also caused contradictions in the application of the law and confusion in the logical system", so he suggested that this provision be amended to mean that the joint debtor has the right to choose to exercise two rights. This criticism is based on the general theory of traditional civil law. It can be seen that under the text framework of the civil code, how to explain the applicable relationship between the two rights has certainly become an important issue.
The author’s question is the legal application relationship between the two rights. The key point is to analyze the "concurrence theory" of two rights in traditional civil law and its contradiction, and then reveal the legitimacy and obstacles of the "unification theory" of two rights. To analyze the relationship between the two rights, it is necessary to start with their respective constitutive requirements and laws. The author will also analyze the possible defects of the traditional theory on their constitutive requirements and legal effect, and explain how the obligee should exercise their rights after the civil code unifies the two rights.
Second, the legal isomorphism between the right of recourse of joint and several debtors and the constitutive requirements of legal subrogation.
(A) the root of the isomorphism between the right of recourse of joint and several debtors and the constitutive requirements of statutory subrogation
After the joint and several debtors exceed their debts, they have the right of recourse against other debtors in their internal relations. At the same time, the paid-off creditor’s rights should have been eliminated, but the legal fiction creditor’s rights continue to exist, and the legal subrogation right has been obtained for the paid-off joint debtor, with the sole purpose of ensuring that the debtor can recover from other debtors. Although this right is called "legal subrogation", its essence is the legal transfer of creditor’s rights, which is obtained on the basis of paying off subrogation. Therefore, the right of recourse is the premise and foundation of legal subrogation, which determines whether the latter is established. In other words, the right of legal subrogation is subordinate to the right of recourse, and its purpose is to strengthen the right of recourse. If the right of recourse does not exist, the right of legal subrogation will not arise. After the right of recourse is realized, the transferred creditor’s rights are also eliminated. This is also the reason why the right of recourse is often stipulated first and then the legal right of subrogation is stipulated in comparative law. It can be seen that because of the same purpose, their constituent elements are exactly the same.
In addition, as stipulated in the second paragraph of Article 519 of the Civil Code, the scope of the right of recourse also determines the scope of the legal right of subrogation. If there is no legal subrogation, the creditor’s rights will be destroyed, and there is no need for the law to make the creditor’s rights continue to exist and transfer legally. If the scope of legal subrogation exceeds the right of recourse, it will form a recovery cycle, that is, the debtor A can recover all the debts from B after performing, and B will recover all the debts from A after being recovered. If the scope of the right of recourse is less than the legal subrogation, it will cause the obligee of recourse not to fully exercise the security right on the creditor’s rights, which may lead to the partial failure of the recovery. This further shows that the legal right of subrogation is attached to the right of recourse. Therefore, for the convenience of writing, the following only expresses the elements of the right of recourse.
(2) The difficult problem of the establishment of the right of recourse and legal subrogation of joint debtors.
Generally speaking, the elements of the right of recourse include: 1. The obligee has the right to pay off joint debts or other reasons similar to paying off, regardless of whether it is his own initiative or passive action. 2. Other joint and several debtors are also exempted from all or part of their debts because of the obligee’s settlement or similar settlement, that is, the obligee’s behavior has caused the joint and several debts to be completely or partially eliminated. 3. The obligee makes the debt relief of other joint debtors exceed the obligee’s share, that is, the performance amount is greater than the share amount. However, in bankruptcy proceedings, there are exceptions to the establishment and exercise of the right of recourse. When a joint debtor is declared bankrupt and the creditor fails to declare his creditor’s rights, other joint and several liable persons have the right to declare the total amount recoverable in the future as bankruptcy property and exercise the right of recovery in advance. There is no provision in the Civil Code, but Article 23 of the Supreme People’s Court "Provisions on Several Issues Concerning the Trial of Enterprise Bankruptcy Cases" clearly gives joint debtors this right. Articles 121 and 134 of the proposed draft of the Civil Code Sub-provisions of the Civil Code Compilation Working Group of China Academy of Social Sciences have also made provisions.
The disputes over the constitutive requirements of the right of recourse mainly focus on the following issues.
1. Is it based on the premise that the performance exceeds the share?
It is a well-known controversial issue in comparative law whether the right of recourse is established when the joint debtor exempts other joint debtors from part of their debts due to liquidation and other acts, but the performance amount does not exceed the share amount. If the joint debt is 300 yuan, Party A, Party B and Party C each share 100 yuan. After paying off 60 yuan, can Party A ask Party B and Party C to share 20 yuan?
Affirmative theory (positive theory) holds that the joint debtor only enjoys the right to recover the money when the performance exceeds the share, so in the above case, A does not enjoy the right to recover. In terms of legislation, Article 1317 of the French Civil Code adopts this view, as does Article 148, paragraph 2, of the Swiss Debt Code, which seems to be taken for granted by Swiss academic circles. The same applies to article 4: 107, paragraph 3, Part 3 of the draft European Model Civil Code. Negative theory (negative theory) is not based on excess, such as the first paragraph of Article 442nd of the Japanese Civil Code.
Generally speaking, it is affirmative. The reason is that if the recovery is allowed at this time, it will inevitably lead to the obligor of recovery first performing to the obligee of recovery, and then, in turn, recovering from the obligee of recovery, which will not only complicate the legal relationship, but also waste social resources. However, the negative theory has two advantages: first, it is more conducive to the realization of fairness. For example, in the aforementioned case, if Party A can’t recover from Party B and Party C, then the creditors are exempted from joint and several debts. At this time, only Party A has fulfilled its debts, and Party B and Party C are unscathed, and the imbalance of interests among all parties is very obvious. In addition, when the amount that Party A continues to perform later exceeds the share, although Party A can exercise the right of recovery, Party B and Party C may fall into a state of lack of resources, resulting in the failure of recovery. Second, it is more in line with the nature of joint and several debts, that is, joint and several debtors share the debts, and any joint and several debtor can ask other debtors to perform according to their share of debts. If other debtors fail to perform, the debtor who has performed can naturally recover from them.
However, both legislation and judicial practice in our country adopt affirmative theory. Before the promulgation of the Civil Code, this was the case in Article 87, paragraph 2, of the former General Principles of Civil Law and Article 14, paragraph 2, of the former Tort Liability Law, and this standard was also applied in judicial practice. For example, the Supreme People’s Court’s "Reply on the Direct Execution of the amount of recovery from other joint and several liable persons by the party who has been determined to bear joint and several liabilities in the judgment" (Fa Jing [1992] No.121) holds that the application of the recovery procedure is that the joint and several liable persons repay the debts on behalf of the principal debtor according to the judgment or assume more joint and several liabilities than their share. Some courts even take full settlement as the premise of recovery, such as "Shanxi Qingshan Chemical Co., Ltd. v. Shanxi Aoer Pharmaceutical Co., Ltd. and other cases of recovery rights" and "Jilin Baili Car Rental Co., Ltd. v. Li Moumou and Sun Moumou".
Article 519, paragraph 2, of the Civil Code clearly stipulates that the premise of the right of recourse is that "the debt actually assumed exceeds its share". Therefore, in the theory of interpretation, the only exception is that the debtor and the debtor jointly make an opposite agreement, which is of course valid according to the principle of freedom of contract. In order to balance the conflict between the above two theories and give consideration to the current law, one situation in which the negative theory can be recognized in the application of law is that although the debtor’s performance amount does not exceed the share amount, the subsequent creditor’s rights are subject to prescription and all the joint and several debtors claim prescription defense. At this time, the amount of recovery should be calculated according to the proportion of each debtor’s share and performance. For example, if Party A, Party B and Party C undertake joint and several debts of 3 million yuan, the share relationship is 2: 3: 5, then Party A has fulfilled 300,000 yuan (1/2 of the share), Party B has fulfilled 300,000 yuan (1/3 of the share), and Party C has fulfilled 300,000 yuan (1/5 of the share), with a total performance of 900,000 yuan. According to the share, Party A shall bear 180,000 yuan (90× 2/10); Party B shall bear 270,000 yuan (90×3/10), and Party C shall bear 450,000 yuan (90×5/10). Party A may recover 120,000 yuan from Party C, and Party B may recover 30,000 yuan from Party C..
When applying the affirmation theory of civil code to judge whether it exceeds the burden, the creditor’s rights due shall prevail. For example, if the total amount of joint and several debts borne by Party A, Party B and Party C is 3,000,000 yuan, and the shares of all three parties are 1,000,000 yuan, Party A should pay 1,000,000 yuan in one year and Party B and Party C should pay 1,000,000 yuan in three years, but Party A paid off 1,000,000 yuan to Party B in the first year, and neither Party B nor Party C fulfilled the due debts. At this time, the repayment amount of Party A did not exceed its share, but its excess performance of 500,000 yuan in advance should be interpreted as not giving up the term interest, but fulfilling the joint and several debts that Party B and Party C have expired, so Party A can recover from Party B and Party C.. In addition, if the creditor waives part of the joint and several debts or the debtor changes the debt share, the share should be calculated based on the changed debt amount. If Party A fulfilled the joint and several debts of 1 million yuan according to its share, it would not have the right of recourse, but when the creditor exempted part of the joint and several debts, resulting in its share of 500,000 yuan, Party A would have the right of recourse.
2. Whether to limit the causes leading to joint exemption?
When a debtor’s creditor’s rights are extinguished for reasons other than liquidation, the debtor’s right of recourse depends on whether the debtor extinguishes the creditor’s rights by reducing its property. Paying off by proxy, offsetting, escrow and paying off are the same, all of which means that the debtor eliminates the creditor’s rights by reducing his own property, so the right of recourse arises; The consideration of eliminating creditor’s rights by confusing means is that the debtor’s creditor’s rights are also eliminated, and there is also the right of recourse. However, the joint and several debtors have obtained the right of defense because of the limitation or their debts have been exempted, and the debtor’s property has not been reduced, so there is no right of recourse.
(3) The constitutive elements of the right of recourse of joint debtors and the expansion of legal subrogation.
When the right of recourse claims from other debtors, if a debtor is unable to pay off his share of debt, if the right of recourse can ask other joint debtors to share the loss, it will constitute the expansion of the right of recourse. If four joint debtors bear the creditor’s rights of 2000 yuan, and their shares are 500 yuan, if one of them is unable to pay off, the other three people will share 166.66 yuan. Many legislative cases recognize this expansion, such as Article 426 of German Civil Code, Article 445 of Japanese Civil Code, Article 148, paragraph 2 of Swiss Debt Code, etc., and so does Article 4: 107, paragraph 3 of Part 3 of the draft European Model Civil Code.
The reasons for the expansion of the right of recourse are the principle of fairness and the principle of good faith. All joint and several debtors benefit from the elimination of joint and several debts. When the right of recourse cannot be recovered from other joint and several debtors, it is bound to form injustice among joint and several debtors if they are allowed to bear the losses alone. On the contrary, the irrecoverable risk is borne by all debtors, which is not only fairer, but also in line with the nature of joint and several debtors sharing debts. In addition, if this kind of expansion is denied, it is likely that when the creditor requests a joint debtor to exceed the performance, the debtor will try to avoid performance by delaying as much as possible based on economic rationality, let alone paying off the debt voluntarily when it expires. Once every joint debtor takes this kind of economic rational behavior, it may lead to the expansion of joint debt due to the payment of liquidated damages or interest, and ultimately all joint debts will suffer.
There are two criteria for judging the irrecoverability. First, other debtors are unable to pay off. Article 445, paragraph 1, of the Japanese Civil Code adopts this standard, and the person with the right of recourse needs to prove that other debtors have no responsibility for property before requesting other joint debtors to share it. Second, it is impossible to obtain repayment from other debtors. That is, after taking reasonable measures, the right of recourse is still unable to obtain repayment from the debtor. Article 4: 107, paragraph 3, Part 3 of the draft European Model Civil Code adopts this standard. The second standard is more relaxed, which includes not only the inability of the obligor to recover, but also the disappearance of the obligor, which is beneficial to the obligee of recovery and more appropriate. Because after the joint and several debtors share the share that cannot be recovered, if the obligor for recovery can pay off later, the obligee for recovery can also recover, thus ensuring the fairness among the joint and several debtors.
The application of the principle of fairness in the case of the expansion of the right of recourse can also draw two rules:
The first is the restriction on the expansion of the right of recourse. When the failure to recover is caused by the negligent behavior of the right of recourse, the right of recourse should not be expanded. If the obligee of recourse is lazy in exercising the right of recourse to the obligor of recourse, and the obligor of recourse has no resources in the future; Another example is the delay in exercising the security interest provided by the obligor for recovery, and then the collateral is damaged and no compensation or insurance money is obtained. "You have to blame yourself, and you must not drag others." Article 445, paragraph 2, of the Japanese Civil Code recognizes it.
Second, it is certain that the joint and several debtors who share the debt within the joint and several relationship can become the recovery obligor. This includes two situations: (1) The contribution of 0 is later caused by exemption or limitation of action. In Taiwan Province, China, Article 282 and other paragraph 1 of the "Civil Law" clearly stipulates this. If Party A, Party B and Party C bear joint and several debts to Party D, after Party D forgives Party A’s debts, Party A has no share in internal relations, but it is not exempted from joint and several debts. If Party B has fulfilled all the joint and several debts, although it cannot recover from Party A, it can recover from Party A after it fails to recover from Party C.. (2) The contribution of 0 is determined when the joint and several debts are established. If Party A and Party B buy the goods of Party C, Party D is not the buyer, but all parties agree that Party A and Party D shall bear joint and several debts to Party C, and Party D shall not bear the debts in internal relations from the beginning. After Party A has performed the joint and several debts to Party C, it can’t recover from Party D, and after it fails to recover from Party C, it can’t ask Party D to share its share. However, if Party A buys goods from Party D, neither Party B nor Party C is the buyer, but they participate in the contract and jointly bear joint and several debts with Party A to Party D.. When Party B fails to recover from Party A after performing the joint and several debts, it may request Party C to bear half of the joint and several debts, because the share of Party B and Party C in the joint and several debts is zero, and their legal status and treatment should be the same. The second paragraph of Article 445 of the revised Japanese Civil Code stipulates that if neither the obligee nor the obligor bears the burden, the parties shall share the burden of the unpaid part in equal proportion.
Paragraph 3 of Article 519 of the Civil Code also confirms the expansion of the right of recourse, which stipulates that if the recovered joint debtor fails to perform its share, the other joint debtors shall share it in proportion. This is an important development of China’s joint and several debt system.
(4) Obstacle elements of the right of recourse and legal subrogation of joint debtors.
The obstacle of joint and several debts is a famous controversial issue in Germany about joint and several liabilities. It refers to whether the joint liability is established when the creditor relieves the debts of the joint debtor, or when a joint debtor should be relieved according to the law. The establishment of joint liability directly determines the existence of the right of recourse, so this paper also discusses this obstacle element of the right of recourse. In addition, in theory, there is also the "duality of joint and several debts", which refers to the agreement on internal share sharing between the debtor with reduced liability and the debtor without reduced liability, which has no legal effect on creditors, but constitutes an agreement on the right of recourse between the parties, and of course has legal effect.
Obstacles to joint and several debts can be divided into two types. First, before the joint and several debts are generated, creditors forgive the debts of a potential joint and several debtor in advance. Second, after the joint and several liability arises, the creditor waives its debt, or the law relieves its debt.
In typology, because both legal relief and creditor’s prior relief occur before joint and several debts, they can be included in the same type, so the author classifies joint and several debts according to the time when they are established. Because these situations involve tort liability, the author uses the terms of joint and several debts or joint and several liabilities to distinguish the situations.
1. forgive debts in advance
There are two situations in which some joint debtors are exempted from liability in advance: first, the creditor and the potential debtor agree in advance that the creditor will reduce the debtor’s future liability. German academic circles often take the good-will ride as an example to explain: A takes B’s car for free, and the two agree in advance to exempt from the tort liability of traffic accidents. Later, due to the common fault of B and C, A suffers personal injury, and B and C should bear joint liability for A. The second is the exemption provided by law. For example, Article 1217th of China’s Civil Code stipulates that if a traffic accident of a non-operating motor vehicle causes damage to a free rider, as long as the motor vehicle user has no intentional or gross negligence, his liability for compensation shall be reduced. If Party A and Party B agree in advance to exempt Party B from liability, or if the law is directly applied without agreement on exemption, the establishment of joint liability and obstacles to recovery will occur. Therefore, the solution of statutory exemption is the same as that of agreed exemption. This paper takes agreed exemption as an example to illustrate.
There are three solutions to this problem: one is to fully recognize the exemption agreement. In this case, Party B is not liable according to the contract, so Party B and Party C are not jointly and severally liable, and Party C should be liable for all the damages of Party A, and cannot recover from Party B.. This scheme actually makes the agreement between Party A and Party B effective for Party C, and the debtor who has not been exempted will bear all the responsibilities, which is equivalent to the contract setting obligations for the third party, so it cannot be established. The second is to completely ignore the exemption agreement. That is, Party B and Party C are jointly and severally liable for Party A, and they do not relieve Party B of their responsibilities in internal relations. After taking full responsibility for Party A, Party C can claim compensation from Party B.. Because Party A has legally exempted Party B from the responsibility in advance, Party B can recover from Party A, which constitutes a "recovery cycle" and is extremely inefficient. The third is to make the agreement effective, but not to harm the interests of other responsible persons. That is, the amount of damages paid by C to A has been reduced from the beginning to the amount that C should bear internally. This scheme is the consensus of German theoretical and practical circles. Its advantage lies in that it not only avoids the serious injustice caused by the inability of the person who has not been exempted to recover all the debts, but also respects the exemption agreement between creditors and individual debtors, which is worthy of recognition.
2. Subsequent exemption
After the establishment of joint and several debts, if the creditor exempts the debtor, can the right of recourse recover it? It depends on the specific content of the exemption. First, if the creditor waives the debt share, at this time, the other debtors are jointly exempted due to the reduction of the total amount of joint and several debts, but the debtor who is exempted from the debt is not separated from the joint and several debt relationship, so it should also be recovered in the case of expansion of recovery. Second, the creditor’s exemption is only a debtor’s "joint and several" debts, but it does not exempt the debtor’s debts. Its essence is to change the debtor’s joint and several debts into debts in installments. This kind of behavior can only bind the creditor and has no legal effect on other joint debtors. Of course, the person with the right of recourse can claim the right of recourse against him.
3. Other circumstances
It is worth thinking about a special case of the expansion of the right of recourse: after the joint debtor pays off the debt, the contract that generated the joint debt is dissolved, or when the joint debt based on infringement is finally judged by the court to be invalid and the creditor is unable to return it, can the debtor who has performed the joint debt recover from other debtors? Traditional civil law rules do not involve this rule. The author believes that in the first case, the joint and several debts once existed legally and truly, and the debtor who paid off trusted the existence of the debts, and the repayment was in the interests of all debtors. Based on the special relationship between the joint and several debtors and the principle of fairness, the right of recourse should be recognized at this time. However, in the second case, joint and several debts do not exist from the beginning, and even if each debtor trusts to establish joint and several liabilities, it is not enough to create joint and several relations among debtors, so it is not appropriate to recognize the right of recourse.
Three, the theory of the legal effect of the right of recourse and legal subrogation is the same and different.
Since the constitutive requirements of the joint debtor’s right of recourse and legal subrogation are the same, their legal effects must be common; At the same time, as two different rights, their legal effects are bound to be different.
(A) the legal effect of the right of recourse and legal subrogation.
1. The debt-to-share rule applies to all.
When the obligee of recourse exercises the right of recourse against multiple debtors, the debtors’ debts are in shares, and the obligee of recourse can only recover according to each debtor’s share. The legal subrogation is the subrogation to the creditor. Logically, the legal subrogation holder may request the recovery obligor to bear joint and several debts. However, if the obligee of recourse requests other debtors to bear joint and several debts, it will cause a cycle of recourse. For example, if the joint and several debtors A, B and C bear an average of 3 million yuan of joint and several debts, and after A bears all the debts, it will recover 2 million yuan from B, then B will inevitably recover 1 million yuan from C.. Therefore, in subrogation, the original creditor’s rights are also converted into debts in proportion. Article 1522 of the Chilean Civil Code clearly stipulates that the legal subrogation holder can only ask the debtor to perform his share.
Unless otherwise stipulated by law or in the contract, the joint debtors shall share the debts equally. This is a general rule for countries or regions to distribute shares among joint debtors, such as Article 426, paragraph 1, of German Civil Code, Article 148, paragraph 1, of Swiss Debt Code, and Article 280 of Taiwan Province Civil Code.
Paragraph 2 of Article 178 of China’s Civil Code stipulates that "if it is difficult to determine the size of the liability, the joint and several liable persons shall bear the liability equally", and paragraph 1 of Article 519 also stipulates: "If the share between joint and several debtors is difficult to determine, it shall be regarded as the same share." Accordingly, the rules for determining the share at the time of recovery should be: first, according to the agreement between the debtors. Based on the principle of freedom of contract, no matter what causes the joint and several debts, each debtor can agree on the internal share of responsibility, including agreeing that a debtor will bear all the debts and a debtor will not bear the debts. When judging whether there is a share allocation agreement between joint and several debtors, in addition to express agreement, we should also consider implied agreement, the content and purpose of legal relationship and "the nature of things", especially in the case of joint and several debts arising from contracts, in order to meet the true meaning of debtors and realize natural justice. When several sellers bear joint and several debts for consideration, although the internal share is not agreed, but the ownership is obtained in different proportions, when sharing the debts internally, it should be decided according to the ownership proportion. Secondly, according to the general provisions of the law on joint and several debt sharing. For example, in the case of joint infringement, the debt ratio is determined according to the cause of the damage or the degree of fault of the perpetrator; In a civil partnership, according to Article 972 of the Civil Code, partners should share the debt in proportion to their capital contribution. Finally, the direct application of the first paragraph of Article 519 of the Civil Code is regarded as the norm.
At the time of recovery, each joint debtor shall share the debt according to the proportion of the debt. If Party A, Party B and Party C share the debt of 1 million yuan according to 2: 3: 5, after Party A pays off all the debts, it can recover 300,000 yuan (3/10 of the total debt) from Party B and 500,000 yuan (5/10 of the total debt) from Party C; If Party A partially pays off 440,000 yuan, it will exceed its share of 240,000 yuan, and can recover 90,000 yuan (3/8 of the total debt) from Party B and 150,000 yuan (5/8 of the total debt) from Party C..
2. Debt shares overlap.
The scope of the debt amount targeted by the right of recourse and legal subrogation overlaps, that is, the principal creditor’s rights, liquidated damages, interest, etc. However, there may be differences between the amount of exemption and the amount of recovery, which is mainly seen in the situation of payment in lieu of goods, including two types: First, the amount of exemption is lower than the amount paid. For example, Debtor A pays off debts of 600,000 yuan with a house with a market price of 1 million yuan. Since the joint exemption amount of other debtors is 600,000 yuan, the recovery amount shall be calculated based on 600,000 yuan, and the remaining 400,000 yuan shall be solely responsible for it. Second, the exemption amount is higher than the payment amount. For example, if the debtor A pays off the debt with a house with a market price of 600,000 yuan, it should be calculated according to the true meaning of the creditor’s debt exemption. When the creditor’s meaning is unclear, three situations can be considered to explain its meaning: (1) The exemption amount is equal to the debtor’s share for repayment. For example, in this case, A’s debt share is exactly 1 million yuan. According to life experience, it can usually be concluded that the creditor is exempt from A’s full share. A can’t recover from other debtors, and other debtors can’t recover from A except in the case of expansion of recovery rights. (2) The exempted amount is greater than the share of the debtor for settlement. For example, in this case, A’s debt share is 800,000 yuan. At this time, it should be interpreted that the creditor has exempted the joint debt of 200,000 yuan from other debtors in addition to the share of A, and its recovery is the same as that in (1). (3) The exempted amount is less than the share of the debtor for settlement. For example, in this case, A’s debt share is 1.2 million yuan. At this point, Party A can’t recover from others, and other debtors can ask Party A to share 200,000 yuan after performing their debts.
(B) the right of recourse and legal subrogation different legal effects
In jurisprudence, the core effect difference between the right of recourse and the right of statutory subrogation lies in their different sources. The former is the right that the joint debtor obtains from other debtors after paying off, which is a new right and does not depend on the creditor’s rights; The latter is derived from the rights of the original creditor, which is the legal inheritance of the creditor’s rights, not a new right, and is attached to the creditor’s rights. The difference in legal effect between the two is mainly reflected in the following aspects:
1. Ways to acquire rights
From the way of obtaining rights, the right of recourse is automatically obtained without special legal procedures, and its exercise methods and means are the same as ordinary creditor’s rights. Legal subrogation is the creditor’s right of legal successor, which should refer to the procedures and rules of creditor’s right transfer based on legal acts. Article 412 of the German Civil Code stipulates that the legal assignment of creditor’s rights shall apply mutatis mutandis to the assignment of creditor’s rights based on the rules of legal conduct, so as to regulate the assignment of creditor’s rights directly generated based on legal provisions. The purpose of assignment of legal creditor’s rights is mainly to obtain the basis of the right of recourse or to strengthen the right of recourse. According to its article 409, the assignment of creditor’s rights has legal effect on the debtor after it is notified. The civil code of our country has no special provisions on this, so the provision in the first paragraph of Article 546 should be excluded from the interpretation, that is, if the creditor fails to notify the debtor when transferring the creditor’s rights, the transfer will not be effective to the debtor. This is mainly based on the consideration of efficiency: the joint debtor and the creditor usually know each other, and when the debtor exercises the right of recourse, the debtor will usually get in touch with the creditor, and the debtor is unlikely to pay off the debt fictionally.
2. Reasons for the obligor of recourse to block the exercise of the right of recourse
The right of recourse is a new right that has been acquired for the debtor who has paid off. It is an original right, not the right of derivative acquisition, so there is usually no burden. Generally speaking, according to this logic, it is further argued that when the right of recourse claims from other debtors, the latter cannot oppose the debtor on the grounds of its opposition to creditors, such as the lapse of time. If Party A, Party B and Party C enter into sales contracts with Party D respectively, the amount of each contract is 1 million yuan, and all parties agree that Party A, Party B and Party C shall bear joint and several debts for all contractual claims of 3 million yuan. If Party A pays off all the creditor’s rights, when claiming compensation from Party B, Party B cannot claim from Party A that its creditor’s rights with Party D have expired or that it enjoys the right of defense against Party D at the same time, or that Party D’s creditor’s rights will be offset.
The effect of legal subrogation is the legal transfer of creditor’s rights. Based on the general principle of assignment of creditor’s rights, the debtor’s legal treatment does not change, especially its various rights to creditors. Therefore, when a joint debtor claims against other debtors based on legal subrogation, it is likely to encounter two situations that hinder the exercise of the right of claim.
First, the debtor claims the former’s defense against the creditor to the right of recourse. Although the legal subrogation person obtains the creditor’s rights on the basis of legal provisions, the purpose of legal assignment is to protect the right of recourse, and the law can’t detract from the debtor’s interests, otherwise, it will lead to constitutional problems by infringing property rights through legislation. Therefore, the legal subrogation person inherits the creditor’s rights at the same time, and the debtor still enjoys all defenses against the original creditor. Article 412 of the German Civil Code stipulates that the legal assignment has the same effect as the intentional assignment, unless the specification of intentional assignment cannot be applied based on its nature, such as the use of the principle of appearance in the assignment of creditor’s rights in Article 405. According to Article 404 of the German Civil Code, the debtor has all defenses against the transferee and the right to exercise. Article 1346-5 of the French Civil Code also clearly stipulates that in subrogation, the debtor may claim a defense based on the debt itself against the subrogation creditor. These kinds of defences (rights) include invalid contract, revoked or dissolved contract, limitation of action for creditor’s rights, performance defence in bilateral contract, etc. Article 548 of China’s Civil Code stipulates that after the debtor receives the notice of assignment of creditor’s rights, the debtor may claim the defense of the transferor from the transferee. Article 519, paragraph 2, also clearly stipulates that other joint debtors’ defenses against creditors may be claimed against that debtor. These provisions do not specify the occurrence time of the debtor’s defense against the assignee. In practice, there may be such a situation: after the right of recourse is established, other joint debtors terminate their contracts with creditors.At this time, can you defend the right of recourse against the right of recourse? Based on the above analysis, the debtor’s right of defense against the creditor can only be claimed against the obligee if it occurs before the repayment.
Second, the debtor claims set-off from the claimant. When the right of recourse is exercised by the right of recourse, the debtor may claim two rights of set-off: the debtor’s right of set-off against the right of recourse and the debtor’s right of set-off against the creditor of joint and several debts. The former applies the general set-off rules, while the latter applies the set-off rules in the assignment of creditor’s rights.
It is a general rule that the debtor can claim the creditor’s right of set-off from the creditor’s right assignee. For example, Article 406 of the German Civil Code clearly stipulates that its purpose is the same as the debtor’s right of defense, in order to prevent the debtor’s legal office from deteriorating due to the transfer of creditor’s rights. According to Article 548 of China’s Civil Code, after the debtor receives the notice of assignment of creditor’s rights, the debtor can claim against the transferee, and its Article 549 limits the offset to two situations. What is worth discussing is the first case, that is, when the debtor receives the notice of assignment of creditor’s rights, the debtor enjoys the creditor’s rights to the transferor, and the debtor’s creditor’s rights expire before or at the same time as the assigned creditor’s rights. Usually, set-off has no restriction on the acquisition time of active creditor’s rights; However, in the assignment of creditor’s rights, the debtor’s active creditor’s rights have strict requirements on the acquisition time, which aims to reduce the risk of the transferee and prevent the new burden on the creditor’s rights after the assignment of creditor’s rights. However, this is unfair to the debtor and therefore controversial. When the joint and several debtors inherit the creditor’s rights legally, the creditor’s rights claimed by the recovery obligor are limited by time and fair (detailed below).
3. Starting point of limitation
The right of recourse originates from the basic legal relationship between the joint and several debtors, and it is an independent claim against other joint and several debtors. Therefore, it is generally believed that the limitation of action should be calculated from its establishment, and whether the joint and several debts are subject to the ordinary limitation of action or not, the right of recourse is subject to the ordinary limitation of action, which is 3 years from the date of the debtor’s overpayment according to Article 188, paragraph 1, of the Civil Code. It should be noted that the settlement in the right of recourse does not include early settlement, otherwise it will damage the time limit interests of other joint debtors in performing joint debts. Therefore, in the case of excessive settlement in advance, the limitation of action of the right of recourse should be calculated from the date when the creditor’s right expires.
The legal effect of statutory subrogation is the inheritance of the original creditor’s rights, which does not produce new rights, but only changes in the subject of creditor’s rights. In addition, the premise of statutory subrogation is that the debtor overpays, so when it comes into being, the limitation of creditor’s rights must have begun to calculate. Therefore, it is generally believed that the starting point of limitation of statutory subrogation is the same as the original creditor’s right. Distinguishing the starting point of limitation of two kinds of rights is one of the main arguments supporting the concurrence of the right of recourse and legal subrogation, and its logical conclusion is very clear: as far as the limitation of action is concerned, it is more favorable for the debtor to choose the right of recourse.
4. Scope of recovery
In two cases, the scope of the right of recourse and legal subrogation will be different:
First, the right of recourse is greater than the legal right of subrogation. This is mainly seen in the case that the right of recourse pays reasonable expenses, suffers losses and requests to bear interest after exemption. It is stipulated in the first paragraph of Article 281 of the "Civil Law" in Taiwan Province and Article 442 of the Japanese Civil Code. Reasonable expenses include settlement expenses, expenses paid in response to the lawsuit filed by creditors, packaging expenses, transportation expenses, etc., and losses such as the loss of selling property at a low price due to the creditor’s request for enforcement. These expenses and losses are paid or borne by all joint debtors, so they should be shared by all creditors. But logically speaking, they are not the content of creditor’s rights, and the creditor has not benefited from them, so they are not within the scope of statutory subrogation. However, the creditor’s rights drafted by law are not eliminated but legally inherited, and interest can be included in the scope of the original creditor’s rights. China’s civil code does not make clear provisions on this, so we can refer to the idea of Swiss law, that is, according to the rules of negotiorum gestio in Article 422 of the Swiss Debt Code, we can request other debtors to share the expenses and damages arising from good faith.
Second, the right of recourse is less than the legal subrogation. This is mainly seen in the losses and expenses paid by the claimant due to his negligence. Based on the general imputation principle, these losses and expenses should be borne by themselves and cannot be shared by other debtors. Article 280 of the "Civil Law" in Taiwan Province and Article 442 of the Japanese Civil Code have clearly stipulated it, but the Civil Code is not explicit, and the interpretation conclusion should be the same.
5. Have you obtained the right of subordination?
Since the right of recourse is a right between joint and several debtors, the obligee naturally cannot claim all kinds of guarantees on joint and several debts, including secured creditor’s rights and secured real rights.
The legal effect of legal subrogation is to inherit the creditor’s rights, and the subordinate rights of the original creditor’s rights are also transferred with the creditor’s rights. For example, according to Articles 412 and 401 of the German Civil Code, at the time of legal assignment, the subordinate rights and priorities of the creditor’s rights are transferred at the same time as the creditor’s rights, all the security rights of the creditor’s rights are transferred to the assignee, and other subordinate rights such as interest and liquidated damages are also transferred; Article 1346-4 of the French Civil Code has also made similar provisions. Article 547 of the Civil Code stipulates that when a creditor transfers his creditor’s rights, all other subordinate rights are transferred to the assignee, except the subordinate rights exclusively belonging to the creditor. Although the second paragraph of Article 519 doesn’t stipulate the rules of quasi-intention assignment of legal creditor’s rights, there is no obstacle in interpretation, and the joint debtor can obtain the security right and other accessory rights of creditor’s rights based on legal subrogation.
Four, the substantive unity of the joint debtor’s right of recourse and legal subrogation.
(A) the contradiction between the right of recourse of joint and several debtors and the concurrence of legal subrogation
Generally speaking, the two rights have the same purpose, both of which are to protect the obligee from asking other debtors to bear their share of debts, so they constitute a competitive relationship and the obligee can choose to exercise them. No matter which right you choose to exercise, after the obligor performs the debt, another right will disappear. As for which is beneficial for the obligee to choose, it needs to be weighed on a case-by-case basis: if the limitation of the two rights is carried out separately, when the limitation of the original creditor’s right expires, it is beneficial to claim the right of recourse; If the original creditor’s right is attached with a security right, it is beneficial to claim legal subrogation. Even in Germany, the difference in the effectiveness of the two rights is an important test point for legal professional examinations. Experts suggest that the legal effects of the two claims should be tested separately. Chinese scholars also advocate the theory of concurrence.
The theory of concurrence seems to be logically smooth and conforms to the mainstream theory of concurrence of claims. However, even logically, it has the following two major problems.
First, it is different from the constitutive requirements explained by the classical theory of concurrence of claims. The premise of the concurrence of claims is that the same legal fact meets different constitutive requirements, and different claims can be generated based on different legal norms, and the purpose of plural rights is to meet the same purpose of the obligee. However, the previous analysis shows that the constitutive requirements of the right of recourse and the statutory subrogation are exactly the same. One claim has no independent constitutive requirements at all, but is attached to another claim. How can there be a competitive relationship?
Second, the theory of concurrence on the purpose of legal subrogation deviates from the theory of concurrence. Generally speaking, legal subrogation is called "reinforced legal assignment of creditor’s rights" because it strengthens the effectiveness of the right of recourse, makes up for the deficiency of the effectiveness of the right of recourse under the framework of jurisprudence, and makes the interests of joint and several debtors more balanced. This function of statutory subrogation also determines its subordination to the right of recourse: in terms of the elements of establishment, statutory subrogation is subordinate to the right of recourse, and when the right of recourse is not established or eliminated, it will not produce statutory subrogation; In the scope of rights, legal subrogation depends on the right of recourse; As an independent creditor’s right, the right of recourse can be transferred separately, but the legal subrogation cannot be transferred separately. However, there are contradictions between these views and the theory of concurrence: if two kinds of rights constitute concurrence, the obligee can achieve its purpose by choosing either right; However, the statutory right of subrogation is to strengthen the right of recourse, so the two must complement each other, and it is impossible to fully realize the purpose of the obligee by choosing either right. If the creditor chooses the basic right (right of recourse), its effectiveness cannot be strengthened; If you choose to strengthen the right (legal subrogation), it will not be realized because there is no basic right support. Only when the holder of the right of recourse enjoys two kinds of rights at the same time can he decide whether to exercise the two kinds of rights at the same time according to the specific situation in practice, and the purpose of strengthening the right of recourse by legal subrogation can be realized.
(B) Advocacy of the theory that the joint debtor’s right of recourse and legal subrogation are integrated.
1. The basis of integrated application theory
The second paragraph of Article 519 of the Civil Code stipulates that the right of recourse and the right of legal subrogation are applicable as a whole, and its theoretical basis can be summarized as follows.
First, the characteristics of joint and several debts themselves. Although the foundation of joint and several debts is complex and diverse, and there are different opinions, after the establishment of joint and several debts, the effect of joint and several debts is the same regardless of the reasons for its establishment. In external relations, joint and several debts and single debts also have the confrontation of interests between creditors and debtors, which makes it difficult for joint and several debts to get rid of the characteristics of single debts. In joint and several debts, the creditor can choose the debtor to pay off all or part of the debts at will, so each of the joint and several debtors should be obligated to perform all the debts to the creditor. Therefore, each debtor has the "risk" of being asked by the creditor to perform all the debts, and whether or not he is asked to perform and how much he performs depends on the creditor. In other words, all joint debtors have the problem of "luck", and the law cannot rule out luck, but the substantive injustice caused by luck should be reduced as much as possible. In joint and several debts, when the creditor only requests one debtor to perform, the effectiveness of this external relationship is also reflected in the internal relationship, and other debtors should also be in the state of being requested to perform and have the obligation to provide performance; The debtor who is requested to perform may request other debtors to perform their share, and the requested debtor cannot raise the defense of simultaneous performance. Because all debtors perform for creditors, there is no relationship between them in performance. When other debtors fail to pay off, the repayment of debtors exceeding the actual share constitutes the subrogation of other joint debtors, which is also the reason why France and Japan use the subrogation rule to give the right of recourse a legal subrogation. When any joint debtor performs,Whether it is voluntary performance or requested performance, all debtors benefit from its actions, and the cost of its performance should be shared by all debtors. Therefore, for the right of recourse and the basis of its expansion, the theoretical circle mostly expounds its legitimacy by "taking it for granted" or resorting to "fairness". The motivation of "taking it for granted" actually lies in the fact that all the joint and several debtors should fully perform their obligations to the creditors, and the theory of subjective common relationship and mutual guarantee in the basis of the right of recourse are all focused on this.
Even if the joint debtor is not requested by the creditor to perform, it also undertakes the obligation to perform to the creditor in time according to its share and the obligation to assist other debtors to perform. Therefore, some scholars in Germany believe that the right of recourse is attached to the joint debt itself, that is, when the joint debt is established, it has occurred as the effectiveness of the internal relationship of the joint debt, not from the time when the debtor pays off. In other words, performance is nothing more than a condition for the exercise of the right of recourse, not a condition for establishment. According to this view, the limitation of action of the right of recourse and the right of statutory subrogation will converge, but it is difficult to be established in dogmatics. After all, there is no room for the right of recourse when all debtors voluntarily fulfill their share of debts to creditors.
Furthermore, whether in external relations or internal relations, the joint debtor undertakes the obligation to perform to the creditor in time, and if it performs its obligation in time, there is no possibility of recourse; If it fails to perform, it will constitute a breach of contract to the debtor who has performed, and it should be liable for the latter. Although this kind of liability for breach of contract is almost ignored, it cannot be denied that the debtor who pays off is the most worthy of legal preferential treatment, which is not only the reason why the legal subrogation is specially stipulated in the law, but also the core reason why the legal subrogation is used to strengthen the right of recourse.
Second, realize the balance between the interests of the obligee, other joint debtors and creditors. After a joint debtor performs joint debts, it will form a triangular interest relationship with creditors and other joint debtors. First of all, in the joint and several debts, the risk that the creditor cannot be paid off is significantly lower than that of the debt in proportion, but this risk is transferred to the joint and several relationship, and the protection of the creditor is sufficient, so the rights of the recourse holder are irrelevant to the creditor no matter how they are allocated, as long as their rights are not damaged. Secondly, other joint debtors are in a state of breach of contract and should not be specially protected by law. The law only needs to ensure that the right of recourse does not worsen its legal situation, if it does not bear the debts of the expanded part caused by the right of recourse’s own fault. Finally, the right of recourse enjoys the right of recourse and legal subrogation at the same time, only to ensure the realization of his request for apportionment, without harming the interests of other debtors and creditors.
2. Obstacles and overcoming of the theory of integrated application
Through the comparison of the legal effects of the right of recourse and the right of statutory subrogation, it is shown that there are many differences between them in legal doctrine, but there are also many doubts in these theoretical explanations, which need to be clarified when the two rights are applied as a whole, and the following are selected.
The first is the statute of limitations. Generally speaking, the limitation of the right of recourse is calculated from the date of settlement, but there is great controversy about this. German judicial practice adopts the general theory, but it is controversial in academic circles. Medicus believes that the limitation of action that has passed before the original right of recourse against creditor’s rights does not affect the interests of the obligee, which embodies the idea of substantially unifying the limitation of two rights. In Swiss law, unless otherwise stipulated by law, the limitation of recourse is the same as that of joint and several debts, which also embodies the idea of substantive unity. In fact, it is generally said that the prescription of statutory subrogation is the same as that of the original creditor’s right, because it is the inheritance of the original creditor’s right, which seems to be logically smooth, but ignores a key fact: the original creditor’s right has been eliminated because of liquidation and other reasons, just because the law intends it to continue to exist, is it appropriate to calculate its prescription based on the original creditor’s right? Moreover, when the creditor’s rights are eliminated by paying off, the creditor may have made a request or obtained an effective judgment. Should the proposed creditor’s rights be counted from the time when the original creditor’s rights are eliminated?
The second is the reason for refusing the right of claim. Generally speaking, in the right of recourse, the obligor can’t claim all kinds of reasons for resisting the creditor’s right of claim in joint and several debts, but in the legal right of subrogation. This view does not distinguish all kinds of joint and several debts, but deals with them in an integrated way, ignoring the basis of joint and several debts and the imputability of the claimant, which is not appropriate. If the joint and several debts are based on the contract, and the creditor requests Party A to perform all the debts, and Party A knows that the creditor’s rights are in limitation, but fails to raise a defense, it is obviously unfair for other debtors not to claim the defense of limitation when Party A recovers. Another example is that when performing, Party A knows that Party B enjoys the creditor’s right in the form of set-off, but neglects to claim it. At this time, it should be based on the provisions of the law on other matters related to joint and several debts, that is, whether to give Party A the right to claim the creditor’s right of set-off. If Party A does not enjoy this right according to law, it is obviously unfair for Party B to claim the set-off later when claiming compensation from Party B..
To sum up, under the framework of the theory of concurrence of recourse and statutory subrogation, the distinction between the legal effects of the two rights is exaggerated, even in the logic of dogmatism. If we adopt an integrated legal policy and construct the corresponding legal technology, and affirm that the purpose of statutory subrogation is only to supplement the right of recourse, then the two only need to unify the legal effect, and there is no practical obstacle. The core reason of this scheme is to implement the right of recourse and to facilitate operation. In addition, in the case of other competing claims, such as breach of contract and infringement, the significance of the parties’ choice also includes the differences in the proof of constitutive elements in litigation; However, the constitutive requirements of the right of recourse and the right of statutory subrogation are exactly the same, and there is no such problem.
Finally, it is worth thinking about whether the two can be unified into one right, such as the right of recourse to unify the legal subrogation? This is difficult to establish in theory. Because the right of recourse is based on the debt share relationship within each joint debtor, aiming at the relationship between joint debtors; The basis of legal subrogation is that the debtor’s settlement leads to the elimination of creditor’s rights, which is aimed at external relations. If the internal right of recourse does not exist, it is unnecessary for the law to stipulate the statutory right of subrogation. Therefore, the relationship between the two should be treated as: the right of recourse is a basic and independent right, which determines whether the legal subrogation is established and its scope.
(3) the exercise of rights when the right of recourse of the joint debtor is integrated with the legal subrogation.
When two kinds of rights coexist and are applied as a whole, four exercise rules should be followed: first, based on the right of recourse, the legal subrogation strengthens its effectiveness, with the aim of realizing the rights of the obligee to the maximum extent; Second, the obligee cannot make double profits; Third, it cannot harm the interests of creditors; Fourth, it is impossible to increase the burden on other debtors and make them bear more than their share of debts. In the specific application, the following questions are worth considering:
1. The debtor can claim the reasons of resistance.
When it is applied as a whole, the reasons why the debtor can claim to refuse the right of claim should be unified. First of all, the limitation of action should be calculated from the date of liquidation. Secondly, other defenses and offsets mainly involve the rules of other-related validity in joint and several debts, which are too simple in Article 520 of the Civil Code, and need further academic consensus.
The relatively simple way of thinking is to consider the imputability of the reasons why the right of recourse holder did not claim to be blocked when performing. If he did not claim to be at fault, the obligor for recourse has the right to defend him or claim to set off. Although the interests of the joint debtors are opposite, the joint debtors depend on each other in external relations, and no joint debtor can do anything that damages other debtors or worsens their debts. Therefore, Article 146 of the Swiss Debt Code clearly stipulates this. Another way of thinking is to consider turning the defense into a factor that affects the establishment of the right of recourse. The debtor’s failure to claim to the creditor that the defense that all debtors can exercise is liquidation, which will damage the interests of other joint debtors. If the debtor is at fault, it should bear the responsibility; However, the debtor’s liquidation exonerates other debtors. If the former cannot obtain the right of recourse, the legal consequences of its liquidation will not be passed on to other debtors, so it is enough to protect the interests of other debtors by not recognizing the right of recourse at this time.
2. Reinforcing the right of recourse
The reinforcement of legal subrogation to the right of recourse is mainly reflected in obtaining the subordinate rights of creditor’s rights, mainly ensuring creditor’s rights and security interests. However, in practice, this reinforcing effect is mainly applicable to joint and several debts, and it is unlikely that joint and several debts such as infringement will be secured. It can be seen that the significance of legal subrogation is not as great as imagined, and the conflict between the integration and application of the two is also not so fierce.
The "statutory" nature of statutory subrogation is that the obligee can directly obtain creditor’s rights based on legal provisions. In the legal transfer of creditor’s rights, the transferee’s position should not be different from that in the intentional transfer. Therefore, like intentional assignment, when necessary, the creditor should bear the burden of transferring relevant creditor’s rights documents and informing the legal subrogation person of the necessary information (such as security right) to realize the creditor’s rights, so that the legal subrogation person’s rights can be fully realized.
If the creditor abandons all kinds of security rights and priorities or damages the collateral after being paid off, so that the legal subrogation person can’t realize his subordinate rights, which leads to the failure of his right of recourse, should the creditor bear the responsibility? There is basically no provision in civil codes of various countries. In the field of security, Articles 776 and 1165 of the German Civil Code stipulate that if the creditor waives part of the security right, other secured parties can be exempted in proportion. German judicial circles apply these rules to the right of recourse of joint and several debtors by analogy, and think that creditors should undertake to safeguard the interests of compensation against joint and several debtors under the circumstances that the legal subrogation can expect. Swiss law also analogizes the provision of Article 503, paragraph 1, of the Swiss Debt Code concerning the creditor’s waiver of guarantee.
Articles 409, 435 and 698 of the Civil Code respectively stipulate that when the mortgagee waives the mortgage, the pledgee waives the pledge and the guarantor waives the guarantee, other guarantors can be exempted accordingly. Whether these rules can be applied to joint and several debts by analogy mainly depends on the following factors: firstly, the legal subrogation person in joint and several debts receives the original creditor’s right and the security right on it after paying off the debt; Second, when the debt is not fully paid off, the legal subrogation person is still a joint debtor. Therefore, the legal subrogation person can not exercise the security right under any circumstances. Only when the legal subrogation person can exercise the security right and the original creditor damages the collateral, can he claim damages from the creditor.
3. Protection of creditors’ interests
As the French proverb goes, "the right of subrogation cannot be against the subrogated person." The legal subrogation right obtained for any reason cannot exceed the original right in strength and effectiveness, and can not harm the interests of the original obligee. Almost all countries or regions have confirmed this rule in their civil laws, such as Article 426, Paragraph 2 of the German Civil Code and Article 281 of the Civil Code in Taiwan Province, China. Article 519, paragraph 2, of the Civil Code also confirms this rule.
The legal subrogation may harm the interests of the original creditor when exercising the creditor’s rights, mainly when the original creditor is only partially paid off and there is a security interest on the creditor’s rights, and both of them exercise the security interest. At this point, the creditor’s residual creditor’s rights have priority over the creditor’s rights of the legal subrogation. If Party A and Party B bear joint and several debts of 2 million yuan to Party C, Party D provides 600,000 yuan as collateral. Later, A paid off 120 yuan, and obtained the creditor’s right of 200,000 yuan based on legal subrogation. C still has the remaining creditor’s rights of 800,000 yuan. When both Party A and Party C are mortgaged, the creditor’s rights of Party A and Party C will be paid off at the same time because of the insufficient value of the mortgage, and the creditor’s rights of Party C will be paid 600,000 yuan first, but the creditor’s rights of Party A will not be paid off.
It should be noted that the second paragraph of Article 519 of the Civil Code stipulates: "Have the right to recover the excess from other joint debtors within the scope of their unfulfilled shares, and enjoy the rights of creditors accordingly, but shall not harm the interests of creditors." There are two interpretations of this clause: first, the obligee shall not harm the interests of creditors when exercising the statutory subrogation right; Second, when exercising the right of recourse without exercising the legal right of subrogation, the interests of creditors shall not be infringed. The traditional civil law theory mainly discusses this issue in the legal subrogation right, but the right of recourse may also conflict with the creditor’s right. If Party A and Party B bear joint and several debts of 2 million yuan to Party C according to the same share, Party A has paid off 1.2 million yuan, and when claiming the right of recovery of 200,000 yuan to Party B, if all the property of Party B is only 500,000 yuan, at this time, the remaining creditor’s rights of 800,000 yuan of Party C should be paid first.
4. Acquisition and exercise of security rights
According to Article 547 of the Civil Code, the assignee obtains the creditor’s rights as well as its subordinate rights, and the subordinate rights are not affected by the failure to perform the transfer registration procedures or the transfer of possession. When the legal subrogation person exercises the security interest, does it need to go through the change registration or obtain the pledge? First of all, the realization of security interest is not the disposition of security interest, and the provisions of Article 232 of the Civil Code should not be applied, that is, the disposition of immovable property rights that are not obtained by legal acts will not be effective without registration. Secondly, according to Article 410 of the Civil Code, the way to realize the mortgage right is negotiation between the two parties or auction and sale by the court. In the case of negotiation between the two parties, registration is not required; When the court executes the mortgage right based on judicial power, there is no need to change the mortgagee. Undoubtedly, according to Articles 436 and 437 of the Civil Code, the realization of pledge can be started by the pledgor and the pledgee, and when the pledgee starts, especially when the pledgee auctions and sells the pledge, it is inevitable to obtain the possession of the pledge. At this time, the legal subrogation person can directly request the pledgor to deliver the pledge, without going through the original creditor, so as to reduce the performance link, and the legal subrogation person can obtain the pledge on the basis of direct legal provisions.
Different from the subrogation of the guarantor, the legal subrogation person is a joint debtor, and the guaranteed debt may be his own debt. Therefore, when exercising the security right, the legal subrogation person should type the guarantee: first, the legal subrogation person’s own or the third person’s guarantee of his debt share. For this kind of guarantee, the legal subrogation has no meaning to exercise. The second is the guarantee of the debt share of other debtors. The right of recourse can naturally be exercised. The third is the guarantee of the entire joint and several debts. Whether the obligee can exercise this security right depends on two factors: (1) The security is provided by the recovery obligor, such as collateral. The right of recourse can exercise this security right. (2) The guarantee is provided by a third party. Whether the legal subrogation person can exercise the security right at this time depends on the nature of the debt recovered from the joint debtor after the guarantor assumes the responsibility. For example, Party A, Party B and Party C have a joint debt of 3 million yuan to Party D, and Party E is a joint guarantor, with a guarantee scope of 3 million yuan. The share of internal debts of the three people is 1 million yuan, and Party A obtains the right of recourse after paying off 3 million yuan. If there is no agreement between Party E and Party A, Party B and Party C, after assuming the guarantee responsibility, Party E may request Party A, Party B and Party C to undertake joint and several debt recovery, and then Party A may recover from Party E; If an agreement is made, Party A can’t recover from E to avoid a recovery cycle.
Conclusion
German documents often compare the creditor’s status in joint and several debts to "Pascha" to describe the powerful power of its creditor’s rights. In joint and several debts, the risk that creditors can’t pay off is distributed to all debtors to the maximum extent, so it is very important to distribute the payment risk fairly within joint and several debtors. As legal means of risk allocation, the right of recourse and legal subrogation are also very important.
Generally speaking, there is a competing relationship between the right of recourse and the legal subrogation, and the obligee can only choose to exercise it. Paragraph 2 of Article 519 of the Civil Code allows the debtor to enjoy two kinds of rights at the same time, and its legitimacy stems from the legal characteristics of joint and several debts, which determines that the interests of the obligee for recourse deserve special protection. The right of recourse is a basic right, which determines the establishment and scope of legal subrogation. The most important function of statutory subrogation is to enable the obligee to obtain the subordinate right of creditor’s rights, so as to expand the effectiveness of the right of recourse. The limitation of action of the two rights and the reasons for refusing the right of claim can also be unified by legal means.
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Source: Oriental Law, No.4, 2020 (Special issue of Civil Code) (No.76 in total). Please indicate the source when quoting and reprinting.
Original title: Xie Hongfei: the applicable relationship between the right of recourse of joint debtors and the right of statutory subrogation —— Taking Article 519 of the Civil Code as the analysis object.
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