混合共同擔保之內部追償權的證立及其展開－－《物權法》第176條的解釋論

On the Right of Recourse between Mixed Joint Guarantees Interpretation about the Article 176 in Property Law

學說上將《物權法》第176條理解為混合共同擔保人無相互追償權的認識似占上 風，但司法實踐卻並未摒棄《擔保法解釋》第38條的立場。自解釋論而言，僅依《物權法》第176條並不能得出立法已經廢棄《擔保法解釋》第38條的結論。《物權法》第176條既然在混合共同擔保的外部關係上採連帶說，則基於內外一致之理，自當在內部關係上亦採連帶說。並且，肯定混合共同擔保人的相互追償權不僅對擔保人有利，契合共同擔保分散風險之目的，而且也有利於其他利害關係人。反之，若否定相互追償權，不僅會成立不當得利，而且還會誘發道德風險。因物上保證人與保證人性質有別，故應採價值比例分配說，依擔保物價值與保證人所負之責任比例確定追償份額。

Although the opinion about the Article 176 of Property Law that mixed joint guarantee has not the right of recourse between guarantees seems to te prevailing, judicial practice indeed did not completely abandon the right of recourse between guarantees. In light of the interpretation theory, the Article 176 of Property Law does not draw the conclusion of the abandon of the right of recourse. The Article 176 of Property Law takes the mixed joint guarantees as the joint and several obligations in the external relations, the joint and several obligations in internal relations have also been upheld for the same reason. As a whole, the right of recourse between guarantees is not only benefit for mixed joint guarantee, but also benefit for the latter security holder, creditors and other parties. Conversely, the objection about the right of recourse between guarantees will lead to unjust enrichment and cause moral risk. Based on the difference between property guaranty and personal security, the allocation of recourse between guarantees will be shared in accordance with the proportion of the value of property and the amount of security liability.