| 英文摘要 |
The current Civil Code provides guarantees for debt can be mainly divided into two categories: “guaranty” and “mortgage”. The former is based on the guarantor’s capital or credit as a guarantee for debt performance and is stipulated in chapter 2 of Civil Code; the latter is stipulated in chapter 3 of Civil Code and is mainly based on the way that a debtor or guarantor directly provides the mortgage for the property. With the increasing complexity of commercial transaction patterns, it is common that people adopt a joint guarantee or joint mortgage to strengthen the function of guaranty and decrease the risk of guaranty, and this co-existence situation is regulated by the newly amended Civil Code Article 879 (2). However, in the case of joint guarantee and joint mortgage for the same debt, even one of them has double qualification, how to calculate the internal responsibility sharing among the various guarantors is still a difficult question, and there are different ways of calculations from practice and academy. Although the Supreme Court TaiShang-Zi No.1204 (2010) Civil Division appeared to be representative of legal opinions on this dispute, it is still necessary to further clarify and discuss the contribution between joint guarantee and joint mortgage. Therefore, this article uses an example to illustrate and compare those different calculations, trying to find a more detailed explanation for achieving a reasonable and fair distribution, and take into account the difference between rights in personam and rights in rem. |
