《民法典》第392條是有關混合擔保規則的體系化規定。在理論和制度邏輯上,混合擔保情形下的債權人如何行使其擔保權益,除非當事人之間另有約定,法律沒有理由干預債權人應當先行使哪個擔保權益。對混合擔保規則的解釋在我國的理論和實務上一直存在爭議。解釋混合擔保規則的基礎是要構造混合擔保規則的解釋平臺,以統一對混合擔保的認識和制度要素。混合擔保規則的核心問題為債權人如何實現債權的問題。以如何實現債權為中心,混合擔保規則構造了債權人按照約定實現債權、自物擔保物權實現在先和債權人自主決定實現債權的規則,此為具有中國特色的制度創新。以此為基礎,混合擔保規則區分債務人自己提供物的擔保和第三人提供擔保的情形,相應構造擔保人承擔補充責任和向債務人求償的制度,或者以各擔保人分別承擔責任、向債務人求償及擔保人相互間的求償的制度,以為緩和各擔保人之間存在的事實上的利益沖突的重要工具。

Article 392 of the Civil Code is a systematic provision on mixed secured interest rule.In theory and institutional logic,unless otherwise agreed between the parties,there is no reason for law to interfere with which secured interest the creditor under the mixed secured interests should have in advance.The interpretation of the mixed secured interest rule has always been controversial in theory and practice in China.The basis for interpreting the mixed secured interest rule is to build the platform of interpreting the rule,and to unify the understanding and institutional elements of the rule.The core issue of the mixed secured interest rule will be how to realize the claim secured.The mixed secured interest rule sitting on the creditor’s realization of the claim constructs individually the rule for creditor to realize claim according to the agreement,the rule for creditor to realize the secured interest by the debtor and the rule for creditor to decide on its own to realize claim.This is an institutional innovation with Chinese characteristics.On this basis,the mixed secured interest rule distinguish between these cured interest by the debtor on its own and the case in which the third party offering secured property,and correspondingly with(1) the rules for guarantors’ additional liabilities to the creditor and claims only to the debtor,or(2) the rules for guarantors’ liabilities separately to the creditor and claims to the debtor as well as claims between the guarantors,of which important tools will be for mitigating the de facto conflict of interests between guarantors.