《旅游法》第67条不仅规定了合同的解除权,同时也规定了旅行社的单方变更权.该单方变更权在学说和实务中均没有获得足够的重视,问题重重.在其法理依据上,应认为该单方变更权与传统合同法领域的情势变更和不可抗力制度不同,因此无须与该两者做同样之理解适用.在其独立的适用要件上,应认为在不可抗力或者旅行社、履行辅助人尽到合理注意义务仍不能避免的事件,造成旅游合同不能完全履行之时,旅行社在合理范围内享有单方变更权,而事先说明义务并非是变更要件,仅是合同义务,违反须承担违约责任,但并不影响变更的效力.在当事人的利益平衡结构上,应在解释论上认可旅游者解除权包含部分解除,同时在立法论上有必要对变更的对价规定、变更补偿金制度以及解除的替代措施进行借鉴完善.%According to Article 67 of China's Tourism Law, it is now possible to both terminate and change a travel contract. Despite the potential influence of this law, researchers and practitioners have paid little attention to the right to unilaterally change a travel contract. Thus, there is some uncertainty regarding the actual meaning of the law. In practice, the court usually identifies the change to the travel contract during the affirmation of the consent of the parties, even if there is no such consent, rather than during the application of Article 67 of the Tourism Law. Article 67 stipulates that travel agencies have the right to unilaterally change a travel contract. The right to unilaterally change a contract is different from the principle of changed circumstances or the concept of force majeure. The right comes from the special nature of the travel contract, and it has special applicable elements. The first applicable element is the occurrence of force majeure or unforeseeable events despite the travel agencies and their assistant performers both reasonably fulfilling their duties. If the travel contract cannot be fulfilled for reasons other than force majeure or unforeseeable events, then it may be a breach of the contract and has nothing to do with any changes to the contract. The second applicable element is that there are occasions when the travel contract cannot be completely fulfilled for reasons of force majeure or unforeseeable events that cannot be avoided despite the travel agency taking reasonable care. Thus, if the travel contract can no longer be fulfilled, the travel agency cannot change the contract. Instead, it must terminate the contract according to Article 67 of the Tourism Law. The third element is reasonable scope. Travel agencies should change the travel contract within a reasonable scope. If a travel agency changes the contract unreasonably, the contract will be deemed not to have been changed and the clients can request that the travel agency honor the former contract. It is worth noting that an explanation to the client before making any changes is not an applicable element, rather only a contractual obligation. Without explanation to the clients, the contract still can be changed by the travel agency but it will be liable for breach of contract. Accordingly, when the travel contract cannot be fulfilled completely for reasons of force majeure or unforeseeable events despite the travel agency and its assistant performers taking reasonable care, then the travel agency has the right to change the contract unilaterally within a reasonable scope. The right to change the contract is unilateral, so it is a powerful tool that can harm the interests of the clients. To create a balance of interests among the parties, it is necessary to admit that the right of dissolution may include partial dissolution. Furthermore, it would be valuable to look to the experiences of other countries for reference regarding a number of potential issues including the consideration of changes, extra compensation payments for any changes, and the alternative measures of dissolution.
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