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《合同法》司法解释二第26条的情事变更条款采用的法律效果模式是司法固有管辖权模式,此与情事变更的本质相契合。情事变更的法律效果与违约、不可抗力相区别,三者是不同层面上的概念和制度,可并行不悖独立发生效力。情事变更的法律效果之一是产生中止履行抗辩权,时间点在双方进入磋商期间。关于该原则适用后的损害赔偿问题,合同解除后应在直接损失的范围内双方当事人应按公平原则进行分摊。
The legal effect mode adopted in the change of circumstance of article 26 of the interpretation of article 26 of the Contract Law of the People’s Republic of China is the mode of judicial inherent jurisdiction, which is consistent with the nature of the change of circumstances. The legal effect of the change of circumstances is different from that of breach of contract and force majeure. The three are concepts and systems at different levels and can work side by side independently. One of the legal effects of a change of circumstances is the suspension of the performance of the right of defense, at a point in time during which both parties enter the negotiation. With regard to the issue of damages after the application of the principle, both parties should be assessed on an equitable basis within the scope of direct loss upon termination of contract.