PICC하에서 표준약관에 의한 계약체결상의 법적 기준과 판결례에 관한 고찰

Related to the title of this paper, PICC are dealing with contracting under standard terms(art. 2.1.19), surprising terms(art. 2.1.20), conflict between standard terms and non-standard terms(art. 2.1.21), battle of forms(art. 2.1.22). The main legal bases are as follows; Firstly, where one party or both parties use standard terms in concluding a contract, the general rules on formation apply, and standard terms are provisions which are prepared in advance for general and repeated use by one party and which are actually used without negotiation with the other party. Secondly, not only no term contained in standard terms which is of such a character that the other party could not reasonably have expected it, is effective unless it has been expressly accepted by that party but in determining whether a term is of such a character regard shall be had to its content, language and presentation. thirdly, in case of conflict between a standard term and a term which is not a standard term the latter prevails. Finally, where both parties use standard terms and reach agreement except on those terms, a contract is concluded on the basis of the agreed terms and of any standard terms which are common in substance unless one party clearly indicates in advance, or later and without undue delay informs the other party, that it does not intend to be bound by such a contract.