CAJ | 학술논문

在规制合同内容的规范群内部存在着体系化的分工。格式条款内容规制规范不能适用于核心给付条款。其根本原因在于，市场机制通常虽不能作用于附随条款但却能作用于核心给付条款。这并不意味着核心给付条款就不受法律秩序的规制。对于不当合同的介入，通常需要合意度低下和均衡度不足两个要件的合力。合同法第40条的意义，在于将所有利用格式条款之情形的合意推定为程度较低的合意。如此一来，在对格式条款作内容规制时，便不再需要举证合意度的低下。
재규제합동내용적규범군내부존재착체계화적분공。격식조관내용규제규범불능괄용우핵심급부조관。기근본원인재우，시장궤제통상수불능작용우부수조관단각능작용우핵심급부조관。저병불의미착핵심급부조관취불수법률질서적규제。대우불당합동적개입，통상수요합의도저하화균형도불족량개요건적합력。합동법제40조적의의，재우장소유이용격식조관지정형적합의추정위정도교저적합의。여차일래，재대격식조관작내용규제시，편불재수요거증합의도적저하。
There is a systematic differentiation of labor among the norms to regulate the content of a contract. According to their different contents, the standard terms can be classified into the core pres- entation terms and the incidental terms. The norms to regulate the content of the standard terms can- not be applied to the core presentation terms. The fundamental reason is that, although the market mechanism usually cannot affect to the incidental terms, it can do to the core presentation terms. In the same time, this does not mean that the core presentation terms are free from the regulation of the legal order. The intervention into the contract depends usually on the composite force of two require- ments, that is, the low degree of agreement and the inadequate degree of equilibrium between presen- tations. Article 40 of Chinese Contract Law establishes an inference that the degree of all the agree- ments concerning to the standard terms are low, content of the standard terms. so as to exempt the burden of proof when regulate the As to the identification of the core presentation terms, although there is not a general standard, there are several hints in the real world. As far as the typical contracts are concerned, the necessary requirements to establish the contracts belong to the core presentation terms. Besides, the terms providing the price are usually the core presentation terms, for the market mechanism can work. As to the non-typical contracts, the identification of the core presentation terms depends on the abstrac- tion of their establishing requirements and the affection of the market on the concrete content of the contracts.