온실가스 배출권의 법적 성격에 관한 문제

The Kyoto Protocol introduced three new 'flexible mechanisms' to assist developed country parties in achieving their agreed emission limitation on commitments under the UNFCCC. Since the adoption of the Kyoto Protocol, a range of legislations relying on the concept of emission trading have been and are being developed and implemented at international, EU and domestic levels. The unit that are trade under these various system all represent one tonne of greenhouse gas equivalent. However, there are differences in the legal nature of emission right. Where tradable units are issued by States as part of an environmental regulatory scheme, they are in the nature of administrative license. However, once allocated to the operator of an installation for compliance purpose, or held or transferred to a private firm, they assume characteristics of property right. These conflicting aspect of the legal nature of emission right were reflected by the legislation at international and domestic level. For example, the Kyoto Protocol provides that it "has no created or bestowed any right, title or entitlement to emissions of any kind on Paties included in Annex Ⅰ. The EU ETS Directive at Article 3(a) defines an "allowance" as "... an allowance to emit one tonne of CO2 equivalent during a specified period...". In the U.S. legislation, Section 403(f) of the Clean Air Act defines an "allowance" as a "limited authorization to emit SO2 in accordance with the provisions of this title" and expressly provides that "does not constitute a property right." U.S. legislature's view on the emission right is a same way in the GHG's ETS Bill. Germany and U.K. provided the legal nature of emission right under it's GHG's ETS legislation as a same manner in the EU ETS Directive. In contrast to the approach adopted by EU, U.S., Germany and U.K., France, Spain, New Zealand, and Australia classified an emission alloeance in the property right category. The comparative analysis of the various regime of the legal nature of emission right has made it obvious that whether emission right constitutes property right is not the legal reasoning problem but the legislative policy choice issue. Therefore, considering market certainty, liquidity and function of the emission trading, legislation that provides the legal nature of emission right as property right is a resonable policy choice. On the basis of this viewpoint, we emphatically recommend that the proposed Korea ETS Bill provides emission right as property right.