기후 변화 관련 해외 소송 사례 및 시사점 - 배출권 거래제를 중심으로 -

There have been multifaceted disputes and controversies surrounding implementation and operation of the emissions trading scheme in countries and regions where a debate on the emissions trading scheme was initiated earlier. As a newly introduced legal system is hard to be perfect, disputes concerning such system’s defects or operational problems will often arise especially in the early stage. In the course of resolving the disputes, the court’s law-making through interpretation of statutes and subordinate administrative legislations will certainly generate some positive effects including elimination of legal uncertainties and improvement of the system. At the same time, however, frivolous disputes may delay early stabilization of the system and prolong uncertainties in the emissions trading market. In this regard, it is necessary to review major contentious issues raised and resolved in the course of disputes and any systematical changes made based on such disputes in other jurisdictions where the scheme went into effect earlier, to seek for the desirable ways to conclude pending disputes in Korea as well as their future implications regarding design and operation of the emissions trading scheme. In this paper, cases subject to review are classified into (i) disputes over the fundamentals of the system at issue, i.e. constitutionality, validity, and necessity of the system’s introduction, (ii) disputes over legality of allowances or their calculation process, (iii) disputes over other procedural issues regarding operation of the scheme, such as extraterritorial application of the scheme, civil disputes between private parties, criminal cases pertaining to the scheme, and administrative surcharge impositions due to a failure to comply with the obligation to under the emissions trading scheme. This paper will review implications of each dispute in terms of the emissions trading scheme’s goal of greenhouse gas reduction and the direction and operational process of the scheme as a means to achieve such goals, from a perspective of either domestic or international environmental law.