온실가스 배출권에 관한 공법적 검토

Korea has voluntarily participated in the prevention of global warming by reducing the 2030 Greenhouse Gas Emission Estimates (BAU) by 37% based on the Paris Convention on Climate Change. In order to prevent global warming, the emission tax system and the carbon tax were introduced, but the carbon tax is not institutionalized by the opposition of the economic organizations. The emission trading system, which is the market regulation regulation, But it has been in full swing since 2015. However, in the law on the allocation and trading of greenhouse gas emission rights, the legal nature of emission rights is not clearly defined, so there is a theoretical dispute and it has not been established yet. In addition, in recent years, the public interest in dealing with climate change in the lawsuits against the cancellation of the emission allowances of Korea has been respected and the judgment of the administrative office has been mostly respected and led to the judgment of losing. In other words, the court found that there were no procedural defects in the implementation of the emission trading system in most cases of cancellation of emission allowances, and the government used emission estimates in establishing the GHG emission allocation plan, Considering the projected growth rate by industry and company, equity by company, and the level of technology for reducing greenhouse gas emissions by industry, the government has determined that the disposition of assigning emission credits to each company in accordance with plans and guidelines is legitimate. Therefore, in the emission trading system, the allocation of emission rights is based on the allocation plan. Therefore, it is necessary to examine whether the plan has a wide discretionary discretion and whether it does not carry out the sentence or violate the proportional principle. However, it should be considered whether it violates the principle of clarity in consideration of the specificity of the emission trading system and the nature of the legislation. Finally, although the Ministry of Strategy and Finance is the main department for activating the emission trading, it will examine the feasibility of restructuring the system to the Ministry of Environment due to the nature of the greenhouse gas emission system. The legal nature of the greenhouse gas emission right is the right to release the greenhouse gas allowed by the emission trading law by releasing the relative prohibition of greenhouse gas emissions as a personal right because the allocation, It is reasonable to assume that it is the property right as a right of ownership in consideration of the private usefulness, possibility of arbitrary disposition and property value in the transaction stage of the emission right. It is also illegal for a country to allocate emission allowances according to its GHG emission reduction targets and allocation plans if it imposes an excessive burden on an assigned enterprise, in violation of proportional principles or sentence orders. The allocation of emission rights by the allocation plan directly affects the freedom of the constitutional rights and the guarantee of property rights to the companies to which they are assigned, so that they can receive remedies through administrative litigation for under - allocation or over - allocation for competitors. Since the GHG emission trading system is being cut through GHG trading in response to climate change through the total amount regulation, there is no possibility of infringing the freedom of business over the trading system based on the total emission amount system requiring permission. Since the allocation of allowances for emission allowances entitles the companies subject to the monetary payment, it is necessary to clearly define the requirements for the allocation of the duties by the tax legalism in the law, and to prevent the global warming by effectively responding to climate change, The system of promoting the gas trading system should be reorganized from the Minister of Strategy and Finance to the Minister of Environment.