석탄발전 조기폐쇄와 손실보상의 법리에 관한 소고 - 석탄발전 감축정책에 따른 손실보상의 필요성에 대한 검토를 중심으로 -

Regulations to reduce coal power generation have been discussed very lively these days to achieve the national impertive of reducing greenhouse gases as well as air pollution such as fine dust. This article explored the compensation issues in relation to such regulation based on similar legislation and jurisprudence overseas in relation to coal power reduction. The issues are as to whether such measures can be considered as restrictions on property rights and whether or not it requires compensation to utility owners. Although the regulations currently being discussed would ultimately result in closing measures by shortening the lifetime of certain power facility, it would be difficult to regard them as ‘regulatory taking’. In addition, since the lifetime or power generation of certain coal power facility itself is not legally guaranteed as per current system, it would be difficult to say that the lifetime or power generation of the coal power facility itself can be protected as if it belongs to the protection of property rights. As regulatory measures could impose restrictions on the continuous use of facilities, it should be considered that compensation is required only when there is a “special sacrifice” in view of the social binding of property rights. Legislators should make every effort to improve rationality ofregulation in consideration of regulatory purposes, such as varying the lifetime of facilities depending on the technology applied to coal power generation facilities or using market-like methods. That would be the way to abide by the constitutional limitations of property rights as well as to secure social acceptance of such regulations.