(영문) 서울행정법원 2017.2.2. 선고 2015구합55677 판결

On December 1, 2014, the Minister of Environment rendered a disposition of refusal to allocate greenhouse gas emissions to tons of carbon dioxide equivalents to the Plaintiff on December 1, 2014.

Reasons

1. Details of the disposition;

A. On November 17, 2009, the government announced at the State Council to reduce the total nationwide greenhouse gas emissions in 2020 to 30% of the expected greenhouse gas emissions (BAU) in 2020. To this end, the Framework Act on Low Carbon, Green Growth (hereinafter “Framework Act”) was enacted on January 13, 2010.

B. On April 14, 2010, the Government introduced a target management system that mainly sets and manages targets for reduction of greenhouse gas emissions, energy conservation, and energy utilization efficiency for each controlled entity in accordance with Article 42(5) of the Framework Act and Article 29 of the former Enforcement Decree of the Framework Act on Low Carbon, Green Growth (amended by Presidential Decree No. 24270, Dec. 27, 2012) (hereinafter referred to as “controlled”) to set and manage targets for reduction of greenhouse gas emissions, energy conservation, and energy use efficiency for each controlled entity from 2012 after the pilot operation period for which no target is set in 2011.

C. The Plaintiff, a company engaged in the manufacture, sales, etc. of the lecture hall, was designated as a controlled entity in around 2010, and was established from 2012 to 2014 as the target stated in the “Permissible Discharge” in the following table, thereby emitting greenhouse gases in 2012 and 2013, the actual emission volume exceeded the permissible emission volume.

Unit: TCO2-eqs of comparable CO2 equivalents (tCO2-eq)

A person shall be appointed.

D. On May 14, 2012, the Act on the Allocation and Trading of Greenhouse Gas Emission Permits (hereinafter referred to as the “Emission Trading Act”) was enacted to effectively achieve national greenhouse gas reduction targets by introducing a system on the allocation and trading of greenhouse gas emissions permissible (hereinafter referred to as “emission permit”) allocated to individual greenhouse gas-emitting business entities within the total permissible amount of greenhouse gas emissions, or the allocation and trading of greenhouse gas emissions that are allocated to each business entity that produces greenhouse gases within the total permissible amount of greenhouse gas emissions (hereinafter referred to as “emission trading system”) to achieve national greenhouse gas reduction targets under Article 42(1)1 of the Framework Act (hereinafter referred to as “national greenhouse gas reduction targets”).

E. On January 28, 2014, pursuant to Article 4 of the Emission Trading Act, the Government established a master plan for the emissions trading system (hereinafter referred to as “master plan”) with a three-year period from January 1, 2015 to January 12, 2017 (hereinafter referred to as “the first commitment period”) in which the three-year period from January 1, 2015, including matters concerning the domestic and overseas situation of and prospects for the emissions trading system, basic direction for the operation of the emissions trading system, etc.

F. On September 11, 2014, the Government established a national emission permit allocation plan (hereinafter referred to as “assignment plan”) which includes the total permissible emissions of greenhouse gases established by considering national greenhouse gas reduction targets, the total permissible emission volume for the pertinent commitment period based on total permissible emission allowances and the total quantity of annual emission permits for implementation years in order to effectively achieve national greenhouse gas reduction targets, and publicly announced it on the 16th of the same month.

G. On September 12, 2014, the Plaintiff was designated as a company eligible for allocation of emission permits in steel industry (hereinafter “business entity eligible for allocation”) pursuant to Article 8(1) of the Emission Trading Act.

H. On October 24, 2014, the Plaintiff filed an application for the allocation of the Defendant’s emission permits to the Minister of Environment (as the Enforcement Decree of the Act on the Allocation and Trading of Greenhouse Gas Emission Permits was amended by Presidential Decree No. 27181 on May 24, 2016, the competent authority changed to the Defendant from June 1, 2016. However, Article 2 of the Addenda of the Enforcement Decree of the said Act stated a transitional provision that a disposition taken by the former competent authority is deemed a change of the competent authority; hereinafter referred to as “Defendant”) for the allocation of the first commitment period of 114,611 tons of carbon dioxide equivalents (tCO2req; hereinafter referred to as “tCO2eq”) during the first commitment period. On December 1, 2014, the Defendant allocated the Plaintiff a disposition of refusal against the Plaintiff (hereinafter referred to as “disposition against the Plaintiff’s remaining 17,548 KU”).

Unit: KAU

A person shall be appointed.

【Reasons for Recognition】 Each entry in the Evidence Nos. 1, 2, 6, and 4, 26, and 27 (including the number of pages) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Legal nature of the instant disposition

When a business entity eligible for allocation, including the plaintiff, discharges greenhouse gases exceeding the allocated emission permits as a result of the introduction of the emissions trading system, it has a duty to purchase emission permits through monetary expenditure to cover the excess amount, so the disposition of this case constitutes an indive administrative disposition.

(ii) procedural defects;

A) Violation of procedures under the Emission Trading Act

(1) When establishing a formal public hearing, the government violating the procedure due to the holding of the allocation plan shall hold a public hearing pursuant to Article 5(4) of the Emission Trading Act to hear the opinions of interested parties and reflect such opinions in the allocation plan if the opinion is reasonable. As such, the government should have specifically explained the main contents included in the allocation plan so that interested parties may present their opinions on the allocation plan, i.e., the type of business that serves as the basis for calculating allocation by business entities eligible for allocation, the method of determining allocation by business entities, and the amount used in the above decision method. However, the government did not mention them at all at all at the public hearing. Furthermore, even though the emission outlook by business type is not considered at all when allocating emission permits, it explained that the emission prospects by business type will be reflected in the allocation of emission permits. Accordingly, the Plaintiff, an interested party, was unable to present a substantial opinion on the instant disposition

(2) The Enforcement Decree of the Emission Trading Act and the Act on the Allocation and Trading of Greenhouse Gas Emission Permits (hereinafter “Enforcement Decree of the Emission Trading Act”) provides for an important procedure for the implementation of the emissions trading system, i.e., the establishment of a basic plan and allocation plan. However, the government or the defendant failed to comply with the above period, and as a result, the plaintiff lost an opportunity to understand and reflect the instant disposition.

B) Violation of procedures under the Administrative Procedures Act

(1) Violation of the duty to notify in advance

The instant disposition is a disposition that imposes obligations on the parties and limits the rights and interests of the parties, but the Defendant did not notify the Plaintiff of the facts and details of the disposition in advance.

(2) Violation of the duty to present reasons for the disposition

The Defendant rejected the Plaintiff’s application for partial allocation of greenhouse gas emission permits, and did not present the grounds and reasons for the disposition to the Plaintiff.

(iii) substantial defects;

In the instant disposition, there are substantive defects not taking into account the following illegal elements.

A) Under the target management system, the Energy Management Corporation, which is the agency responsible for the establishment of goals under the target management system imposed on the Plaintiff under the target management system in 2012, established a target for the emission permit in 2012 after consultation with the Plaintiff, which is a controlled entity, but the Energy Management Corporation unilaterally established and notified the Plaintiff of the permissible emission permit that is much less than the Plaintiff’s actual emission permit. As a result, the Plaintiff was unable to comply with the Plaintiff’s objectives for the year 2012 regarding the permissible emission permit as a controlled entity. As such, the Plaintiff’s establishment of the target for the emission permit in 2012 was illegal, but without considering the foregoing, the Defendant did not allocate the Plaintiff’s emission permit to the extent that the Plaintiff excluded from allocation of greenhouse gas emission permits exceeding the target (hereinafter referred to as “uncompliance emission permit exceeding the target”), pursuant to Article 10(1)10(2) of the former Guidelines on the Allocation, Adjustment, and Revocation of Greenhouse Gas Emission Permits (hereinafter referred to as “former Guidelines”).

B) Retroactive legislation

The instant provision is a retroactive legislation that is prohibited by the Constitution, as it is disadvantageous under the emissions trading scheme, to the Plaintiff’s violation of the emission volume exceeding compliance in 2012, which was established under the target management system.

(C) Under the relevant Framework Act on Double Sanctions, an administrative fine shall be imposed in cases where a controlled entity discharges greenhouse gases in excess of the permissible emission quantity under the target management system. Accordingly, a double sanction is imposed on a person subject to an administrative fine under the target management system to be excluded from the allocation of emission permits when allocated under the emissions trading scheme.

D) Violation of superior laws and regulations of the instant provision

Article 12(2)1 and 5 of the Emission Trading Act provides that the allocation of emission permits shall take into account annual demand for emission permits by a business entity eligible for allocation and the equity of allocation of emission permits among business entities eligible for allocation when it allocates emission permits. The provision of this case that excludes excess emission permits from allocation by business entity is invalid as it goes against the purport of Article 12(2)1 and 5 of the Emission Trading Act.

(b) Related statutes;

It is as shown in the attached Table related statutes.

In full view of the descriptions of Gap evidence Nos. 4, 5, and Eul evidence Nos. 1, 5, and 10 (including each unit number) and the whole purport of the pleadings, it can be seen that the road map, the basic plan, and the allocation plan was established through the following processes:

1) On May 14, 2012, upon the enactment of the Emission Trading Act, the Ministry of Environment established a preparatory planning group for the emissions trading system, which is an organization exclusively in charge of the emissions trading system, around January 2013, in order to prepare for the emissions trading scheme in force since 2015.

2) On January 2014, the Ministry of Environment, the Ministry of Trade, Industry and Energy, and the Ministry of Trade, Industry and Energy jointly formulated a road map to achieve national greenhouse gas reduction targets, including national greenhouse gas reduction targets, national strategies and promotional tasks, sectoral implementation plans, etc., and held an explanatory meeting on January 17, 2014.

(3) On December 2013, the Ministry of Strategy and Finance, after holding a public hearing to formulate a basic plan for the emissions trading system in the presence of government-related ministries, civic groups, industries, etc., established a basic plan including the domestic and overseas situation and prospects for the emissions trading system, basic direction for the operation of the emissions trading system, operation of the national greenhouse gas reduction target, etc. on January 28, 2014.

4) The “private advisory group on allocation plan” comprised of experts, civic groups, research institutes, etc. held six times from May 9, 2014 to May 16, 2014, and the Ministry of Environment prepared a allocation plan that reflects the contents of the recommendation of the non-governmental advisory group on allocation plan, and held an explanatory meeting on June 2, 2014, including the contents of the recommendation of the allocation plan from May 2014 to June 2, 2014, including Daejeon, Daegu, and Gwangju, the total permissible emission allowances, and the criteria for allocation of emission allowances, from May 9, 2014 to June 2014.

5) On June 2, 2014, the planning group for preparation for the emissions trading system established a detailed method for calculating the allocation by type of business of the allocation plan. The Ministry of Environment, from June 17, 2014 to July 14, 2014, held a briefing session for each type of business in order to gather industrial opinions. From July 8, 2014 to July 9, 2014, held an explanatory meeting for the executive officers of business entities eligible for allocation.

6) The Ministry of Environment, after deliberation by the Green Growth Committee and the State Council, finalized the allocation plan on September 11, 2014. The main contents of the allocation plan are as follows.

II.The sectors and categories of business subject to allocation of emission permits; 1. Sector and Types of Business subject to Allocation (Selection Criteria) are sectors and categories of business in which large-scale greenhouse gas emissions companies or places of business are located, taking into account contribution to national greenhouse gas emissions, emission volume, measuring potential, and possibility of implementation of the system;

* (Possibility) It is possible to calculate, report, and verify greenhouse gas emissions.* (Possibility) If the subject of compulsory allocation, such as allocation and submission of emission permits, is clear (as a result of selection), analysis of the results of the operation of the target management system under Article 26 of the Framework Act is conducted for five sectors in the first commitment period and 23 categories in the second commitment period. As a result, the subject of the target management system has all the above selection criteria. Accordingly, the sectors subject to the target management system have one or more sectors and businesses subject to the designation criteria under Article 8 and Article 9 of the Act among the sectors subject to the target management system. However, roads and railroads subject to the target management system are excluded from the subject of the first commitment period; II. Total permissible emission allowances and allocation by sector and industry; 1. Calculation of national greenhouse gas emissions outlook (BAU) and total emission allowances set out in the basic plan for the national reduction target road plan during the commitment period * (BAU) emission prospects for year 15 through year 17).

A person shall be appointed.

* (National Reduction Objectives) IN WITNITS WITITS WITS WITITS WITITS REENITS WITITS REENITS WITS REENEITS.- As the reduction rate has significantly increased since 15 years, the target quantity after the reduction shall remain as the trend of reduction

A person shall be appointed.

2. Methods for calculating the total permissible emission permits;

A person shall be appointed.

(b) Detailed methods of calculation;

A person shall be appointed.

4. The total amount of emission permits during the first installment agreement for the total amount of emission permits and the total amount of emission permits to be allocated by sector and by type of business is about 168.7 million KAU allocation, and the total amount of emission permits to be allocated by sector and by type of business is generated, steel, petroleum chemical, cement, oil refining, etc. (unit: KAU (KAU) and the total amount of emission permits to be allocated by sector and by type of business;

A person shall be appointed.

5. Criteria for allocation of emission permits by business entity eligible for allocation; 1. A summary of allocation of emission permits by business entity;

* (Advance Allocation) The allocation of emission permits by year to existing facilities of business entities eligible for allocation before the beginning of the commitment period of the business entity eligible for allocation * (Additional Allocation) the allocation of emission permits by year to the expected new and extended facilities of the business entity eligible for allocation ; (1) the modification of the allocation plan, the modification of the allocation plan, or the allocation of allocation by a business entity eligible for allocation ; or (2) the allocation of emission permits by a business entity eligible for allocation ; (3) the allocation of emission permits by a method of calculating the allocation of emission permits by business entity (type of allocation) the allocation of emission permits by the first commitment period ; (4) the allocation of emission permits by a business entity eligible for allocation ; (4) the allocation of emission permits by year to the level or below based on the past emission results of greenhouse gas emissions ; (4) the allocation of emission permits by year (GF: gorfling) the allocation plan throughout the preceding commitment period ; (5) the allocation method by year 2); and (5) the allocation method by year 13) the allocation method of emission facilities to some types.

A person shall be appointed.

(1) In principle, calculation of estimated emission levels based on annual average emission levels of the relevant facilities * Calculation of estimated emission levels based on the relevant facilities 3 years (11 to 13 years), 11 to 13 years in the first commitment period (15 to 17 years) in order to maintain consistency with the standards for designation (11 to 13 years) and the emission levels to be submitted at the time of filing an application for allocation (11 to 13 years) * Where emission facilities have been newly established or expanded during the reference year, calculation based on the emission levels of newly established or expanded facilities based on the stable emission levels * (e.g., new or expanded facilities) calculated based on the number of new or extended facilities planned in 14 to 17 years (e.g., planning capacity, load rates, operating hours, and emission density limits of each type of business * the estimated growth rates of each type of business are reflected in the allocation quota only for new growth extension * The total adjustment coefficient of allocation and the total adjustment factor of allocation to each type of business and the total adjustment element of allocation * the suitability.

A person shall be appointed.

[2] National greenhouse gas emission outlook and target emission quantity outlook (BAU) of greenhouse gas emissions by sector(BAU: unit: 00 CO2-eq)

A person shall be appointed.

Terms and conditions by sector and by type of business (unit: %)

A person shall be appointed.

Standard permissible volume of emission by sector and by type of business (14 to 20 years (unit: 00 tCO2-eq)

A person shall be appointed.

D. Determination

1) Legal nature of the instant disposition

The allocation disposition of emission permits, rather than an indivative administrative disposition that limits the Plaintiff’s rights or imposes obligations on the Plaintiff, is reasonable to deem that it is a kind of beneficial administrative disposition that establishes rights and benefits on the Plaintiff. The main grounds are as follows. Accordingly, the instant disposition is a rejection disposition against the application of beneficial administrative acts.

(1) Article 35(1) of the Constitution of the Republic of Korea provides that "All citizens shall have the right to live in a healthy and pleasant environment, and the State and all citizens shall endeavor to preserve the environment." Article 7 of the Framework Act on Environmental Policy provides that "Any person who causes environmental pollution or environmental damage due to his/her own act or business activity shall be liable to prevent such pollution or damage and to recover and restore the polluted or damaged environment, as well as to bear expenses incurred in the relief of damage caused by environmental pollution or environmental damage." In light of the purport of the above provision, any person who discharges greenhouse gases and causes the environment shall be liable to recover and restore the polluted or damaged environment at his

(2) Under the emissions trading system, the competent authority shall allocate greenhouse gas emission permits to an enterprise subject to allocation with or without consideration pursuant to Article 12 (3) of the Emission Trading Act, and a business entity eligible for allocation shall only be subject to the imposition of a penalty surcharge, if it discharges more greenhouse gases than those allocated pursuant to Article 3 (1) of the Emission Trading Act, and shall not be subject to any sanctions in relation to greenhouse gas emissions within the scope of allocated emission permits. Therefore, from the standpoint of a business entity eligible for allocation, a business entity may enjoy the effect of exempting it from liability equivalent to the cost of recovery and restoration, in fact, for greenhouse gas emissions within the scope of allocated emission permits after deducting the cost of allocation from the cost of recovery and restoration.

3. Since the industrial revolution, even if the industry recognizes that greenhouse gases such as carbon dioxide generated in the course of production as a natural right to emit greenhouse gases into the atmosphere, it is difficult to regard the industry's greenhouse gas emissions as a right naturally recognized by the Constitution or the law, today's day when it is objectively proven that greenhouse gases are promoted and facilitated global warming and its emissions trading system is in force. In this case, it is not because the Plaintiff's burden of the obligation under the Emission Trading Act is not because emission permits were allocated, but because the Plaintiff was designated as a company subject to allocation as a consequence of the enactment of the Emission Trading Act.

(4) The instant disposition is an administrative disposition based on the premise of an application filed by a business entity eligible for allocation, such as the Plaintiff, and the Defendant is not an administrative disposition that can unilaterally impose on the business entity eligible for allocation without the application

2) Whether procedural defects are procedural defects

A) Violation of procedures under the Emission Trading Act

(1) Whether the procedure was unlawful due to a formal public hearing

Article 5 (4) of the Emission Trading Act provides that when establishing or amending an allocation plan, the government shall hold a public hearing in advance to hear the opinions of interested parties, and when the opinion presented at the public hearing is deemed reasonable, it shall be reflected in the allocation plan.

The Ministry of Environment prepared a allocation plan that reflects the recommendations made by the non-governmental advisory group on the allocation plan from May 17, 2014 to June 14, 2014, and held an explanatory meeting on the allocation plan of national greenhouse gas emission permits, including the total permissible emission allowances and the permissible emission allowances in Daejeon, Daegu, and Gwangju, through consultation with the government-related ministries; on June 2, 2014, the public hearing was held in Seoul; on June 2, 2014; on June 2, 2014, detailed calculation methods for allocation plan by type of allocation by type of business were prepared on June 17, 2014; on July 14, 2014, the Ministry of Environment, from 200 to 200, to 2000, to 300,000,0000 annually, to which the number of employees by type of business was calculated from 20 to 20,000 annually, including the annual allocation plan.

(2) Whether the procedure due to non-compliance is unlawful

Article 2(1) of the Enforcement Decree of the Act on Trading Emission Permits provides that the Minister of Strategy and Finance shall establish an emission trading plan by no later than one year prior to the beginning of each commitment period; Article 5(1) of the Act provides that a business entity eligible for allocation shall be designated and publicly notified by no later than five months prior to the beginning of each commitment period; Article 13 of the Act provides that an application for allocation of emission permits shall be submitted by no later than four months prior to the beginning of the commitment period; Article 17(1) of the Enforcement Decree of the Act provides that a business entity eligible for allocation shall notify a business entity eligible for allocation of allocation by no later than two months prior to the beginning of the commitment period; and Article 17(1) of the Enforcement Decree of the Act on Trading Emission Permits provides that the first commitment period shall begin on January 1, 2015; the allocation plan shall be established and publicly notified by no later than 20 days prior to the beginning of the commitment period; and each business entity eligible for allocation shall be notified of the allocation plan by no later than 14.

In addition, as seen earlier, the Ministry of Environment prepared a allocation plan for a period of not less than eight months after the formulation of the basic plan and went through the process of gathering opinions from interested parties, such as industry, such as industry. Therefore, it is difficult to deem that the Plaintiff lost an opportunity to understand and reflect the instant disposition solely on the ground that the series of time periods stipulated in the Act on Trading Emission and the Enforcement Decree of the Emission Trading Act have not been complied with in the instant disposition.

Ultimately, it is difficult to view that the instant disposition should be revoked as unlawful due to the circumstance that the Defendant failed to comply with the deadline in a series of procedures that led to the instant disposition.

B) Whether the procedure is in violation of the Administrative Procedures Act

(1) Whether a prior notification obligation is violated

As seen earlier, the disposition of this case is a rejection disposition against an application for an administrative act, and it is not a disposition that restricts the rights and interests of the other party or imposes an obligation on the other party. Thus, the defendant does not bear an obligation to notify the other party of the facts and disposition that constitutes the grounds for the disposition under Article 21

(2) Whether the grounds for the disposition are violated

Article 23(1) of the Administrative Procedures Act provides that an administrative agency shall provide the basis and reasons for the disposition to the relevant party when rendering a disposition, and the purport is to exclude the arbitrary decision of the administrative agency and to enable the relevant party to properly cope with the administrative remedy procedure. Therefore, the disposition cannot be deemed unlawful, unless the grounds and reasons for the disposition are specifically specified in the written disposition (see, e.g., Supreme Court Decision 2015Du2024, Sept. 10, 2015). In addition, the disposition that refuses an application with the relevant provisions clearly indicate the grounds and reasons when the relevant party presented reasons to the extent that it could identify the grounds for the disposition, even if the relevant provisions and grounds are not clearly stated in the written disposition and the relevant Acts and subordinate statutes and the relevant procedures are sufficiently known to the relevant parties (see, e.g., Supreme Court Decision 201Du20289, May 27, 2002).

Article 13(1) of the former Guidelines for Emission Trading Act and Enforcement Decree of the former Act on Allocation and Trading of Greenhouse Gas Emission Permits (amended by Presidential Decree No. 27187, May 24, 2016; hereinafter referred to as the "former Enforcement Decree of the Emission Trading Act") provides for the basis for the application for allocation, i.e., the Plaintiff’s application for allocation pursuant to Article 5(1) (attached Form 6) and submitted it to the Defendant. The above application for allocation provides that the Plaintiff violated the former Guidelines for Emission Trading Act and Article 15 of the former Enforcement Decree of the Emission Trading Act (amended by Presidential Decree No. 27187, May 24, 2016; hereinafter referred to as the “Enforcement Decree of the former Emission Trading Act”) and the provision on the basis for the application for allocation, i.e., the Ministry of Environment and other relevant ministries at the time of the introduction of the emissions trading system, and thus, the Defendant did not fully inform the Plaintiff of the allocation of the details of allocation.

C) Sub-decision

Ultimately, there is no procedural defect in the disposition of this case.

3) Whether there is any substantive defect

A) Whether the setting of the objective in 2012 imposed on the Plaintiff under the target management system is unlawful

As seen earlier, under the target management system, the Plaintiff’s permissible emission and the actual emission volume in the year 2012-2014 are as listed below. According to the table below, the Plaintiff’s permissible emission in the year 2013 increased compared to the year 2012 (=37,798-24,935) TCO2eq. As a result, the Plaintiff’s permissible emission in the year 2012 was 11,806(=36,741-24,935)tCO2-eq was less than the actual emission volume (36,741=38,339-37,798).

Units: TCO2-eq

A person shall be appointed.

However, the following circumstances, namely, the Plaintiff’s permissible emission volume in 2012 (24,935tCO2-eq) was met by the Plaintiff’s annual average emission volume (23,876tCO2q) in 2009 from 207 to 2009, and if the Energy Management Corporation unilaterally established and notified the goal without consultation with the Plaintiff, the Plaintiff could not raise an objection within 30 days from the date of being notified of the target under Article 35(1) of the former Guidelines on the Management, etc. of Greenhouse Gas and Energy Target (wholly amended by the Ministry of Environment Notice No. 2016-255, Dec. 30, 2016) (wholly amended by the Ministry of Environment Notice No. 2016-255, Dec. 30, 2016). However, there was no evidence suggesting that the Plaintiff raised an objection with respect to the setting of the target amount. However, there was no possibility that the Plaintiff did not have reached a successful emission level in 201 year.

B) Whether it constitutes retroactive legislation

(1) Legal nature of the instant provision

In calculating the amount of emission permits allocated by the Plaintiff, the Plaintiff asserts that the Defendant excluded the amount exceeding compliance from the Plaintiff’s emission quantity in accordance with the instant provision, and that the instant provision constitutes a retroactive legislation. Accordingly, we first examine whether the party guidelines for the establishment of the instant provision have the effect as a statutory order, or whether it is merely an internal standard within the administrative agency.

The so-called administrative rules, which are issued by a superior administrative agency to a subordinate administrative agency with respect to the guidelines for the performance of duties or the standards for the interpretation and application of statutes, are generally effective only within the administrative organization and do not have external binding force. However, if the provisions of statutes provide for the matters to be contents of the statutes in the form of administrative rules in the form of administrative rules in which the delegated administrative agency grants the authority to determine the specific matters of the statutes to a specific administrative agency without specifying the procedures or methods for the exercise of such authority, such administrative rules have the function to supplement the contents of the statutes, not as a general effect of the above administrative rules, but as a general effect of the administrative rules but as a matter of law that grants the administrative agency with the authority to supplement the specific matters of the statutes. Accordingly, such administrative rules have the effect of external binding legal orders in combination with those of those regulations, unless they go beyond the bounds of delegation of the statutes concerned (see, e.g., Supreme Court Decision 2006Du3742, Mar. 27,

Article 12(2) of the Act on Trading Emission Permits provides that standards for allocation of emission permits under paragraph (1) shall be prescribed by Presidential Decree in consideration of the following matters, and Article 12(2) of the former Enforcement Decree of the Act on Trading Emission Permits provides that the competent authority shall determine and publicly notify detailed matters concerning methods for calculating allocation of emission permits under paragraph (1) in consultation with the head of the relevant central administrative agency and in the Official Gazette. The former allocation guidelines established pursuant to the Act on Trading Emission Permits

In full view of the contents, form, purport, etc. of the above provisions, the former allocation guidelines are in accordance with delegation of the emission trading statutes that requires the competent authority to determine and publicly announce the method of calculating the allocation of emission permits to each business entity on the allocation basis. As such, the former allocation guidelines are effective as a legal order with external binding force when supplementing the contents of the

(2) Whether the instant provision constitutes a retroactive legislation

Retroactive legislation can be divided into a petition-based legislation that applies to the facts or legal relationships already terminated by new legislation and a petition-based legislation that applies to the existing facts or legal relationships. Among them, a petition-based legislation that deprives an individual of his/her legal status already formed under the existing law through ex post facto legislation is a principle that it is not permitted in accordance with the principle of the rule of law that covers the protection of trust and legal stability of the individual. On the other hand, in principle, in a petition-based legislation, the scope of a petition-based legislation is limited in the process between the reasons for the public interest requiring the retroactive effect and the reasons for personal protection demanding the protection of trust.

The instant provision excludes emission amounts exceeding compliance from the allocation to each company. That is, under the target management system, the instant provision does not exclude emission amounts exceeding compliance amounts from the permissible emission amounts set as controlled entities under the target management system, but does not exclude emission amounts exceeding compliance amounts in newly implemented emission trading scheme since 2015. Accordingly, the instant provision does not constitute a retroactive legislation that infringes on property rights, as it does not retroactively apply new laws to past facts or legal relations that have already been completed or completed, and thus, even if the emission amounts exceeding the permissible emission amounts set as target under the target management system exceeds the permissible emission amounts set under the target management system, the instant provision does not constitute property rights worth legal protection to ensure that the excess emission amounts are not excluded from allocating emission amounts for each company under the emission trading system.

C) Whether the instant provision constitutes double restriction

The facts that the instant disposition is a beneficial administrative disposition are as seen earlier, and the instant provision is merely one of the methods of calculating the emission permits necessary for the Defendant to take the instant disposition, which is a beneficial administrative disposition. Therefore, even if the Plaintiff was imposed an administrative fine on the ground that the Plaintiff’s emission of the actual gas that exceeded the permissible emission levels in 2012 under the target management system, it cannot be deemed that the Defendant’s allocation of emission permits, excluding the amount exceeding the permissible emission levels, in calculating the Plaintiff’s emission permits under the instant provision, is an administrative sanction unfavorable to the Plaintiff.

D) Whether the pertinent provision violates superior statutes

According to Article 5(1)6 of the Emission Trading Act, a allocation plan shall establish matters regarding the standards and methods for allocation of emission permits to business entities eligible for allocation. On the other hand, the instant disposition was conducted based on the criteria and methods for allocation of emission permits established in the allocation plan and the guidelines for allocation publicly notified in accordance with the delegation of the relevant laws and regulations on emission trading, and thus, in determining whether the instant provision is invalid in violation of the intent of superior laws and regulations, not only Article 12 of the Act on Emission Transactions, which is a direct delegation provision of the former Guidelines, and Article 12 of the Enforcement Decree of the former Act on Emission Trading,

In addition, in cases where it is not clear whether a subordinate statute conflicts with a superior statute or not, the meaning of the subordinate statute shall not be declared invalid on the ground that the subordinate statute is in violation of the superior statute, unless it is impossible to interpret the meaning of the subordinate statute as being consistent with the superior statute by comprehensively examining the contents, legislative purport, and history of the relevant statute (see, e.g., Supreme Court en banc Decision 979864, Dec. 16, 199; Supreme Court Decision 2010Du3527, Oct. 25, 2012).

Article 12(2)8 of the Act on the Trading of Emission Permits provides that the emission permits shall be allocated to business entities eligible for allocation, among business entities participating in the target management system, if they fail to achieve the target reduction targets set during the period from 2011 to 2013, the excess emission quantity shall be excluded from the expected emission quantity (see, e.g., subparagraph 1-1). In addition, the provision of this case is based on Article 12(2)8 of the Act on the Trading of Emission Permits, which provides that the performance of controlled entities shall be considered when allocating emission permits for each business entity; the purpose of the Act on the Trading of Emission Permits is the same as that of reducing greenhouse gases, which is based on both the target management system and the Framework Act on the Trading of Emission Permits; thus, it is difficult to view that the provision of this case is more appropriate than the concept of equity between business entities and business entities that failed to observe targets set under the target management system; the provision of this case provides that emission permits transactions shall be applied to each business entity subject to the allocation of emission permits in accordance with the Act.

E) Sub-decision

Ultimately, there is no substantive defect in the instant disposition.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.