(영문) 서울행정법원 2017.8.24. 선고 2016구합84580 판결

A. The Plaintiff is a company that manufactures electronic equipment, parts, etc. such as LED chip at the place of business located in Ansan-si 163, 65-16, 1 block 36 (hereinafter “instant place of business”).

B. On September 12, 2014, the Minister of Environment: (a) on September 12, 2014, pursuant to Article 8 of the Act on Allocation and Trading of Greenhouse Gas Emission Permits (hereinafter “Emission Trading Act”) and Article 6 of the former Enforcement Decree of the Act on Allocation and Trading of Greenhouse Gas Emission Permits (amended by Presidential Decree No. 27181, May 24, 2016; hereinafter “Enforcement Decree of the Emission Trading Act”), the Plaintiff is designated and publicly notified as a business entity eligible for allocation for the first commitment period of the State Emission Trading System (Notice of the Ministry of Environment No. 2014-162), and notified the Plaintiff to submit an application for allocation of emission permits pursuant to Article 13 of the Emission Trading Act and Article 15 of the Enforcement Decree

C. On October 14, 2014, the Plaintiff submitted to the Minister of Environment an application for allocation of emission permits including the total number of emission permits for a commitment period (2015 to 2017) and the number of applications for emission permits by year, information on emission of greenhouse gases by place of business [base year (2011 to 2013), information on emission of greenhouse gases by place of business (for example, information on emission of greenhouse gases by facilities newly established or expanded in the year (201 to 2013), etc. (hereinafter “instant first application for allocation”); the total number of applications for emission permits during the commitment period as requested by the Plaintiff and the number of applications for emission permits by year

[Units: Ton of comparable CO2eq (tCO2eq)]

A person shall be appointed.

D. As the Minister of Environment rejected the application for the first allocation, the Plaintiff applied for the second allocation of emission permits on October 28, 2014 (hereinafter “instant second allocation application”), the total number of emission permits applied by the Plaintiff during the pertinent commitment period and the number of emission permits applied by the Plaintiff annually during the implementation period are as listed below.

A person shall be appointed.

E. On December 1, 2014, the Minister of Environment decided and notified the Plaintiff of the allocation of emission permits for the first commitment period (hereinafter referred to as “instant allocation of emission permits”).

A person shall be appointed.

F. On December 26, 2014, the Plaintiff filed an objection in accordance with Article 38(1)2 of the Emission Trading Act on the ground that the anticipated emission quantity of the instant facilities (AB transformation equipment, Cdong and Ddong and Ddong and 4-story electric power equipment) were not entirely reflected in the allocation of the emission permits to the Minister of Environment, but the Minister of Environment notified the Plaintiff on February 6, 2015 that additional allocation of the emission permits is difficult due to insufficient evidentiary materials on the extension of the instant facilities.

G. On March 31, 2016, the Plaintiff was additionally allocated emission permits to the Minister of Environment on May 31, 2016, pursuant to Article 16(1)2 of the Emission Trading Act, Article 21(1) of the Enforcement Decree of the Emission Trading Act, and Article 16(1)3 of the Guidelines on Allocation, Adjustment, and Revocation of Greenhouse Gas Emission Permits (Notice of Ministry of Environment No. 2014-159, hereinafter referred to as “instant Allocation Guidelines”), upon filing an application for additional allocation of emission permits due to a change in the business plan, on May 31, 2016.

H. On the other hand, on May 31, 2016, the Minister of Environment revoked 1,135 TCO2q out of the allocation of emission permits for the year 2015 to the Plaintiff (hereinafter “instant revocation of the allocation”) on the grounds that the Plaintiff’s emission volume allocated for one year in the Plaintiff’s waste gas incineration facilities falls under “a Dong Dongdong Suspension” as stipulated in Article 31(1)2 of the instant allocation guidelines, which is the grounds for revocation of allocation, Article 17 of the Emission Trading Act, Article 22 of the Enforcement Decree of the Emission Trading Act, and Article 38 of the instant allocation guidelines (hereinafter “instant revocation of the allocation”).

(i) On June 13, 2016, the Plaintiff filed an objection against the revocation of the allocation of the instant emission permit pursuant to Article 38(1) of the Emission Trading Act and Article 47 of the Enforcement Decree of the Emission Trading Act on the ground that greenhouse gas emissions have decreased due to a decrease in greenhouse gas emissions due to the change or replacement of the above facilities, which were treating waste gas by using electricity and LNG as fuel, with a cost of KRW 5 billion, not with a suspension of operation of waste gas incineration facilities. However, on August 1, 2016, the Defendant notified the Plaintiff that the Plaintiff cannot accept the said objection on the ground that it was difficult to lower the level of greenhouse gas reductions caused by a change in the method of incineration of waste gas, because it was difficult for the Plaintiff to recognize the greenhouse gas reduction activities asserted by the Plaintiff.

(j) On March 30, 2016, pursuant to Article 24 of the Emission Trading Act, the Plaintiff reported to the Minister of Environment a detailed statement (the Plaintiff’s greenhouse gas emissions in 2015 are 75,310tCO2eq) prepared in a 2015 by measuring, reporting, and verifying greenhouse gas emissions actually emitted by the Plaintiff (the Plaintiff’s greenhouse gas emissions in the above detailed statement are 75,310tCO2eq). Based on the above detailed statement on May 31, 2016, the Minister of Environment certified the Plaintiff as the actual greenhouse gas emissions in 2015 pursuant to Article 25 of the Emission Trading Act.

(k) On June 29, 2016, the Plaintiff filed an objection with respect to the certification of emission volume in the year 2015, and the Defendant accepted the foregoing objection on August 8, 2016 and certified that the Plaintiff’s actual greenhouse gas emissions in the year 2015 are 75,310tC02-eq.

(l) On August 18, 2016, the Plaintiff submitted to the Defendant emission permits allocated by the Defendant pursuant to Article 27(1) of the Emission Trading Act (i.e., 43,8781C02-eq of the initial emission permits disposal quantity + 15,566tC02-eq of the additional allocation on May 31, 2016 1,135tCO2-eq of the emission permits borrowed pursuant to Article 28(2) of the same Act and 15,062tCO2-eq of the total emission permits borrowed pursuant to Article 28(2) of the same Act.

(m) On August 30, 2016, the Defendant: (a) on the ground that the authenticated emission quantity (75,310tCO2-eq) exceeds the emission permits surrender (73,371tC02-eq) (73,371tC02-eq) and (b) pursuant to Article 33 of the Emission Trading Act and Article 42 of the Enforcement Decree of the same Act, the Plaintiff is subject to penalty surcharges of KRW 69,96,870 (= emission allowances of = 1,939tCO2-eqq (=)

- 73,371tC02-eq) x (12,028 won/tCO2-eq x three times the imposition rate of a penalty surcharge) was notified in advance to impose a penalty surcharge in 2015. On September 26, 2016, the penalty surcharge was imposed on the Plaintiff (hereinafter referred to as “instant penalty surcharge imposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 22, Eul evidence 1 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the imposition of the penalty surcharge in this case is legitimate

A. The parties' assertion

1) The plaintiff's assertion

A) Although the Plaintiff filed an application for the allocation of emission permits with evidentiary data on the information about greenhouse gas emissions of the instant expanded facilities, the Defendant did not consider the expected emission amount of the instant expanded facilities at all, and the instant disposition of emission permits was unlawful, as well as the relevant laws and regulations, such as the Emission Trading Act and the Framework Act on Low Carbon, Green Growth.

B) The Defendant issued a disposition to revoke the allocation of the instant emission permits by deeming that the amount of greenhouse gas emissions from the waste gas incineration facilities in the instant place of business is 10% of the emission permits allocated, and that the instant emission permits falls under the “dong Suspension” stipulated in Article 31(1)2 of the instant allocation guidelines. However, setting the criteria for the suspension of operation in the instant allocation guidelines not exceeding 10% of the emission permits allocated under the instant allocation guidelines goes beyond the delegation scope under statutes, and as a result of the Plaintiff’s improvement of facilities due to the suspension of operation, the Defendant’s disposition to revoke the allocation of the instant emission permits is unlawful.

C) Therefore, the imposition of the instant penalty surcharge, which was due to the illegal allocation of the instant emission permit and the revocation thereof, should be revoked as it is unlawful.

2) The defendant's assertion

A) The allocation and revocation of allocation of the instant emission permits are lawful in accordance with the Emission Trading Act and the instant allocation guidelines.

B) The instant disposition on the allocation and revocation of allocation of emission permits and the instant disposition on the revocation of allocation of emission permits are separate dispositions. Since both the instant disposition on the allocation and revocation of allocation of emission permits and the instant disposition on the revocation of allocation have become in dispute with the lapse of the filing period, the validity of the instant disposition on the grounds of its illegality

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on whether to succeed to defects

A) In a case where two or more dispositions are continuously made for the purpose of a separate legal effect between the preceding dispositions and the subsequent dispositions, the validity of the subsequent dispositions cannot be asserted on the ground of the defect in the preceding dispositions, except where the defect in the preceding dispositions is grave and obvious and the invalidity of the preceding dispositions is null and void. However, even in a case where the preceding dispositions and the subsequent dispositions aim at achieving a separate effect independently, even if the preceding dispositions and the subsequent dispositions aim at achieving a separate effect, the non-existence of the preceding dispositions and the binding force would go beyond the tolerance limit, and if the result is not foreseeable to the parties, the binding force of the subsequent dispositions cannot be acknowledged in light of the ideology of the Constitution guaranteeing the right to trial of the people (see, e.g., Supreme Court Decisions 94Nu8542, Jan. 25, 200; 2012Du6964, Mar. 14, 2013).

B) In light of the above legal principles, first of all, considering the fact that the defect of the allocation and cancellation of the allocation of the instant emission permit is succeeded to the disposition of the instant emission permit, and the fact that the disposition of the instant emission permit is an administrative disposition based on the premise of the application filed by the business entity eligible for allocation, such as the Plaintiff, the legal nature of the disposition appears to be a beneficial administrative act (the portion of the disposition that is not taken upon the Plaintiff’s application for allocation cannot be seen as an sed administrative act). The disposition of the instant emission permit has the nature of an sed administrative act, and the disposition of the instant emission permit does not complete one legal effect by combining the disposition of the instant emission permit and the disposition of the instant penalty surcharge, it is reasonable to deem that the instant disposition of the allocation and cancellation of allocation of the instant emission permit

However, as long as the Plaintiff did not dispute each of the above dispositions within 90 days from the time when the allocation or revocation of the allocation of the instant emission permits, the effect of each of the above dispositions can no longer be asserted due to the lapse of the filing period (the Plaintiff’s allegation is without merit) since the disposition of the instant penalty surcharge constitutes the final declaration of rejection of the application of the allocation of emission permits. As such, it is argued that the Plaintiff should determine whether the filing period for the instant disposition of the allocation of the allocation of the allocation of the instant emission permits should be determined at the time of the disposition of the instant penalty surcharge. However, the Plaintiff’s refusal of the application for allocation is made at the time of the allocation of the instant emission permits, and it cannot be deemed that the rejection was made again at the time of the disposition of the allocation of the instant emission permits, or

In addition, the fact that a penalty surcharge may be imposed in cases where the Plaintiff’s emission permits are later insufficient than the Plaintiff’s emission permits are expected to be in accordance with the laws and regulations related to emission trading, which can be sufficiently predicted at the time of the instant allocation, and the Plaintiff also raised an objection against the instant allocation and revocation of allocation of emission permits. The instant penalty surcharge imposed on the premise of the allocation and revocation of allocation of emission permits in this case under the premise that the disposition of imposition of the instant penalty surcharge in this case under the premise of the allocation and revocation

Therefore, the plaintiff can contest the validity of the disposition imposing the penalty surcharge of this case on the ground of the defect in each of the above dispositions only when the disposition imposing the penalty surcharge of this case is null and void due to the significant and apparent defects in the disposition revoking the allocation of emission permits

2) Whether the allocation of the instant emission permits and the revocation of allocation are invalid

A) In order for a defective administrative disposition to be null and void as a matter of course, it must be objectively obvious that the defect is a serious violation of the important part of the law, and its purpose, meaning, function, etc. should be examined from a teleological perspective to determine whether the defect is significant and obvious, and at the same time, reasonable consideration should be given to the specificity of the specific case itself. In a case where an administrative disposition was rendered by applying a certain provision to a certain legal relationship or factual relationship, despite the absence of room for dispute over the interpretation of the law, the legal principles clearly stated that the provision of the law cannot be applied to the legal relation or factual relationship, and thus, if there is room for dispute over the interpretation of the law because the legal principles that the provision of the law cannot be applied to such legal relation or factual relation clearly show, it is obvious that the defect is merely a misunderstanding of the fact that the administrative disposition was taken by the administrative agency, which is not subject to the administrative disposition, and even if there is objective circumstance that could mislead it as to any legal relation or factual relation that is not subject to the administrative disposition, it should be clarified even if it can be found obvious.

No appeal may be made (see, e.g., Supreme Court Decision 2006Da83802, Mar. 16, 2007).

B) In light of the aforementioned legal principles, it is clear whether the Plaintiff applied for the allocation of emission permits in this case for the extension of facilities in this case without considering the expected emission quantity of the facilities in question, and whether the Plaintiff made the disposition of allocation of emission permits in this case without considering the pertinent laws and regulations, such as the Emission Trading Act, and whether the Plaintiff made the disposition of revocation of allocation of emission permits in this case, despite the decrease of greenhouse gas emissions through the improvement of facilities in the facility in this case, can be determined based on the facts related to the requirements for the above disposition, and it cannot be said that the disposition of allocation and revocation of allocation of emission permits in this case is subject to disposal only after an accurate investigation into the facts. Thus, it cannot be said that all defects are serious and apparent (the Plaintiff argues that Article 31(1)2 of the Guidelines, which was the basis for the revocation of allocation of emission permits in this case, goes beyond the delegation of laws and regulations, but the above provision of allocation guidelines is not in violation of the above law and regulations, and thus, it cannot be deemed that the above provision has violated the principle of revocation of delegation of emission permits.

C) Furthermore, in light of the following circumstances, even if there is any illegality in the instant disposition on the allocation and revocation of allocation of emission permits, comprehensively taking account of the respective entries in Gap evidence Nos. 17 and Eul evidence Nos. 1 through 4 and the purport of the entire pleadings, each of the above dispositions is lawful as it was conducted in accordance with the relevant laws and regulations, such as the Emission Trading Act.

(1) When a business entity eligible for allocation of emission permits applies for the allocation of emission permits, it shall submit documentary evidence of "data, such as load rates, operating hours, emission intensity, and emission intensity using annual average operation performance of facilities for the base year of the relevant year, which are anticipated to increase in the estimated greenhouse gas emissions (Article 5 (3) of the Guidelines for the allocation of this case), and shall be calculated by multiplying the design capacity of the relevant facilities, anticipated load rates, operating hours, and emission intensity due to the extension of anticipated greenhouse gas emissions by all the estimated greenhouse gas emissions in the relevant facilities, and the above load rates, operating hours, and emission intensity shall be used for the annual average operation performance of the existing facilities for the last year or the base year (Article 10 (1) 2 (b) of the Guidelines for the Allocation of this case), the Ministry of Environment and the Korea Environment (hereinafter referred to as the "Guidelines"), the data on the application for the allocation of emission permits prepared by the Ministry of Environment and the Korea Environment concerning the extension of operating hours of facilities for the relevant year."

At the time of filing an application for the instant First and Second Allocation, the Plaintiff submitted evidence related to the operating hours of the instant extension facility, “AB Dong 2013,” “Cdong 2013,” and “Ddong 2013,” and “the operating hours of the equipment in operation (No. 3-1-3). This does not constitute evidence as to the operating hours described in the instant guidelines, and the operating hours stated in the said guidelines are calculated by multiplying the annual average working hours by the number of hours and days, not the actual working hours, and there is no objective material to support the foregoing, and it is difficult to view that there is no objective material to support it as evidence on the annual average working hours of the base year or the last year, and thus, it cannot be deemed that the Plaintiff properly submitted evidence on the instant facilities at the time of filing an application for the instant First and Second Allocation (the Plaintiff’s submission of evidence on the operating hours of the equipment in the instant case cannot be seen as “specificly adjacent to the operating hours of the equipment in the instant case.”

(3) The Plaintiff asserts that the Defendant should have allocated emission permits based on the time when it is reasonably anticipated from the Plaintiff’s submission of additional data to confirm operating hours or the data submitted by the Plaintiff, so long as it is certain that the amount of greenhouse gas emissions is increased due to the operation of the instant extension facilities. However, the allocation of emission permits is conducted upon the application of a business entity eligible for allocation, and the preparation of an application for allocation and the submission of evidentiary data are also conducted under the Plaintiff’s responsibility. As such, the Defendant cannot be deemed to have the above obligation, and matters concerning the method of preparing the application and the submission of evidentiary data are deemed to have been subject to prior guidance through the distribution of

④ In addition, the Plaintiff asserts that the Plaintiff’s allocation of emission permits in the target management system under the Framework Act on Low Carbon, Green Growth and the allocation of emission permits in the emission trading system are calculated based on the evidence submitted by the Plaintiff, and that the Plaintiff’s allocation of emission permits in 2015 to the emission quota in 2015 is unlawful, even though the Plaintiff’s allocation of emission permits in 2014 is considered. However, the Plaintiff’s allocation of emission permits in 2015 is against law. However, the State’s allocation of emission permits in the emission trading system is divided into the government’s total emission allowances by sector and by business type, and it is determined to the extent that the Plaintiff’s allocation of emission permits in 2015 based on the allocation of emission permits in the instant case is not reflected in the Plaintiff’s emission permits in the calculation of emission permits in 2015 due to lack of evidentiary materials. Considering the above,

⑤ The Defendant issued the instant disposition to revoke the allocation of emission permits on the ground that the Plaintiff’s 2015 greenhouse gas emissions in the Plaintiff’s waste gas incineration facilities in the instant place of business constituted OtC02-eq and 10% of emission permits allocated during the same period constituted suspension of operation pursuant to Article 31(1)2 of the instant allocation guidelines. As to this, the Plaintiff asserted that the Plaintiff was in accordance with the Plaintiff’s facility improvement work rather than the suspension of operation of greenhouse gas emissions. However, it is difficult to recognize that the Plaintiff’s data submitted in the instant facility’s 2015 greenhouse gas emissions in OCO2-eq were the result of the facility improvement work, and there is no other evidence to prove otherwise.

3) Sub-determination

Therefore, the defendant's imposition of the penalty surcharge of this case is legitimate, and the plaintiff's above assertion is without merit.

3. Conclusion

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

Judges

The presiding judge, Yoon-sung

Judges Kim Jae-han

Judge Kang Dong-hun

Note tin

1) The Ministry of Strategy and Finance, the Ministry of Trade, Industry and Energy, and the Minister of Trade, Industry and Energy revised the Enforcement Decree of the Act on Trading of Emission Permits on May 24, 2016 (Article 6 of the Enforcement Decree of the Emission Trading Act).