(영문) 서울행정법원 2020.6.5.선고 2019구합60301 판결

1. The part of the plaintiffs' lawsuit seeking revocation of the disposition of reallocation of greenhouse gas emission permits to G Co., Ltd. on December 28, 2018 shall be dismissed.

2. All of the plaintiffs' remaining claims are dismissed.

3. The costs of lawsuit are assessed against the plaintiffs.

Purport of claim

The decision that the defendant revoked the disposition of reallocation of greenhouse gas emission permits made to G Co., Ltd. on December 28, 2018 and the decision that the defendant revoked all the disposition of rejection of allocation of greenhouse gas emission permits as stated in attached Form 2 that the defendant against the plaintiffs on December 28, 2018.

Reasons

1. Basic facts

(a) Progress of previous dispositions concerning allocation of greenhouse gas emission permits;

1) The Plaintiffs and G Co., Ltd. (hereinafter “G”) are both companies engaged in cement manufacturing and sales business.

Defendant 1) On September 12, 2014, the Ministry of Environment publicly announced and announced a business entity entitled to allocation of emission permits under Article 8 of the Act on Allocation and Trading of Greenhouse Gas Emission Permits (hereinafter “Emission Trading Act”) as H, and designated Plaintiffs 2 and G as a cement business entity subject to allocation of cement industry.

2) On September 16, 2014, the Defendant: (a) pursuant to Article 3(8) of the former Enforcement Decree of the Act on the Allocation and Trading of Greenhouse Gas Emission Permits (amended by Presidential Decree No. 27181, May 24, 2016; hereinafter referred to as the “Enforcement Decree of the former Act on Trading Emission Permits”; and (b) pursuant to Article 3(8) of the former Enforcement Decree of the Act on the Allocation and Trading of Greenhouse Gas Emission Permits (amended by Presidential Decree No. 27181, May 24, 2016, the Defendant issued an application for the allocation of the previous portion of the emission permits to the Defendant within the scope of “the previous allocation of the emission permits” and the previous allocation of the emission permits within the scope of “the previous allocation of the emission permits from January 1, 2015 to December 31, 2017” (see subparagraph 2; hereinafter referred to as “the first commitment period”). The Plaintiffs and G were subject to the allocation of the same G emission permits from 14th.

[Unit: KAU3]

A person shall be appointed.

4) Details of G’s facilities and the content of the instant previous allocation disposition on the said facilities

A) Since around 2010, G prepared a detailed statement (hereinafter “the instant statement”) under the former Framework Act on Low Carbon, Green Growth (amended by Act No. 14122, Mar. 3, 29, 201; hereinafter “Green Growth Act”) stating the quantity of cleaning, greenhouse gas emissions, etc. in the workplace, and reported it to the Defendant after being verified by the K Association, etc.

B) The base year of G confirmed by the instant specification, etc. (referring to the year that serves as the basis for calculating the estimated greenhouse gas emissions by each Do during the first commitment period. The base year for the first commitment period is three years from September 2011 to 2013, which is the time of designation of a business entity eligible for allocation. Eul evidence 2, 19, 22 pages) greenhouse gas emissions are 4,137,071tCO2q in the year 201, 4,770,089tCO2q in the year 2012, 5,573,116tCO2g in the year 5, 2013, G is 99, 2000 small facilities (referring to 1, 2, 3, 55, and 6) total five years, and the unit number of facilities (referring to 1, 201, 2, 300, 2000) and 9.

D) Meanwhile, the facility set forth in subparagraph 1 was resumed as the primary high-water production facility in 2014, which was operated by the year immediately preceding the base year, and the facility set forth in subparagraph 2 was operated as the primary high-water production facility in 2010, which was operated by the year immediately preceding the base year, and was operated in 2011, and was not operated in the year 2012.

G reported differently to the Defendant on a serial number 031 in the specification at the time of the Chinger production in 2010, a serial number 023 in the specification at the time of the production in Chinger production in 201, and a serial number 035 in the specification at the time of the production in Chinger production in 2013.The characteristics of each facility in this case and the classification of each facility in detail are as follows:

(1) Facilities referred to in subparagraph 1: It falls under subparagraph 2 of the base year (2011 to 2013). It is a facility operated since March 2014, the first commitment period of the immediately preceding year, which was remodeled into a primary manufacturing facility, and operated since March 2014. According to the classification of the calculation method of attached Table 1, ‘former Guidelines on the Allocation of Greenhouse Gas Emission' (2016-10, Jun. 8, 2016; hereinafter referred to as ‘former Allocation Guidelines') of the Guidelines on the Allocation, Adjustment and Cancellation of Greenhouse Gas Emission Permits (200, hereinafter referred to as ‘GF'). According to the classification of the calculation method of attached Table 1, it is applicable to the 2nd commitment period of the 1st commitment period of the 2nd commitment year (the first commitment period of the 2nd commitment period of the 2nd commitment period of the 2nd commitment period of the 2nd greenhouse gas emission facilities, referring to the respective allocation method of greenhouse gas emission during the last three years.

E) The Defendant: (a) the facility set forth in subparagraph 1, which G had not been operated even if it was installed in the previous year, is “a new facility that is anticipated to release greenhouse gases,” on the ground that the record of greenhouse gas emissions was confirmed from the year 2014 following the base year; and (b) the facility set forth in subparagraph 2, which remodeled the previous facility two times after the installation, is “a new facility for the last year of the base year from the year 2013, which is the last year of the base year,” respectively; and (c) assessed the emission amount in a way different from the continuing operation facility, and assessed the emission amount in a way different from that of the previous facility that the Plaintiffs raised.

1) On February 27, 2015, the Plaintiffs were drafted against the Defendant on February 27, 2015 by false or unjust means, and the Defendant’s physical addition to the facilities under subparagraphs 1 and 2 of G constitutes both physical addition.

Although it cannot be classified as a new facility because it did not exist, it is argued that all of them were recognized as a new facility and allocated emission permits excessively in violation of the relevant laws and regulations, and that all of the previous dispositions of this case were filed a lawsuit claiming revocation of all of the previous dispositions of this case (the plaintiff FFF corporation is the Seoul Administrative Court 2015Guhap3386, the Seoul Administrative Court 2015Guhap5462, hereinafter referred to as the "previous case").

2) On February 2, 2017, the judgment of the first instance court rendered in favor of the Plaintiffs who revoke all the previous dispositions of the Defendant on February 2, 2017. Accordingly, the Defendant appealed from Seoul High Court 2017Nu38739 and the above 2015Guhap5462 cases, respectively.

A) The instant case No. 2017Nu38760 was finalized by the final appeal (Supreme Court Decision 2018Du46230) after the final appeal was dismissed ( May 4, 2018) (Supreme Court Decision 2018Du46230).

B) The instant case No. 2017Nu38739 was affirmed after the judgment in favor of the Plaintiff was rendered ( November 14, 2018) to the effect that only the instant previous rejection disposition against the Plaintiff F Co., Ltd. was revoked in accordance with the appellate court’s partial withdrawal of the lawsuit on the part of the claim seeking revocation of the previous allocation disposition of this case and the claim seeking revocation of the previous allocation disposition of this case (hereinafter “the final judgment of this case”).

3) Of the final judgment in the instant case, the summary of the grounds related to the instant case (where the grounds of the first instance judgment were modified by the appellate court, referring to the summary of the judgment presented by the appellate court) such as determining that the establishment of the facilities set forth in subparagraphs 1 and 2 is unlawful, etc. are as follows.

A person shall be appointed.

4) Meanwhile, the reasoning of each judgment of the first instance court in the instant case is as follows.

A person shall be appointed.

The decision of the Seoul Administrative Court 2015Guhap5462, the appellate court of the 2017-38760 case does not refer to the corresponding part of the first instance court, but it is difficult to conclude that it is impossible to recover the illegal state caused by the above disposition when the plaintiffs are revoked for the reason of illegality of the previous allocation disposition of this case.The purpose of the reserve portion according to the national emission permit allocation plan is to include adjustment of allocation according to the result of an objection against the prior allocation of emission permits.

In light of the fact that it is possible to adjust the amount of allocation in advance according to the result of the objection filed by a business entity eligible for allocation, there is room to regard the adjustment of allocation according to the above disposition as possible (Evidence 1 No. 8). The Seoul High Court Decision 2017Nu38739 case, the appellate court of the Seoul Administrative Court, 2015Guhap386 case, cited the above first instance judgment pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, and subsequently modified all of the above statements on the safety objection (Evidence 3). This is because F Co., Ltd. which is the plaintiff of the above appellate court, did not have any lawsuit subject to the safety objection by withdrawing the lawsuit against G (i.e., seeking the revocation of the previous allocation disposition of this case).

Meanwhile, the Defendant notified the Plaintiffs and G of the additional allocation of emission permits for year 2017 (hereinafter referred to as “additional allocation in February 20, 2017”) following the increase in total emission allowances due to the increase in total emission allowances on February 20, 2017, Article 16 of the Emission Trading Act and Article 9 of the Enforcement Decree of the same Act) and Article 3 and Article 20 (10) of the same Act (hereinafter referred to as “additional allocation in February 20, 2017”). Such additional allocation was made in a manner that allocates assets in advance for each company based on the amount of emission permits recognized by each company as at the first commitment period and the changed adjustment factor (0.971). Accordingly, the details additionally allocated by the Plaintiffs are as listed below.

【Unit: KAU】

A person shall be appointed.

D. On December 28, 2018, after the judgment of this case became final and conclusive, the Defendant reaffirmed greenhouse gas emission permits for the first commitment period to the Plaintiffs (hereinafter “instant re-disposition”) on December 28, 2018, and the total amount and detailed details thereof are as listed below, and the final allocation is in accordance with the method set forth in paragraph (c) above.

In other words, the additional allocation in 2017 is included in 13). The following additional allocations had already been made by the party for which the first commitment period has already expired: (a) the number of emission permits allocated to the instant re-disposition in the first planning year among the 3,600,000 KU, which dealt with the destruction in preparation for the winning of the Plaintiffs in the previous case, was carried over to the reserve portion for the second commitment period, and the emission permits were allocated in the year 2018 (i.e., April 6, 2020).

[See Article 9 of the Briefs to be submitted by Defendant]

For inserting a label, a margin (unit: KN)

A person shall be appointed.

Attachment 1 is applicable to the allocated allocation (i.e., the allocation rejected in the previous rejection disposition of this case) that is rejected as shown in Attachment 1. This paragraph deducts the additional allocation as of February 20, 2017 and deducts the increased portion through the re-disposition of this case, and the remaining refused allocation is as shown in Attached Table 2 (hereinafter referred to as the "disposition of this case").

2) Meanwhile, after the judgment of this case became final and conclusive, the Defendant re-assignmented greenhouse gas emission permits to G for the first commitment period, and its detailed details are as follows: (a) the same emission quantity as the previous allocation disposition of this case plus the additional allocation in 2017; (b) there is no substantial change in the total quantity before and after the final and conclusive judgment of this case (hereinafter “instant reallocation disposition”); and (c) “the instant disposition” combined with “the instant rejection disposition.”

The emission permits allocated to G are set out in the first commitment period. The Defendant transferred emission permits allocated to G in accordance with the instant final decision of this case to the first commitment period, and immediately allocated the emission permits to G through the instant disposition of reallocation (see, e.g., the 9th written statement submitted by the Defendant, Apr. 6, 2020).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1 to 4 and 7, the purport of the whole pleadings

2. Relevant statutes;

Attached Form 3 is as listed in attached Table 3.

3. The plaintiffs' assertion

In accordance with the purport of the instant final and conclusive judgment, the Defendant: (a) revised the guidelines on the allocation, adjustment, and revocation of greenhouse gas emission permits (hereinafter referred to as “new allocation guidelines”) under Article 2018-126 of the Notice of Ministry of Environment (hereinafter referred to as “new allocation guidelines”) on July 31, 2018 on the premise that the instant facilities in the instant case are considered to be “severable facilities” in accordance with the purport of the instant final and conclusive judgment; and (b) re-dispositions of the instant allocation to G with the same contents as the previous allocation guidelines; and (c) issued the instant disposition of rejection that the Plaintiffs are not entitled to receive emission permits properly in accordance with the purport of the instant final and conclusive judgment by either increasing the small amount of emission permits; and (d) issued the instant disposition of rejection on the ground that each of the instant dispositions was unlawful for the following reasons.

1) Each of the instant dispositions is unlawful as it goes against the binding force of the instant final judgment.

G) Until 2012, G submitted a revised statement of emission permits as one of the 5th emission permits without distinguishing them from 10th emission permits (hereinafter “integrated report”), and the Defendant’s submission of a revised statement of emission permits by separating each of the 1st emission permits from 2014 to 2014, thereby creating external appearance as if the relevant facilities existed separately from the previous one, and the installation of new facilities is confirmed from 2014, the entry of the record of emission permits from 2013, which is the last year of the base year. The purport of subparagraph 2 is that the Plaintiffs’ submission of the revised statement of emission permits should not be treated differently from the construction of new facilities. The Plaintiffs’ submission of the revised statement of emission permits to 20th emission permits by 10 to 20th anniversary of the initial allocation guidelines of emission permits (see, e.g., Supreme Court Decision 201Da71729, Jul. 1, 2012).

The defendant applied the new allocation guidelines at the time of each of the dispositions of this case. The new allocation guidelines without the transitional provisions are merely a public announcement made by the defendant himself to avoid speed and justify illegal original dispositions, and they cannot be applied to each of the dispositions of this case as an abuse of administrative legislative power (see, e.g., Supreme Court Decision 2009Da19999, Aug. 20, 2019).

2) Although the allocation of emission permits to G pursuant to the previous allocation disposition of this case, which was revoked due to the instant final and conclusive judgment, is not attributed to a preliminary allocation, each disposition of this case is unlawful. Although the revocation of emission permits to G pursuant to the instant final and conclusive judgment, should be reverted to a preliminary allocation of all types of business, including the Plaintiffs, and should be prompt reallocation, the Defendant’s arbitrary allocation of emission permits to G should be reverted to G by using the same amount as the previous allocation is unlawful in itself as it is without justifiable grounds. The allocation of emission permits to be revoked as a result of the instant final and conclusive judgment of this case is in response to the expected emission volume of the pertinent type of business, and the enterprise belonging to the pertinent type of business can assert exclusive allocation. Thus, the allocation of emission permits revoked as a result of legitimate litigation should be calculated and allocated at a rate equivalent to the approved amount of the Plaintiffs and G subject to re-disposition and the revoked amount of G’s revocation (see Article 10, 26 pages).

3) The application of the new allocation guidelines to take the instant disposition and the instant disposition of rejection is against the principle of equality, as it is aimed at giving preference to the allocation of particularly more emission permits than when the previous allocation guidelines have been applied only to G without reasonable grounds.

The allocation of emission permits for the first commitment period has already been completed by the application of the former allocation guidelines and the relationship of rights has become final and conclusive. Accordingly, the former allocation guidelines shall apply so as to comply with the existing order of trade in emission permits. However, the defendant maintains the contents of the previous allocation guidelines for G only by applying the new allocation guidelines to G, and applied the previous allocation guidelines to the plaintiffs differently by applying the contents of the former allocation guidelines (see, e.g., Supreme Court Decision 14th, Aug. 20, 2019; Supreme Court Decision 12th, Nov. 20, 2019).

4) Each of the instant dispositions goes against the principle of prohibition of retroactive legislation.

The Defendant applied the new allocation guidelines in calculating the estimated emission volume of G at the time of each of the instant dispositions, except for the allocation of emission permits that would have been allocated to the Plaintiffs, while, by applying the new allocation guidelines, it violated Article 13(2) of the Constitution, since the Defendant violated the right to property, which should have been reverted to the Plaintiffs by revising the statutes later, by applying the new allocation guidelines (see, e.g., Supreme Court Decision 21th, Aug. 20, 2019).

Since the legal relationship of the allocation of G has already been terminated, it goes against the principle of retroactive legislative prohibition if the statute is retroactively applied to the factual relations or legal relations already completed or terminated before the new allocation guidelines are implemented. Moreover, the revision of the allocation guidelines is not an amendment from any reflective consideration, but merely an amendment in accordance with the policy goals changed in the allocation of emission permits for the second commitment period. Thus, the new allocation guidelines that have different policy directions for the prior allocation of the first commitment period to which the former allocation guidelines were applied cannot be applied retroactively, and even if the matter subject to the former allocation guidelines is subject to the application of the principle of equality, the new allocation guidelines cannot be applied until they go against the principle of equality or set speed (Article 12, 13.5 of the preparatory brief submitted by the plaintiff as of October 16, 2019). However, even if it is justifiable to apply the new allocation guidelines to each disposition of this case, the defendant erred by misapprehending the legal principles and application of Article 11(1)3 of the new allocation guidelines to the offender or abused its discretionary power as follows.

A) When calculating the allocation of emission permits to a facility under subparagraph 1, the Defendant determined in accordance with the new allocation guidelines whether the relevant facility is a newly established facility, and applied the allocation method to the first commitment period, and without any grounds, calculated the allocation by mixing the new and old provisions to allocate the same emission permits as those of the previous disposition to G with the same emission permits as that of the previous disposition. Accordingly, the previous disposition for G unilaterally favorable to G was maintained (see, e.g., Supreme Court Decision 18th of October 16, 2019).

In other words, according to the new allocation guidelines, G's facility No. 1 falls under expected new facilities during the commitment period and should be additionally allocated according to actual emission volume, not design capacity, and the defendant maintains previous allocation by applying the corresponding part of the old allocation guidelines that provide that prior allocation according to design capacity shall be made according to the previous allocation guidelines and maintains the previous allocation, so that many emission permits can be allocated to G only after passing the new allocation guidelines and the old allocation guidelines (see, e.g., the reference documents submitted by the plaintiffs as of May 26, 2020).

B) Relevant issues related to the separate report of G

Each disposition of this case is based on the changed data by separately reporting the amount of greenhouse gas emissions of each facility of this case, all of which G were previously integratedly reported. The defendant's method of allocation of emission permits is based on the changed data. The defendant's method of allocation of emission permits, one of the integrated reports is the same as the base year since it is practically the same as the demand for emission permits. Thus, even though the new installation of emission facilities is the same in the same manner as the demand for emission permits, it is changed depending on the form of the report, and thus the final allocation becomes different. This is contrary to the purport of the Act on Trading of Emission Permits, which prescribes that the allocation of emission permits shall be made in compliance with the annual demand for emission permits of the allocation company and the equality of the allocation of emission permits between business entities eligible for

G prepares a separate report in 2013 retroactively from the previous specifications, and it cannot be deemed that there has been a consistent separate report from the year 2010, and there should not be any supplementary result that, according to the retroactive preparation, a specific element of a specific element is treated as a facility that has no data on the actual emission result, resulting in the allocation of a large number of emission permits (see the above preparatory document No. 10, 13);

C) In calculating the expected emission volume of the instant re-disposition 2 against the Plaintiffs, the Defendant calculated the expected emission volume according to the annual emission volume of 1 year 2013, while viewing it as a continuing facility rather than a new facility. However, the anticipated greenhouse gas emission volume of the facility No. 2 should be the average amount of greenhouse gas emissions for three years in 2013 (i.e., the amount including the annual average emission volume of the year in which the base year is zero).

On the other hand, it is likely that the three-year emission levels would be in violation of equity with the case of a consolidated report (see, e.g., Attached Table 1) and that the part corresponding to [Attachment Table 1] of the former Guidelines would ultimately comply with the purport of the former Guidelines for Allocation, but it would not be limited to the case of "facilities without some specifications for the three-year period of the base year" to utilize the greenhouse gas emission levels in the single-year specifications. However, it cannot be deemed that the corresponding part of "facilities without any emission levels" is applied to "facilities without any emission levels" as stated in subparagraph 2 with other small-scale facilities for 2012, but without any emission levels (see, e.g., e., Supreme Court Decision 200Du1620, Sep. 11, 2019; Supreme Court Decision 200Da1725, Sept. 20, 2014).

4. Whether the part of the plaintiffs' lawsuit seeking revocation of the disposition of reallocation of this case is legitimate

A. The defendant's main defense

The total amount of emission permits is composed of ‘prior allocation' and ‘preliminary allocation', and the reserve allocation does not exist, unlike pre-distributions, and the total amount of emission permits for other purposes of the first commitment period reaches 3,113,529 KAU. In the disposition of reallocation of this case, the defendant recognized each of the facilities of this case as new facilities and calculated the allocation of emission permits to G. In the disposition of reallocation of this case, the defendant calculated the allocation of emission permits to G on the premise that each of the facilities of this case is not recognized as new facilities. In the case of the disposition of rejection of this case, the amount of emission permits to the plaintiffs and G is calculated entirely separately from the allocation to the plaintiffs, and all of the above amount of emission permits to the plaintiffs are left from the reserve (refer to

The total amount of emission permits corresponding to the instant refusal disposition, which the Plaintiffs sought as the instant lawsuit, is merely 3,083,075 KU and is merely 10% of the remaining reserve for other purposes. Therefore, even if the instant reallocation disposition is revoked, as long as the emission permits allocated to G are not allocated to G immediately to the Plaintiffs, this does not directly belong to the restricted emission permits, G and the Plaintiffs are not in a competitive relationship with G and the limited emission permits. Accordingly, there is no legal interest in seeking the revocation of the instant reallocation disposition.

(b) Facts of recognition;

The above evidence, Eul evidence, evidence Nos. 15, 16, and 17, and the purport of the whole pleading

The facts concerning the applicable methods and results of the Defendant’s dispositions in each of the instant dispositions, and the contents of the Defendant’s guidelines applied for each of the instant dispositions, as well as the applicable cases to help the Defendant understand them, are as follows.

(i) the method of calculating the allocation to each company for the first commitment period;

A) Pursuant to ① whether each company has maintained existing facilities during the base year (from 2011 to 2013), ① whether they have been newly established or expanded during the base year, and whether they were closed.

It is classified as follows. ② After calculating the estimated amount of greenhouse gas emissions for each compliance year during the planning period by identifying whether there are facilities that are anticipated to be newly established or expanded during the immediately preceding year (2014) or during the planning period, the estimated amount of greenhouse gas emissions for each compliance year shall be calculated if both the existing facilities of the individual company and the anticipated amount of greenhouse gas emissions for each compliance year of the facilities newly established or expanded by each facility are combined.

(B) If all anticipated greenhouse gas emissions of each compliance year of individual enterprises belonging to such specified type of business so calculated are all met, the final greenhouse gas emissions expected for the compliance year of that type of business shall be calculated.

C) When calculating the expected greenhouse gas emissions for each compliance year of such specific type of business, emission permits are allocated to business entities eligible for allocation belonging to the same type of business within the scope of pre-distributions set in the plan for allocation of the first compliance year, which is set in advance, and the anticipated greenhouse gas emissions for a compliance year are higher than the pre-distribution of the pertinent compliance year for the pertinent compliance year of the type of business during the commitment period of the business. If the anticipated greenhouse gas emissions for the pertinent compliance year of the individual entity belonging to the type of business are calculated by multiplying the 'Adjustment coefficient' by the expected greenhouse gas emissions for the pertinent compliance year

The adjustment coefficient is determined by dividing the amount of emission permits in advance for each compliance year of a specific type of business into the amount of greenhouse gas emissions expected for each compliance year of a specific type of business.

(d) the addition of all emission permits allocated for each compliance year by an individual enterprise so calculated would constitute emission permits allocated for each individual business entity eligible for allocation for the first commitment period.

2) After the final judgment of this case, the calculation method of emission permits allocated at the time of each disposition of this case

A) As seen earlier, the previous disposition of this case classified the expected greenhouse gas emissions in the first commitment period of G into new facilities that are expected to be installed in each of the instant facilities, and calculated the adjustment coefficient based on it, and set the allocation of emission permits during the pertinent commitment period between G and the Plaintiffs. The revocation of the first commitment period (the instant previous allocation disposition) allocation of G in accordance with the instant finalized judgment, ① the prior allocation of emission permits in each compliance year according to the first commitment year allocation plan between G and the Plaintiffs, ② the anticipated greenhouse gas emissions in each compliance year between G and the Plaintiffs, ③ accordingly.

Emission permits shall be re-assignmented according to the adjustment coefficient of each compliance year of the cement type calculated.

The allocation under the allocation plan for the first year is the same amount regardless of the instant final judgment, and the expected greenhouse gas emissions for each compliance year by other individual companies of cement type except G are the same as the initial greenhouse gas emissions. Ultimately, according to the purport of the instant final judgment and the anticipated greenhouse gas emissions by G, which are determined by the laws and regulations applicable at the time of the instant re-disposition, the estimated greenhouse gas emissions for each compliance year of the cement type as a whole are determined according to the purpose of the instant final judgment and the expected greenhouse

B) Amendment to the new allocation guidelines, the method of calculating the expected amount of greenhouse gas emissions, etc. in G in relation to the disposition of reallocation (the instant disposition) and the Plaintiffs’ emission permits re-assignment (the instant re-disposition)

(1) According to the new allocation guidelines amended on July 31, 2018, when the previous lawsuit on the final and conclusive judgment of this case was pending before the court, the concept of “construction of facilities” as stipulated in Article 2 subparag. 12 was changed as follows.

A person shall be appointed.

(2) Calculation method of anticipated greenhouse gas emissions expected during the first commitment period of G, which is the premise of the instant disposition of reallocation.

① The Defendant applied Article 2 subparag. 12 of the New Allocation Guidelines amended for this purpose. According to the foregoing, each of the instant facilities is assessed as new facilities because the classification of greenhouse gas emissions activities varies as raw materials or fuels are modified by remodeling emission facilities.

(2) Facilities referred to in subparagraph 1 shall be evaluated as "facilities to be newly installed".

However, unlike stipulated in Article 10(1)2 of the former Guidelines, the new allocation guidelines are deleted, and the Defendant applied the formula for calculating greenhouse gas emissions expected for each compliance year’s anticipated greenhouse gas emissions (the same content as that of the former allocation guidelines) set out in the first allocation plan to calculate G allocation for the instant disposition, based on Article 11(1)3 of the new allocation guidelines (see, e.g., Article 37 through 40 of the briefs submitted to the Defendant on October 11, 2019).

The formula in which the first commitment period allocation plan utilizing the defendant is determined is as follows:

A person shall be appointed.

(3) Facilities referred to in subparagraph 2 shall be assessed as "facilities newly established in the last year of the relevant year".

The method of calculating greenhouse gas emissions in this regard is the same as the variables and contents of the old allocation guidelines and the formula of new allocation guidelines except for minor changes in the organization.

④ Ultimately, as seen earlier, the formula applied to calculate the previous allocation and the estimated greenhouse gas emissions of G, which is the premise of the instant reallocation disposition, is the same as the same, and even according to the new allocation guidelines, the estimated emission quantity, which is naturally the premise of the instant previous allocation disposition, is the same as the estimated emission quantity of G, which serves as the premise of the instant previous allocation disposition. Ultimately, notwithstanding the final judgment of this case, there is no change in the allocation

(3) Comparing with G’s calculation method of anticipated greenhouse gas emissions during the first commitment period, which is the premise of the instant disposition, and with the calculation method for the instant disposition for reallocation.

(1) However, the Defendant calculated the allocation of emission permits to the Plaintiffs in accordance with the new allocation guidelines, i.e., when disposing of the instant disposition, on the premise that each of the instant facilities is not recognized as new facilities in accordance with the purport of the instant final and conclusive judgment, subparagraph 1 of Article 9(1)1 of the New Allocation Guidelines (GF applicable facilities) and Paragraph 2(16) of the same Article (0 of the anticipated greenhouse gas emission quantity for each compliance year). The part of the burning emission of the facilities under subparagraph 2 (h) and [Attachment 1] under Article 9(1)1(h) of the New Allocation Guidelines (BM applicable facilities) and [Attachment 1] of the New Allocation Guidelines to calculate the allocation of emission permits to the Plaintiffs, i.e., when disposing of the instant disposition, the first year and the second year’s activity data for the three years, i.e., when calculating the emission permits to the Plaintiffs, the number of greenhouse gas emission permits to the first year and the second year’s activity data for the first year and the second year’s emission guidelines.

A person shall be appointed.

② In sum, in the instant disposition, the Defendant considered each of the instant disposition as a new facility in accordance with the new guidelines for allocation of each of the instant facilities (hereinafter referred to as “facilities for a short year”) on the premise that the instant disposition against the Plaintiffs was not deemed a new facility for the instant disposition. However, in particular, in the instant disposition against the premise that the instant facilities are not deemed a new facility for the instant disposition against the Plaintiffs, the Defendant considered as a “facilities with no greenhouse gas emissions and activity costs for a certain year out of the specifications for the base year three years among the sustainable operation facilities,” and calculated the estimated emission amount of greenhouse gases for the pertinent year (hereinafter referred to as “facilities for a short year”) by using only the activity data for the 2013-year operating facilities (the part in which the BM is applied) and the greenhouse gas emissions (the part in which the GF is applied).

③ In making the instant re-disposition against the Plaintiffs, the Defendant reflected the expected greenhouse gas emission volume of G calculated as above (the amount decreased rather than the expected greenhouse gas emission volume premised on the previous allocation disposition in this case as a new facility) in the pertinent type of business, and calculated the adjustment coefficient (i.e., the decrease in the total expected greenhouse gas emission volume in the pertinent type of business, as the decrease in the amount of decrease in the amount of the pertinent type of business, and eventually the decrease in the amount of the allocation to calculate the adjustment coefficient, the adjustment coefficient will be increased) based on the adjustment coefficient calculated as such and the prior allocation coefficient calculated as such in advance plan (the calculation of the allocation of the amount of emission permits in 2017 among them is based on the prior allocation quantity indicated in the revised and increased plan, as seen in the preceding paragraph (c). Accordingly, the addition of the allocation in February 20, 2017, which was null and void, becomes effective) by the allocation period of emission permits for each year to the Plaintiffs.

1. The second disposition of this case, such as D., is reached.

(4) Carry-over of emission permits in reserve for the first commitment period and other purposes, and reallocation, etc. of emission permits by the instant re-disposition from this point.

On January 2, 2019, the Defendant decided to carry forward the emission permits to be additionally allocated to the Plaintiffs through the instant re-disposition, and carried over the preliminary emission permits for the first commitment period and for other purposes to the reserve account for the second commitment period (2018 to 2020), which was after the instant re-disposition, to the Plaintiffs on the same day, the volume of each of the “an increase in reallocation by the Plaintiff” in the table in paragraph (1) of the instant re-disposition was actually allocated to the Plaintiffs in proportion to the volume stated “an increase in reallocation by the Plaintiff” in the table in paragraph (1) of the instant re-disposition (see evidence 15 to 17).

C. Determination on this safety defense

In full view of the following circumstances known in light of the relevant laws and regulations, the amount of excess in the previous allocation in relation to G, which was revoked by the judgment of this case, shall be attributed to the "reserve allocation for the first commitment period", and the re-disposition against the plaintiffs shall be allocated as emission permits carried over from the "reserve allocation for the second commitment period" that the plaintiffs should have been allocated at the time of allocation of the first commitment period due to changes in the adjustment coefficient for the allocation of the "pre-assignment allocation for the first commitment period" on the premise that each of the facilities of this case are not deemed new facilities, such as the purport of the final decision of this case, and there is no legal interest in seeking the revocation of the re-assignment disposition of this case, since the disposition of this case cannot be deemed to have been revoked as any additional emission permits.

1) According to Article 17(1)5 and Article 17(2) of the Emission Trading Act and Article 22(5) and (9) of the Enforcement Decree of the Emission Trading Act, when all or part of emission permits allocated by fraud or other improper means are revoked, the competent authority shall transfer emission permits from the emission trading account of the relevant business entity eligible for allocation to the reserve trading account for emission permits.

① The above provision is an order of law enacted by the explicit delegation of the Act on Trading Emission Permits and has external binding force as well as administrative entities. ② The above provision applies to revocation of ex officio due to the reason that the application for allocation of emission permits in advance was made by fraudulent or other improper means and that existed before the allocation, not after the allocation.

As such, the allocation of emission permits is determined to be reverted to the reserve account without directly re-assignment from the trading account of a business entity eligible for allocation to the account of other business entities, even though there are grounds for the change in the adjustment coefficient, such as this case in the final decision in this case, and the reasons for such determination are explicitly stated in Articles 19(5) and 21(10) of the Enforcement Decree of the Emission Trading Act to be used in the reserve account for early reduction performance and for allocation due to business operation. According to the first commitment plan, the allocation of emission permits pursuant to Article 38 of the Emission Trading Act should also be made through preliminary allocation (see subparagraph 2 of this case No. 39). Ultimately, in consideration of the fact that the allocation of emission permits is made ex officio and thus, it is not necessary to cancel the allocation of emission permits again or to cancel the allocation of emission permits again to any person in the account of the cancellation of the allocation of emission permits, in consideration of the nature of the previous allocation system or the necessity to cancel the allocation ex officio.

2) However, in general, it cannot be deemed that other business entities eligible for allocation have no interest in dispute over the illegality of the disposition of allocation of emission permits to any business entity eligible for allocation for the same reason. If a lawsuit is revoked due to the dispute that the calculation of the expected emission quantity of a business entity eligible for allocation is illegal, it would inevitably affect the adjustment coefficient for the allocation of the pertinent commitment period according to the binding force, which would have a direct impact on other business entities eligible for allocation, and this would not directly affect the prior decision of the amount of emission permits that have lost the cause of allocation upon the revocation of the above dispute (the instant final decision also recognized the legal interest in seeking the revocation of the previous disposition in this regard).

3) However, as in this case, a business entity eligible for allocation which has already been subject to a prior disposition of allocation of quota to another business entity eligible for allocation and a disposition of rejection of allocation of quota to itself based on the purport of the judgment revoking a lawsuit for the prior disposition of allocation of quota, barring any special circumstance, there is no legal interest in re-appealing another business entity eligible for allocation with regard to the revocation of the lawsuit.

First, the disposition of reallocation of this case is revoked, and when the defendant already made the disposition of this case against the plaintiffs, it does not affect the disposition of this case as long as the first commitment period was calculated on the premise that each of the facilities of this case is not deemed new facilities in accordance with the purport of the final decision of this case. In other words, as seen below, the binding force of the final decision of this case does not go beyond the obligation to make the defendant a disposition of this case again in accordance with the purport of the final decision of this case, and does not impose an obligation to select specific methods in advance. Accordingly, it is entirely entrusted to the defendant, in accordance with the purport of the final decision of this case revoking the previous disposition of this case, whether the disposition of this case should be taken out from any account of the emission permits of this case, i.e., the first commitment period after the lapse of the first commitment period (see Article 32 of the Emission Trading Act), and even if each of the facilities of this case is not newly established on the premise that the facilities of this case would not be allocated again in accordance with the purport of the previous allocation of emission permits.

4) As to this, even if the allocation of G cancelled by the final decision of this case is deemed to belong to the reserve portion, if the State uses reserve portion voluntarily without complying with its intended purpose, all business entities eligible for allocation are likely to unfairly infringe on the benefits that they may receive additional allocation. Thus, all business entities eligible for allocation are legally entitled to seek revocation of the preliminary allocation that are unfairly allocated to other business entities eligible for allocation, and the plaintiffs' claim is accepted as the plaintiffs' claim is accepted and there is a reserve portion remaining after all the refused allocation were allocated from the reserve portion (see, e.g., Article 10 of the preparatory document submitted by the plaintiffs of August 20, 2019). The preliminary portion is calculated after calculating the total permissible volume of emission by year and by business type according to the first commitment period, and some of the emission volume already calculated by business type are removed from the reserve portion. Thus, the business entities eligible for allocation is also entitled to request the State to use the preparatory document at an appropriate level (see, e.g., Supreme Court Decision 2012Do1010.

However, if the disposition of reallocation in this case is revoked, the reserve portion directly affected is already ‘the first commitment period' which has already been extinguished at the lapse of six months from the end of the compliance year, and it is not ‘the second commitment period emission permit' which exists after the plaintiffs were allocated through the disposition in this case. ‘The potential possibility for additional allocation of emission permits which has lost common capacity' is not clear whether it is possible to carry over emission permits after considering the possibility of carrying over under Article 28 of the Emission Trading Act, and even on the premise that it is possible, even if it is possible, it is not possible to carry over emission permits after the passage of six months from the end of the compliance year, but can not be disposed entirely according to the intent of the plaintiffs). However, it is difficult for the plaintiffs to regard the first commitment period as being assigned to the business entity eligible for allocation such as the second commitment period only in accordance with the defendant's previous lawsuit and the result of the lawsuit in this case, even if it is difficult to regard the first commitment period as being valid due to the circumstances that the plaintiffs already become included in the first commitment period.

5) In addition, where G is allocated excessive emission permits during the first commitment period due to the instant disposition of reallocation, the Plaintiffs would also have more greenhouse gas emissions on the basis thereof, and G would have the expected emission quantity recognized according to the volume of greenhouse gas emitted as such during the second planning period.

In other words, the Plaintiffs, who belong to the same type of business as G, are subject to excessive allocation of emission permits, and as a natural result, claim that the disposition of reallocation in this case infringes on the legal interests of the Plaintiffs that they enjoy (see, e.g., Supreme Court Decision 201Da12999, Aug. 20, 2019).

However, as the Defendant properly pointed out (Article 12(2) of the Emission Trading Act, the amount of greenhouse gas emissions during the first commitment period of G has already been determined as facts in past, and thus, even if the disposition of reallocation in this case is revoked, it cannot be altered to reflect it in the allocation of the second commitment period. Even if the revocation of the disposition of reallocation in this case is illegal as it is without the effective emission permit, the amount of greenhouse gas emissions so discharged cannot be used as data for calculating the estimated amount of greenhouse gas emissions of the company subject to allocation in the second commitment year (Article 12(2) of the Emission Trading Act delegates the criteria for allocation of emission permits to a business entity eligible for allocation, and Article 12(1)3 of the Enforcement Decree of the Emission Trading Act stipulates that the order of acceptance is to consider the results of the allocation of emission permits by the business entity eligible for allocation. However, Article 12(1)3 of the Enforcement Decree of the Emission Trading Act, which was enacted in accordance with delegation of such order, does not stipulate the matters concerning the allocation of greenhouse gas emission permits in this case as guidelines.

The room disadvantage is the imposition of penalty surcharges under Article 33 of the Emission Trading Act, which is a disciplinary disposition imposed only on G, regardless of whether it is the allocation of emission permits to other companies. If it is recognized that there is a direct legal interest to cancel the allocation of this case to the plaintiffs who are competitors, it is not helpful to accomplish the purpose of the system because emission trading system is likely to become the head of a dispute arising from excessive checks between competitors.

6) Lastly, the plaintiffs should purchase emission permits to the extent that the number of insufficient emission permits and should have been submitted to the defendant in the absence of the instant disposition with respect to G. However, the defendant's illegal disposal led to the necessity of purchase of G emission permits, while the supply of sales rights to G was increased as the sales rights supplied to G, while the demand from G was reduced, and the emission trading price was directly affected by G. This also affects the plaintiffs, who are market participants, so the legal interest in seeking revocation of the above disposition should be recognized (see, e.g., Supreme Court Decision 6th of the Plaintiffs' preparatory brief submitted on April 9, 2020).

In other words, the lower market price of emission permits held by the Plaintiffs becomes the legal basis for seeking revocation of the allocation of emission permits to other business entities eligible for allocation. However, this is merely an indirect and abstract profit. The purport of various laws and regulations, which serve as the basis for the disposition of the reallocation of this case, is to regulate excessive emission of greenhouse gases by reasonably calculating the expected emission quantity of business entities eligible for allocation and by properly distributing the amounts of allocation in the planning year in advance, and to reduce the final greenhouse gas emissions to meet international standards (see Article 1 of the Emission Trading Act, Article 46(1) of the Framework Act on Low Carbon, Green Growth), and it is apparent that the purport of protecting the smooth management of business entities eligible for allocation by maintaining greenhouse gas emission permits at a certain and proper level, and therefore, it is not clear that the purport of the relevant laws and regulations is to protect the aforementioned interests claimed by the Plaintiffs.

D. Sub-committee

The defendant's main defense is reasonable. This part of the plaintiffs' lawsuit is unlawful.

5. Judgment on the part of the plaintiffs' claim for revocation of the rejection disposition of this case

A. Determination on the Defendant’s main defenses as to the modification of the plan’s disposition of refusal of the instant case

1) The defendant's main defense

Of the additional quotas dated February 20, 2017, the validity of the Plaintiffs was extinguished because they were absorbed into the disposition of this case and lose their independent existence value. Of the above additional quotas, G is revoked from the disposition of reallocation of this case and no longer exists (see, e.g., the briefs submitted to Defendant on November 27, 2019).

The portion added by the additional allocation as of February 20, 2017 to the plaintiffs included in the disposition of re-disposition of this case is not subject to the application of this case, because it is not subject to the administrative disposition of this case. Accordingly, the part added by the additional allocation as of February 20, 2017 is not included in the part added by the additional allocation as of February 20, 2017 (Therefore, the part added by the additional allocation as of February 20, 2017 among the re-disposition of this case was confirmed, and the plaintiffs should have sought the revocation of the additional allocation as of February 20, 2017, and even if otherwise, the purport of the lawsuit of this case is to be added to the lawsuit of this case as of November 27, 2019.

2) The whereabouts of additional allocation as of February 20, 2017 and the process of litigation relating thereto, etc.

A) On the premise of the volume of emission permits for the year 2017, increased due to the additional allocation of the Plaintiffs on February 20, 2017, the instant re-disposition is to additionally allocate the allocation equivalent to the increased portion of the allocation, as set out in 1. D. 1).

B) According to the purport of Gap evidence No. 7 and the entire pleadings, the plaintiffs withdrawn from the lawsuit (Seoul Administrative Court 2017Guhap64774) on October 15, 2019, seeking revocation of additional allocation against the defendant and G on February 20, 2017.

C) According to the records of this case, the plaintiffs sought revocation of the allocation that was rejected in the previous rejection disposition of this case after the withdrawal of the above lawsuit on November 20, 2019, and the purport of the claim seeking revocation of the allocation that was rejected in the previous rejection disposition of this case was modified to the purport of the claim seeking revocation of the allocation that was rejected in the instant rejection disposition of this case.

3) Judgment on the Defendant’s main defense of safety

A) The Defendant’s main defense is entirely separate from the instant disposition of refusal regarding the instant application regarding the allocation of the primary planning year and the instant additional allocation on February 20, 2017 due to the increase of allocation in the prior allocation in 2017. However, it is understood to the effect that the Plaintiff’s additional allocation on February 20, 2017, by excluding a large amount equivalent to the additional allocation as of February 20, 2017 through the reduction of the instant claim, within the scope of revocation subject to the instant lawsuit, the said additional allocation as of February 20, 2017 became final and conclusive.

B) The instant refusal disposition, which is the subject matter of the instant disposition, is a dispute over the illegality of the portion that is not allocated even through the instant re-disposition (the instant re-disposition and the instant refusal disposition are deemed to exist in both areas, with the appearance of one disposition, i.e., the appearance of a sentence outside the instant re-disposition, and without the relationship as to whether the instant re-disposition has already become effective February 20, 2017. The Plaintiffs are deemed to have partially allocated any portion of the allocation that was rejected as the previous refusal disposition through the instant re-disposition, and the Plaintiffs have been seeking revocation of the instant refusal disposition, i.e., the part that was not allocated despite the instant re-disposition from the time of the first filing of the disposition, since the time of the first filing of the disposition. However, the Plaintiffs' claim was against the instant rejection disposition from the beginning of the second disposition, and the previous rejection disposition was not submitted to the Plaintiffs to the extent that they were not submitted to the previous preliminary disposition as to the extent that they were already distributed to the Plaintiffs.

C) Ultimately, the Defendant’s main defense cannot be seen as a valid main defense as the assertion for additional assignment as of February 20, 2017, which was a disposition for which the Plaintiffs did not seek the revocation thereof. In addition, the Defendant’s main defense cannot be seen as an assertion for the revocation of the instant refusal disposition among the Plaintiffs’ lawsuits is unlawful, and thus, the Defendant’s main defense will be examined in 19) and the main defense.

B. Determination as to the assertion that the instant refusal disposition was against the binding force of the instant final and conclusive judgment

1) Relevant legal principles

According to Article 30(2) of the Administrative Litigation Act, when a judgment revoking a rejection disposition by an administrative agency becomes final and conclusive, the administrative agency that issued the previous disposition is obligated to take a second measure against the previous application in accordance with the purport of the judgment. Whether an administrative disposition is lawful is determined based on the statutes and facts at the time when the administrative disposition was rendered. As such, the administrative agency that was the party to the final and conclusive judgment may render a new rejection disposition, and such a disposition also constitutes a second measure as provided for in the above provisions. Here, whether a new ground is "new ground" should be determined based on whether the previous disposition is illegal and the factual basis is recognized. The existence of the basic factual basis is determined based on whether it is identical in the specific facts prior to the legal evaluation of the grounds (see Supreme Court Decision 2011Du1401, Jan. 10, 2011).

2) Specific determination

A) According to the aforementioned factual basis, the instant final decision does not constitute a new establishment under the former Guidelines, and thus, the allocation to be allocated to the Plaintiffs should be calculated based on the expected greenhouse gas emissions recognized as other facilities, not new establishment facilities. The previous rejection disposition was revoked to the purport of the instant final decision, and the Defendant, under the premise that the new allocation guidelines shall not be deemed a new establishment of each of the instant facilities in accordance with the purport of the instant final decision, based on the premise that the maintenance of the new allocation guidelines is applied to the criteria for calculating the expected emission of the said facilities, and the adjustment factor obtained from the new allocation guidelines, was re-calculated. The binding force of the previous rejection disposition of the instant case is an error in the misapprehension of legal principles as to the interpretation of the former allocation guidelines, i.e., the previous rejection disposition of the instant case, which is deemed to be a continuing operation facility, not a new establishment, without complying with the existing illegal interpretation, shall be determined faithfully to the purport of the instant final decision.

B) Among the plaintiffs' claims, the argument that the defendant revised the new definition of the new establishment in the new allocation guidelines against the binding force of the defendant and deemed the new establishment of G facilities as a new establishment of G facilities despite the final decision of this case cannot be a valid means of attack that is valid for challenging the illegality of the rejection disposition of this case, not the grounds for the rejection disposition of this case.

C) The Plaintiffs asserts that the instant final decision ought to collect excessive emission permits allocated to G in accordance with the previous allocation disposition of the instant case and then re-distribution of the entire emission permits to the Plaintiffs who received under-assignments. As such, the Plaintiffs asserts that such a binding force has occurred.

However, the binding force of the decision of the court of first instance that revoked the rejection disposition is recognized as a specific legal ground, which serves as the premise of the relevant rejection disposition, and even if the contents of the previous decision of this case are included in the contents of the previous decision of this case, it cannot be seen that such a binding force takes place due to the final decision of this case (or, as seen earlier, the previous decision of the court of first instance that the emission permit due to the revocation of the previous allocation of this case should be distributed retroactively to the plaintiff's assertion, there is no possibility that the previous decision of the court of first instance is modified or deleted as mentioned above).

A) The binding force of the final and conclusive judgment of this case, which occurred with respect to the same purport as above, functions only in a manner that imposes an obligation on the defendant to take a second measure without any such unlawful ground. Unless otherwise indicated as the grounds for illegality of the disposition of refusal subject to revocation in the final and conclusive judgment, the binding force does not occur as to the specific method of performing the duty of re-disposition, and the order to take a second measure according to a specific method is not permissible. This conclusion is natural that is derived from the objective scope of the binding force as seen earlier, the purport of the current Administrative Litigation Act that does not allow a lawsuit for performance of an obligation, and

D) The Plaintiffs asserted that applying the new allocation guidelines to the instant rejection disposition by the Defendant is abuse of administrative legislative power for the avoidance of the binding force. However, as seen earlier, the Defendant appears to have been aware of the intent of the instant rejection disposition in its final and conclusive judgment, and rather, the Defendant had respected the binding force of the instant final and conclusive judgment, and the amendment part of the new definition that the Plaintiff is at issue is only subject to the instant reallocation disposition, and thus does not have any relation with the validity of the instant rejection disposition. In other words, the amendment to the new allocation guidelines merely provides for the grounds that the new allocation guidelines does not provide for the entire facilities re-convened after the beginning of the base year, not for the entire facilities to be newly installed, but for the division of discharge activities to be deemed new facilities, and thus, it cannot be deemed that the amendment itself goes against the intent of the instant final and conclusive judgment.

As seen earlier, in order to achieve the purpose of the final and conclusive judgment of this case in a specific way is left to the defendant's discretion. However, the amendment to the new allocation guidelines in the previous allocation guidelines constitutes a new situation after the previous disposition of this case, and there is no room for the issue of violation of the binding force of the defendant to have applied the previous disposition of this case.

E) Ultimately, the plaintiffs' assertion that the rejection disposition of this case is erroneous against the binding force of the final and conclusive judgment of this case is without merit.

C. Determination as to the allegation that the emission permits equivalent to the previous allocation disposition of this case in accordance with the final decision of this case should be attributed to reserve funds

As seen earlier, it is reasonable to view that emission permits with regard to the disposition of the allocation of emission permits revoked are reverted to the reserve account for the pertinent commitment period once due to the application of the relevant statutes by analogy, and thus, it is reasonable to view that emission permits are

Therefore, the plaintiffs' assertion that the allocation of emission permits equivalent to the previous allocation disposition of this case to the reserve allocation itself is illegal is without merit.

D. Determination on the assertion of violation of the principle of equality in the application of the guidelines

1) As seen earlier, the defendant applied the new allocation guidelines, not the old allocation guidelines, to the plaintiffs for the disposition of reallocation of this case to G, but for the disposition of rejection of this case against the plaintiffs, and it does not seem that the application norms itself do not change, and therefore, it does not seem that it has caused inequality.

The Plaintiffs asserted to the purport that the application of the new allocation guidelines to G itself results in an unequal consequence between the Plaintiffs and G by avoiding the application of the former allocation guidelines, namely, the purport that the previous allocation guidelines should be applied under the principle of equality, but it cannot be viewed as contrary to the principle of equality solely on the ground that the size of disadvantages generated or deprived by the other party to a specific disposition is inequalityd. Therefore, the aforementioned assertion is difficult to accept.

2) However, the Defendant assessed each of the instant facilities as new facilities for the instant reallocation, and assessed as continuing facilities for the instant re-disposition and the instant rejection disposition. The legal evaluation of each of the instant facilities, which is the same historical fact, was different for each of the instant dispositions.

However, the disposition of reallocation of this case is ultimately a disposition that once again allocates G emission permits to the first commitment period. The disposition of this case is a disposition that additionally allocates emission permits to the plaintiffs, and the disposition of this case, which is related to the second commitment period, also a disposition that refuses additional allocation of emission permits to the second commitment period (in cases where such disposition is deemed a disposition that refuses to allocate emission permits to the second commitment period, the interests in the protection of plaintiffs' rights are no longer available, respectively). Since each disposition of this case concerns all separate rights under the law, it is difficult to view that the principle of equality is subject to the comparison.

3) Furthermore, it is determined that there was a sufficient public interest to justify such inequality at the time of each of the instant dispositions. In other words, in a case where G’s first commitment period is deprived of part of the emission permits at the time of each of the instant dispositions in which the effect of the first commitment period is lost, the submission of emission permits may cause confusion in the emission trading system by changing the emission relation already terminated to the emission that did not submit emission permits. This is not only a factor that obstructs the successful settlement of the emission trading system, but also a factor that may lead to the deterioration of the purpose of the system itself due to the check and competition surrounding the emission permits between competitors. Considering this fact, the Defendant appears to have allocated emission permits to G as the second commitment period in which it is used at the time of the instant re-disposition, but it is assumed that the Defendant intended to secure legal stability and institutional achievement by allocating the first commitment period for each of the instant dispositions to G, which has already been terminated, and such public interest can be justified in the same factual basis.

4) Ultimately, the plaintiffs' assertion on violation of the principle of equality is without merit.

E. Determination on the assertion of infringement of property right by retroactive legislation

1) Relevant legal principles

Even in cases where the relevant statutes are amended, an administrative disposition is in principle based on the amended statutes that were enforced at the time of the disposition, unless otherwise specified in the transitional regulations, and the amended statutes provide a legal effect more unfavorable than the previous one in relation to the property rights of the people while being subject to the application of existing facts or legal relations. If such facts or legal relations are not completed or terminated before the amendment enters into force, they cannot be deemed as a violation of property rights by retroactive legislation prohibited under the Constitution. In relation to the application of such amended statutes, there may be room for restrictions in order to protect the public’s trust in the continuation of the statutes before the amendment in cases where the public’s trust in the existence of such statutes is deemed more worthy of protection than the public interest demand for the application of the amended statutes (see Supreme Court Decision 2008Du8918, Apr. 23, 2009).

2) Specific determination

A) Article 2 of the Addenda to the new allocation guidelines only stipulates that dispositions, such as allocation, under the former allocation guidelines, shall be deemed to be based on the new allocation guidelines, and there are no other special transitional provisions.

If so, according to the above legal principles, the rejection disposition of this case made after the revision of the new allocation guidelines shall be based on the new allocation guidelines enforced at the time of the new allocation guidelines, and there is no ground to change the application rules in consideration of the motive for the revision of the new allocation guidelines.

B) As seen earlier, the instant re-disposition and the instant rejection disposition are about the allocation of emission permits during the second commitment period and do not about the legal relationship completed or terminated, so there is no room to constitute infringement of property rights by retroactive legislation prohibited under the Constitution, in principle.

Even if the purport of this part of the assertion is based on the factual basis regarding the allocation of emission permits during the first plan period, so it is unreasonable to regard each of the facilities of this case, which were continued facilities, as new facilities, according to the guidelines to be enforced retroactively pursuant to Article 2 of the above Addenda to the terminated factual basis, it is not just the premise of the disposition of reallocation of this case to G, but also it is not the premise of the disposition of rejection of this case. Thus, the illegality of the disposition of this case cannot be asserted.

C) Furthermore, as seen earlier, the premise of the instant refusal disposition against the Plaintiffs (the premise that each of the instant facilities is the continuing operation facilities) is the same as the application of any of the guidelines under the new and old allocation guidelines, and even if it is assumed that the Plaintiffs were trusted that the old allocation guidelines should be applied, such trust has no value of protection to the extent that it is excluded from the application of the new allocation guidelines.

The former Guidelines for Allocation is applicable to the disposition of reallocation of this case against the plaintiffs additionally asserted by the plaintiffs, i.e., the trust is not applicable to them, but to what laws are applicable to the disposition against the third parties, and thus, it is not an illegal ground for the rejection disposition of this case.

D) Ultimately, the Plaintiffs’ assertion to the effect that it constitutes an infringement of property rights by retroactive legislation is without merit. F. Determination of the misapprehension of legal principles as to the application of new allocation guidelines and the assertion of deviation or abuse of discretionary power

1) Determination as to the allegation that the application of the provision of the first commitment period allocation plan without any ground in the calculation of quotas is unlawful

As seen earlier, the defendant evaluated the estimated emission amount of the facility of subparagraph 1 for the disposition of reallocation of this case as "a new facility that can be predicted" but did not state the formula for calculating the estimated emission amount in the new allocation guidelines, and thus, it is possible to calculate the estimated emission amount by applying the first commitment period plan, that is, the formula for calculating the estimated emission amount in the old allocation plan.

However, this constitutes fact-finding in the calculation process of the disposition of reallocation of this case, and it is difficult to see that such calculation method has influenced the contents of the disposition of this case. Accordingly, it cannot be asserted as grounds for deviation from or abuse of discretion of the disposition of this case.

Therefore, without examining the illegality of the plaintiffs, this part of the plaintiffs' assertion is without merit. 2) Determination on the issue related to the separate report of G

A) Relevant statutes and facts of recognition

In this regard, the facts that can be recognized by the evidence mentioned above and the contents of the relevant statutes necessary to determine this part of the assertion are as follows.

(1) Article 34(1) and (2)4 of the former Enforcement Decree of the Framework Act on Low Carbon, Green Growth (amended by Presidential Decree No. 28561, Dec. 29, 2017; hereinafter “Enforcement Decree of the Green Growth Act”) which was enforced on September 12, 2014 at the time when the Plaintiffs were designated as business entities eligible for allocation, stipulates that controlled entities shall prepare a detailed statement of greenhouse gas emissions in the pertinent year and submit it to the Defendant by March 31 of the following year, but that includes “greenhouse gas emissions classified into production processes and production facilities.”

Article 34(2)5 of the Enforcement Decree of the Green Growth Act, Article 41(2) of the former Guidelines on the Management of Energy and Target of Greenhouse Gases (wholly amended by Ordinance of the Ministry of Environment No. 2014-186, Oct. 10, 2014; hereinafter referred to as "the Guidelines for Target Management") provides that controlled entities shall calculate and report the amount of greenhouse gas emissions for each corporation unit, place of business, emission facility unit, and emission activity. However, Article 41(4) of the same Act provides that small-scale emission facilities, the annual amount of which does not exceed a certain standard, can be reported by dividing it into the unit of emission facilities after confirmation by the defendant, but shall be included in the total amount of the total amount of greenhouse gas emissions, but the total amount of such small-scale emission facilities shall not exceed 5% of the total amount of the total amount of emission in the place of business.

On the other hand, Article 2 subparagraph 21 of the Target Management Guidelines is a facility, machine, apparatus, or other object that discharges greenhouse gas into the atmosphere and is the whole process from the point in which each raw material (including subsidiary material and additives) or fuel is put into the atmosphere. In this case, the process is defined as a facility group in which fuel or raw material is put in, and the facility group is defined as a unit that combines facilities that have a similar role and function by using the same fuel for the same purpose.

(2) At the 8th meeting of the Defendant Permanent Consultative Body held on January 23, 2014, there was a discussion to the effect that, in order to ensure the consistency of the 2013 specification, the number of the discharge facilities should be re-established on the basis of the 2011 and 2012 specification No. 2013, when the number of the discharge facilities was different by year in order to ensure the consistency of the 2013 specification, or when a report was made separately from two or more facilities, the number of the discharge facilities in the year 2011 and 2012 specification No. 37 as reference documents submitted by the Plaintiffs on November 20, 2019.

(3) Around 2014, G submitted the 2013 Statement, while separately reporting facilities in the previous integrated report as a unit of emission facilities, and revised the specifications of the previous year as a separate report. Meanwhile, G prepared the 2,3,5, and6 specifications as a single emission facility in the 2010 Statement, and prepared the 2,3,5, and6 specifications as a single emission facility in the 2010 Report and reported the 201 Report separately from other facilities (see, e.g., the 5,6 pages of the documents referred to as the Defendant submitted as of February 17, 2017) (see, e.g., the 2020, 2010 Report and the 5,6th page of the documents submitted as of February 17, 2010, the Plaintiff reported the 2010 Integrated Report and issued a new serial number as to the facilities that were already reported in the 2013 Statement before the 214th anniversary of the 2010 Report).

(4) Whether the facility No. 2 was operated as a sprinkler production facility in 2010, which is the immediately preceding year of the base year, the separate report commenced from the year 2011, and was operated as a biochemical production facility in 2012. Since the year 2013, G was operated as a regratory production facility in 2013, and G was operated as a regratory production facility in 2010, a serial number of No. 031 in the specification at the time of the degring production in 2010, and a serial number of No. 023 in the specification at the time of the degring production in 2011, and a serial number of No. 035 in the specification at the time of the degring production in 2013.

(5) Of the guidelines for the preparation of the first commitment period application prepared and distributed by the Defendant on September 2014 (the reference materials for the legal brief submitted by the Plaintiffs on November 20, 2019) the matters necessary to determine this part are as follows.

(1) An application for allocation of emission permits shall be made by means of a national greenhouse gas comprehensive management system (NGP, htp://mr.go.go/r/) which is a computer system managed by the defendant, and a form in which the relevant system provides and inserting specific details (see the foregoing reference materials, e.g., page 24).

2. In describing "information on greenhouse gas emissions from existing facilities in the base year" among "information on greenhouse gas emissions from each workplace", the serial number of the emission facilities in the specification of 2013 is automatically stated, and the serial number of all the emission facilities in the report of 2013 located in the relevant workplace is automatically stated, and the "emission facility code indicating the type of the emission facilities" and "the name of the emission facilities", and the greenhouse gas emissions in the specification of each emission facility are automatically stated (see the above reference materials from 76 to 78 pages)

③ Likewise, “the type of facility that classifys whether the relevant facility is a continuing operation facility, closed facility, or newly installed facility” is also automatically determined through information on greenhouse gas emissions in the specifications of 2013 (the foregoing reference materials are 79 pages). This is determined to be separately input by serial numbers of “the type” emission facilities in the relevant form (see the table at the bottom of the 78th page).

The above system shall automatically determine the type of facilities as follows:

○ Sustainable Facilities: Emission facilities with information discharged from the year 2010 including (a)(However, emission volume in the year 2010 is not included in the calculation of expected emission volume, see the foregoing reference material No. 80 example 2); and (5) Emission facilities with 0 emission volume, although in the list of emission facilities from the year 2010 to the year 2012;

○ Closed Facilities: Emission facilities with zero greenhouse gas emissions in the statement of 2013 (including facilities without information on greenhouse gas emissions in the statement of 2013, see the lower part of the 79th page of the reference material

○ New Facilities: Other emission facilities, for example, if information on greenhouse gas emissions exists from the specifications of year 2011 to the specifications of year 2013, it shall be deemed as 'a new facility of year 2011, not a continuing facility (see the table at the bottom of the 79 pages).20)

4. In the event of changes in the type of automatic admission as above, the applicant may separately apply for changes in the “type of the same facility” column (e.g., extension facilities, new installation facilities in 2013, change in emission facilities, etc.) by directly inputting them (see the foregoing reference materials, e.g., 81 pages).

In the above change facility, it may be stated separately as to whether or not the facility that has reported the integration separately or as to the opposite. However, in the case of a separate report on the integrated emission facility, the expected emission amount is not automatically calculated as a change facility in form even if an application is filed for a change facility, but it is separately estimated emission amount through evidentiary data submitted by the defendant (see the above reference data No. 84).

B) Specific determination

(1) According to the pertinent laws and regulations, it is reasonable to view that controlled entities are obligated to separately calculate greenhouse gas emissions for each emission facility and prepare and report statements. This is clearly known through the form of a provision of the target management guidelines that exceptionally prescribes small-scale emission facilities that permit a report on total quantity of greenhouse gas emissions.

Therefore, G, which reported the integration, did not regard it as illegal to separately report the facility of No. 2 from the specifications of 2011, and it is judged lawful because G, which reported it as a detailed statement in accordance with the above guidelines.

Since the definition of "the pertinent process" and "the facility division" under Article 2 subparagraph 21 of the same guideline include a large number of indefinite concepts, which can be seen as a single emission facility, the content of the regulation alone is not clear. Therefore, even if several small elements exist, it may be evaluated as a single emission facility. In such a case, even if the statement is prepared in the form of so-called integrated report, it cannot be deemed unlawful. The above guidelines for the first commitment period of the defendant seems to stipulate the method of calculating the estimated quantity of the facility as a separate report, the method of calculating the estimated quantity of the facility as a separate report, or the opposing cases. In short, the so-called separate report for each facility is the principle, and the integrated report is exceptional.

(2) The plaintiffs' assertion is ultimately interpreted to the effect that a new serial number in the specification is assigned due to a separate report on the emission of greenhouse gases from a specific emission facility. Accordingly, it is unreasonable to view that a business entity eligible for allocation who has filed a consolidated report for the convenience of the report without complying with the principle of separate reports by emission facilities as stipulated in the relevant laws and regulations is likely to suffer disadvantages according to the method of calculating the expected emission volume. The purport of the emission trading system is to say that a business entity eligible for allocation that provides more reliable emission information through a separate report would return to the business entity eligible for allocation, which is the criteria for allocation of emission permits, is contrary to the principle of equal allocation of emission permits (Article 12(2)5 of the Emission Trading Act) and thus, it cannot be viewed as a result contrary to the principle of equal sharing of emission permits among business entities eligible for allocation, which are the criteria for allocation of emission permits.

Furthermore, according to the defendant's guidelines as seen earlier, if part of the emission facilities which were reported in the integration are separately reported, the facilities are automatically classified as new emission facilities due to the occurrence of new serial numbers, but if the facilities are recorded as a separate report on the grounds of change, the defendant is required to separately determine the nature of the facilities according to the evidentiary documents submitted by the relevant business entity eligible for allocation. The fact that the defendant made a separate report on the grounds that the nature of the emission facilities has been converted into a new facility at the same facility. Therefore, the plaintiffs' assertion that the establishment of the emission facilities varies depending on whether to separately report it is illegal is contrary to the purpose

(3) Meanwhile, while separately reporting the statements in 2013 by G, the Plaintiffs asserted that each of the instant facilities was treated as a facility with no data on the actual results of sudden discharge, as seen earlier, in accordance with the retroactive preparation of the existing statements, the facilities under Subparag. 2 were separately reported within the standard year, and the facilities under Subparag. 1 were not reported in the standard year. Accordingly, it is difficult to accept them differently from the facts premised on the assertion.

3) In rendering the instant disposition and the instant disposition of refusal, the determination as to the assertion that subparagraph 2 does not constitute a single-year facility

A) Facts of recognition

According to the aforementioned evidence and evidence as well as evidence evidence Nos. 13 and 14 as well as the overall purport of the pleading, G was to remodel a facility No. 2 into a tin production facility around May 201. However, around November 2011, G may recognize the fact that since L Committee’s designation of a tin as an suitable product for small and medium enterprises around 2012, it waived its business, and re-convening the facility No. 2 into a re-convening small and medium enterprise, and completed March 2013. G was a controlled entity of the target management system under the Green Growth Act, which set the goal of reducing greenhouse gas emissions in 2012. However, G’s target management system was set again for the reduction of greenhouse gas emissions in 2012, excluding the permissible emission quantity of the facility No. 2012 due to the suspension of operation of the facility (see, e.g., Defendant’s preparatory document submitted on April 6, 2020).

B) Determination

(1) First, the Plaintiffs seem to have asserted on the premise that the former allocation guidelines should be applied to the disposition of the instant case. As seen earlier, the new allocation guidelines are applied to the disposition of the instant case, and thereafter, the Plaintiffs’ assertion is reasonable even if it concerns the interpretation of the new allocation guidelines.

According to Article 2 Subparag. 12 of the New Allocation Guidelines, since a facility under subparagraph 2 falls under a case where the classification of greenhouse gas emissions activities subject to calculation varies due to the change of raw materials or fuels by a business entity eligible for allocation in the year 2013, if the Defendant recognizes that emission facilities after remodeling have been newly installed, the facility under subparagraph 2 becomes a new facility in the year 2013. If it is consistently maintained even before the reorganization of the instant facility, the facility under subparagraph 2 is deemed to have been closed before the year 2013, and thus, it is natural to explain that the quantity of the activity data and the quantity of emission data in the year 2011 and 2012 remains.

However, on the premise that the Defendant is not a new facility in accordance with the purport of the instant final judgment, the Defendant determined that the instant re-disposition facility was a single-year facility under the premise that it is not a new facility. In other words, even if the facility No. 2 is not closed and no material exists regarding the amount of emissions in the specifications of 201 and 2012, it would be deemed that there exists no amount of emissions due to the suspension of operation of the facility No. 2. 2, and in 2013, it is merely the so-called re-current facility (the latter part of Article 2 subparag. 17 of the New Allocation Guidelines) in which the facility No. 2 was re-established in accordance with Article 9(1)1(a) of the New Allocation Guidelines, it is the purport of the Plaintiffs’ assertion that it is not necessary to calculate the estimated amount of emissions in each compliance year according to the average greenhouse gas emissions in three years.

(2) However, it is deemed as above that the Defendant’s re-disposition of No. 2 at the time of the instant re-disposition as a re-disposition clocking soft facility, which is a re-disposition clocking facility, is justifiable as a method of applying the guidelines that the Defendant may choose pursuant to Article 11(1)3 of the New Allocation Guidelines and Article 12(2)1 of the Emission Trading Act, as a method to compensate the Plaintiffs for emission permits that have not been already allocated to the Plaintiffs for the second commitment period.

This is because the facility No. 2 is historically produced tiny in 2011, and the fact that the facility has not been operated as a re-dong facility after re-buildinging from a re-building production facility in 2012 in the year 2012. In the end, even if the greenhouse gas emissions activities of the facility No. 2 were fully achieved, springing it as a re-dong facility does not fit the reality of the facility No. 2 at present, and if a re-dong facility is considered as a re-dong facility, the specifications of No. 2011 in the facility No. 201, that is, if it is considered as a re-dong facility, it is difficult to calculate the estimated emission per se due to the lack of activity data in the re-buildinging sub-facilities, which is the basic data for calculating BM methods for calculating the estimated emission of the burning part of the combustion of a re-buildinging sub-facilities.

In other words, it is not possible to calculate the estimated emission quantity of subparagraph 2 facilities that are greenhouse gas emissions in the planning year, and it is not consistent with the purpose of calculating the estimated emission quantity, that is, the purpose of calculating the estimated emission quantity, by predicting the actual emission quantity in the planning year based on the data on emission quantity in the standard year. In addition, in the case of calculating as claimed by the plaintiffs, it cannot be pointed out that it may hinder the reduction of greenhouse gas in the second plan by excessively allocating emission permits to the plaintiffs compared to the existing emission permits in the second plan.

(3) The plaintiffs pointed out the language and text of the above guidelines, and there is no information on the emission volume due to the facility "0" and the business operator's failure to operate the facility at will, and in the case of the former, it is necessary to calculate the expected emission volume through annual average emission volume. However, according to the defendant's legitimate application of the guidelines as seen earlier, it is reasonable that the facility under subparagraph 2, which is deemed to be a re-fluoring sub-facilities for the year 201 and the year 2012, which is deemed to be a re-fluoring sub-facilities for the year 201 and the year 2012, and there is no other reasonable ground to view the content as being nonexistent.

In short, it is not contradictory to the definition of a sustainable facility and the method of calculating the expected emission quantity in the case where a change in greenhouse gas emission activities occurs without any change in greenhouse gas emission activities (under the proviso to Article 2 subparagraph 12 of the New Allocation Guidelines, it may be sufficiently determined by the defendant's judgment) if a change in greenhouse gas emission activities occurs without a change in the new allocation guidelines.

C) Sub-determination

Ultimately, the interpretation of the defendant's guidelines that the facility No. 2 in the second disposition of this case corresponds to a single year facility is justifiable, and it is judged that there is no violation of legal principles or abuse of discretionary power.

G. Whether the rejection disposition of this case is legitimate

The plaintiffs' arguments are without merit and the rejection disposition of this case is legitimate.

6. Conclusion

Since the part of the plaintiffs' motion seeking revocation of the disposition of reallocation of this case is inappropriate, the remaining claims of the plaintiffs (the plaintiffs' motion for revocation of the disposition of rejection of this case) are dismissed in its entirety. It is so decided as per Disposition.

Judges

The presiding judge, the rank of the judge;

Judges Kim Jae-sung

Judges Doodehyde

Note tin

1) The competent authority regarding the allocation of greenhouse gas emission permits upon the amendment of Article 6 of the former Enforcement Decree of the Emission Trading Act by Presidential Decree No. 27181 on May 24, 2016

It was changed to the Minister of Trade, Industry and Energy, and Article 6 of the Enforcement Decree of the former Enforcement Decree was re-amended by Presidential Decree No. 28562 on January 2, 2017.

The competent authority in relation to the allocation of emission permits shall be returned to the defendant. In this regard, "Defendant" shall be deemed to be the defendant, regardless of the change of the authority to dispose of

is referred only to as "one".

2) As of March 24, 2017, Plaintiff A Co., Ltd. initially changed its trade name from “I”) to “I”) and Plaintiff E, the original trade name of Plaintiff E.

In July 30, 2018, the Food Company changed its trade name as of July 30, 2018.

3) 1tCO2-eq (referring to to to ton of comparable CO2 equivalents. A unit for calculating greenhouse gas emissions, which is the unit converted into the basis of carbon dioxide that has an impact on global warming by type of greenhouse gas on global warming) = 1 KAU, 2 Eul evidence 17

4) The total initial allocation of the Plaintiff Company B was 15,767,110 KU, but the said Plaintiff’s total greenhouse gas distribution based on the Defendant’s performance in 2011.

The Defendant filed an objection on February 6, 2015 while calculating and allocating the amount of withdrawal, which was accepted by the Defendant and planned for the said Plaintiff.

by additionally allocating 66,839KU emission permits of the above plaintiff, total of 15,833,949 KU ( = 15,767,110KU + 15,767,110KU)

6,839KU. However, each year of implementation from 2015 to 2017 shall state the transfer of additional assignment.

A. (No data exists to identify the annual allocation after additional assignment).

5) With respect to the reasons for such interpretation, the Defendant had had the facilities of subparagraph 1 and subparagraph 2 from the past, but had the facilities of subparagraph 1 and subparagraph 2, through remodeling of the facilities.

Since facilities of different kind in the past are engaged in production and greenhouse gas emission activities, the difference between the new installation and the new installation of the facilities.

In particular, in the case of "facilities under subparagraph 1", if the facilities are not deemed new facilities, greenhouse gas exhaust shall not be operated during the standard year because they are not operated.

출량이 없음에도 불구하고 그 이후 새롭게 가동되어 온실가스가 배출되더라도 배출권을 추가할당받을 수조차 없기 떄문에,

It interferes with the equality of allocation of emission permits between business entities eligible for allocation, which is the basis for allocation of emission permits under Article 12(2)5 of the Emission Trading Act.

It is determined that the two facilities are deemed to be a new facility (in October 11, 2019, 22).

(ix) the Commission;

6) The Defendant’s correction is based on the circumstances described in Section 1 of each week.

7) at the time of enactment.

8) The scope of binding force of the instant final and conclusive judgment is the main issue of the instant case. Even if the content is somewhat long, the purport of the final and conclusive judgment is clearly discovered.

For the confirmation of facts, this is described in the text.

9) The former Enforcement Decree of the Emission Trading Act (amended by Presidential Decree No. 28562, Feb. 29, 2017; Presidential Decree No. 28562), however, the change of the competent authority

Since there is no difference in the contents in addition to the same, it shall be indicated by the current Enforcement Decree.

Enforcement Decree of the Emission Trading Act

Article 3 (Formulation, etc. of National Emission Permits Allocation Plans)

(1) Pursuant to Article 5 of the Act, the Minister of Environment shall take into account the consistency with the objectives of reducing greenhouse gases under Article 42 (1) 1 of the

A plan for allocation (hereinafter referred to as "allocation plan") shall be formulated.

Article 20 (Adjustment of Allocation Following Revisions to Allocation Plans)

(1) The Minister of Environment shall ensure that the total permissible volume of emission increases following a revision to an allocation plan pursuant to Article 16 (1) 1 of the Act.

Additional allocation of corresponding emission permits to all business entities eligible for allocation in proportion to their respective existing quotas, or increased by a specific sector or type of business.

The emission permits may be additionally allocated in whole or in part.

10) Prior allocation of the first commitment period plan formulated in 2014 for each compliance year’s business category for the national greenhouse gas reduction targets in 2020.

pursuant to Article 25(1) of the Enforcement Decree of the Green Growth Act (Presidential Decree No. 25456, July 15, 2014), the route of greenhouse gas reduction and green growth (Presidential Decree No. 25456, July 2014) by the

D. A total amount of national greenhouse gas emissions in 2020 was determined by 30/100 below the estimated greenhouse gas emissions in 2020;

Green growth has been changed to the national greenhouse gas reduction target in 2016 in 2016 and has changed to the greenhouse gas reduction channel in 2017.

Pursuant to Article 25(1) of the Enforcement Decree of the Act (Presidential Decree No. 27180, June 1, 2016), the total amount of national greenhouse gas emissions in 2030 shall be 2030,030.

It is changed to reduce to 37/100 of the estimated greenhouse gas emissions) Accordingly, the allocation plan for the first commitment period also changes.

The advance allocation volume by type of business in 2017 increased (see Articles 11, 12 of the preparatory documents submitted by Defendant on October 11, 2019).

11) The adjusted coefficient, calculated in the manner considered in paragraph 4. As the emission permit in 2017 increased in advance, has increased more than the initial one.

12) As seen earlier, a certain portion increased on the ground of additional allocation pursuant to the Plaintiff Company B’s objection (1. A. 3) and its numerical value are different.

The reason is that it is reasonable.

13) As a result, dispositions against the Plaintiffs regarding the additional assignment on February 20, 2017 set forth in paragraph (c) above against the Plaintiffs were invalidated.

14) Accordingly, the disposition regarding the additional assignment of G 2017, February 20, 201 also lost its effect.

15) For example, emission permits in 2015 are 5,00 tons of emission permits in specific sectors, for example, 10,000 tons of greenhouse gas emissions expected in 2015 of that sector.

The Myeon control coefficient shall be 0.5 (5,000/10,000).

16) Article 9 (Preparation of Draft Date for Determination of Shares by Company)

(1) The Minister of Environment shall review and calculate an application for allocation, a statement and evidential data in accordance with the following standards:

A draft allocation for each company shall be prepared based on the estimated greenhouse gas emissions by emission facilities. In such cases, detailed methods of calculation shall be as specified in attached Table 1.

The provisions shall govern.

1. Estimated greenhouse gas emissions by year in the implementation of existing facilities in the base year;

(f) Facilities closed in the base year: To calculate the estimated greenhouse gas emissions by year in which the relevant facilities are implemented as zero;

(h) Notwithstanding items (a) through (g), the Minister of Environment shall substitute for power-using facilities for each place of business, small-scale discharge facilities, etc.;

It can be calculated in a separate way to assess the estimated greenhouse gas emissions by year of implementation.

Existing facilities in the standard year referred to in paragraph (1) 1 shall exist in the specification of the last year of the standard year, and fall under any of the following subparagraphs:

(2) If applicable, it shall be deemed as closed facilities.

1. Where existing facilities are closed and thus no specification exists in the last year of the relevant year;

2. Facilities existing in the report of the last year of the relevant year, but greenhouse gas emissions are zero;

17) The number of pages is "(s) attached to each guidelines posted on the National Information Center of Government Legislation (htp:/www.go.go. kr) of the Ministry of Government Legislation (hereinafter referred to as the "Ministry of Government Legislation") in Korean.

(h) means the number of copies of a file; hereinafter the same shall apply when indicating the number of pages of the new and old Guidelines for Allocation.

18) The calculation method shall be replaced by a voluntary number, as basic data, such as accurate production volume, are not revealed.

19) Meanwhile, the instant application is against the emission permit which has already lost its validity as an application for the allocation of the emission permit for the first commitment period. However, the foregoing application is earlier.

As seen above, the Defendant suspended the destruction of the portion exceeding the final refused allocation pursuant to the attached Form 2 out of the preliminary commitment period of the first commitment period, and the instant case

It seems that the second commitment period will be carried over to the second commitment period according to the result of the litigation and the application in this case will be additionally allocated as emission permits.

Inn (see, e.g., preparatory document submitted by the Defendant on April 6, 2020) there remains room for the remedy of the Plaintiffs’ rights. Accordingly, the effect of the instant application on the grounds that it became invalid.

It cannot be deemed that the benefit of the protection of plaintiffs' rights (the benefit of a lawsuit for consultation) has expired at the present time solely on the ground that the application for the right to withdrawal was filed.

20) The previous allocation disposition in this case seems to be in accordance with such standard for determination. In other words, serial numbers 035 in the specification of the year 2013 are deemed to be 035.

Newly emerging subparagraph 2 and facilities are identified as new facilities (in the case of accordance with the guidelines above, the type of facilities is identified by serial numbers, so that they can grasp the type of facilities.

In the event that the series of defenses of the relevant facility changes formally, it is difficult to grasp whether the relevant facility has been actually established or not).

Although the final judgment of this case was allotted, it cannot be deemed a new facility pursuant to the old guidelines, and physical establishment can not be performed.

The previous allocation disposition of this case seems to have been cancelled to the effect that it should be against the former allocation disposition. If so, the facility No. 2 pursuant to the former allocation guidelines

Under the premise that the new establishment is not a facility, the defendant must determine whether the facility is a facility, and the defendant shall do so in accordance with the new allocation guidelines.

To re-disposition of this case, it is deemed as a new facility to be a single-year facility among sustainable facilities, and to be a new facility for the disposition of reallocation of this case.

참조조문

-대한민국헌법

-대한민국헌법 제13조 제2항

-민사소송법 제420조

-온실가스 배출권의 할당 및 거래에 관한 법률

-온실가스 배출권의 할당 및 거래에 관한 법률 제1조

-온실가스 배출권의 할당 및 거래에 관한 법률 제8조

-온실가스 배출권의 할당 및 거래에 관한 법률 제12조 제2항

-온실가스 배출권의 할당 및 거래에 관한 법률 제12조 제2항 제1호

-온실가스 배출권의 할당 및 거래에 관한 법률 제12조 제2항 제5호

-온실가스 배출권의 할당 및 거래에 관한 법률 제16조

-온실가스 배출권의 할당 및 거래에 관한 법률 제17조 제1항 제5호