(영문) 서울고등법원 2018.5.4. 선고 2017누38760 판결

The Defendant’s disposition of allocating greenhouse gas emission permits against the Intervenor joining the Defendant on December 1, 2014 and the Defendant’s disposition of rejecting the allocation of greenhouse gas emission permits is revoked on December 1, 2014. The Defendant’s disposition of rejecting the allocation of greenhouse gas emission permits as stated in the Schedule No. 1 as to the Plaintiffs is revoked.

2. Purport of appeal

The judgment of the first instance is revoked, and all the plaintiffs' claims are dismissed.

Reasons

1. Details of the disposition;

The court's reasoning for this part is as follows. The court's reasoning for this decision is as follows: (a) the court's first instance court's judgment's judgment's judgment's judgment's judgment's judgment's judgment's judgment's judgment's judgment's 9th judgment's 9th judgment's 9th judgment's 9th judgment's 1th judgment's 1th judgment's 1th judgment's 3rd-5th judgment's 2th judgment's 1th judgment's 3th judgment'

[Supplementary Use]

E. Following the amendment of Article 6 of the former Enforcement Decree of the Emission Trading Act by Presidential Decree No. 27181 on May 24, 2016, the pertinent allocation disposition and the instant refusal disposition were changed to the Minister of Trade, Industry and Energy. On December 29, 2017, Article 6 of the Enforcement Decree of the Emission Trading Act was re-amended by Presidential Decree No. 28562 on December 29, 2017, the instant allocation disposition and the instant refusal disposition were changed to the Defendant by the competent authority.

2. Determination on the main safety defense of the Defendant and the Intervenor

A. Summary of this defense

1) The Plaintiffs filed the instant lawsuit claiming that the instant allocation disposition aimed at allocating excessive greenhouse gas emission permits to the Intervenors who are classified as cement type by false or unjust means as their own cement type, should be revoked, and that the portion to be properly allocated to the Plaintiffs was not allocated as the instant refusal disposition.

2) However, inasmuch as emission permits are recognized by law as a broad legislative discretion is recognized with respect to broad emission permits and emission permits are recognized only by law, only those emission permits held by an administrative agency upon the specific allocation disposition are recognized as rights in public law with economic and property value. Therefore, emission permits that have not been allocated before being allocated emission permits cannot be deemed as property rights under the Constitution or rights under the Act on Trading of Emission Permits, and thus, the Plaintiffs do not have specific rights infringed upon by the instant allocation disposition.

3) In addition, even if the instant allocation is revoked, the amount of revocation of the allocation shall not be additionally allocated to the Plaintiffs, but shall be included in the reserve under the Emission Trading Act and subordinate statutes, and the reserve use thereof shall be separately prescribed in the emission trading Act and subordinate statutes, and the reserve use thereof shall not be additionally allocated to the Plaintiffs, on the ground that there is no provision that the allocation of emission permits should be additionally additionally allocated to the same other companies as the same type of company

4) If a disposition to allocate emission permits to a particular business entity is partially revoked and an emission permit should be additionally allocated to different business entities within the same business type retroactively, the legal relationship of the emission permits cannot be determined until the last lawsuit is finalized where multiple lawsuits are filed against each of the different business entities in the same business type, and it seriously undermines legal stability, such as affecting the validity of emission trading based on the existing allocation.

5) In light of the above various circumstances, there is no legal interest to seek revocation of the instant allocation disposition against the Plaintiffs, and thus, the Plaintiffs’ lawsuit of this case must be dismissed in an unlawful manner.

B. Determination

1) Even if a third party who is not the other party to an administrative disposition is not the direct party, if the interests legally protected by the administrative disposition are infringed upon, the party is entitled to obtain a decision of the propriety thereof by filing an administrative litigation seeking the revocation or nullification of the administrative disposition. The term “legal interests” refers to individual, direct, and specific interests protected by the relevant administrative disposition and relevant laws and regulations (see, e.g., Supreme Court Decision 2009Du10512, Oct. 6, 2010).

2) The Act on Emission and Trade of Emission Permits provides for the revocation of and reserve portion of emission permits as follows, and the purport of the provision is to seek legal stability by establishing the legal relationship related to emission permits at an early stage, as asserted by the Defendant and the Intervenor.

A) According to Article 17(1)5 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 trading account for reserve emission permits.

B) Article 18 of the Emission Trading Act (Article 15 of the Emission Trading Act), additional allocation (Article 19(3) and (5) of the Enforcement Decree of the Emission Trading Act), additional allocation due to changes in circumstances (Article 16(1)2 of the Emission Trading Act), and additional allocation (Article 23(1) and (2)1 of the Emission Trading Act) to ensure the stabilization of the emission trading market. In the instant case, there is no explicit provision stipulating that the reserve allocation of emission permits should be additionally allocated to the same company as the same company when the revocation of the allocation of emission permits.

C) The Emission Trading Act introduced a system for the certification, borrowing, submission, and carryover of emission permits, and stipulates that the emission permits shall be borrowed for the pertinent compliance year (Article 28(2) and (3) of the Emission Trading Act), (2) shall be carried over for the pertinent compliance year (Article 27(1) of the Emission Trading Act), (3) shall be carried over for the future (Article 28(1) of the Emission Trading Act), and (3) shall be carried over for the pertinent compliance year (Article 28(1) of the Emission Trading Act), and that all legal relations with regard to emission permits allocated for the pertinent compliance year shall be terminated at the lapse of six months after the end of the compliance year (Article 32 of the Emission Trading Act).

3) However, in full view of the following grounds and circumstances, which can be recognized from the relevant provisions, such as the Emission Trading Act, the above facts and the purport of the entire pleadings, even if the plaintiffs were not the party to the instant allocation disposition, the interests protected by the above allocation disposition would have been infringed. Therefore, the plaintiffs are entitled to standing to seek revocation of the instant allocation disposition.

A) According to Article 5(1)1 and 4 of the Emission Trading Act, Article 12(1) and (2) of the former Enforcement Decree of the Emission Trading Act, and accordingly, a plan for the allocation of emission permits written by the Defendant, the Defendant set the State’s outlook for national greenhouse gas emissions (BAU) and the target for reduction under Article 42 of the Framework Act on Low Carbon, Green Growth (hereinafter “Green Growth Act”) to first determine the State’s total emission allowances and the annual total emission allowances for each type of business within the total number of emission permits, and to determine the total emission allowances for each type of business within the scope of the total emission permits, and the amount of emission allowances for each type of business is determined within the scope of the total emission permits (Top-Dow method), and the company classified as the same type of business is not a structure in which the total emission allowances by type of business are determined by the combination of emission permits recognized by the Defendant from the Defendant.

B) According to the current allocation method of emission volume by company for the same type of business as current, in cases where a business entity eligible for allocation classified as the same type of business exceeds the total number of emission permits allocated by the Defendant for each type of business, each business entity eligible for allocation should be allocated emission permits in a quantity less than the amount recognized by the Defendant.

C) In such cases, the adjusted coefficient is also changed when calculating the allocation by company (the coefficient calculated by dividing the allocation by type of business to all business entities eligible for allocation in the same type of business) and the adjusted coefficient is also changed following the change of recognized volume by another business entity eligible for allocation in the same type of business (the recognized quantity by one business entity eligible for allocation is to increase the allocation by all other business entities eligible for allocation in the same type of business because of the increase of adjustment coefficient by itself when part of the recognized amount by one business entity eligible for allocation is revoked).

D) According to Articles 19 and 33(1) of the Emission Trading Act, a business entity eligible for allocation may trade allocated emission permits by means of trading or other methods. If emission permits submitted by a business entity eligible for allocation are less than actual emission permits, a business entity eligible for allocation may receive administrative sanctions, such as a penalty surcharge not exceeding three times the average market price of emission permits for the pertinent compliance year, within the scope of KRW 100,000 per 1 KAU, with regard to the shortage thereof. Therefore, when the instant allocation disposition is maintained, the Plaintiffs may receive administrative sanctions, such as a penalty surcharge, and thus, the revocation of the instant allocation

E) As seen earlier, when the whole or part of the instant allocation disposition is revoked, the revocation portion is transferred to a trade account for reserve emission permits, and there is no express provision that allows the Plaintiffs to additionally allocate the reserve portion that has been revoked and transferred retroactively to the Plaintiffs. However, if the Plaintiffs were to receive the revocation decision on the grounds of illegality of the instant allocation disposition, it cannot be readily concluded that it is impossible for the Plaintiffs to restore to their original state the illegal state arising from the instant allocation disposition.

F) The allocation of emission permits for the second commitment period (2018 to 2020) is based on the amount of emission permits for each company in the base year of the second commitment period (2014 to 2016). However, during the base year of the second commitment period, 2015 and 2016 are included in the first commitment period (2015 to 2017), and the amount of emission permits for 2015 and 2016 included in the base year of the second commitment period should be considered to be affected by the allocation allocated by the Defendant. Accordingly, it cannot be deemed that the revocation of the instant allocation and the allocation of the second commitment period is entirely irrelevant.

4) Therefore, the defense of the principal safety by the Defendant and the Intervenor is without merit.

3. Whether each of the dispositions of this case is legitimate

A. Summary of the parties' assertion

1) Summary of the plaintiffs' assertion

For the following reasons, the Defendant issued an illegal calculation of the amount of greenhouse gas emission permits to supplementary intervenors, and thus the instant disposition of allocation should be revoked, and the instant disposition of rejection should also be revoked on the premise that the instant disposition of allocation is legitimate.

A) The Intervenor has rapidly increased greenhouse gas emissions by intentionally concentrating and reworking low efficiency idle facilities in the year 2013, the last year of the base year for the first commitment period (three years from January 1, 2011 to December 31, 2013; hereinafter “base year”). This is also confirmed that the actual gas emissions by comparing the production performance and greenhouse gas emission performance of the Intervenor in statistical smoke compensation assistance issued by the Korea Cement Association in 2012, and 2013, respectively, are rapidly increased compared with the production performance and greenhouse gas emissions. As such, there are significant errors in the specifications, etc. submitted by the Intervenor used in calculating greenhouse gas emissions or false specifications, etc.

was drawn up by improper means.

B) The Defendant: (a) deemed the Intervenor as a newly-established facility of No. 1 due to the fact that the record of greenhouse gas emissions was confirmed from the year 2014, the year following the base year in which the Intervenor was already installed; and (b) additionally allocated an emission permit to the Intervenor on the ground that the Intervenor’s 1’s sculatory facilities (including number 035, 035; hereinafter referred to as “facilities” in subparagraph 2), which were not operated even after the previous installation of the Intervenor, were confirmed from the year 2013, the last year of the base year in which the greenhouse gas emissions were confirmed; and (c) on the ground that the Plaintiff’s sculatory facilities (including the facilities in subparagraph 1; hereinafter referred to as “each of the instant facilities”) were newly established in a different way from the continuing operation facilities. However, all of each of the instant facilities cannot be classified as new facilities in the absence of physical addition.

2) Summary of the assertion by the Defendant and the Intervenor

A) The former Guidelines on the Allocation, Adjustment, and Revocation of Greenhouse Gas Emission Permits (which was enacted before the abolishment by Ministry of Environment No. 2016-100, Jun. 8, 2016; hereinafter referred to as the “former Guidelines”) should be interpreted in line with the legislative intent of superior laws and regulations as well as the literal interpretation. The Act on Trading Emission Permits requires the allocation of emission permits based on the ‘demand demand according to the business plan', so the existing plan for the re-operation of facilities must be recognized as an independent ground for allocation of emission permits. In addition, the business plan in the above "emission demand according to the business plan" should be deemed to be included in all if it is a business plan that increases the emission of greenhouse gases only, and there is no need to establish a business plan that adds a specific form of physical facilities.

B) Although the former Guidelines does not expressly state the re-operation of existing facilities as an independent ground for allocation of emission permits, it would be consistent with the legislative intent of the higher law to interpret the former Guidelines as including the re-operation of existing facilities in the new guidelines so as to generate additional demand for greenhouse gas emission permits.

C) Therefore, “physical addition” required by the former Allocation Guidelines shall be deemed to include, in principle, cases physically added through the commencement and completion of construction in the actual year, as in such cases, when seen through the specifications, it should be deemed that such cases are exceptionally included, and if not, there is no way to allocate emission permits despite the actual emission of greenhouse gases.

B. Relevant statutes

Attached Table 2 shall be as stated in the relevant statutes.

1) Since around 2010, the Intervenor prepared a detailed statement that included a large-scaleing volume of production, greenhouse gas emissions, etc. within the workplace (hereinafter “detailed statement of this case”) and submitted it to the Defendant after being verified by the Korean Standards Association, etc.

2) The amount of greenhouse gas emissions in the base year of the Intervenor’s base year confirmed by the instant specification, etc. is 4,137,071KU in 201, 4,770,089 KU in 201, 5,573,116K in 201.

3) The supplementary intervenor calculated the amount of discharge for each of the five main facilities (hereinafter referred to as "total facilities") in total, and based on this, drafted the instant statement.

4) On the other hand, the Cement output of the Intervenor’s Cement as indicated in the Statistics Year 2012, 2013, and 2014, published by the Korea Cement Association, does not coincide with the specification of this case.

5) Since the completion of December 29, 1969, each of the instant facilities has not been significantly expanded since its extension on June 1985.

6) Prior to the time of the base year, a facility referred to in subparagraph 1 was resumed to the tin and production facilities in 2014, even if its operation was discontinued.

7) The facility set forth in subparagraph 2 was operated as a sprinkler production facility in 2010, which is the immediately preceding year of the base year, after being operated as a separate product production facility in 2011, was operated in 2012, or was operated as a sprinkler production facility in 2013. The Intervenor reported to the Defendant that the facility set forth in subparagraph 2 was 031, serial number 031 at the time of the cleaning system production in 2010, and serial number 023 at the time of the separate product production in 2011, and serial number 035 at the time of the cleaning system production in 2013.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 4, 5, 7, Eul evidence Nos. 10, 11, and 13 (including paper numbers), the appraisal result of the first instance appraiser B, the purport of the whole pleadings

(d) Whether an assistant intervenor's greenhouse gas emission levels are calculated falsely;

1) According to Article 12(1) and (2) of the Emission Trading Act and Article 12(1) and (2) of the former Enforcement Decree of the Emission Trading Act, pursuant to Article 10, Articles 11, 13 [Attachment 1], 14, and 15(1) of the former Allocation Guidelines, which the Defendant established and publicly announced in detail the method for calculating the allocation of emission permits by business entity eligible for allocation under Article 2014-159 of the Ministry of Environment’s notification on September 12, 2014, the allocation of emission permits for each year of implementation of business entity eligible for allocation is determined based on the amount of greenhouse gas emissions for each commitment year based on which the business entity eligible for allocation calculates the estimated amount of greenhouse gas emissions for each commitment period based on the amount of greenhouse gas emissions

As such, the calculation and reporting of greenhouse gas emissions in the standard year constitutes the basic premise for the calculation of greenhouse gas emission permits allocated. Under the target management system, Article 44(1) and (2) of the Green Growth Act provides that controlled entities (the plaintiffs were designated as controlled entities at the time of the implementation of the target management system, and the designated and publicly notified as business entities eligible for allocation on September 12, 2014 was excluded from the target management system pursuant to Article 10 of the Emission Trading Act) shall annually report the statement of greenhouse gas emissions to the government in a way that can be measured, reported, and verified (Article 24(1) of the Emission Trading Act also provides that business entities eligible for allocation shall report a statement of greenhouse gas emissions actually discharged within three months from the end of each compliance year in a way that can be measured, reported, and verified with respect to the reliability of the statement when reporting.

2) In light of the following circumstances acknowledged based on the foregoing evidence No. 16 evidence and the results of the expert appraisal conducted by the appraiser B of the first instance trial and the purport of the entire pleadings, it is reasonable to deem that the instant specification was accurately recorded in the Intervenor’s standard year cleaning volume, greenhouse gas emissions, etc., based on the materials prepared pursuant to Article 24(1) of the Emission Trading Act and Article 44(1) and (2) of the Green Growth Act. On the contrary, it is difficult to deem that the Intervenor made a false statement in this case to recognize the Intervenor’s excessive amount of production and greenhouse gas emissions in the base year, as otherwise alleged by the Plaintiffs.

A) Statistics annually announced by the Korea Cement Association is not prepared in a measurable, reportable, and verifiable manner with regard to greenhouse gas emissions, etc. of cement business entities. Therefore, it cannot be deemed as a specification of greenhouse gas emissions stipulated in Article 24(1) of the Emission Trading Act and Article 44(1) of the Green Growth Act.

B) The statistical smoke report is merely based on the data sent by cement companies, a member company, without verification by the external verification body, and it is difficult to regard the numerical value recorded therein as the basic data on calculation of actual gas emission, regardless of whether it is reliable.

C) The instant specification was prepared under Article 44(1) of the Green Growth Act, and was verified by the Korean Standards Association, etc., which is an independent specialized institution, prior to reporting to the Defendant.

D) On the basis of the Korea Environment Corporation data from 2010 to 2014, the details of the survey on the air discharge source in the system of the Financial Supervisory Service, the business report inquiry into the Air discharge source in the system of the Financial Supervisory Service, the data on the plan to reduce the volume of industrial wastes in the system, the data on the calculation of basic discharge dues every half year for the preparation of the Chungcheongbuk-do Office, the mining products production monthly report prepared by the Cheongyang-gun Office, the data on the reports on the volume of wastes used on the submission of the Korea Energy Management Corporation, the data on the reports on the volume of containers used on the monthly cargo handling charges by the Maritime Affairs and Fisheries Agency, and the volume of shipments from 2010 to 2014 of the total small-scale facilities owned by the Intervenor owned by the Maritime Affairs and Fisheries Agency, which were calculated on the basis of the shipment

E) As compared to the year 2012, the Intervenor increased the 14.86% of the 2013 production volume in the year 2013 (other than the year 2013, the Respondent’s production volume for the previous year has not been significantly increased). The cause of the increase can be found from the beginning of production of a sprinkler at the 2013 facility from the 2013-2013 (the 83.66% of the increased production volume for the entire small facilities in the 2013-2013).

F) Meanwhile, it is confirmed that the Plaintiff’s 2013 greenhouse gas emissions (5,573,116 - 4,770,089): 4,770,089 x 100, and 2013 16.83% of the Intervenor’s 2012 (i.e., the 5,573,116- - 4,770,089): The 10% of the 2012 population increase.

3) Therefore, this part of the plaintiffs' assertion is without merit.

E. Whether each of the instant facilities constitutes a new facility

1) According to Articles 10, 11, and 13 [Attachment 1] of the former Allocation Guidelines, the criteria for calculating allocation of greenhouse gas emission permits by business entity eligible for allocation are as follows:

(a) Greenhouse gas emission permits allocated to each business entity eligible for allocation is divided into the allocation that is determined before a commitment period and the additional allocation allocated during a commitment period;

B) The annual allocation of each performance-based facility shall be calculated by multiplying the adjustment coefficient after excluding the excess greenhouse gas emissions in the base year by the combination of the actual gas emissions (GF method: Gabfing method) anticipated for the pertinent compliance year of the facility subject to benmark application (BM method) and the estimated greenhouse gas emissions (BE method) of the pertinent compliance year of the facility subject to benmark application, excluding the excess greenhouse gas emissions in the base year by which controlled entities failed to observe the objectives as controlled entities (in the emission allocation plan, the "spamping activities of cement type facilities such as the plaintiffs and supplementary intervenors" in the cement industry such as the plaintiffs and supplementary intervenors should be calculated by the bM method

(C) the estimated greenhouse gas emissions for the pertinent compliance year, calculated by GF or BM, shall be calculated by aggregating the estimated greenhouse gas emissions in the existing facility in the pertinent compliance year and the estimated greenhouse gas emissions in the expected new or expanded facility in the pertinent compliance year.

D) The existing facilities in the base year are divided into the facilities newly established and expanded in the last year of the base year (except the facilities newly established and expanded in the last year of the base year) and the facilities newly established and expanded in the last year of the base year (except the facilities newly established and expanded in the last year of the base year), and ① the estimated greenhouse gas emissions of the continuing facility are calculated based on the annual average greenhouse gas emissions in the base year three years, and ② the facilities newly established and expanded in the base year (except the facilities newly established and expanded in the last year of the base year) shall be calculated based on the annual average greenhouse gas emissions in the last year of the base year from the year immediately after the year in which the facilities are newly established and expanded, to the last year of the base year.

(e)The expected greenhouse gas emission volume of the facility to be newly established or expanded shall be the value obtained by multiplying the design capacity of the facility in question and the anticipated load rate, operating hours, and emission intensity of the facility (BM applicable facilities shall be the value obtained by multiplying the expected activity data by the benmark coefficient).

2) The following facts and circumstances are recognized in full view of the entries in the evidence No. 9 and the purport of the entire pleadings in the above-mentioned facts.

A) In light of the fact that Article 12(2)1 of the Emission Trading Act requires the allocation of emission permits in consideration of “annual demand for emission permits by year for the performance of business entities eligible for allocation” and Article 12(1)5 of the former Emission Trading Act requires the allocation of emission permits in consideration of the pertinent type of business during a commitment period or the expected growth rate of business entities eligible for allocation during the commitment period, the Act on Trading Emission Permits requires a business entity eligible for allocation to allocate emission permits in consideration of the demand or growth rate of emission permits actually discharged during the commitment period.

B) As seen earlier, each of the instant facilities did not have any physical addition of the facilities after the base year, but there was an additional demand for emission permits, but is not deemed new facilities in the last year of the base year, even though the anticipated installation of emission permits and the emission permits are not deemed new facilities in the last year.

C) In the calculation method of allocation under the former allocation guidelines, there is a lack of legislation or gap because there is no separate provision on the calculation method of expected greenhouse gas emissions for emission facilities re-operating as in the instant case.

D) The EU system stipulates ① newly established and ② considerable capacity expansion in cases where emission facilities cease to be operated after a certain point of time, in which the EU system is newly incorporated into an emission trading system, even in cases where emission facilities are re- incorporated into an emission trading system with permission after a certain point of time.

3) However, as seen earlier, the calculation method of greenhouse gas emissions anticipated depending on what facilities are deemed to be continuously operated, and whether new facilities are deemed to be newly installed, would have an important impact on the calculation of expected greenhouse gas emissions in which the new facilities mean what facilities. Therefore, the nature of each facility stipulated in the previous allocation guidelines, in particular, the provisions related to newly installed facilities, shall be faithfully interpreted within the meaning of the language and text, barring special circumstances, and shall not be excessively expanded beyond the meaning of the language and text without reasonable grounds.

4) In light of the following circumstances that can be recognized by comprehensively taking account of the facts acknowledged earlier based on the foregoing interpretation criteria, each of the instant facilities cannot be deemed as facilities extended after December 29, 1969 and completed on June 1, 1985, which are physically added after January 1, 201, which are the starting point of the base year of the base year, and thus, newly established in the last year of the base year prescribed in the former Allocation Guidelines (Article 10(1)1 Item (c) of the former Allocation Guidelines) or anticipated new facilities [Article 10(1)2 Item (a) of the former Allocation Guidelines].

A) Article 2 subparagraph 12 of the former Allocation Guidelines, "new establishment" is defined as physical addition of emission facilities that separately report emission amounts in the specifications and conduct greenhouse gas emission activities independently from existing facilities for production activities.

B) On the other hand, Article 2 Subparag. 20 of the former Allocation Guidelines defines not only physical removal, but also a case of continuous suspension of operation, which means a case of continuous suspension of operation, but also a case of establishment.

C) It is reasonable to regard ‘new' and ‘new' as different concepts when defining ‘the start of operation' in Article 2 subparagraph 1 of the former Allocation Guidelines as different from ‘the start of operation'.

D) Even if Article 10(3)4 of the former Allocation Guidelines provides that facilities with a plan to resume are not included in facilities expected to be newly established or expanded during the commitment period after closure, the former Allocation Guidelines clearly distinguish the operation of facilities following the establishment or extension of new and existing facilities from the relocation of facilities after closure (Article 10(3)4 of the former Allocation Guidelines does not include an estimated greenhouse gas emissions from the sole fact that a plan to resume is established during the commitment period after closure). Considering the difference in the calculation method of emission permits allocation, the Defendant asserts that the foregoing re-working means only a difference between GF method and GF method or between BM method and the BM method, but there is no ground to reduce or interpret the meaning of the re-approval.

E) According to Article 5(3) subparag. 1 of the former Guidelines, the data on whether a new facility that is expected to start is required to be attached to the application form for a new facility that is expected to be installed in the case of a new facility. According to Article 5(1) subparag. 2(c) of the former Guidelines, in light of the fact that a new facility that is expected to be installed or completed in the year immediately before the beginning of the commitment period or a new facility that is anticipated to be installed in the commitment period, it is interpreted that a physical addition of the facility is premised after the reference year.

F) In a prior sense, it is difficult to see that the establishment of a new facility is naturally included in the category of a new establishment because it means a new installation and installation, and therefore it is difficult to see that the existing facility has been operated for a long time.

G) On April 14, 2010, when the Green Growth Act enters into force on or before April 14, 2010, a facility installed and installed prior to the enforcement of the Green Growth Act is not operated for a considerable period of time since that time from a voluntary point of time after April 14, 2010, and there is a detailed statement under Article 44(1) of the Green Growth Act with respect to the facility, it is difficult to regard the facility as a newly installed facility (the Defendant, even if there is no physical addition, shall be deemed to fall under an exceptional case if it is possible to evaluate the facility as in this case when seen through a detailed statement. However, as seen earlier, if it appears to be included in the concept of a new facility established and installed under the Act on Trading of Emission Permits, there is no basis to consider the provision on the explicit basis therefor, and thus, the Defendant’s above assertion cannot be accepted). In particular, since the Defendant’s installation of the facility from a voluntary point of time after April 14, 2010 was not established since 4.

(h) If a business entity eligible for allocation calculates the estimated greenhouse gas emissions in a way different from the case of a facility that is re-run after the beginning of the base year, it is highly likely that greenhouse gas emissions recognized by the business entity eligible for allocation will be distorted and calculated by the operating entity of the business entity eligible for allocation because its nature is determined according to the intent of the business entity operating the business entity eligible for allocation (e.g., the amount of one year emission (KAU) of the business entity eligible for allocation which has 1, 2, and 3 is specified to the extent of 180. On the first and second years of the base year of the base year of the year of the year of the year of the 3 period of the 1, 2, and 3 period of the base year of the 1, 3 period of the 3 period of the 3 period of the 3 period of the base year of the Defendant, and the amount of emission recognized by the business entity is calculated as distorted and distorted by 220=180 +180 +360).

(i) In the calculation method of allocation under the former Guidelines, there is no separate provision on the method of calculating the estimated greenhouse gas emission amount with regard to the emission facilities re-driving as in the instant case, and there is a legislative defect or gap. Considering the circumstances that, in the event that each of the instant facilities is not deemed new facilities, it is unreasonable that emission permits are not allocated or are underpaid, it cannot be excessively expanded and interpreted beyond the literal meaning of the newly established provision.

(j) The supplementary intervenor asserts that the requirement of the “physical addition of discharge facilities” under the definition of the new installation under Article 2 subparag. 12 of the former Guidelines for Allocation is invalid beyond the bounds of delegation by superior laws and regulations and the Enforcement Decree thereof. However, it is difficult to deem that requesting physical addition in the definition of the new installation exceeded the bounds of delegation by superior laws and regulations. The purport of requesting physical addition in the definition of the new establishment is to distinguish between the increase in the rate of operation and the establishment of new installation, and therefore, the supplementary intervenor’s above assertion cannot be accepted.

4) Therefore, this part of the plaintiffs' assertion is with merit.

F. Scope of revocation of each of the dispositions of this case

1) According to the above facts, among the instant disposition of allocation, facilities expected to be newly established pursuant to Article 10(1)2(a) of the former Guidelines for Allocation among the instant disposition, and facilities No. 2 are deemed newly established in the last year of the base year under Article 10(1)1(c) of the former Guidelines for Allocation, and the part regarding the allocation of greenhouse gas emission permits during the commitment period by applying the adjustment coefficient should be revoked unlawfully. Of the instant disposition of rejection, if the amount of greenhouse gas emissions anticipated to each of the instant facilities in the instant case was not unlawfully calculated, it should also be revoked, including the amount of greenhouse gas emission permits allocated to the Intervenor revoked, even though the rejected part of the greenhouse gas emission permits should also be revoked.

2) However, in order to cancel only illegal part of each of the dispositions in this case, the estimated greenhouse gas emissions expected to be recognized as one of the facilities in this case should be calculated first, and the adjusted coefficient should also be calculated again (the part of the adjusted coefficient is changed). Based on this, the legitimate allocation of greenhouse gas emission permits to supplementary participants is calculated, and the calculation amount and the calculation amount are different from the calculation amount in this case, the part of the legitimate allocation of greenhouse gas emission permits to the plaintiffs and the disposition of this case should be revoked. The data in this case cannot be calculated only on the basis of the data submitted in this case. Thus, the entire disposition in this case should be revoked to calculate the amount of greenhouse gas emission permits to supplementary intervenors and the plaintiffs.

4. Conclusion

Therefore, the plaintiffs' claims of this case should be accepted in its entirety on the grounds of its reasoning. Since the judgment of the court of first instance is justified, the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges

The presiding judge, the Korea Judge Judge;

Judges Kim Gung-sik

Judges Dokwon Line

Note tin

1) The competent authority shall hold emission permits in reserve at a certain ratio of total emission permits for a commitment period to take measures for the allocation of emission permits and the stabilization of markets (Article 18 of the Emission Trading Act), and the Government shall establish a national emission permits allocation plan, including matters concerning the number of reserve emission permits and standards for allocation (Article 5 of the Emission Trading Act). In accordance with the aforementioned Act, the competent authority established a national emission permits allocation plan (Article 5 of the Emission Trading Act). In light of the fact that the allocation plan (Article 1-1) is included in allocation of emission permits (Article 37) and the adjustment of allocation based on the result of filing an objection against the advance allocation of emission permits (Article 37) and the allocation of allocation according to the result of filing an objection by a business entity eligible for allocation, there is room to deem that the adjustment of allocation following the request for revocation of the allocation plan

2) Clinker and cement materials are cement to ensure that they are shoted by a shot, etc. which are small by a power reactor, etc., and that they have been cut off by adding tin thereto.