배출권의 법적 성격 고찰 - 「온실가스 배출권의 할당 및 거래에 관한 법률」을 중심으로

Abstract

In the past, each country tried to deal with environmental problems with various environment control laws. However, since such environment control laws became the obstacle to national economic development, the countries have made efforts to find out a new paradigm to handle with environmental problems. As a part of it, the carbon emission trading scheme has been made. By making the carbon emission right freely traded in emission trading market, that scheme aims to achieve not only economic gains but voluntary reduction of greenhouse gas. In this way, the carbon emission scheme has changed environment goods, for which nothing had been paid, into transaction objects. Accordingly, the voices of academia that the environmental right must be seen from the point of view different from those of the past are growing louder and louder. The laws on carbon emission trading have been enacted all over the world including USA, Germany, France and Australia and the carbon emission rights (CER) are traded in emission trading markets such as the Chicago Climate Exchange and the Europe Climate Exchange. Even though CER trading is carried out worldwide, the problems arise out of the facts that there are no uniformed laws and regulations and, thus, the CER trading is made in accordance with the laws of each country. Germany takes a position that it recognizes the CER as a proprietary right but does not recognize it as a property right under civil law. This means that the CER should not deemed as a property right under civil law but must be considered as the one under public law. In addition, France recognizes the CER as a movable property and subjective right as a property right under civil law and Australia actively recognizes the CER in order to promote the emission trading market. In contrast, USA expressly states that it does not recognize the aspect of property right of the CER. Since the countries have different points of view regarding the legal character of the CER, the countermeasure must be different if any problem with respect to trading the CER arises. In case of our country, on May 14, 2012, the government promulgated the Enforcement Ordinance of the ‘Act on Allocation and Trading of Greenhouse Gas Emission’ and such ordinance was effective on November 15, 2012. However, such Act does not clearly set forth the legal nature of the CER and, thus, it is hard to find out any measure to be taken for the cases where any problem arises in an emission trading market. As a first step to resolve such problem, in this paper, I examine and study on the legal nature of the CER focusing on the ‘Act on Allocation and Trading of Greenhouse Gas Emission’. It appears that the academia puts a lot of effort to address the nature of the CER taking account of its aspects in both civil and public law. From the point of view that the CER is much like a private right, it is insisted that the CER exists beyond the inherent area of environmental rights considering the fact that the CER is traded among private persons. However, in my view, the CER must be deemed as a public right rather than a private one given that: the emission trading market is an artificial product of countries; such trade is carried out in a form of transferring the CER granted by his or her country; and the limit on the environmental goods.