온실가스배출권 거래와 신탁

Abstract

In May 2012, Korea has introduced the nationwide Emissions Trading Scheme,which is the one of the most effective ways to achieve the target of reducing greenhouse gases by means of market mechanisms, by enacting the Greenhouse Gas Emission Allocation and Trading Act(“the Act") regardless of its reduction obligations under the United Nations Framework Convention on Climate Change. A condition precedent for the Emissions Trading Scheme to function as such is invigorated trades. However, the Act comes short of our expectations on the trade invigoration. It fails to stipulate the legal nature of the emission rights, to recognize bona fide acquisition, and to specify the eligibility for collateral. In the Emissions Exchange to be installed by the Act, financial service providers was not allowed to participate. In addition, the Act did not introduce a clearing and settlement system for the transaction of emission rights. It is also insufficient for investors' protection. Consequently, the Act fails to secure the legal stability of the emissions trading and, thus, the negotiability of the emission rights. Emissions Trust, as the author believes, can resolve such issues in large part (if not all) as we have witnessed in the Japanese examples: Japan developed first in the world the Emissions Trust products for small investors, thereby conferring the negotiability to the emission rights and expanding the ground of financial services business drastically. Emissions Trust is to securitize the emission rights by utilizing the switching function of trust. As the Trust Act does not limit the kinds of trust properties, various tangible or intangible assets which lack liquidity may be securitized and be enhanced liquidity by trust. Likewise, an emission rights holder (a corporation to which emission rights are allocated) may entrust its emission rights to a trustee to become a truster and beneficiary. In turn, the trustee issues beneficiary certificate, by which the truster may sell or trade its emission rights. The Emissions Trust may be 'trust with securitization of beneficiaries’ interests'under the new Trust Act. By means of Emissions Trust, the emission rights with ambiguous legal nature are converted into securities, which may be traded in the existing securities exchange system. This makes the legal relationship of the emissions trading clear,and resolves the various problems arising out them. In the era of a new trust, the author expects that the Emissions Trading Scheme may be invigorated by the TRUST.