"Procedures Must Be Observed Even if Defendant Escapes During Trial"... Supreme Court Overturns 'Fraud Defendant In-Absentia Trial' and Remands Case

Defendant Flees During Secondhand Fraud Trial

First and Appeals Courts Hand Down Prison Sentence After Public Notice Service

Supreme Court: "Trial in Absentia with Procedural Violation is Null and Void"

The Supreme Court has ruled that it is a violation of the law to proceed with a trial in the absence of the defendant by issuing a public notice service decision before the legally mandated six-month period of "unknown whereabouts" has elapsed, even if the defendant escapes during trial.

Supreme Court in Seocho-gu, Seoul. Photo by Yonhap News Agency

According to the legal community on the 14th, the Supreme Court (Presiding Justice Lee Sook-yeon) overturned the lower court's ruling, which sentenced the defendant, who was indicted on fraud charges, to one year and six months in prison, and sent the case back to the lower court for retrial.

The defendant was accused of posting a false advertisement online in 2023 claiming to sell cameras and wireless earphones, thereby defrauding victims of approximately 2.5 million won.

The defendant, who had multiple previous convictions for similar offenses, deceived the court into believing a settlement would be reached and then went on the run, failing to appear for the second hearing scheduled for October 2023.

In response, the court of first instance issued a public notice service decision on April 24, 2024, about three months after receiving a report that the defendant’s whereabouts could not be confirmed. A public notice service is a system in which, if the location of the defendant is unknown, court documents are posted in official gazettes or similar outlets; after a certain period, delivery is deemed to have been made and the trial proceeds in absentia. The first-instance court sentenced the defendant to one year and six months in prison without the defendant present and issued a compensation order. The appellate court upheld this decision.

However, the Supreme Court overturned the previous judgment, pointing out a procedural violation at the first-instance trial. According to Article 23 of the "Act on Special Cases Concerning Expedition, Etc. of Legal Proceedings," public notice service and trial in the absence of the defendant may only proceed if, for six months after the acceptance of a nondelivery report regarding the defendant, the defendant’s whereabouts remain unconfirmed.

The panel stated, "Even though public notice service could only be conducted after July 18—six months from the date the nondelivery report for the defendant was filed—the first-instance court hastily made the decision on April 24, which was incorrect." They continued, "The court neglected to take basic measures, such as attempting delivery to the defendant’s workplace address or calling family members to determine the defendant’s whereabouts." The Supreme Court elaborated that "the lower court misunderstood the legal principles concerning the effectiveness of actions taken without the defendant’s testimony, and this mistake influenced the outcome of the ruling," thus providing the reason for remanding the case.

This content was produced with the assistance of AI translation services.