A Missing Defendant Isn’t Enough: The Supreme Court Says ‘Try Harder’ Before Public Service

By PeachFiv, December 30, 2025

Case Background

A defendant (A) was charged with fraud and violation of the Telecommunications Business Act.

At first instance (2023 Sept), A was sentenced to 2 years and 6 months in prison.

Both A and the prosecution appealed, but A failed to appear at the first appeal hearing (Nov 2023) and later absconded after his release period expired.

Appeal Proceedings and Public Notification Service (공시송달)

In April 2024, the police reported to the appellate court that A’s registered address did not confirm his whereabouts.

In January 2025, the appellate court used public service (공시송달) to send the summons.

A did not appear at the 2nd and 3rd hearings, so the court proceeded in absentia.

At the 4th hearing, the appellate court dismissed the appeal, causing the first-instance judgment to become final in form.

Procedural Problem

The case record contained additional addresses and telephone numbers for A and his family.

The appellate court never attempted:

Sending documents to the other listed addresses.

Calling A or his family via the phone numbers in the record.

A later obtained restoration of appeal rights (상소권회복) in June 2025 and filed a valid appeal to the Supreme Court.

Supreme Court Decision

The Supreme Court quashed the appellate judgment and remanded the case to the Seoul Central District Court.

Key legal principles stated:

Public notification service is allowed only when the court cannot determine a defendant’s residence, workplace, or current location.

If the record shows a phone number or other address, the court must attempt contact first, such as:

Calling the defendant,

Contacting family members,

Trying delivery to other known addresses.

This duty applies even if the defendant failed to report a change of address.

An unlawful public notification cannot be excused simply because the defendant neglected to update residence information.

If the court skips these basic steps and proceeds via 공시송달, it violates due process and deprives the defendant of the chance to appear.

Supreme Court’s Criticism of the Appeal Court

The appellate court:

Wrongly assumed A’s location was unknown,

Skipped essential steps to locate or contact him,

Proceeded directly to public notification,

Held hearings without the defendant,

Issued a judgment that was therefore tainted by procedural illegality.

This error affected the outcome, requiring reversal.

Article: https://www.lawtimes.co.kr/Case-curation/213854