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Tried and Convicted Without Ever Being There: Supreme Court Orders Retrial for Defendant Who Missed Both Instances Through No Fault of His Own

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Korea’s Supreme Court has ruled that where a defendant was absent from both the trial and appellate proceedings through no fault of his own — and a guilty verdict was confirmed — that conviction carries grounds for retrial and must be overturned on appeal. Here are the key points.

Issue

Where a defendant was unable to attend both first and second instance proceedings through no fault of his own, and a guilty verdict was confirmed in his absence, does that absence constitute grounds for retrial — and can it form the basis for overturning the conviction on a subsequently restored appeal?

Facts

  • A was charged with embezzlement and related offenses. He attended the second hearing at trial but failed to appear from the third hearing onward.
  • The trial court proceeded in his absence using public notice service (공시송달) — a method of substituted service used when the defendant’s whereabouts cannot be established — and sentenced A to one year and four months in prison.
  • Only the prosecutor appealed, arguing the sentence was too lenient. The appellate court also served A by public notice and proceeded in his absence, ultimately dismissing the prosecutor’s appeal. The conviction became formally final.
  • A later learned of the verdict and applied to have his right to appeal restored. The court granted the application.

Rule

  • Under Korean criminal procedure, a defendant who was unable to attend trial proceedings through no fault of his own — and against whom a guilty verdict was confirmed in absentia — may file for retrial.
  • Where such a defendant instead pursues a restored appeal rather than a retrial application, the same circumstances constitute grounds to quash the appellate decision.
  • Once quashed and remanded, the appellate court must restart the procedural process from scratch — re-serving the indictment and conducting a full new hearing before issuing a fresh judgment.

Supreme Court Decision

  • The Supreme Court (Criminal Division 1, presiding Justice Shin Suk-hee) quashed the appellate decision on April 2, 2026, and remanded the case to Changwon District Court.
  • The court found that A had been unable to attend both the trial and appellate proceedings through no fault of his own — the use of public notice service in both instances reflected an inability to locate him, not a deliberate choice on his part to evade proceedings.
  • Because a guilty verdict had been confirmed against a defendant who never had a meaningful opportunity to participate, the appellate decision contained grounds for retrial.
  • On remand, the appellate court must serve all relevant documents afresh, conduct entirely new proceedings, and issue a new judgment based on the evidence before it.

Key Takeaways

  • A conviction confirmed entirely through in absentia proceedings — where the defendant’s absence was not his fault — is procedurally defective and cannot stand.
  • The defendant has a choice of remedy: he may apply for retrial directly, or seek restoration of his appeal rights and pursue an appeal. Either route can produce the same outcome — a fresh hearing.
  • Public notice service, while legally permissible, does not cure the procedural unfairness of a defendant never having had a real opportunity to defend himself. Courts on remand must treat the matter as if proceedings are starting over.
  • The fact that only the prosecutor appealed the original verdict does not insulate the conviction from challenge by the defendant through a restored appeal.

Why This Matters

This ruling reinforces a fundamental principle of Korean criminal procedure: a conviction is only as sound as the process that produced it, and a defendant who was never genuinely present — not by choice, but by circumstance — has not had a fair trial. For defense practitioners, it confirms that restoration of appeal rights is a viable and effective remedy in absentia conviction cases, and that the threshold question is simply whether the defendant’s absence was attributable to his own fault. For prosecutors and courts, it is a reminder that public notice service, though procedurally valid, does not close the door on a defendant’s right to be heard.

Article: https://www.lawtimes.co.kr/news/articleView.html?idxno=220040

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