"Found Guilty Without Receiving an Indictment?"... Supreme Court Orders Retrial

Supreme Court Overturns Conviction and Remands Case of Mr. A on Fraud Charges

The Supreme Court has ruled that if a defendant is found guilty in both the first and second trials without having received an indictment or a summons, and thus was absent from the proceedings, the case must be retried.

Supreme Court, Seocho-gu, Seoul.

The Supreme Court's Third Division (Presiding Justice Lee Sukyeon) announced on the 23rd that it had overturned the original verdict, which sentenced Mr. A to one year in prison on charges including fraud and forgery of private documents, and remanded the case to the Uijeongbu District Court.

In 2021, Mr. A was indicted for acting as a cash mule in a voice phishing scheme, allegedly defrauding five victims of approximately 50 million won by presenting forged loan repayment documents.

When Mr. A failed to appear at the first trial, the court served the indictment and summons by public notification. Public notification is a procedure in which the court posts documents for a certain period, after which service is considered complete. Despite this, Mr. A did not attend the trial, and the first-instance court found him guilty as charged and sentenced him to one year in prison.

The second trial, which was held following the prosecutor's appeal, also proceeded in Mr. A's absence, and the appellate court handed down the same one-year prison sentence as the first trial.

After learning of these proceedings belatedly, Mr. A applied for the restoration of his right to appeal. The court recognized that Mr. A had been unable to file an appeal within the statutory period for reasons beyond his control and granted the restoration of his right to appeal.

The Supreme Court stated, "There are grounds for retrial as stipulated in the Litigation Promotion Act, given that the first and appellate judgments were rendered in the defendant's absence for reasons not attributable to him," and remanded the case to the Uijeongbu District Court. The Litigation Promotion Act allows a person who was unable to attend trial due to reasons beyond their control, such as no fault or negligence, to request a retrial within 14 days after a guilty verdict is finalized.