Supreme Court: "Judgments Made More Than 2 Months Before Public Notice Service to Overseas Residents Are Invalid"

Court: "Effectiveness of Overseas Public Notice Occurs Only After 2 Months"

The Supreme Court has ruled that if a verdict is delivered less than two months after public service of process was made to a defendant residing overseas, it violates the defendant's "right to appear at trial," requiring a retrial. When the defendant resides in a foreign country beyond the jurisdiction of our courts, the Civil Procedure Act, which is applied mutatis mutandis under the Criminal Procedure Act, stipulates that the service of process takes effect only after two months have passed from the date of the first public service.

Supreme Court, Seocho-dong, Seoul.

According to the legal community on the 14th, the Supreme Court's First Division (Presiding Justice Kim Seon-su) overturned the original sentence of 1 year and 6 months imprisonment with 2 years probation and a fine of 50.4 million won in the appeal trial of Mr. A, who was prosecuted for violating the Customs Act, and remanded the case to the second trial.

Mr. A, the export sales manager of a trading company, was prosecuted on charges of aiding and abetting Mr. B, a food importer, who in May 2004 imported 12 tons of agricultural products from China and underreported the price to customs as $240 per ton, totaling $2,880, instead of the actual $1,200 per ton, totaling $14,400, thereby evading customs duties amounting to about 50 million won corresponding to the price difference of $11,520.

The first trial court sentenced Mr. A to 1 year imprisonment with 2 years probation, considering that the issuance of low-priced delivery notes by Chinese agricultural exporters had become customary, making it difficult for Mr. A to refuse Mr. B's request, and that most of the actual benefits of the crime accrued to Mr. B, and suspended the imposition of a fine.

The second trial court accepted the prosecution's appeal that the first trial court erred in dismissing the indictment on the grounds that there was no evidence of a lawful complaint by the Commissioner of the Korea Customs Service or the head of customs regarding Mr. A's violation of the Customs Act, and remanded the case to the first trial court.

On the other hand, the reopened first trial court ruled that there was no reason to conclude that Mr. A, a Chinese national residing in China, was evading criminal prosecution in Korea by not responding to the prosecution's investigation, and even if the violation of the Customs Act was recognized as guilty, the three-year statute of limitations had already expired, and acquitted him.

The problem arose in the reopened second trial. The second trial court attempted to serve Mr. A, who left for Vietnam in December 2019, twice at his address in Vietnam through judicial cooperation procedures, but received a reply from the Supreme People's Procuracy of Vietnam that service was impossible. Subsequently, in January of this year, the court ordered service by public notice for Mr. A and served the defendant's summons by public notice on the same day. Before two months had passed, in February of this year, the court held two trial dates without Mr. A's appearance, overturned the first trial's judgment, and convicted him. Public service of process is a system where summons and other documents are posted on the court bulletin board when the defendant's whereabouts are unknown, and after a certain period, the party is deemed to have received the documents.

The Supreme Court held that when a defendant residing overseas is summoned by public service and fails to appear at the newly scheduled trial date without justifiable reason, a judgment can be made without the defendant's statement only after two months have passed from the date of the first public service. The second trial court's failure to observe this procedure was a significant error affecting the judgment.

The court stated, "Absence is recognized only if the defendant consecutively fails to appear at two trial dates held after the two-month period has elapsed," and ruled, "Holding trial dates and delivering a judgment without the defendant's appearance before two months have passed from the first public service infringes the defendant's right to appear as stipulated in the Criminal Procedure Act."

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