The Supreme Court ruled that it was unlawful for a court to proceed to trial and convict a defendant solely by public notification service without sufficiently confirming the location, even though the defendant had run a relay station for voice phishing (telephone financial fraud) and committed fraud worth more than 200 million won. The gist is that even if the defendant was on the run, the court violated procedural rights by moving straight to public notification service without attempting to locate the defendant using the address and contact information verifiable in the record.
Public notification service is a system under which, when the other party's address or residence is unknown and documents cannot be properly delivered, the documents are deemed served by posting them on a court bulletin board, in the official gazette, or in newspapers. A certain period (usually two weeks) after the posting date, the service takes effect and legal proceedings move forward.
The Supreme Court's Third Division (presiding Justice Roh Tae-ak) said on the 8th it reversed the lower court and remanded the case of a person surnamed Lim (36), who was indicted on charges of fraud and violating the Telecommunications Business Act for conspiring with a voice phishing ring to operate a relay station and taking a total of about 201.52 million won in cash and cultural gift certificates from four victims, sending it back to the Seoul High Court.
In April 2023, Lim managed a relay station with voice phishing ring members overseas so that calls would display as originating from a domestic mobile number (010). Using this number, ring members called victims impersonating a prosecutor from the Incheon District Prosecutors' Office and said, "A burner phone and a burner bank account opened under your name have been linked to a crime. We need to verify the legitimacy of your account," demanding money transfers. Following the instructions, victims sent cash to designated accounts or bought cultural gift certificates and provided the PIN numbers.
The court of first instance sentenced Lim to two years and six months in prison. However, after failing to appear at the first appellate hearing on Nov. 22, 2023, Lim was released the same year on a stay of execution of detention and then disappeared without voluntarily returning to prison when the stay period ended.
Afterward, based on a police reply that Lim could not be located at the previous address, the court decided on Jan. 15 this year to use public notification service and proceeded with the appeal without the defendant. Ultimately, the appellate court dismissed the appeal in May without Lim's presence.
The issue is whether the court made the "minimum effort" to verify Lim's whereabouts before deciding on public notification service. The case record included, in addition to the previous address, another residential address for Lim and phone numbers for Lim and family members. However, the lower court showed no indication that it attempted service to those addresses or tried to make phone contact.
The Supreme Court found this a procedural violation. Article 63(1) of the Criminal Procedure Act allows public notification service only when the defendant's "residence, office, or current location" is unknown.
In addition, to render a judgment on appeal without the defendant's appearance (Article 365 of the Criminal Procedure Act), the defendant must have been properly served by lawful means and failed to appear without a justifiable reason. In other words, the court must make substantive attempts at service using addresses and contact numbers to satisfy the requirement of "lawful summons."
The Supreme Court said, "The lower court assumed it did not know the defendant's residence and current location and immediately resorted to public notification service, but it should have attempted service to the addresses and contact numbers shown in the record or called to ascertain the location," adding, "By not giving the defendant an opportunity to appear, there was a violation of law that affected the judgment."