"I'm Sorry, But You Lost": The Outcome of the 'Kwon Kyung-ae No-Show' That Made Even the Presiding Judge Bow His Head

"My lawyer deliberately ruined the lawsuit. What am I supposed to do now?"

On June 24, 2026, in a courtroom at the Seoul High Court. Lee Ki-chul, a mother who lost her daughter to school violence, raised her voice toward the bench. Before reading the verdict, the presiding judge uncharacteristically spoke up. "We find this regrettable. We offer our words of consolation." However, the conclusion was cold. "We cannot exclude the legal effect of the appeal being deemed withdrawn."

Attorney Kwon Kyung-ae. She failed to appear in court three consecutive times during the appellate trial in 2022 and did not even inform the bereaved family of the loss for five months. It was only after the deadline for filing an appeal to the Supreme Court had passed that the family found out about everything. A courtroom reopened after three years. However, the court shut its doors, stating, "This is a lawsuit that has already ended."

Coincidentally, on the same day, the Constitutional Court reached an important conclusion in a completely different case. It ruled that the law must be revised so that nephews, nieces, and sisters-in-law of victims who died unjustly due to state violence can also request a retrial. The Yeosu-Suncheon incident from over 70 years ago, and the suppression of democratization movements over 50 years ago. The ruling means that the right to uncover the truth remains even after all immediate family members have passed away.

Why does one side say "the law cannot be changed" while the other says "the law violates the Constitution"? Within this contradiction lie three structural loopholes in South Korea's justice system.

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1. "A Lawyer's Mistake Is the Client's Responsibility" — A Harsh Principle Upheld Even by the U.S. Supreme Court

Why was the court so cold?

In fact, this principle is not unique to South Korea. According to prominent U.S. legal media and case law annals, the U.S. Supreme Court had already made this clear in its 1962 ruling in Link v. Wabash Railroad: "Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent." This is because a lawyer is not a mere messenger, but someone who "represents" the party.

The Seoul High Court applied the same logic: "Attorney Kwon's actions are highly illegal. However, the deeming of an appeal's withdrawal is an effect that naturally occurs under the law once the requirements of Article 268 of the Civil Procedure Act are met." In other words, whether the lawyer is a bad person is separate from whether the lawsuit has ended.

But this raises a question: Is this truly the case in "all" circumstances?

2. "Simple Mistake vs. Complete Abandonment" — Exceptions Recognized by the U.S. Supreme Court

There are exceptions abroad.

In 2012, the U.S. Supreme Court presented an important distinction in the case of Maples v. Thomas. According to the Supreme Court's ruling at the time, two lawyers representing a death row inmate left their law firm, and the firm's mailroom returned the court's notices. The Supreme Court stated: "This is not a case of simple negligence, but of 'abandonment.' When an attorney has effectively severed the agency relationship, the consequences cannot be mechanically shifted to the client."

What about the case of attorney Kwon Kyung-ae? Failing to appear three consecutive times. Concealing it for five months. Depriving the family of the opportunity to appeal. The bereaved family argued, "This is not a mistake, but deliberate abandonment." However, the court did not even accept their request to call witnesses, stating, "The issue in this case is whether the provision deeming the appeal withdrawn can be applied."

If so, where is the real battleground for this case? It is not the courtroom, but the National Assembly.

3. "The Client Should Have Been Notified Directly" — Loopholes in System Design

There is a point that the bereaved family raised most strongly.

"If the lawyer failed to appear, shouldn't the court have notified the client directly of the next trial date?" Rule 55 of the U.S. Federal Rules of Civil Procedure requires written notice before a default judgment is entered against a party who has already appeared in the action. While this is not exactly the same system as deeming an appeal withdrawn, the core concept is identical: Should there be a warning mechanism for the client once proceedings have begun?

The court did not ignore this point either: "We believe this can be discussed in terms of institutional improvement. However, it is difficult to use this as a ground to exclude the effect of the deemed withdrawal of the appeal in this case." In other words, the law needs to be changed.

According to the 2023/24 report of the Legal Ombudsman, the regulatory body for legal services in England and Wales, first-tier complaint handling was found to be inadequate in 46% of the cases investigated. Lawyer service failures are both individual deviations and subjects of institutional oversight in any country. South Korea has now reached a point where it must redesign this oversight mechanism.

4. School Violence: Low in Numbers, But 'High-Intensity Cases' Persist

School violence lies at the background of this case.

According to the OECD PISA 2022 report, an international student assessment, the ratio of students in South Korea who reported being bullied at least a few times a month was 8 to 10%, which is relatively low compared to the OECD average of 20 to 21%. The percentage of students who feel unsafe at or on the way to school is also low.

But this does not mean there is no problem. UNESCO, the United Nations Educational, Scientific and Cultural Organization, emphasizes that school violence has a significant negative impact on academic achievement, dropout rates, and physical and mental health. In other words, even if the statistical average is low, the destructive power of severe and concentrated cases of victimization remains immense. This is where the social significance of this lawsuit lies. If the judicial response fails in high-intensity victimization cases, the victim's trust in the entire system collapses.

5. Injustices from 70 Years Ago: Nephews and Nieces Should Also Be Able to Request a Retrial

On the same day, the Constitutional Court made an important decision.

The Yeosu-Suncheon incident of 1948. Victims were sentenced to prison and incarcerated, only to be killed by the military counterintelligence unit, military police, and police, regardless of judicial procedures. Another case involves Bishop Tji Hak-soon, who was sentenced to prison in the 1974 National Democratic Youth and Students League incident. His nephew filed a constitutional petition. Now, 70 and 50 years later, spouses and immediate family members have already passed away. Only nephews, nieces, and sisters-in-law remain. However, the Criminal Procedure Act stipulates that "only spouses, immediate family members, and siblings can request a retrial."

The Constitutional Court ruled 7-2 that this provision is non-conformable to the Constitution. "State violence cases could not have their truths uncovered for a long time and are fundamentally different from general criminal cases. There are instances where entire families were sacrificed, leaving no one eligible to request a retrial." The National Assembly must revise the law by December 31, 2027. Otherwise, this provision will lose its effect starting January 1, 2028.

The decisions of international human rights organizations align with this. The Inter-American Commission on Human Rights has long held that the right to know the truth about grave human rights violations belongs not only to the victims themselves but also to their family members. The United Nations has also established principles to guarantee effective remedies and reparations for victims of gross human rights violations. South Korea's latest decision moves in a direction that reduces conflict with these international standards.

6. "Time Works in Favor of the State" — The Cruel Structure of Historical Cases

Why do historical cases require special rules?

Unlike general criminal cases, time works in favor of the state in historical cases. The victims have already passed away, their closest relatives disappear over time, and entire families are dismantled or scattered. If the right to request a retrial is restricted to the nuclear family, the state can formally claim that "a retrial system exists," while in reality creating a paradox where the cases concealed the longest have the lowest chance of relief.

According to data from South Korea's Truth and Reconciliation Commission, the commission completed its second term on November 26, 2025. As of May 2024, the commission had confirmed the truth in 6,293 out of a total of 20,245 cases. Even as of the end of 2022, 1,179 cases had already reached truth-determination conclusions. Given this scale, the issue of the right to request a retrial is not an exceptional case but rather a bottleneck for the entire system.

7. "Can't Prosecutors Request a Retrial Instead?" — Unlikely to Happen

There were also dissenting opinions.

Two Constitutional Court justices expressed a dissenting view: "Limiting those eligible to request a retrial to the deceased's spouse, immediate family members, and siblings is meant to harmonize concrete justice with legal stability. Prosecutors can also request a retrial ex officio."

However, the majority opinion responded: "It is difficult to expect prosecutors to request retrials ex officio. It was only in the late 2010s that prosecutors first requested retrials ex officio for civilian massacre cases, and even then, it depended on social and political circumstances."

In fact, it was only after the Supreme Prosecutors' Office's Prosecution Reform Committee issued an "active correction recommendation" in 2017 that prosecutors made ex officio retrial requests, leading to acquittals in some historical cases. In other words, a prosecutor's request for a retrial is not an institutional safety net, but an unstable path driven by political will.

8. "The Supreme Court Ruling Is Insufficient" — Why Was the Constitutional Petition Against the Court Decision Dismissed?

The bereaved family did not stop there.

In the damages lawsuit filed against attorney Kwon, the Supreme Court finalized alimony of 65 million won. However, the family filed a constitutional petition against the court decision with the Constitutional Court, arguing, "The Supreme Court dismissed the remaining six grounds for appeal in a single, blanket sentence." They claimed this "clearly violated their right to receive a reasoned judgment on their arguments and their right to a trial."

However, the Constitutional Court dismissed it on June 23, 2026. "The mere fact that the judgment did not sufficiently state the reasons for individual and specific decisions cannot be seen as a failure to undergo due process or a violation of the Constitution and the law."

According to statistics from the Constitutional Court as of April 30, 2026, out of 56,031 constitutional petitions received, 36,135 were dismissed at the panel stage before a full hearing could begin. In other words, constitutional petitions against court decisions are originally a very narrow gate. Feeling wronged and unconstitutionality are different concepts.

9. The Common Structure Shown by the Three Cases: Procedure vs. Substance

When looking at the three cases together, a common thread emerges.

In the school violence civil lawsuit, attorney abandonment clashed with client attribution. In the state violence retrial case, the passage of time clashed with the restriction on the scope of bereaved family members. The dismissal of the constitutional petition against the court decision confirmed that constitutional litigation does not automatically fill those gaps.

As the U.S. Supreme Court stated in the Link ruling, civil procedure still stands strongly on the model of client attribution. However, as the Maples ruling shows, that model is not absolute. As international human rights law demonstrates, applying general procedural rules to state violence cases makes the passage of time itself a device that favors the state.

When these three structures overlap, victims are left with the feeling that "they cannot receive a judgment on the merits anywhere." The court says, "We acted according to the law," but the victim feels, "The law has abandoned me."

10. What Needs to Be Changed: Three Directions for Institutional Reform

Solutions must be viewed separately.

First, a safety net for "attorney failure" is needed in school violence and major damage cases. This includes an obligation to notify the client directly in case of repeated non-appearance, a court verification process with the client after a certain number of absences, and suspending the effect of the deemed withdrawal or allowing subsequent recovery when abandonment is suspected. Several countries already have mechanisms such as notice before default, setting aside for "good cause," and exceptional reinstatement.

Second, attorney liability and relief in the original lawsuit must be designed separately. The Legal Ombudsman 2023/24 report in the UK revealed that even in the litigation sector, which had the lowest rate of complaints, 34% of respondents felt the service was inadequate. Lawyer service failures are both individual deviations and subjects of institutional oversight.

Third, historical cases must be redesigned around the "right to access the truth" rather than the "scope of family." When the National Assembly revises the law, it needs to look beyond simply including nephews, nieces, and sisters-in-law, and consider the order of alternative claimants, applications by bereaved family organizations or special representatives, making retrial requests mandatory for prosecutors, or codifying review standards.

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On June 24, 2026, leaving the Seoul High Court courtroom, Lee Ki-chul said: "I am not walking this path to win, but I will do whatever I can, waiting for even a single piece of justice to emerge."

On the same day, the Constitutional Court issued a legislative mandate to open the door to injustices from over 70 years ago. However, that door will only open once the National Assembly crafts the key. The door for the school violence case remains closed. This is because attorney discipline and damages alone cannot bring back a lost trial.

The law is not perfect. However, only when the law acknowledges its own imperfections can the starting line for institutional reform be drawn. What these three cases have shown is precisely that starting line. The ball is now in the National Assembly's court.


Deep Dive Q&A
Q1. Could the U.S. Supreme Court precedent of Maples v. Thomas not be applied directly to the South Korean "school violence no-show" case?

A1. The U.S. precedent recognizes an exception when there is a "complete severance of the agency relationship (abandonment)" rather than simple negligence by the attorney. The bereaved family argued that attorney Kwon Kyung-ae's three consecutive absences and five months of concealment fell under this category. However, the South Korean court ruled that once the procedural requirements of Article 268 of the current Civil Procedure Act (deemed withdrawal of appeal) are met, the legal effect of losing the case occurs automatically under the law. While the basic principle is the same in the U.S., there is a difference in the scope of recognized exceptions. South Korea, which is based on the civil law system, applied proceduralism under written law more strictly.

Q2. Why did the Constitutional Court issue a ruling of "non-conformity to the Constitution" rather than "unconstitutional" regarding the right to request a retrial in historical cases?

A2. If a simple ruling of unconstitutionality is made, the relevant provision (such as Article 424 of the Criminal Procedure Act) immediately loses its effect, creating a legal vacuum. In this case, a major disruption could occur as the legal basis for even immediate family members or siblings to request a retrial would temporarily disappear. Therefore, the Constitutional Court issued a ruling of "non-conformity to the Constitution," which temporarily maintains the effect of the law while giving the National Assembly a legislative deadline until the end of 2027 to expand the scope to include nephews, nieces, and sisters-in-law.
※ Please note: This article was translated by AI and may contain errors.