The Supreme Court pointed out during the 3rd Criminal Department Meeting of 2015 on February 10, 2015 (hereinafter, the "Resolution") that the legislative objective of Article 159-5 of the Code of Criminal Procedure is to confirm a party's right to dispose of hearsay, waive the cross examination right, and agree or presumably agree that hearsay may be admissible evidence, which are acts of eliminating the hearsay characteristics of evidence.
Article 159-5 of the Code of Criminal Procedure provides: "Statements made out of trial by a person other than the accused, although not consistent with the provisions of the preceding four articles, may be admitted as evidence, if the party consents to its admissibility as evidence in the trial stage and the court believes its admissibility is proper after considering the circumstances under which the oral or written statement was made. The party, agent, or defense attorney shall be deemed to have granted his consent specified in the preceding section, if during the investigation of evidence in the court he has knowledge of the existence of the circumstances specified in Paragraph 1 of Article 159 as to the inadmissibility of the evidence and fails to object to its admission before the conclusion of oral argument." This further gives rise to the issue of whether a court may elect to determine the admissibility of evidence in accordance with Article 159-5 of the same law rather than with the provisions of Article 159-1 through Article 159-4 when such admissibility is proper (i.e., whether the scope of application of the agreement principle under Article 159-5 is not preconditioned by "not consistent with the provisions of the proceeding four articles").
The Resolution adopts an affirmative view on the ground that the legislative objective of Article 159-5 of the Code of Criminal Procedure is to confirm a party's right to dispose of hearsay, waive the cross examination right, agree or presumably agree to the admissibility of hearsay as evidence, which are acts of eliminating the hearsay characteristics of evidence. If the court deems appropriate, such evidence may be admitted regardless of whether hearsay meets the circumstances under Article 159-1 through Article 159-4 of the Code of Criminal Procedure and this is not preconditioned by not consistent with the provisions under Article 159-1 through Article 159-4 of the Code of Criminal Procedure. According to the legislative objective that "if a party clearly indicates during trial that such hearsay may be admissible as evidence, the court certainly can accept the admissibility of such hearsay under the principle that the more the evidence, the easier to discover the truth," a position of expanded applicability was adopted. However, if evidence has been admissible for meeting the criteria under Paragraph 1 of Article 159-1, it is inappropriate to redundantly apply Article 159-5 to establish the admissibility of evidence.