The Principle of the Free Discretion of Judges as to the Probative Value of Evidence and u27the Degree of Proof

摘要

According to the common view in the Criminal Law Society of Japan,the probative values of most evidences were fixed in advance by law in the age of feudalism. The modern period,however,tumed it over and secured the freedom of judges to estimate the value of each evidence. We nowadays call the freedom the free conviction principle. u271,on the other hand,believe that the view is wrong. It was only the confessions,but not most evidences,the value of which were rated by law. The confession was rated very high and required to find the accused guilty of a crime. The judge could declare the accused guilty with confidence,that is to say,feeling relieved thanks to it. Butthe criminal procedure that doesnu27t dispense with a confession inevitably involved the torture.The enlightenment thought in the period of citizensu27 revolutions first of all attacked the torture as a typical vi­olation of human rights. It was the free conviction principle that made its appearance in the criminal suit to bring the torture to an end. In other words,the criminallaw at that time abandoned to place such a high value on the con­fession as to be a necess紅y condition for a judgment of guilty.