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2003 (Gyo-Tsu) 157

2008.02.19
2003 (Gyo-Tsu) 157
Minshu Vol. 62, No. 2
Judgment concerning the enforcement of import control under Article 21, para.1, item 4 of the Customs Tariff Act (prior to revision by Act No. 22 of 2005) upon articles of obscene expressions that have already been distributed or sold in Japan, and Article 21, para.1 of the Constitution
Case to seek revocation of the disposition of notification to the effect that the goods to be imported fall within the category of prohibited goods
Judgment of the Third Petty Bench, partially quashed and decided by the Supreme Court, partially dismissed
Tokyo High Court, Judgment of March 27, 2003
1. The enforcement of import control under Article 21, para.1, item 4 of the Customs Tariff Act (prior to revision by Act No. 22 of 2005) upon articles of obscene expressions that have already been distributed or sold in Japan is not in violation of Article 21, para.1 of the Constitution.

2. Even where a photograph collection that a person intends to import contains such photographs that should inevitably be regarded as emphasizing male genitals themselves and emphasizing the depiction of them, given the circumstances mentioned in (1) to (3) below, the photograph collection does not fall within the category of "books, pictures, etc. that are prejudicial to good morals" set forth in Article 21, para.1, item 4 of the Customs Tariff Act (prior to revision by Act No. 22 of 2005) according to the socially accepted standards as of the time when the notification was given to the effect that said photograph collection falls under the category of prohibited goods:
(1) The photograph collection can be deemed to have been edited and composed from an artistic viewpoint, i.e. compiling, in one book, major works of a photographic artist, who had established a high reputation among art critics, and reviewing the entirety of his/her photographic art, expecting that it would be bought and enjoyed by people who were very interested in photographic art or modern art, and the photographs in dispute can also be deemed to be regarded as his/her major works from such viewpoint and therefore chosen for the photograph collection;
(2) The photograph collection covers a variety of works such as photographs of portraits, flowers, still lifes, male and female nudes, and the relative importance of the photographs in dispute in the photograph collection as a whole is significantly small, and these photographs are black-and-white photographs and do not directly depict scenes of sexual intercourse;
(3) When seeing the photograph collection as a whole from the viewpoints mentioned in (1) and (2), it is difficult to find it to be appealing primarily to the sexual interest of people who see it.
(There is a dissenting opinion concerning 2).
(Concerning 1 and 2) Article 21, para.1, item 4 and para.3 of the Customs Tariff Act (prior to revision by Act No. 22 of 2005), Article 69-11, para.1, item 7 and para.3 of the Customs Act; (Concerning 1) Article 21, para.1 of the Constitution

Article 21, para.1, item 4 and para.3 of the Customs Tariff Act (prior to revision by Act No. 22 of 2005)
(Prohibited Goods)
(1) The following articles shall not be imported:
(iv) Books, pictures, sculptures and any other articles that are prejudicial to public security or good morals
(3) Where goods to be imported pursuant to the provisions of Chapter 6 of the Customs Act contain any goods for which there are reasonable grounds to find that they fall within the category of goods set forth in paragraph 1, item 4, the Director-General of Customs shall notify the person who intends to import such goods to that effect.

Article 69-11, para.1, item 7 and para.3 of the Customs Act
(Goods Prohibited from Import)
(1) The following goods shall not be imported:
(vii) Books, pictures, sculptures and any other articles that are prejudicial to public security or good morals (excluding those that fall within the category of goods set forth in the following item)
(3) Where goods to be imported pursuant to the provisions of this Chapter of the Customs Act contain any goods for which there are reasonable grounds to find that they fall within any of the categories of goods set forth in paragraph 1, item 7 or item 8, the Director-General of Customs shall notify the person who intends to import such goods to that effect.

Article 21, para.1 of the Constitution
Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
1. The judgment of prior instance is quashed with respect to the part concerning the claim against one of the appellees of final appeal, the Director-General of the Narita Branch Customs under Tokyo Customs, and the appeal to the court of prior instance filed by said appellee of final appeal is dismissed with respect to said part.
2. The final appeal filed by the appellant of final appeal against the other appellee of final appeal, the State, is dismissed.
3. The total cost of the suit with respect to paragraph 1 shall be borne by Appellee of Final Appeal Director-General of the Narita Branch Customs under Tokyo Customs, and the cost of the final appeal with respect to the preceding paragraph shall be borne by the appellant of final appeal.
I. Outline of the case
1. The appellant of final appeal received a disposition of notification given by one of the appellees of final appeal, the Director-General of the Narita Branch Customs under Tokyo Customs (hereinafter referred to as "Appellee Director-General of Branch Customs"), to the effect that the photograph collection that the appellant had carried along with him/her upon returning to Japan from abroad fell within the category of prohibited goods set forth in Article 21, para.1, item 4 of the Customs Tariff Act (prior to revision by Act No. 22 of 2005; the same shall apply hereinafter unless otherwise indicated) (this disposition of notification shall hereinafter be referred to as the "Disposition of Notification"). The appellant alleges the illegality of the Disposition of Notification on the grounds that the provision of Article 21, para.1, item 4 of the Customs Tariff Act is in violation of Article 21, etc. of the Constitution and therefore void and that said photograph collection cannot be deemed to fall within the category of articles prejudicial to good morals, and based on this allegation, the appellant requests Appellee Director-General of Branch Customs to revoke the Disposition of Notification and seeks from the other appellee of final appeal, the State, payment of solatium, etc. under Article 1, para.1 of the Act on State Liability for Compensation.

2. The outline of the facts legally determined by the court of prior instance is as follows:
(1) Limited Liability Company A for which the appellant of final appeal serves as director (hereinafter referred to as "Company A"), based on the contract concluded with a U.S. company, Company B, translated a photograph collection published by Company B, entitled "MAPPLETHORPE," into Japanese, and then on November 1, 1994, published the Japanese version of the photograph collection in Japan.
(2) The photograph collection published by Company A contains photographs taken by Robert Mapplethorpe, a photographer from the United States (hereinafter referred to as "Mapplethorpe"). Since the 1970s, Mapplethorpe released photographs taken under themes that were related to the root of the existence of human beings, such as the human body, sex, and the naked body, and established a high reputation among art critics in the United States and Japan as a leading authority of modern photographic art. The photograph collection in dispute contains major works of Mapplethorpe produced from the early time to the later time in his career in the manner that the entirety of his photographic art can be reviewed, covering a variety of his works from Polaroid photographs in his early career to photographs of portraits, flowers, still lifes, male and female nudes, and to self-portraits in his later career. The photograph collection is a large hardcover book, 31.2 centimeters by 30 centimeters, which contains 384 pages and weighs about four kilograms. It was initially priced at 16,800 yen.
Company A placed advertisements for the photograph collection on the front pages of morning papers of nationwide newspapers and conducted other sales promotion activities, and the photograph collection was chosen as a topic for introductory essays and book reviews in nationwide newspapers and photograph magazines. As a result, during the period from January 1, 1995 to March 31, 2000, the photograph collection sold 937 copies in total by way of sales at book stores, sales by mail order, etc.
(3) On September 21, 1999, the appellant, upon returning to Japan from the United States where he/she had visited on business, at the belongings inspection zone of the Narita Branch Customs under Tokyo Customs located within Narita International Airport, presented to the inspector one copy of the photograph collection that he/she had carried along with him/her since his/her departure from Japan (hereinafter referred to as the "Photograph Collection"), and explained that the Photograph Collection had been published in Japan.
Among the photographs contained in the Photograph Collection, those numbered 1 to 20 in the list attached to the judgment of first instance (Photographs No. 19 and No. 20 are reduced-size versions of Photographs No. 7 and No. 2, respectively; hereinafter referred to as the "Photographs") are placed on the respective pages indicated in the Page section of said list (19 pages in total) and show the objects indicated in the Object section of said list. All of the Photographs are black-and-white (monochrome) photographs which directly and concretely show male genitals arranged at the center of the planes thereof in an eye-catching manner.
(4) On October 12, 1999, under Article 21, para.3 of the Customs Tariff Act, Appellee Director-General of Branch Customs gave the appellant the Disposition of Notification to the effect that the Photograph Collection can be regarded as an article prejudicial to good morals and therefore it falls within the category of goods set forth in para.1, item 4 of said Article.

II. Concerning the reasons for final appeal argued by the appeal counsel YAMASHITA Yukio
1. Concerning Reasons for Final Appeal II and IV
There is a judicial precedent rendered by this court, holding as follows: customs inspection enforced upon the goods set forth in Article 21, para.1, item 4 of the Customs Tariff Act is not "censorship" prescribed in the first sentence of Article 21, para.2 of the Constitution; import control enforced through customs inspection upon articles of obscene expressions is not in violation of the provision of Article 21, para.1 of the Constitution; the phrase "books, pictures, etc. that are prejudicial to good morals" set forth in Article 21, para.1, item 4 of the Customs Tariff Act should be construed to refer to obscene books, pictures, etc., and this provision cannot be deemed to be unconstitutional and therefore void by reason of overbroadness or vagueness (See 1982 (Gyo-Tsu) No. 156, judgment of the Grand Bench of the Supreme Court of December 12, 1984, Minshu Vol. 38, No. 12, at 1308). In light of the purport of this past judgment of the Grand Bench of the Supreme Court, it is obvious that enforcing import control through customs inspection upon articles of obscene expressions that have already been distributed or sold in Japan is not in violation of the provision of Article 21, para.1 of the Constitution.
We can affirm as justifiable the determination of the court of prior instance that goes along with this reasoning. We cannot accept the appeal counsel's arguments.

2. Concerning other reasons for final appeal
The appeal counsel's allegation of unconstitutionality, in effect, asserts an unappealable violation of laws or regulations or lacks a premise, and it cannot be accepted as any of the grounds for final appeal prescribed in Article 312, para.1 and para.2 of the Code of Civil Procedure.

III. Concerning the reasons for the petition for acceptance of final appeal argued by the appeal counsel YAMASHITA Yukio (except for those excluded)
1. According to the facts mentioned above, the court of prior instance dismissed both of the appellant's claims, on the following grounds.
All of the Photographs, when examined according to the sound social standards accepted among the general public in Japan, should be deemed to be obscene pictures, and since the Photograph Collection is made as a book by placing therein the Photographs and inserting pages on which other photographs and commentaries are placed, the Photograph Collection as a whole can be found to fall within the category of "books prejudicial to good morals" set forth in Article 21, para.1, item 4 of the Customs Tariff Act. This determination cannot be denied by reason of the reputation of Mapplethorpe as an artist or the artistic value of the Photograph Collection.
Consequently, the Disposition of Notification to the effect that the Photograph Collection falls within said category is not illegal, and the appellant's claim for damages made under the Act on State Liability for Compensation on the grounds of the illegality of the Disposition of Notification is groundless.

2. Among the aforementioned holdings of the court of prior instance, although we can affirm the conclusion that dismissed the claim for damages under the Act on State Liability for Compensation, we cannot affirm the rest of the holdings, on the following grounds.
(1) According to the facts mentioned above, all of the Photographs directly and concretely show male genitals arranged at the center of the planes thereof in an eye-catching manner, and in light of such mode of depiction, the relative importance of the depicted objects on the entire plane of individual Photographs, and the composition of the plane, we should say that all of the Photographs should inevitably be construed to emphasize the genitals themselves and emphasize the depiction of them. However, according to the facts mentioned above, Mapplethorpe released photographs taken under themes that were related to the root of the existence of human beings, such as the human body, sex, and the naked body, and established a high reputation among art critics as a leading authority of modern photographic art. The Photograph Collection can be deemed to be significant in that it was edited and composed from an artistic viewpoint, i.e. compiling, in one book, major works of such a photographic artist and reviewing the entirety of his photographic art, expecting that it would be bought and enjoyed by people who were very interested in photographic art or modern art, and the Photographs can also be deemed to be regarded as his major works from such viewpoint and therefore chosen for the Photograph Collection. Also according to the facts mentioned above, the Photograph Collection covers a variety of works such as photographs of portraits, flowers, still lifes, male and female nudes, and among its total pages (384 pages), the Photographs (including two photographs that are reduced-size versions of other photographs) appear only on 19 pages. Considering this, we should say that the relative importance of the Photographs in the Photograph Collection as a whole is significantly small. Furthermore, the Photographs are black-and-white (monochrome) photographs and they do not directly depict scenes of sexual intercourse. If we see the Photograph Collection in light of these factors-the existence of the artistic quality and other aspects of the Photograph Collection that diminish sexual stimulation, the relative importance of the Photographs in the Photograph Collection as a whole, and the mode of expression applied, we should inevitably say that it is difficult to find the Photograph Collection to be appealing primarily to the sexual interest of people who see it.
Taking into consideration all of these points, we should conclude that according to the sound social standards accepted among the general public as of the time when the Disposition of Notification was given, the Photograph Collection cannot be found to fall within the category of "books, pictures, etc, that are prejudicial to good morals" set forth in Article 21, para.1, item 4 of the Customs Tariff Act.
The judicial precedent of this court, 1996 (Gyo-Tsu) No. 26, judgment of the Third Petty Bench of the Supreme Court of February 23, 1999, Saibanshu Minji No. 191, at 313, concluded that another photograph collection containing photographs identical to five of the Photographs (a catalogue of the photographs displayed at the retrospective exhibition of Mapplethorpe) fell within the category of "books, pictures, etc. that are prejudicial to good morals" set forth in Article 21, para.1, item 3 of the Customs Tariff Act prior to revision by Act No. 118 of 1994. In this past case, the article in question was a catalogue which composition is different from the Photograph Collection, and there is also difference with regard to when the disposition in dispute was given. Therefore, we should say that our holdings on the Photograph Collection mentioned above do not conflict with the precedent judgment of the Third Petty Bench of the Supreme Court.
Consequently, we should conclude that the Disposition of Notification given to the effect that the Photograph Collection fell within the category of prohibited goods prescribed in Article 21, para.1, item 4 of the Customs Tariff Act should inevitably be revoked.
(2) However, in view of the aforementioned findings on the content of the Photographs and the precedent judgment of the Third Petty Bench of the Supreme Court rendered with regard to another photograph collection containing photographs identical to some of the Photographs, it is difficult to go so far as to say that there were no reasonable grounds for Appellee Director-General of Branch Customs to have found that the Photograph Collection fell within the category of "books, pictures, etc. that are prejudicial to good morals" according to the sound social standards as of the time when the Disposition of Notification was given, and we cannot say that Appellee Director-General of Branch Customs, by giving the Disposition of Notification, neglected his/her duty of care that he/she should have usually fulfilled in the course of his/her duties. Therefore, it is appropriate to construe that his/her act of giving the Disposition of Notification should not be deemed to be illegal under Article 1, para.1 of the Act on State Liability for Compensation.

3. For the reasons stated above, the determination of the court of prior instance that dismissed the claim for revocation of the Disposition of Notification contains a violation of laws or regulations that apparently affects a judgment. The appeal counsel's arguments alleging such illegality are well-grounded. However, we can affirm as justifiable the conclusion of the court of prior instance that dismissed the claim for damages under the Act on State Liability for Compensation made on the grounds of the illegality of the Notification of Disposition. We cannot accept the appeal counsel's arguments on this point.

IV. Conclusion
Based on the holdings shown above, the part of the judgment of prior instance concerning the claim against Appellee Director-General of Branch Customs should inevitably be quashed, and the conclusion of the judgment of first instance that upheld this claim made by the appellant is justifiable. Consequently, the appeal to the court of second instance filed by Appellee Director-General of Branch Customs should be dismissed, whereas the final appeal filed by the appellant against the other appellee, the State, should be dismissed.

Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices, except that there is a dissenting opinion by Justice HORIGOME Yukio with regard to this court's holdings mentioned in III above.

The dissenting opinion by Justice HORIGOME Yukio with regard to this court's holdings mentioned in III above is as follows.
In my opinion, the Photograph Collection falls within the category of "books that are prejudicial to good morals" set forth in Article 21, para.1, item 4 of the Customs Tariff Act, and therefore the final appeal should be dismissed. Although I am in full agreement with this court's holdings concerning the reasons for final appeal, I cannot agree with the holdings concerning the reasons for acceptance of final appeal, except for the conclusion thereof to the effect that the Disposition of Notification should not be deemed to be illegal under Article 1, para.1 of the Act on State Liability for Compensation. The grounds for my opinion are as follows.
1(1) Based on the judicial precedent cited by the majority opinion, the judgment of the Grand Bench of the Supreme Court of December 12, 1984, the phrase "books, pictures, etc. that are prejudicial to good morals" set forth in Article 21, para.1, item 4 of the Customs Tariff Act is construed to refer to obscene books, pictures, etc. Also according to the definition established through the judicial precedents, the term "obscene" means "something that unnecessarily excites or stimulates a person's sexual desire, harms the normal sexual sense of shame of ordinary people, and goes against good moral concepts on sexual matters."
(2) In this case, with regard to Photographs No. 1 to 20 indicated in the list attached to the judgment of first instance, the judgment of prior instance found that "these photographs plainly, directly and concretely show male genitals, while arranging male genitals at the center of the planes thereof in an eye-catching manner, thereby deliberately emphasizing the male genitals themselves, and all of these photographs cannot be regarded as otherwise than having an effect of primarily appealing to the sexual interest of people who see them."
(3) I admit that a determination as to whether a particular object is obscene or not changes along with the changes in socially accepted standards. However, when the issue is whether or not a particular photograph is obscene or not, the photograph should be regarded as an obscene object if, at least, a male or female genital organ is shown plainly, directly and concretely on a large scale at the center of the plane of the photograph, and this criterion has been established in judicial practice on criminal cases. Therefore, I consider that the obscenity of the 20 photographs mentioned above cannot be denied.

2(1) I doubt whether the majority opinion is consistent with the purport of this court's judicial precedent that addressed the relationships between an artistic work and its obscenity, 1953 (A) No. 1713, judgment of the Grand Bench of the Supreme Court of March 13, 1957, Keishu Vol. 11, No. 3, at 997.
(2) With regard to how to determine the existence or non-existence of obscenity in an artistic work, the precedent judgment of the Grand Bench of the Supreme Court held that "the existence or non-existence of obscenity must be determined purely objectively, or only from the work itself, and it should not be influenced by any subjective intention of the author." This holding can be construed to mean that when determining whether or not an artistic work is obscene, it is impermissible to take into consideration the author's subjective intention or his/her status or reputation, etc. in society.
Furthermore, with regard to the relationships between an artistic work and its obscenity, said judgment of the Grand Bench of the Supreme Court held as follows: "As explained above, the book as a whole is an artistic and ideological work, and for such aspects, it has been highly valued among English literary circles. It is not impossible to find the artistic quality of this book not only from its entirety but also even from the sexual descriptions at 12 places pointed out by the prosecutor. However, art and obscenity are concepts of different levels and they are not incompatible with each other." This holding should inevitably be construed to mean that since art and obscenity coexist, it is impermissible to deny the obscenity of a work on the grounds that it has artistic quality.
(3) On the other hand, the majority opinion held that "Mapplethorpe released photographs taken under themes that were related to the root of the existence of human beings, such as the human body, sex, and the naked body, and established a high reputation among art critics as a leading authority of modern photographic art. The Photograph Collection can be deemed to be significant in that it was edited and composed from an artistic viewpoint, i.e. compiling, in one book, major works of such a photographic artist and reviewing the entirety of his photographic art, expecting that it would be bought and enjoyed by people who were very interested in photographic art or modern art, and the Photographs can also be deemed to be regarded as his major works from such viewpoint and therefore chosen for the Photograph Collection." I cannot help but think that the majority opinion puts much weight on this holding when determining that the Photograph Collection is not obscene. Nor can I deny that the majority opinion, when explaining why the Photograph Collection is not obscene, places considerable weight on the fact that the Photograph Collection has artistic quality.
(4) Consequently, I must say that the majority opinion places excessive emphasis on the artistic quality of the Photograph Collection and goes beyond the bounds of the purport of the aforementioned judicial precedent of the Grand Bench of the Supreme Court, and therefore there is a problem with the court's process of making such holdings.
3(1) Another judicial precedent cited by the majority opinion, the judgment of the Third Petty Bench of the Supreme Court of February 23, 1999, held that "the photograph collection contains such photographs that should inevitably be regarded, from the relative importance of the depicted objects on the entire plane of individual photographs and the composition of the plane, as not depicting naked human bodies in a natural way but emphasizing genitals themselves or emphasizing the depiction of genitals, and it compiles these photographs in the form of a single book; therefore, the Photograph Collection falls within the category of 'books, pictures, etc. that are prejudicial to good morals' set forth in Article 21, para.1, item 3 of the Customs Tariff Act."
(2) This judicial precedent can be construed to present holdings on two points regarding legal matters. First, the part stating that "the photograph collection contains such photographs that should inevitably be regarded…as emphasizing genitals themselves or emphasizing the depiction of genitals" can be construed to mean that where photographs should inevitably be regarded as emphasizing the depiction of genitals, such photographs themselves should be deemed to be obscene articles.
Next, the part stating that "it compiles these photographs in the form of a single book; therefore, the photograph collection falls within the category of 'books, pictures, etc. that are prejudicial to good morals' set forth in Article 21, para.1, item 3 of the Customs Tariff Act" can be construed to mean that where a photograph collection compiles, in the form of a single book, such photographs that fall within the category of obscene articles, such photograph collection as a whole also falls within the category of obscene books, pictures, etc.
(3) Five of the Photographs, namely Photographs No. 2, 7, and 18 to 20 indicated in the list attached to the judgment of first instance, are identical to the photographs that were found to "fall within the category of obscene articles" in the aforementioned precedent judgment of the Third Petty Bench of the Supreme Court. Since the majority opinion of this case is given by the petty bench of the Supreme Court, it should be construed that the majority opinion does not deny the determination of the court of prior instance that found at least these five photographs fell within the category of obscene articles. Assuming so, the Photograph Collection that compiles these five photographs in the form of a single book should be deemed to fall within the category of obscene articles. I should say that such determination holding that the Photographic Collection is not an obscene article is inconsistent with the holdings of the judicial precedents cited by the majority opinion and lacks reasonable grounds.
Justice NASU Kohei
Justice FUJITA Tokiyasu
Justice HORIGOME Yukio
Justice TAHARA Mutsuo
Justice KONDO Takaharu
2003(Gyo-Hi)164
(This translation is provisional and subject to revision.)