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1988 (A) 1292

1990.09.28
1988 (A) 1292
Keishu Vol. 44, No. 6
Judgment concerning the provisions of Articles 39 and 40 of the Subversive Activities Prevention Act, which punish incitement, and Article 21, paragraph (1) of the Constitution
Case charged for violation of the Subversive Activities Prevention Act
Judgment of the Second Petty Bench, dismissed
Tokyo High Court, Judgment of October 12, 1988
The provisions of Articles 39 and 40 of the Subversive Activities Prevention Act, which punish incitement, do not violate Article 21, paragraph (1) of the Constitution.
Article 4, paragraph (2), Article 39, and Article 40 of the Subversive Activities Prevention Act, and Article 21, paragraph (1) of the Constitution



Subversive Activities Prevention Act

(Definitions)

Article 4, paragraph (2)

(2) In this Act, the term "Incite" means, with the intent to cause a particular act to be committed, allowing a person, by means of any document, picture, speech or action, to decide to commit the act, or to be provided with a stimulus of sufficient power to promote a decision already in the process of being made.



(Preparation of the Crime of Arson for Political Purposes)

Article 39

A person who, with the intent to promote, support or oppose any political doctrine or policy, has prepared, plotted or induced a crime under Article 108, Article 109, paragraph (1), the first sentence of Article 117, paragraph (1), Article 126, paragraph (1) or (2), Article 199 or Article 236, paragraph (1) of the Penal Code, or Incited others to commit the crime with the intent to cause it to be committed, is punished by imprisonment with or without work for a term not exceeding five years.



(Preparation of the Crime of a Disturbance for Political Purposes)

Article 40

A person who, with the intent to promote, support or oppose any political doctrine or policy, has prepared, plotted or induced any of the following crimes, or Incited others to commit the crime with the intent to cause it to be committed, is punished by imprisonment with or without work for a term not exceeding three years:

(i) a crime under Article 106 of the Penal Code;

(ii) a crime under Article 125 of the Penal Code; or

(iii) a crime under Article 95 of the Penal Code, committed collectively by carrying any deadly weapon or poison, against any person engaged in prosecutorial or police duties, any assistant to such official, any person who guards or escorts persons in legal custody, or any person engaged in an investigation under this Act.



Constitution

Article 21, paragraph (1)

(1) Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
The appeal is dismissed.
I. Concerning the reasons for final appeal stated by HAYAMA Takeo and 10 other defense counsels

Reason for Final Appeal I-1 is an argument that Articles 39 and 40 of the Subversive Activities Prevention Act punish political thought and they violate Article 19 of the Constitution. The crimes of incitement under Articles 39 and 40 of the Subversive Activities Prevention Act provide for punishment for the act of inciting the crimes prescribed in the respective Articles with the intent to promote, support or oppose any political doctrine or policy (hereinafter referred to as "political purposes"). It is clear from the whole texts of these Articles that they are intended to punish an objective act that presents itself as incitement and not intended to punish a thought or creed based on which such act is performed. Hence, the defense counsels' argument lacks a premise and does not constitute a legitimate reason for final appeal.

Reason for Final Appeal I-2 is an argument that the Subversive Activities Prevention Act has a nature of a special penal law of wartime and it violates Article 9 of the Constitution. However, it is clear from the substance of Articles 39 and 40 of the Subversive Activities Prevention Act that these Articles do not have such nature as argued by the defense counsels. Hence, their argument lacks a premise and does not constitute a legitimate reason for final appeal.

Reason for Final Appeal II is an argument that Articles 39 and 40 of the Subversive Activities Prevention Act are provisions for punishing expression activities and they violate Article 21, paragraph (1) of the Constitution. Incitement prescribed in Articles 39 and 40 of the Subversive Activities Prevention Act means an act of encouraging a person to resolve to commit a criminal act or giving a powerful stimulus to a person to the extent that it would promote his/her resolve that has already arisen, by means of a document, picture, speech or action, with the intent to cause the person to commit the crimes prescribed in the respective Articles for political purposes (see Article 4, paragraph (2) of the same Act), and in this respect, it has indeed a nature related to expression activities. However, not all expression activities are allowed absolutely without restrictions, but it is inevitable that some expression activities are subject to restrictions if they interfere with the public welfare and go beyond the limits of freedom of expressions. Incitement defined as above is a socially dangerous act that could trigger serious crimes posing a threat to public safety, such as the crime of arson of inhabited buildings and the crime of disturbance, and therefore, it is inevitably subject to restrictions as an act that interferes with the public welfare and does not deserve protection for freedom of expression. Thus, punishing incitement does not violate Article 21, paragraph (1) of the Constitution. This is clear in light of the purports of the judicial precedents of the Grand Bench of this court (1948 (Re) No. 1308, judgment of the Grand Bench of the Supreme Court of May 18, 1949, Keishu Vol. 3, No. 6, at 839; 1949 (Re) No. 498, judgment of the Grand Bench of January 9, 1952, Keishu Vol. 6, No. 1, at 4; 1951 (A) No. 3875, judgment of the Grand Bench of November 30, 1955, Keishu Vol. 9, No. 12, at 2545; 1953 (A) No. 1713, judgment of the Grand Bench of March 13, 1957, Keishu Vol. 11, No. 3, at 997; 1958 (A) No. 1413, judgment of the Grand Bench of February 21, 1962, Keishu Vol. 16, No. 2, at 107; 1964 (A) No. 305, judgment of the Grand Bench of October 15, 1969, Keishu Vol. 23, No. 10, at 1239; 1968 (A) No. 2780, judgment of the Grand Bench of April 25, 1973, Keishu Vol. 27, No. 4, at 547). There is no basis for the defense counsels' argument.

Reason for Final Appeal III is an argument that the concept of incitement under Articles 39 and 40 of the Subversive Activities Prevention Act is unclear and these Articles violate Article 31 of the Constitution. However, the concept of incitement under Articles 39 and 40 of the Subversive Activities Prevention Act is clear from the definition provided in Article 4, paragraph (2) of the same Act, and it cannot be said that the constituent elements of this crime are ambiguous and vague as argued by the defense counsels. Hence, their argument lacks a premise and does not constitute a legitimate reason for final appeal (see 1958 (A) No. 1413, judgment of the Grand Bench of February 21, 1962, Keishu Vol. 16, No. 2, at 107; 1968 (A) No. 2780, judgment of the Grand Bench of April 25, 1973, Keishu Vol. 27, No. 4, at 547; 1967 (A) No. 2220, decision of the First Petty Bench of July 2, 1970, Keishu Vol. 24, No. 7, at 412).

Reason for Final Appeal IV is an argument of mere violation of laws and regulations and does not constitute a legitimate reason for final appeal.

II. Concerning the reasons for final appeal stated by the accused

Among the reasons for final appeal stated by the accused, the arguments that Articles 39 and 40 of the Subversive Activities Prevention Act violate Articles 9, 19, and 31 of the Constitution respectively lack a premise and do not constitute a legitimate reason for final appeal, as explained above; the argument that Articles 39 and 40 of the Subversive Activities Prevention Act violate Article 21, paragraph (1) of the Constitution lacks a premise and does not constitute a legitimate reason for final appeal, as explained above; and the rest, including the argument of violation of the Constitution, are in effect arguments of mere violation of laws and regulations and do not constitute a legitimate reason for final appeal.

III. Accordingly, in accordance with Articles 414 and 396 of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the judgment.

Two Public Prosecutors attended the trial.
Justice FUJISHIMA Akira

Justice KAGAWA Yasukazu

Justice OKUNO Hisayuki

Justice NAKAJIMA Toshijiro
(This translation is provisional and subject to revision.)