2012.12.07

2010 (A) 762

Keishu Vol. 66, No. 12

Judgment concerning the meaning of the term "political acts" as set forth in Article 102, paragraph (1) of the National Public Service Act

Case charged for violation of the National Public Service Act

Judgment of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of March 29, 2010

1. The term "political acts" set forth in Article 102, paragraph (1) of the National Public Service Act refers to acts that not only involve a conceptual risk of undermining the political neutrality of public officials in their performance of duties but also pose a substantial risk that the undermining of their political neutrality could occur in reality.

2. The political acts set forth in Paragraph (6), items (vii) and (xiii) of Rules of the National Personnel Authority 14-7 refer to such acts that literally correspond to the types of acts prescribed in the respective items and that pose a substantial risk of undermining the political neutrality of public officials in their performance of duties.

3. The prohibition of public officials' engagement in distributing political party-issued newspapers or distributing documents that carry political purposes, which is prescribed in Article 110, paragraph (1), item (xix) of the National Public Service Act (prior to the revision by Act No. 108 of 2007), Article 102, paragraph (1) of the National Public Service Act, and Paragraph (6), items (vii) and (xiii) of Rules of the National Personnel Authority 14-7, does not violate Article 21, paragraph (1) or Article 31 of the Constitution.

4. Where a public official in regular service, who is not in a managerial position or vested with any discretion in performing duties or exercising power, distributed political party-issued newspapers and documents that carried a political purpose, totally independent of his duties and without the nature of an activity of a group consisting of public officials, and he did not perform such act in a manner that the act could be recognized as an act of a public official, such act of distributing newspapers and documents does not pose a substantial risk of undermining the political neutrality of the public official in his performance of duties, and therefore it does not correspond to any of the acts prohibited under Article 102, paragraph (1) of the National Public Service Act and Paragraph (6), items (vii) and (xiii) of Rules of the National Personnel Authority 14-7.
(There is a concurring opinion concerning 1 to 4, and an opinion concerning 1, 2, and 4.)

(Concerning 1, 3, and 4) Article 102, paragraph (1) of the National Public Service Act; (Concerning 2 to 4) Paragraph (5), item (iii) and Paragraph (6), items (vii) and (xiii) of Rules of the National Personnel Authority 14-7; (Concerning 3 and 4) Article 110, paragraph (1), item (xix) of the National Public Service Act (prior to the revision by Act No. 108 of 2007); (Concerning 3) Article 21, paragraph (1) and Article 31 of the Constitution

Article 102, paragraph (1) of the National Public Service Act
(Restriction on Political Acts)
Officials shall not solicit, or receive, or be in any manner concerned in soliciting or receiving any subscription or other benefit for any political party or political purpose, or engage in any political acts as provided for by rules of the National Personnel Authority other than to exercise his/her right to vote.

Paragraph (5), item (iii) and Paragraph (6), items (vii) and (xiii) of Rules of the National Personnel Authority 14-7
(Definition of Political Purpose)
(5) The term "political purpose" as used in the Act and the Rules shall refer to the following purposes. Acts performed for political purposes do not violate Article 102, paragraph (1) of the Act as long as they do not fall within the scope of political acts prescribed in Paragraph (6):
(iii) supporting or opposing a particular political party or any other political group.
(Definition of Political Acts)
(6) The political acts prescribed in Article 102, paragraph (1) of the Act shall refer to the following acts:
(vii) publishing, editing or distributing newspapers or any other printed work of political parties or any other political groups, or assisting such acts;
(xiii) publishing, circulating, posting or distributing signed or unsigned documents, drawings, phonograph records or objects that carry political purposes, or reading aloud these materials to a number of people or having a number of people listen to them, or creating or editing them for such use.

Article 110, paragraph (1), item (xix) of the National Public Service Act (prior to the revision by Act No. 108 of 2007)
(1) Any person who falls under any of the following items shall be punished by imprisonment with work for not more than three years or a fine of not more than 100,000 yen:
(xix) any person who has violated the restrictions on political acts provided for in Article 102, paragraph (1).

Article 21, paragraph (1) of the Constitution
Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.

Article 31 of the Constitution
No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.

The final appeal is dismissed.

1. Concerning the reasons for appeal argued by the public prosecutor, alleging an erroneous interpretation of Article 21, paragraph (1) and Article 31 of the Constitution
(1) According to the judgment in prior instance and the case records, the outline of the facts of the case is as follows.
A. The summary of the charged facts is as follows. "The accused was an official of the Ministry of Health, Labour and Welfare who was in service as a pension examiner at the Social Insurance Agency, Tokyo Social Insurance Bureau, Meguro Social Insurance Office. On the occasion of the general election of members of the House of Representatives held on November 9, 2003, the accused performed the following acts for the purpose of supporting the Japanese Communist Party (JCP): (Fact I) on October 19, 2003, from around 00:03 p.m. to around 00:33 p.m., the accused distributed the extra edition of the 2003 October issue of the JCP-issued newspaper called Shimbun Akahata (Newspaper Red Flag), which starts with the heading "General Election Approaching," and the extra edition of the 2003 October issue of an unsigned document called Tokyo Minpo carrying the political purpose of supporting the JCP, to Real Estate Agency B and 12 other places located in Chuo-ku, Tokyo; (Fact II) on October 25, 2003, from around 10:11 a.m. to around 10:15 a.m., the accused distributed the abovementioned extra edition of the 2003 October issue of Shimbun Akahata and the abovementioned extra edition of the 2003 October issue of Tokyo Minpo to C's residence and 55 other places located in Chuo-ku, Tokyo; and (Fact III) on November 3, 2003, from around 10:06 a.m. to around 10:18 a.m., the accused distributed another extra edition of the 2003 October issue of the JCP-issued newspaper called Shimbun Akahata (Newspaper Red Flag), which starts with the heading "Special Feature: Constitutional Problems," and the extra edition of the 2003 November issue of Shimbun Akahata, to D's residence and 56 other places located in Chuo-ku, Tokyo. The accused was prosecuted on the charge that these acts he performed fall under Article 110, paragraph (1), item (xix) of the National Public Service Act (prior to the revision by Act No. 108 of 2007) (hereinafter referred to as the "Act"), and Paragraph (6), items (vii) and (xiii) (Paragraph (5), item (iii)) of Rules of the National Personnel Authority 14-7 (Political Acts) (hereinafter referred to as the "Rules") (these provisions shall hereinafter be collectively referred to as the "Penal Provisions").
B. It is clear from the evidence that the accused performed the act of distributing the JPC-issued newspapers, etc. as mentioned above in the charged facts (hereinafter referred to as the "Act of Distributing the Newspapers, etc.").
C. At the time of the incident, the accused was assigned at the National Pension Division of the Meguro Social Insurance Office, which handled the affairs concerning the eligibility to receive national pension benefits, and was in charge of consultation services in the capacity of the section chief of the consultation office. Specifically, he was engaged in hearing inquiries from 20 to 25 users per day who visited the office with regard to matters such as whether they would be able to receive pension benefits, how they should make pension claims, and how much they would receive as pension benefits, and in response, investigating into the pension records of the respective users which were stored in the computers, providing them with answers based on the recorded information, and advising them to take the necessary procedures. As the requirements and procedures for conducting operations at all divisions and sections of social insurance offices were specified in detail by laws and regulations, and the answers to be given in response to the inquiries received in the consultation services were based on the information stored in the computers, the accused had no discretion at all in dealing with the duties assigned thereto. Furthermore, the accused did not have the power to determine a person's eligibility to receive pension benefits or to change the amount of pension benefits to be paid, etc., nor did he have any power in terms of staffing or supervision, because he was not involved in collecting insurance premiums or other procedures but was only in charge of consultation services as a specialized official, under the direction of the vice division director who supervised and controlled the operations concerning consultation on social insurance.
(2) The court of first instance held that the Penal Provisions do not violate Article 21, paragraph (1), and Article 31, etc. of the Constitution and that the Act of Distributing the Newspapers, etc. corresponds to the constituent element of the Penal Provisions, and finally pronounced the accused to be guilty and sentenced him to a fine of 100,000 yen, with a two-year suspension of execution.
(3) The court of prior instance, on the other hand, found that the Act of Distributing the Newspapers, etc. was performed in a manner that the accused, who was in charge of duties which did not allow his discretion, who was assigned to a local branch office, and who was not in a managerial position, did nothing but silently distribute the political party-issued newspaper and the political documents into the mailboxes of other persons' houses and offices, etc., on his days off, independent of his workplace or duties, in the area around his residence which was away from his workplace or service district, without identifying himself as a public official. Based on this finding, the court of prior instance held that it cannot find any danger at all, including a risk of an abstract nature, that the Act of Distributing the Newspapers, etc. would harm the legal interest to be protected under the Penal Provisions?i.e. ensuring neutral administration of the national government and securing of public confidence therein?, so it must be said that applying the Penal Provisions to the Act of Distributing the Newspapers, etc. would impose a restriction beyond the level of a necessary and inevitable restriction on national public officials' freedom of political activities and would criminalize such activities, thus violating Article 21, paragraph (1) and Article 31 of the Constitution. In conclusion, the court of prior instance quashed the judgment in first instance and pronounced the accused to be not guilty.
(4) The public prosecutor argues that the judgment in prior instance erred in interpreting Article 21, paragraph (1) and Article 31 of the Constitution.
A. We examine the case in connection with this argument. Article 102, paragraph (1) of the Act provides that "Officials shall not solicit, or receive, or be in any manner concerned in soliciting or receiving any subscription or other benefit for any political party or political purpose, or engage in any political acts as provided for by rules of the National Personnel Authority other than to exercise his/her right to vote." This clause is understood as aiming to ensure neutral administration of the national government and maintain public confidence therein. Article 15, paragraph (2) of the Constitution provides that "All public officials are servants of the whole community and not of any group thereof," thus requiring that public services provided for the administration of national politics based on the public trust should be carried out for the interest of the whole public and not of some part of it. Among them, public services carried out by the national government administrative organs should be administered in a politically neutral manner so as to faithfully put into action the policy measures decided through the political process based on parliamentary democracy within the framework of Japan's governing system prescribed in the Constitution, and while making it a principle to serve for the whole public. In order to ensure such neutral administration of the national government, it is necessary for public officials to perform their duties from a politically fair and neutral stance. Thus, Article 102, paragraph (1) of the Act is understood as aiming to ensure neutral administration of the national government and maintain public confidence therein, by preserving the political neutrality of public officials in their performance of duties.
At the same time, the Constitution guarantees citizens freedom of political activities, which is a kind of freedom of expression (Article 21, paragraph (1)). Considering that this freedom of mind is a fundamental human right that is indispensable in the political process based on constitutional democracy and it is a material right that underpins democratic society, the scope of legal prohibition of public officials' engagement in political acts for the abovementioned purpose should be limited to the level of a necessary and inevitable restriction on freedom of political activities that they should be guaranteed to enjoy as Japanese citizens.
In consideration of the wording, purpose and objective of Article 102, paragraph (1) of the Act and the importance of the freedom of political activities to be restricted, as well as the fact that this clause provides for the constituent requirement for a criminal penalty, it is reasonable to construe that the term "political acts" set forth in said paragraph refers to acts that not only involve a conceptual risk of undermining the political neutrality of public officials in their performance of duties but also pose a substantial risk that the undermining of their political neutrality could occur in reality, and that said clause delegates the rules of the National Personnel Authority to specify the types of such acts. Accordingly, it should be construed that the Rules, established based on this delegation, specify the types of acts that pose a substantial risk of undermining the political neutrality of public officials in their performance of duties within the scope of delegation by said clause. In light of such purport of the delegation by the Act and the nature of the Rules, it is reasonable to construe that Paragraph (6), items (vii) and (xiii) (Paragraph (5), item (iii)) of the Rules, among the Penal Provisions, specify such acts that literally correspond to the types of acts prescribed in the respective items and that pose a substantial risk of undermining the political neutrality of public officials in their performance of duties, and designate these acts as political acts to be restricted under the respective items. In light of the nature of the organizational administration of government, etc., any such act, even when it is performed by only one public official, would have an influence on the performance of duties of the government organization to which the official belongs and its management through the public official's exercise of the power vested in his/her office, or his/her command and supervision, etc., and thereby also have an influence on neutral administration of the national government. This influence could arise even when the public official performs the act in question while off duty, because it might increase the probability that his/her political tendency would be reflected in his/her performance of duties depending on the circumstances.
In light of the abovementioned purpose of the restriction and the political acts to be restricted, etc., it is reasonable to determine whether or not an act performed by the public official in question poses a substantial risk of undermining the political neutrality of the public official in his/her performance of duties, by comprehensively taking into account various factors concerned, including the position of the public official, his/her duties and power, etc., and the nature, manner, purpose, and content, etc. of the act performed by the public official. More specifically, it may be necessary to examine, focusing on the public official in question, whether or not he/she holds a position that could have a certain influence on other officials' performance of duties through his/her command or supervision, etc. (managerial position), and whether or not he/she has any discretion in performing duties or exercising power; and focusing on the act in question, whether the public official performed the act during or outside of duty hours, whether or not he/she used any national facility or facility at the workplace, whether or not he/she took advantage of his/her status as a public official, whether or not the act in question has the nature of an activity of a group consisting of public officials, whether or not the act was performed in a manner that it could be directly recognized as an act of a public official, and whether or not the act had any purpose or content that is directly contrary to neutral administration of the national government.
B. We move on to examine whether or not the Penal Provisions violate Article 21, paragraph (1) or Article 31 of the Constitution. This issue is dependent on whether or not the restriction on political acts under the Penal Provisions is acceptable as a necessary and reasonable restriction, which should be determined by comparing the extent to which the restriction is needed for the purpose of the Penal Provisions, on one hand, and the content and nature of the freedom to be restricted, and the specific manner and extent of imposing the restriction, etc., on the other hand (1977 (O) No. 927, judgment of the Grand Bench of the Supreme Court of June 22, 1983, Minshu Vol. 37, No. 5, at 793, etc.) As mentioned above, the purpose of the Penal Provisions is to ensure neutral administration of the national government and maintain public confidence therein, by preserving the political neutrality of public officials in their performance of duties. This is a material interest of the whole public which meets the requirement of the Constitution that defines the mechanism of the governing system based on parliamentary democracy. Prohibiting political acts that pose a substantial risk of undermining the political neutrality of public officials in their performance of duties will contribute to protecting the abovementioned interest of the whole public and therefore the purpose of such restriction is reasonable and justifiable. On the other hand, what is prohibited under the Penal Provisions is freedom of political activities, a kind of freedom of expression that has a significant meaning in democratic society. However, as mentioned in A. above, the acts to be prohibited are limited to political acts that pose a substantial risk of undermining the political neutrality of public officials in their performance of duties, which means that political acts that do not pose such risk or political acts that do not fall under the types of acts prescribed in the Rules are not prohibited, and thus we should say that this restriction is imposed only at the necessary and inevitable level and to the extent necessary and reasonable for achieving the abovementioned purpose. The Penal Provisions, when interpreted as explained above, cannot be regarded as being unclear or excessively broad. It is assumed that this sort of prohibition of acts may be enforced by a system of imposing a criminal penalty, in addition to taking a disciplinary action on the grounds of breach of the public servants' code of conduct. This is conceived as a possible measure to deal with the case where a disciplinary action or anything similar is not enough to control a prohibited act in terms of its content, manner, etc., in comparison with the seriousness, etc. of the adverse influence that the act would have on the whole public. The fact that the system incorporates a criminal penalty does not immediately deny the system's necessity and reasonableness.
Taking into account all of the points mentioned above, the Penal Provisions do not violate Article 21, paragraph (1) or Article 31 of the Constitution. This reasoning is clear from the purport of the judicial precedents of this court (1969 (A) No. 1501, judgment of the Grand Bench of the Supreme Court of November 6, 1974, Keishu Vol. 28, No. 9, at 393; 1977 (O) No. 927, judgment of the Grand Bench of the Supreme Court of June 22, 1983, Minshu Vol. 37, No. 5, at 793; 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; 1981 (O) No. 609, judgment of the Grand Bench of the Supreme Court of June 11, 1986, Minshu Vol. 40, No. 4, at 872; 1986 (Gyo-Tsu) No. 11, judgment of the Grand Bench of the Supreme Court of July 1, 1992, Minshu Vol. 46, No. 5, at 437; and 1998 (Bun-Ku) No. 1, decision of the Grand Bench of the Supreme Court of December 1, 1998, Minshu Vol. 52, No. 9, at 1761).
C. We then examine whether or not the Act of Distributing the Newspapers, etc. corresponds to the constituent element of the Penal Provisions. It is obvious that the Act of Distributing the Newspapers, etc. literally corresponds to the types of acts prescribed in Paragraph (6), items (vii) and (xiii) (Paragraph (5), item (iii)) of the Rules. We make determination on whether or not the Act of Distributing the Newspapers, etc. poses a substantial risk of undermining the political neutrality of the public official in his performance of duties, by examining all of the factors mentioned above.
As mentioned above, the accused was a clerical official working as a pension examiner at a social insurance office. He was not in a managerial position, nor was he vested with any discretion in performing duties or exercising power, because he was only assigned to hearing inquiries from users who visit the office with regard to matters such as whether they would be able to receive pension benefits, how they should make pension claims, and how much they would receive as pension benefits, and in response, investigating into the pension records of the respective users which were stored in the computers, providing them with answers based on the recorded information, and advising them to take the necessary procedures. The accused performed the Act of Distributing the Newspapers, etc. on days off or outside of duty hours, without using any national facility or facility at the workplace and without taking advantage of his status as a public official, and what is more, said act did not have the nature of an activity of a group consisting of public officials, nor was it performed in a manner that it could be recognized as an act of a public official, because he did nothing but silently distribute the documents in question to mailboxes without identifying himself as a public official. In view of these circumstances, it is found that the Act of Distributing the Newspapers, etc. was performed by a public official who was not in a managerial position or vested with any discretion in performing duties or exercising power, totally independent of his duties and without the nature of an activity of a group consisting of public officials, and it was not performed in a manner that it could be recognized as an act of a public official, and thus the Act of Distributing the Newspapers, etc. cannot be considered to pose a substantial risk of undermining the political neutrality of the public official in his performance of duties. It then follows that the Act of Distributing the Newspapers, etc. does not correspond to the constituent element of the Penal Provisions.
D. According to the above, the judgment in prior instance is reasonable for its conclusion that found the accused to be not guilty. The judgment in prior instance stated that applying the Penal Provisions to the accused is in violation of Article 21, paragraph (1) and Article 31 of the Constitution. The part of the judgment in prior instance stating to that effect is invalid because it should be construed that the Penal Provisions are not applicable at all to the Act of Distributing the Newspapers, etc., which does not correspond to the constituent element of the Penal Provisions according to the interpretation thereof, and therefore the abovementioned clauses of the Constitution cannot possibly restrict the application of the Penal Provisions. However, such defect in interpretation obviously does not affect the judgment. The public prosecutor's arguments cannot be accepted.

2. Concerning the reasons for appeal argued by the public prosecutor, alleging violation of judicial precedent
The judicial precedent cited by the public prosecutor (the abovementioned judgment of the Grand Bench of the Supreme Court of November 6, 1974) was a case wherein a post office employee, who held the post of the chief of the secretariat of a council of labor unions within a certain district, put up or distributed posters for an election campaign according to the decision of the council. The act in question was performed as part of the activities of an employee organization, which was a member of said council, and therefore it had the nature of an activity of a group consisting of public officials, and even though the official performed the act in question outside of duty hours, the general public could have easily recognized that the act, in view of the manner in which it was performed, was an act by which a public official within the district proactively supported a candidate of a particular political party running in a national election. Under such circumstances, even taking into consideration the facts that the official was not in a managerial position or vested with any discretion in performing duties or exercising power, and that he performed the act in question outside of duty hours, without using any national facility or facility at the workplace and without taking advantage of his status as a public official, it can be said that the act in question posed a substantial risk of undermining the political neutrality of the public official in his performance of duties, and it had an influence on ensuring neutral administration of the national government and public confidence therein.
Thus, the abovementioned judicial precedent questioned the act of posting or distributing documents in such manner. Consequently, the public prosecutor's argument of violation of judicial precedent is irrelevant in this case because the cited judicial precedent addressed a different type of facts. This argument cannot be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.

3. Therefore, according to Article 408 of the Code of Criminal Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices. There is a concurring opinion by Justice CHIBA Katsumi and an opinion by Justice SUDO Masahiko.

The concurring opinion by Justice CHIBA Katsumi is as follows.
With regard to the legal interpretation, etc. adopted by the majority opinion, I would like to give my own view on the following points.
1. Consistency with the judgment of the Grand Bench of the Supreme Court of November 6, 1974, Keishu Vol. 28, No. 9, at 393 (generally known as the Grand Bench Judgment on the Sarufutsu Case)
(1) Understanding, etc. of the legal interpretation adopted in the Grand Bench Judgment on the Sarufutsu Case
The Grand Bench Judgment on the Sarufutsu Case is the leading case which directly declared the constitutionality of the Penal Provisions and discussed the applicability thereof in relation to political acts of national public officials. It held that the act of posting or distributing documents that carried the political purpose of supporting a particular political party violates the Penal Provisions, and that applying a criminal penalty to this act does not violate the Constitution, even where such act of posting or distributing the documents in question was performed by a non-clerical and non-managerial public official whose duty was nothing more than providing routine work, and where such public official performed this act outside of duty hours, without using any national facility and without taking advantage of his duty or having any intent to harm fairness thereof, and as part of activities of a labor union. It may be possible to read this precedent judgment as if suggesting a legal interpretation that there should be no limitation to the scope of "political acts" prohibited under the Penal Provisions. However, every judicial determination presented by a court judgment provides a legal interpretation based on the specific facts of the case concerned and for the purpose of applying the law to such facts and thereby handling the case and to the extent necessary therefor. It does not necessarily indicate the entire picture of the legal theory or interpretation always adopted by the court. The court presented the abovementioned holdings regarding the meaning of political acts only on the basis of the facts of the case. Specifically, the accused in this leading case was a non-managerial official of the Ministry of Posts and Telecommunications who worked at a post office and who held the post of the chief of the secretariat of a regional council of labor unions. On the occasion of an election of members of the House of Representatives, according to the decision of the council and for the purpose of supporting a particular political party that mainly gained support from said council, the official himself put up six posters for an election campaign of said political party's authorized candidate on the public bulletin boards, and on four occasions around that time, he asked other persons to put up a total of 184 posters. In light of the nature, manner, etc. of this act, although the official basically performed this act outside of duty hours and without using any national facility, the general public could have easily recognized from appearance that the official performed the act in question as part of the activities of the organization to which he belonged and according to the organization's decision, and that the act represented proactive support for a particular political party's candidate in the effort to win the election within the district concerned. Therefore, without needing to question as to the official's position, power or duty, or whether he performed the act in question during or outside of duty hours, the act can be substantially regarded as "an act that poses a risk of undermining the political neutrality of the public official in his performance of duties." On the premise of such particularity of the case, the act of putting up posters, etc. clearly falls within the scope of political acts prohibited under the Penal Provisions, and for this reason, the court might have confirmed that the act in question was a prohibited political act, without taking the trouble to examine the existence or nonexistence of the abovementioned "risk" (while finding the existence of such "risk" as a matter of fact). The fifth point of the Grand Bench Judgment on the Sarufutsu Case (Keishu Vol. 28, No. 9, at 393) concluded that applying the Penal Provisions to the "act of posting or distributing the documents in question (as described in the judgment)" does not violate Article 21 or Article 31 of the Constitution. This conclusion clearly indicates that the determination presented in this precedent judgment was made in respect of the specific act of posting or distributing the documents as found in the judgment and based on the premise of the facts of the case. Thus, the abovementioned holdings in the Grand Bench Judgment on the Sarufutsu Case did not provide an abstract legal interpretation of the Penal Provisions but explained the specific application of these provisions to the facts of the case, which took place under different circumstances from this case, and therefore the holdings in the Grand Bench Judgment on the Sarufutsu Case do not contradict or conflict with the majority opinion of this case in terms of the legal interpretation of the Penal Provisions.
(2) Evaluation of the standard of constitutional review employed by the Grand Bench Judgment on the Sarufutsu Case
In reviewing the constitutionality of the Penal Provisions, the Grand Bench Judgment on the Sarufutsu Case confirmed that these provisions were constitutional on the basis of the finding of the reasonable relation between the purpose and the means of restricting public officials' engagement in political acts, without making distinction in terms of public officials' type of job or power vested in their office, whether they performed the act in question during or outside of duty hours, whether or not they used any national facility, and so on. With regard to the evaluation of such holdings, there is an argument that asserts the superiority of freedom of expression as a given and criticizes that the court did not employ a "strict standard of constitutional review," in which balancing is attempted by making comparison between the benefit and the adverse effect from permitting the political act in question, but employed a more relaxed "standard of reasonable relation." However, looking at most of the judgments recently rendered by the Grand Bench of the Supreme Court, the court, in reviewing the constitutionality of the provisions that could result in restricting fundamental human rights, employed the balancing approach of making specific comparison between the extent to which restrictions are needed for the purpose of securing a certain benefit, and the substance and nature of the freedom to be restricted as well as the manner, degree, etc. of the specific restrictions to be imposed?whether it clearly states so or not?, and as an indicator for making determination, the court appears to have taken into account a certain strict standard (e.g. the principle of clear and present danger, the principle of void for vagueness, the principle of minimum necessary restriction, the principle of less restrictive alternative (LRA), the principle of necessary and reasonable purpose and means) or the spirit of any of these standards, depending on the case. With regard to the employment of such strict standards, the court does not generally declare that all or some of these standards are applicable a priori as the standard of constitutional review of restrictions on freedom of expression, and it is also rare that the court explicitly uses academic terms such as the principle of "LRA." In addition, in deciding to employ any of these strict standards, the court takes the stance of examining the factors involved in each case, such as the nature of the human right to be restricted, as well as the details, manner, etc. of the restrictions, and chooses one that is necessary and appropriate for handling the case. Furthermore, the court makes some modifications to the substance of the strict standard that it has chosen or employs the standard only by having the spirit thereof reflected in its review (for example, in the judgment of the Grand Bench of the Supreme Court of June 22, 1983, Minshu Vol. 37, No. 5, at 793 (a case in which the deletion of the newspaper article on the "Yodo-go Hijacking" incident was challenged as unconstitutional), the court did not directly employ the principle of "clear and present danger" but took its fundamental spirit into account and determined that there must be the danger of occurrence of the alleged problem at least "at a considerable probability"). Thus, the court handles each case flexibly, without being bound by any standard that it establishes (for details on this point, see the commentary that I wrote as a research clerk of the Supreme Court on the judgment of the Grand Bench of the Supreme Court of July 1, 1992, Minshu Vol. 46, No. 5, at 437 (generally referred to as the "New Narita Act Case" (Commentaries on Supreme Court Rulings, Civil Cases, FY1992, at 235, et seq.))
Based on this view, the abovementioned holdings in the Grand Bench Judgment on the Sarufutsu Case can be understood as meaning that under the circumstances where organizations of public officials have become a sort of political factions and this poses a risk of undermining the political neutrality of public officials in their performance of duties, prohibiting public officials from engaging in political acts under the Penal Provisions is clearly necessary and reasonable and therefore constitutional as long as such prohibition is reasonably related to the purpose of ensuring the political neutrality of pubic officials, without taking the trouble to bring up any strict review standard, and accordingly, the court only explained why the Penal Provisions were constitutional to the extent necessary in connection with the nature, manner, etc. of the act in question (some statements in this Grand Bench judgment imply that the court employed a strict review standard, such as a statement seemingly based on a balancing theory, explaining that comparison must be made between the benefit to be gained and the benefit to be lost by prohibiting the political act, and a statement that the prohibition of the political act is considered to be a reasonable and inevitable restriction on freedom of expression). In another precedent case, the decision of the Grand Bench of the Supreme Court of December 1, 1998, Minshu Vol. 52, No. 9, at 1761 (Judge's Status Case), the court made a constitutional review while giving a sufficiently restrictive interpretation to the meaning of the phrase "actively engage in political movements" set forth in Article 52, item (i) of the Court Act and confirmed the constitutionality of this provision according to a strict standard, but literally, the court only explained that there was a reasonable relation between the purpose of this provision and the prohibition. I presume that the court explained the issue in the same manner as in the abovementioned leading case because it considered it sufficient to do so.
Understanding as above, the framework for making determination and the standard of constitutional review employed by the majority opinion of this case do not contradict or conflict with those of the Grand Bench Judgment on the Sarufutsu Case.

2. Significance, etc. of the restrictive interpretation of the Penal Provisions
The Penal Provisions prohibit political acts of national public officials that literally correspond to what is prescribed in these provisions, without using any term or phrase to limit the scope of such prohibited acts. On this point, the majority opinion presents a restrictive interpretation that the term "political acts" as used in the Penal Provisions refers to such acts that literally correspond to what is prescribed in these provisions and that pose a substantial risk that the undermining of the political neutrality of public officials in their performance of duties could occur in reality. This does not mean that the court adopts a so-called constitutionality-oriented restrictive interpretation approach by which, when the literal scope of restrictions is too broad and goes beyond the minimum necessary level according to the so-called "strict standard" of constitutional review, and therefore the restrictions are suspected of being unconstitutional as a result of comparison between the benefit to be gained and the benefit to be lost, the court limits the scope of restrictions and declares them to be constitutional in conclusion.
Supposing that the scope of political acts to be restricted is too broad and the court intends to limit the scope to the extent that the restrictions can be found to be constitutional, there may be various ways of limitation. In addition to the one adopted by the majority opinion, it may be possible to limit the scope in various other ways depending on the nature of the acts in question, such as by specifying the types of political acts to be restricted as "political acts performed by taking advantage of one's managerial position" or "acts performed during duty hours and using a national facility," or more specifically, "political acts performed by agreeing with a certain organization's policy of political movements and proactively taking part in such movements as a member of the organization." However, there is no criterion and therefore it is difficult for the judiciary to ascertain which one of these ways of limitation is appropriate. In addition, since choosing a particular way of limitation from among several possible options is in itself a sort of legislative action, if the judiciary makes such choice, it would interfere with the discretion and power of the legislature. Furthermore, this would also raise the following problem.
The National Public Service Act provides exclusively for the standards for the administration of the civil service referred to in Article 73, item (iv) of the Constitution (Article 1, paragraph (2) of the National Public Service Act). It is one of the fundamental laws that provide for rules for the persons in charge of supporting Japan's national system, on the basis of the provisions of the Constitution that defines Japan's national structure and governing system. Article 102, paragraph (1) of the Act provides for the prohibition of public officials' engagement in political acts, as the rules for their service. Deciding the rules for service as well as rights and obligations of national public officials, who form part of the national structure, is equal to deciding the national governing system. Therefore, this is a matter that the Diet must deal with in the capacity of the highest organ of the state power as delegated by the Constitution, while taking into consideration the fundamental policy of what the entire national structure should be like. In this respect, the National Public Service Act can be said to be one of the fundamental laws.
In reviewing the constitutionality of such fundamental law, when the judiciary finds that the law contains something contrary to the spirit of the Constitution and considers it difficult to declare the law to be constitutional in its entirety, the judiciary could choose a particular way of limitation from among several possible options in order to give a restrictive interpretation to the law and declare it to be constitutional. However, even if the judiciary does so in consideration of the magnitude of the possible confusion and impact that may arise from declaring the law to be unconstitutional in its entirety, such judicial determination may still appear to be somewhat abnormal. The fundamental law, established by the legislature with regard to public officials who are in charge of supporting the national governing system provided for by the Constitution, based on such national governing system and in accordance with a certain policy or idea, must have been established as a system that is complete in its entirety, and the rules for service of public officials contained therein must also have been specified based on a systematic legislative purpose or intention, while comprehensively taking into consideration how public officials' status should be guaranteed, whether or not they should be appointed depending on their political opinions, and whether or not the merit system should be applied to them, in relation to their status as servants to all citizens. From this perspective, it is necessary for the judiciary to be deliberate in examining the possibility that any harmful effect might occur or that the systematic consistency might be damaged due to extracting only part of the law and placing interpretive limitations on such part.
In this case, the judiciary should not immediately "overrule" the provisions of the National Public Service Act, which is a fundamental law, by attempting a restrictive interpretation in order to declare these provisions to be constitutional. Rather, the judiciary must first examine the Penal Provisions in dispute while fully taking into account the spirit of the Constitution, and consider issues such as what the true intention of the legislature is, what the systematic policy and idea of the public servant system is, and how national public officials should serve in accordance with the spirit of the Constitution, and thereby attempt a careful interpretation of the provisions of the National Public Service Act in itself, and after completing this process, the judiciary should move on to review the constitutionality of the specific provisions in question (I do not mean that the judiciary must basically or always be deliberate in constitutional review. I rather mean that when dealing with a fundamental law of the nation, the judiciary should not hastily make a declaration that the law is constitutional or unconstitutional by taking a high-handed attitude only on the basis of the literal interpretation of the law, but should first examine the purport, meaning and intention of the provisions in question while taking into account the policy of the law in the legal system and then attempt an interpretation of the law.)
This is the basis for the majority opinion, which first took into consideration the purpose of the Penal Provisions, i.e. ensuing neutral administration of the national government and maintaining public confidence therein, on the basis of the spirit of the Constitution, and then gave a deliberate interpretation to these provisions to the effect that the political acts prohibited by these provisions are "acts that pose a substantial risk of undermining the political neutrality of public officials in their performance of duties." It can be regarded as a basic stance that the judiciary should take in making determination on a fundamental law.
I would add that the method of legal interpretation and application adopted by the majority opinion may seem close to but is completely different from what is called Brandeis Rules?the rules for avoiding a question of constitutionality, advocated by Justice Brandeis of the United States Supreme Court in his concurring opinion attached to the judgment on Ashwander v. Tennessee Valley Authority in 1936?, namely, Rule 4 which states, "The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of," and Rule 7 which states, "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided" (in the Japanese text, the comments on the Brandeis Rules are based on SHIBUTANI Hideki, "Kenpo Handan no Joken" (Conditions for Constitutional Review), Koza Kenpogaku 6, at 141, et seq.) As is well known, the Brandeis Rules were later adopted by the court opinion in Rescue Army v. Municipal Court of City of Los Angeles, 331 U.S. 549 (1947) and has been established as a case law of the United States Supreme Court. They are rules for the judiciary to avoid making determination on a constitutional question from the perspective of self-restraint. However, the majority opinion adopted the restrictive interpretation not from the perspective of restraining itself, but as a result of employing an ordinary method of legal interpretation, i.e. interpreting the provisions of the National Public Servant Act, which is a national fundamental law, not only literally but also by comprehensively taking into consideration the structure and policy of the National Public Servant Act as well as the purpose and objective of the Penal Provisions before making determination on a constitutional question.

3. Determination as to whether or not the Act of Distributing the Newspapers, etc. corresponds to the constituent element of the Penal Provisions
According to the abovementioned legal interpretation of the Penal Provisions, since the Act of Distributing the Newspapers, etc. does not pose a substantial risk of undermining the political neutrality of the public official in his performance of duties, this fact alone is sufficient to deny that said act corresponds to the constituent element of the Penal Provisions. On this point, the court of prior instance held that in light of the content, etc. of the Act of Distributing the Newspapers, etc., applying the Penal Provisions to this act is unconstitutional, and concluded that the accused should be pronounced to be not guilty. Presumably, the court of prior instance drew such conclusion in consideration of the problem involved in restricting even such a political act as the one disputed in this case by imposing a criminal penalty, and in essence, this conclusion seems to have been drawn substantially on the basis of the fact that the Act of Distributing the Newspapers, etc. could only have a minor influence on the political neutrality of the public official in his performance of duties, as is assumed in the majority opinion. I can somewhat understand the court of prior instance's struggle in drawing this conclusion. However, in reviewing the constitutionality of a law that results in restricting freedom of expression, if the court adopts such an approach of finding the law to be constitutional but declaring its application to be unconstitutional, the conclusion as to constitutionality could change depending on the case or the court. This would make the scope of restrictions unclear and may lead to an arbitral application of the restrictions. Thus, this approach would allow the restrictions to remain a major threat to freedom of expression. This is why I assert the necessity to first interpret the Penal Provisions in general terms, beyond the level of evaluating each political act disputed in each case, and then deny that the act corresponds to the constituent element of the Penal Provisions.

The opinion by Justice SUDO Masahiko is as follows.
I am in agreement with the majority opinion in terms of its conclusion, but I have a different view with regard to the restrictions on political acts of national public officials in regular service. I would like to give some comments on this point.
1. Interpretation of the concept of political acts of public officials
(1) I agree with the majority opinion and believe that, considering that citizens' freedom of political activities is a material right that underpins democratic society and the provisions of Article 102, paragraph (1) of the Act define the constituent element of the Penal Provision, it is reasonable to understand that the political acts as set forth in said paragraph refer to such acts that pose a substantial risk of undermining the political neutrality of public officials in their performance of duties (meaning acts that not only involve a conceptual risk but also pose a substantial risk that the undermining of their political neutrality could occur in reality).
(2) In the first place, public officials' engagement in political acts and their performance of duties are originally in different spheres. For instance, when a public official becomes a member of a political party, such act of course cannot be considered to undermine the political neutrality of the public official in his/her performance of duties. A public official's engagement in a political act would pose a risk of undermining his/her political neutrality in his/her performance of duties because of a certain linkage or connection between the public official's engagement in the political act and his/her performance of duties. And the political act would not only involve such risk on a conceptual level but further pose it on a substantial level where the undermining of the public official's political neutrality could occur in reality, when a linkage can be found between the public official's political act and his/her performance of duties, to the extent of reasonably explaining the mechanism in which the public official's political tendency seen from his/her political act will be reflected in his/her performance of duties, or the probability that this would occur. Then, the case where a public official's engagement in a political act poses a substantial risk of undermining his/her political neutrality in his/her performance of duties refers to the case where such a linkage can be found. When I move on to examine this point, I will reach an opinion that is somewhat different from the majority opinion, as detailed below.

2. Political acts performed while off duty
(1) When one step further is taken to examine the point of this "linkage," a question would arise as to the case where a public official's political act, seen from the act itself or any circumstances incidental thereto, is recognized as having been performed while he/she is off duty, or more specifically, where a public official acts outside of duty hours, without using any national facility or facility at the workplace and independent of his/her status as a public official, that is, the case where a public official appears to act as a private person or citizen without any title. In that case, it should be said that there is no such linkage to the extent of reasonably explaining the mechanism in which the public official's political tendency seen from his/her political act will be reflected in his/her performance of duties, or the probability that this would occur.
(2) It may be more or less valid to say that when a public official performs any political act, even while off duty, this would reveal his/her political tendency and would clarify the potential that his/her political neutrality in his/her performance of duties would be undermined, to a greater extent than when he/she does not perform said act. Public confidence in the public official's political neutrality in his/her performance of duties would also be undermined. However, under the principle of self-discipline and self-restraint of each public official within an organization consisting of public officials, it is normally unlikely that public officials would bring their own political tendency into exercising powers vested in their office or performing duties such as issuing a command or providing supervision. Furthermore, even supposing, as a rare case, that a public official would attempt to bring his/her political tendency into performing his/her duties, the organization of public officials does not seem to have a culture that would accept such behavior. Then, it follows that when a public official performs a political act while off duty, this might pose a risk of undermining his/her political neutrality in his/her performance of duties but such risk is exceedingly vague, and it exists only on a conceptual or abstract level.
After all, in that case, irrespective of whether or not the public official holds a managerial position, whether or not he/she has any discretion in performing duties or exercising power, whether or not the act in question has a nature of an activity of a group consisting of public officials, whether or not the act was performed in a manner that it could be directly recognized as an act of a public official, and whether or not the act had any purpose or content that is directly contrary to neutral administration of the national government?although these factors may be important points to consider when determining whether or not to take a disciplinary action on the public official due to breach of the public servants' code of conduct for undermining public confidence in the political neutrality of the public official in his/her performance of duties?, it should be concluded that a linkage cannot be found to the extent of reasonably explaining the mechanism in which the public official's political tendency seen from his/her political act will be reflected in his/her performance of duties, or the probability that this would occur, and therefore his/her act does not pose a substantial risk of undermining his/her political neutrality. On this point, I disagree with the majority opinion which considers that a public official's political act, even when he/she performs it while off duty, would pose a substantial risk of undermining his/her political neutrality in his/her performance of duties, depending on the circumstances.
(3) I would add by way of caution that "while off duty" and "outside of duty hours" are different in meaning. Paragraph (4) of the Rules provides that the prohibition or restriction of political acts under the Act or the Rules "shall apply even where public officials perform such acts outside of duty hours." This provision can be understood as stipulating that the restriction shall apply where a public official performs a political act outside of duty hours but he/she is not deemed to have done so while off duty and the abovementioned linkage can be found (e.g. where a public official performs a political act outside of duty hours but using a national facility or facility at the workplace).

3. Necessary and inevitable restriction
(1) The prohibition of freedom of political acts under Article 102, paragraph (1) of the Act imposes a serious constraint on freedom of expression. The Constitution, which has its basis in democracy and advocates respect for individuals as its fundamental principle (Article 13), guarantees freedom of expression as the most important fundamental human right because an individual can be an individual by holding and expressing his/her own thoughts (Article 21), and grants special guarantee for freedom of political acts, which falls within the scope of freedom of expression. This can be understood as meaning that the Constitution in nature guarantees the co-existence of different values or political ideas, as well as political acts in which such values and ideas are expressed. Accordingly, it can be said as well that the Constitution considers it desirable that citizens should be tolerant to (or sometimes respectful of) the political ideas held by others that they cannot agree with, and should basically appreciate or accept the existence of political acts performed by others based on such political ideas, or in short, they should "respect dissenting views." Needless to say, since public officials in regular service, whose treatment is at issue in this case, are citizens under the Constitution before they are public officials, and they are not separated from politics but can have their own political faith or consciousness, they should be entitled to enjoy the freedom of political acts in the meaning explained above. Thus, the Constitution basically guarantees public officials' right to have diverse values or political ideas and to express them by performing political acts.
(2) My view presented above that freedom of expression should be respected does not seem to be particularly inconsistent with the majority opinion. I also agree with the majority opinion in that the purpose of the restrictions imposed under Article 102, paragraph (1) of the Act is to ensure neutral administration of the national government and maintain public confidence therein, by preserving the political neutrality of public officials in their performance of duties. Considering that public officials' freedom of political acts have a vital nature under the Constitution as explained above, the restrictions to be imposed on public officials' political acts in order to achieve said purpose must be limited to the necessary and inevitable level. Then, the question is whether or not the restriction under Article 102, paragraph (1) of the Act can be regarded as such necessary and inevitable restriction, on the basis of the abovementioned interpretation of the political acts set forth in this clause.
I further examine this point. A criminal penalty is the severest punishment that can be imposed through the exercise of the state power and the greatest restriction on public officials' freedom of political acts, and therefore the State is required to make every effort to restrain itself from criminally penalizing public officials who perform political acts or impose a criminal penalty on them only as a supplementary means. From this standpoint, the interest to be legally protected by criminalizing violation of the prohibition of public officials' engagement in political acts is neutral administration of the national government, whereas public confidence therein is not an independent interest to be legally protected. When a public official's political act results in undermining only public confidence, it is considered to be necessary and sufficient to leave the matter to be handled within the national government by taking a disciplinary action on the public official on the grounds of breach of the public servants' code of conduct. In addition, the political acts set forth in Article 102, paragraph (1) of the Act can be interpreted as explained above by considering that the danger of violation of said legally protected interest arises when the public official's political act poses a substantial risk of undermining his/her political neutrality in his/her performance of duties. In this way, the scope of political acts subject to a penalty would be limited to a considerable degree.
Furthermore, the case where such a substantial risk would be posed refers to the case where a linkage can be found between the public official's political act and his/her performance of duties, to the extent of reasonably explaining the mechanism in which the public official's political tendency seen from his/her political act will be reflected in his/her performance of duties, or the probability that this would occur, and such linkage cannot be found in respect of a political act performed while off duty. Assuming so, the case where a public official's political act poses a substantial risk of undermining his/her political neutrality in his/her performance of duties would be further limited.
In the end, according to the interpretation presented above, the scope of acts of distributing newspapers or any other printed work issued by political parties or any other political groups has been drastically limited under the conditions and within the extent as mentioned above, and only such act within that scope corresponds to the constituent element of the Penal Provisions. Consequently, it may be possible to regard the Penal Provisions as imposing a necessary and inevitable restriction in order to achieve the purpose thereof.
(3) The abovementioned interpretation of the political acts set forth in Article 102, paragraph (1) of the Act is exactly a strict interpretation of the constituent element of said provisions based on the purpose and objective thereof and in accordance with the spirit of the Constitution. Therefore, although this interpretation is nothing more than an ordinary legal interpretation, it could possibly be regarded, at the same time, as a restrictive interpretation. However, in the first place, since restricting public officials' freedom of engaging in political acts by way of imposing a criminal penalty amounts to a significant constraint on their material, fundamental human right, it is natural to consider that the political acts to be restricted are such acts that pose a substantial risk of undermining the political neutrality in their performance of duties, and if so, it may not be impossible to make a clear distinction between the acts to be restricted and the acts not to be restricted. Secondly, whether or not there is such a substantial risk means whether or not there is a linkage between the public official's political act and his/her performance of duties, to the extent of reasonably explaining the mechanism in which the public official's political tendency seen from his/her political act will be reflected in his/her performance of duties, or the probability that this would occur. Since it may not be very difficult for the general public to ascertain this point, and what is more, such linkage cannot be found in respect of a political act performed while off duty, we can confirm the existence of an indicator that is so clear as to make it possible to ascertain whether a particular political act is subject to the restriction. Thus, it is possible for the general public to read from the Penal Provisions the standards for ascertaining whether or not a specific political act is subject to the restriction prescribed therein (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 (Sapporo Customs Inspection Case)).
According to the above, the Penal Provisions are judged not to be in violation of Article 21 or Article 31 of the Constitution, to the extent that they are interpreted as strictly and restrictively as mentioned above.
(4) To be frank, I would say that it cannot be denied that the interpretation I presented above in some aspects narrows down the literal interpretation to a considerable degree. Furthermore, Article 102, paragraph (1) of the Act and the Penal Provisions are subject to the following criticisms. (i) Since the scope of public officials' political acts to be restricted is literally broad and unclear, a public official, when distributing documents or performing any other political act, would find it difficult to specifically predict whether or not he/she would be punished by a criminal penalty due to such act. Thus, said provisions are inferior in assuring a clear definition of the constituent element of the crime, and they would have a chilling effect in that public officials might restrain themselves more than necessary, out of fear that they might be subject to a penalty due to distributing documents or performing any other political act which should not have been penalized. (ii) The Penal Provisions delegate the rules of the National Personnel Authority to specify public officials' political acts to be restricted under said provisions, without making distinction between those subject to disciplinary action and those subject to a criminal penalty, and because of this, the Penal Provisions are in violation of Article 21, Article 31, etc. of the Constitution and therefore void, at least for the part that delegates the establishment of the constituent element of the crime (see the dissenting opinion by Justice OSUMI Kenichiro and three other justices attached to 1969 (A) No. 1501, judgment of the Grand Bench of the Supreme Court of November 6, 1974, Keishu Vol. 28, No. 9, at 393 (Sarufutsu Case)). Giving a thought to the existence of these criticisms and the changes in the political consciousness among the public through the long history of our country (the Local Public Servant Act does not provide for a penalty in relation to the restriction on public officials' engagement in political acts; as far as it can be surveyed, a criminal penalty cannot be found in any laws of the United States or European countries), there should be further discussion widely among the public with regard to Article 102, paragraph (1) of the Act and the Penal Provisions, focusing on the method of making these provisions clearer as well as a desirable scope of restrictions and penalty, including the possibility to take some legislative measures.

4. Conclusion
Although it is clear that the Act of Distributing the Newspapers, etc. performed by the accused represents his political tendency, he did nothing but silently distribute documents into mailboxes, on days-off or outside of duty hours, without using any national facility or facility at the workplace and without taking advantage of his status as a public official or identifying himself as a public official. Thus, the accused appears to have acted as a private person or citizen without any title, and therefore said act is considered to have been performed while off duty. In that case, a linkage cannot be found between the Act of Distributing the Newspapers, etc. and the accused's performance of duties to the extent of reasonably explaining the mechanism in which the accused's political tendency seen from said act will be reflected in his performance of duties, or the probability that this would occur, and therefore said act cannot be considered to pose a substantial risk of undermining the accused's political neutrality in his performance of duties. Consequently, without needing to examine factors such as whether or not the accused holds a managerial position and whether or not he has any discretion in performing duties or exercising power, the Act of Distributing the Newspapers, etc. performed by the accused does not correspond to the constituent element of the Penal Provisions. For the reasons stated above, the judgment in prior instance that pronounced the accused to be not guilty is justifiable for its conclusion.

Justice CHIBA Katsumi
Justice TAKEUCHI Yukio
Justice SUDO Masahiko
Justice ONUKI Yoshinobu