Judgments of the Supreme Court

Search Results

2017 (A) 829

Date of the judgment (decision)

2020.07.16

Case Number

2017 (A) 829

Reporter

Keishu Vol. 74, No. 4

Title

Judgment concerning the method of making examination and determination in the process of determining whether the electronic or magnetic records and the recording media containing electronic or magnetic records distributed by a person fall within the category of electronic or magnetic records of obscene materials and the category of recording media containing electronic or magnetic records of obscene materials under Article 175 of the Penal Code, while examining whether their artistic and ideological nature or other factors could mitigate sexual stimulus and to what extent

Case name

Case charged for distribution of electronic or magnetic records of obscene materials through transmission of telecommunications, and distribution of recording media containing electronic or magnetic records of obscene materials

Result

Judgment of the First Petty Bench, dismissed

Court of the Prior Instance

Tokyo High Court, Judgment of April 13, 2017

Summary of the judgment (decision)

1. In the process of determining whether the electronic or magnetic records and the recording media containing electronic or magnetic records distributed by a person fall within the category of electronic or magnetic records of obscene materials and the category of recording media containing electronic or magnetic records of obscene materials under Article 175 of the Penal Code, while examining whether their artistic and ideological nature or other factors could mitigate sexual stimulus and to what extent, if the electronic or magnetic records in question are visual information, it is reasonable to examine and determine these issues by looking at only the visualized form of these records.

2. The accused's acts of distributing the 3D shape scan data file of female genitalia, which falls within the category of electronic or magnetic records of obscene materials under Article 175 of the Penal Code, or distributing the CD-Rs in which such data is recorded, cannot be justified by the following circumstances: the accused distributed the data and CD-Rs based on her idea of wishing to dispel the obscene impression of female genitalia and instill the act of expressing female genitalia into everyday life; the distribution of the data gives people who provide the accused with funds for her creative activities the opportunity to take part in her creative activities by providing funds; the distribution of the CD-Rs gives people who acquired them the opportunity to edit the data and conduct creative activities.

References

Articles 21 and 31 of the Constitution, Articles 175 and 35 of the Penal Code



The Constitution of Japan

Article 21

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

(2) No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

Article 31

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



Penal Code

(Distribution of Obscene Objects)

Article 175

(1) A person who distributes or displays in public obscene objects such as documents, drawings or recording media contained in electronic or magnetic records is punished by imprisonment for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine, or both imprisonment and a fine. The same applies to a person who distributes obscene records including electronic or magnetic records through the transmission of telecommunications.

(2) The same applies to a person who possesses the objects referred to in the preceding paragraph or stores electronic or magnetic records referred to in the same paragraph for the purpose of distributing them for a fee.

(Justifiable Acts)

Article 35

An act performed in accordance with laws and regulations or in the pursuit of lawful business is not punishable.

Main text of the judgment (decision)

The final appeal is dismissed.

Reasons

Among the reasons for final appeal stated by the defense counsel, SUMI Takeshi, et al., the argument that the provisions of Article 175 of the Penal Code violate Article 21 of the Constitution is clearly groundless in light of the purport of the precedents of this Court (1953 (A) No. 1713, the judgment of the Grand Bench of the Supreme Court of March 13, 1957, Keishu Vol. 11, No. 3, at 997, 1964 (A) No. 305, the judgment of the Grand Bench of the Supreme Court of October 15, 1969, Keishu Vol. 23, No. 10, at 1239), and the argument that the concept of "obscene" under Article 175 of the Penal Code is ambiguous and that this is in violation of Article 31 of the Constitution lacks a premise because that concept cannot be regarded as being ambiguous as argued by the defense counsel. The other reasons, including the arguments of violation of the Constitution and violation of judicial precedents, are in effect arguments of mere violation of laws and regulations or errors in fact finding. None of these reasons constitutes any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

Even after examining the case records in light of the defense counsel's arguments, it is not found that Article 411 of the Code of Criminal Procedure is applicable to the present case.

1. In this case, the accused, who is a cartoonist and an artist, distributed the 3D shape scan data file of her own genitalia (hereinafter referred to as the "Data") to six unspecified persons who provided her with funds for her creative activities by transmitting it via the internet, and distributed the CD-Rs in which the Data was recorded (hereinafter referred to as the "CD-Rs") to three unspecified persons who purchased goods sold by her by sending them by post.

2. The defense counsel argue as follows: the distribution of the Data is found to have artistic and ideological nature in that it gives people who provide the accused with funds for her creative activities the opportunity to take part in her creative activities by providing funds; the distribution of the Data and the CD-Rs is found to have artistic and ideological nature in that it gives people who acquired them with the opportunity to edit the Data and conduct creative activities; therefore, the Data does not fall within the category of electronic or magnetic records of obscene materials under Article 175 of the Penal Code, and the CD-Rs do not fall within the category of recording media containing electronic or magnetic records of obscene materials under the same Article. However, in the process of determining whether the electronic or magnetic records and the recording media containing electronic or magnetic records distributed by a person fall within the category of electronic or magnetic records of obscene materials and the category of recording media containing electronic or magnetic records of obscene materials under that Article, while examining whether their artistic and ideological nature or other factors could mitigate sexual stimulus and to what extent, if the electronic or magnetic records in question are visual information, it is reasonable to examine and determine these issues by looking at only the visualized form of these records such as images displayed on the computer screen or hard copies. Even if the distribution of the Data or the CD-Rs is artistic and ideological in some aspects in that it gives the abovementioned opportunities to others, this should not be taken into consideration in the process of examining and determining the issues mentioned above. The determination of the court of prior instance that the examination and determination should be made by the method explained above is justifiable, and it cannot be said that there is an error in the judgment in prior instance that upheld the finding and evaluation by the court of first instance to the effect that the Data falls within the category of electronic or magnetic records of obscene materials and that the CD-Rs fall within the category of recording media containing electronic or magnetic records of obscene materials.

3. The defense counsel argue that: the accused distributed the Data and the CD-Rs based on her idea of wishing to dispel the obscene impression of female genitalia and instill the act of expressing female genitalia into everyday life; and moreover, the distribution of these articles is found to have artistic and ideological nature in that it gives the abovementioned opportunities to others; and therefore, the accused's acts of distributing the articles in question should be justified. However, the accused's acts of distributing the articles in question, even taking into account the defense counsel's argument that it gives the abovementioned opportunities, should inevitably be deemed to have been performed directly for the purpose of distributing the electronic or magnetic records of obscene materials which express female genitalia, and such purpose cannot be justified. Consequently, the accused's acts of distributing the articles in question cannot be justified by the circumstances pointed out by the defense counsel.

Accordingly, in accordance with Article 408 of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the judgment.

Presiding Judge

Justice KOIKE Hiroshi

Justice IKEGAMI Masayuki

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi

Justice MIYAMA Takuya

(This translation is provisional and subject to revision.)