1980.11.28

1979 (A) 998

Keishu Vol. 34, No. 6

Judgment concerning the method of determining the obscene nature of a document

Case charged for sale of an obscene document

Judgment of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of March 20, 1979

1. When determining the obscene nature of a document, it is necessary to consider various points, such as the degree and method of vivid and detailed sexual descriptions and depictions in the document, the importance of the aforementioned descriptions and depictions in the entire document, association between thoughts, etc. expressed in the document and the aforementioned descriptions and depictions, the structure and development of the document, the degree to which sexual stimulus is moderated by the artistic and ideological nature, etc. of the document, and whether or not the document is found to appeal mainly to readers' amorous interest when observing it as a whole from these perspectives. It is necessary to determine whether the document can be considered as "one that unnecessarily arouses or stimulates sexual desire and harms the normal sexual sense of shyness of ordinary persons, and therefor goes against the concept of good sexual morals" in light of the common sense of the time in comprehensive consideration of these circumstances.

2. The part vividly, minutely, and specifically describing the scene of sexual intercourse between a man and women in a sensational manner makes up the core of a document titled "Yojohan Fusuma no Shitabari (paper underlying the fusuma sliding doors in a four-and-a-half tatami mat room)" in terms of both quantity and quality, and even in consideration of the structure and development of the document, as well as the literary and ideological value, etc. thereof, the document is found to appeal mainly to readers' amorous interest. Therefore, the document falls under the obscene documents referred to in Article 175 of the Penal Code.

Article 175 of the Penal Code

Penal Code
(Distribution of Obscene Objects)
Article 175 A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 5,000 yen or a petty fine. The same shall apply to a person who possesses the same for the purpose of sale.

The final appeals are dismissed.

Concerning the first reason for final appeal stated by the defense counsel, NAKAMURA Iwao

The defense counsel argues violation of Article 21 of the Constitution. However, it is clear from the text of the judgment in prior instance that the judgment in prior instance does not assert that the document "Yojohan Fusuma no Shitabari" is an obscene book, unlike the argument made by the defense counsel. Therefore, the defense counsel's argument is the argument of unconstitutionality in relation to a point that clearly has not influenced the conclusion of the judgment in prior instance, and does not constitute a lawful reason for a final appeal.

Concerning Reason I for final appeal stated by the defense counsel, MIYAKE Akira

The defense counsel argues that the interpretation in the judgment in prior instance is in violation of Article 21 of the Constitution. However, it is clear that after all, the argument ends up denouncing the affirmation of the constitutionality of Article 175 of the Penal Code in the judgment in prior instance and is groundless, in light of the purport of the judicial precedents of the Grand Bench of this Court to the effect that punishment of publication of an obscene document under the same Article does not constitute violation of Article 21 of the Constitution (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).

Concerning the second reason for final appeal stated by the defense counsel, NAKAMURA Iwao and Reason II for final appeal stated by the defense counsel, MIYAKE Akira

The defense counsel argues violation of Article 31 of the Constitution. However, it cannot be said that the requirements for constituting the crime referred to in Article 175 of the Penal Code are unclear, unlike the arguments made by the defense counsel. Therefore, the defense counsel's arguments lack a premise and do not constitute a lawful reason for a final appeal.

Incidentally, when determining the obscene nature of a document, it is necessary to consider various points, such as the degree and method of vivid and detailed sexual descriptions and depictions in the document, the importance of the aforementioned descriptions and depictions in the entire document, association between thoughts, etc. expressed in the document and the aforementioned descriptions and depictions, the structure and development of the document, the degree to which sexual stimulus is moderated by the artistic and ideological nature, etc. of the document, and whether or not the document is found to appeal mainly to readers' amorous interest when observing it as a whole from these perspectives. It is necessary to determine whether the document can be considered as "one that unnecessarily arouses or stimulates sexual desire and harms the normal sexual sense of shyness of ordinary persons, and therefore goes against the concept of good sexual morals" (see the judgment of the Grand Bench of the Supreme Court of March 13, 1957 cited above) in light of the sound common sense of the time in comprehensive consideration of these circumstances. When this determination is applied to this case, regarding the document "Yojohan Fusuma no Shitabari," the part vividly, minutely, and specifically describing the scene of sexual intercourse between a man and women in a sensational manner makes up the core of the document in terms of both quantity and quality, and even in consideration of the structure and development of the document, as well as the literary and ideological value, etc. thereof, the document is found to appeal mainly to readers' amorous interest. Therefore, the determination of the court of prior instance that found that the document falls under the "obscene documents" referred to in Article 175 of the Penal Code in comprehensive consideration of the aforementioned points is justifiable.

Concerning the reasons for final appeal stated by the defense counsel, SATO Hiroshi

Out of the defense counsel's arguments, the argument that the provisions of Article 175 of the Penal Code are in violation of Articles 31 and 21 of the Constitution due to the unclearness of the requirements for constituting the crime referred to in the same Article lacks a premise because it cannot be said, unlike the defense counsel's argument, that the requirements for constituting the crime referred to in Article 175 of the Penal Code are unclear, as explained above. The defense counsel's argument that the judgment in prior instance also contains violation of Article 31 of the Constitution in terms of procedure is substantially argument of a mere violation of laws and regulations. Other arguments of unconstitutionality (violation of Articles 31 and 32 of the Constitution) are arguments of unconstitutionality regarding a point that clearly has not influenced the conclusion of the judgment in prior instance. Therefore, none of the reasons constitutes a lawful reason for a final appeal.

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.

Justice KURIMOTO Kazuo

Justice KINOSHITA Tadayoshi

Justice TSUKAMOTO Shigeyori

Justice SHIONO Yasuyoshi

Justice MIYAZAKI Goichi