1995.04.13

1992 (A) 776

Keishu Vol. 49, No. 4 at 619

Judgment concerning the provision of Article 109 of the Customs Act (prior to the revision by Act No. 118 of 1994), and Article 13 and Article 31 of the Constitution

Case charged for violation of the Customs Act

Judgment of the First Petty Bench, quashed and remanded

Tokyo High Court, Judgment of July 13, 1992

The provision of Article 109 of the Customs Act (prior to the revision by Act No. 118 of 1994) does not contravene Article 13 and Article 31 of the Constitution even in the case of punishing the importing of articles of obscene expressions for the purpose of mere possession thereof.

Article 13 and Article 31 of the Constitution, Article 109 of the Customs Act (prior to the revision by Act No. 118 of 1994), Article 21, paragraph (1), item (iii) of the Customs Tariff Act (prior to revision by Act No. 118 of 1992)

Article 13 of the Constitution
All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

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.

Article 109 of the Customs Act (prior to the revision by Act No. 118 of 1994)
(1) A person who has imported any of the goods listed in Article 21, paragraph (1) of the Customs Tariff Act (Import Prohibited Goods) shall be punished by imprisonment with work for not more than five years or a fine of not more than 500,000 yen, or both.
(2) The provision of the preceding paragraph shall be applicable to a person who has prepared for the commission of the crime set forth in said paragraph or a person who has commenced the commission of the crime set forth in said paragraph without completing it.

Article 21, paragraph (1), item (iii) of the Customs Tariff Act (prior to revision by Act No. 118 of 1994)
(1) The following goods shall not be imported:
(iii) books, pictures, sculptures and any other goods that are prejudicial to public security or good morals.

The judgment in prior instance is quashed.
This case is remanded to the Tokyo High Court.

The reasons for final appeal argued by the public prosecutor are assertions against the judgment in prior instance for its errors in the construction of Article 13 and Article 31 of the Constitution, violation of the judicial preceding rendered by the Supreme Court, and errors in the construction and application of the Customs Act.
Having examined these assertions, we conclude that the judgment in prior instance, which put a limited construction on Article 109 of the Customs Act (prior to the revision by Act No. 118 of 1994; the same shall apply hereinafter) and pronounced the accused not guilty on the grounds that the act of the accused in this case does not fall under said Article, erred in construing the Constitution, and also erred in construing and applying Article 109 of the Customs Act. The reasons for our conclusion are as follows.

I. Developments in this case
(I) The summary of the charged facts of this case is as follows.
1. On February 19, 1986, the accused arrived by air at the Tokyo International Airport located in Ota-ku, Tokyo, from the San Francisco International Airport, carrying a videotape in which scenes of acts similar to sexual intercourse and the like were clearly shown, and a magazine in which pictures of the same kind were contained, and then passed the baggage clearance section of Tokyo Customs within the Tokyo International Airport, while possessing these articles secretly in a bag or the like, thereby importing pictures prejudicial to good morals, which are prohibited from import.
2. The accused conspired with X to carry out the plot according to which X, on the same day, arrived by air at the Tokyo International Airport mentioned above from the San Francisco International Airport, carrying four videotapes in which scenes of acts similar to sexual intercourse and the like were clearly shown, as well as six magazines, a calendar, a piece of newspaper and a catalogue in all of which pictures of the same kind were contained, and then passed the baggage clearance section of Tokyo Customs mentioned above, while possessing these articles secretly in a suitcase or the like, thereby attempting to import pictures prejudicial to good morals, which are prohibited from import. However, they failed to accomplish the attempt as X was caught by the customs official.

(II) The court of first instance found facts of the crime that are in line with the charged facts, and by applying the relevant laws and regulations including Article 109, paragraph (1) and paragraph (2) of the Customs Act, as well as Article 21, paragraph (1), item (iii) of the Customs Tariff Act (prior to the revision by Act No. 118 of 1994; the same shall apply hereinafter) ("books, pictures, sculptures and any other goods that are prejudicial to public security or good morals" as prescribed in said item shall hereinafter be referred to as "articles of obscene expressions"), rendered a judgment to sentence the accused to a fine of 84,000 yen and confiscate said videotapes, etc.
The accused filed an appeal against this judgment. The judgment in prior instance recognized said videotapes, etc. as falling within the scope of articles of obscene expressions and found the facts of the commission and attempt of importing these articles. However, it quashed the judgment in first instance and pronounced the accused not guilty, holding as follows. If the act of importing articles of obscene expressions for the purpose of merely possessing the same for private viewing is subject to punishment, it would be as if law invades the sphere of morals which should be left to individuals' self-restraint and therefore it would be impermissible. Consequently, if a construction that is consistent with the purpose is put upon the provision of Article 109 of the Customs Act, while taking its principle into consideration and trying not to cause conflict with Article 13 and Article 31 of the Constitution, the scope of "a person who has imported any of the goods listed in Article 21, paragraph (1) of the Customs Tariff Act (Import Prohibited Goods)" prescribed in Article 109 of the Customs Tariff Act should be construed not to include a person who imports articles of obscene expressions for the purpose of merely possessing the same for private viewing. The acts charged in this case, i.e. importing and attempting to import articles of obscene expressions, were committed for the purpose of merely possessing the same for private viewing, and therefore, they do not fall under Article 109 of the Customs Act.

II. This court's holdings
(I) Article 21, paragraph (1), item (iii) of the Customs Tariff Act indiscriminately prohibits import of articles of obscene expressions for whatever purpose they are imported, and the Customs Act provides for punishment to be imposed on a person who has imported any of the goods listed in Article 21, paragraph (1) of the Customs Tariff Act (Article 109, paragraph (1)) and a person who has prepared for the commission of the crime set forth in said paragraph or a person who has commenced the commission of the crime set forth in said paragraph without completing it (Article 109, paragraph (2)).
(II) As the judicial precedent of this court (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) indicates, the import restrictions on articles of obscene expressions under the provision of Article 21, paragraph (1), item (iii) of the Customs Tariff Act do not contravene Article 21 of the Constitution, and it is clear in light of the gist of this Grand Bench judgment that said import restrictions also do not contravene other provisions of the Constitution.
(III) In view of the fact that Article 175 of the Penal Code of Japan does not criminalize mere possession of articles of obscene expressions, it might be possible to minimize the import restrictions on such articles and exclude the importing of the same for the purpose of mere possession from the scope of subjects under restrictions. However, the exact purpose of the import of articles of obscene expressions cannot easily be identified, whereas it is easy to place articles of obscene expressions in the distribution or sales process once they come into Japan. Therefore, in order to effectively prevent the healthy sexual morals in Japan from being harmed by such articles of obscene expressions coming into and spreading across the country, we must say that it would be an unavoidable action to block the incoming of such articles indiscriminately, irrespective of the purpose of import, or control it at the border. This is also pointed out in said Grand Bench judgment. As far as administrative restrictions are thus found to be necessary and reasonable, it is not in violation of Article 13 and Article 31 of the Constitution, in order to ensure effective enforcement of such restrictions, to indiscriminately impose criminal punishment on a person who has imported articles in violation of such restrictions, whether or not the person intends to merely possess them. We must say that this is clear from the gist of said Grand Bench judgment.
(IV) Contrary to our reasoning, the judgment in prior instance pronounced the accused not guilty on the grounds that it is in violation of Article 13 and Article 31 of the Constitution to indiscriminately impose punishment under Article 109 of the Customs Act even on the importing of prohibited articles for the purpose of mere possession thereof. In this respect, the judgment in prior instance erred in construing the Constitution and also erred in construing Article 109 of the Customs Act, and such errors apparently affect the judgment. Consequently, the judgment in prior instance should inevitably be quashed. The reasons for final appeal alleging this point are well-grounded.

Therefore, while omitting to make a determination on other reasons for final appeal, we have decided to quash the judgment in prior instance under Article 405, item (i) and the main clause of Article 410, paragraph (1) of the Code of Criminal Procedure, and remand the case to the Tokyo High Court in accordance with the main clause of Article 413 of said Code. The judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Public Prosecutor ISHIKAWA Tatsuhiro participated in the public trial.

Justice TAKAHASHI Hisako
Justice OHORI Seiichi
Justice ONO Motoo
Justice MIYOSHI Toru