1984.12.12

1982 (Gyo-Tsu) 156

Minshu Vol.38, No.12 at 1308

Judgment upon case of constitutionality on customs inspection

Case to seek revocation of administrative disposition.

Judgment of the Grand Bench, dismissed.

Sapporo High Court, Judgment of July 19, 1982

(Concerning 1,4,5 and 7) Article 21, para.1, item 3 and para.3 of The Customs Tariff Law, Article 21, para.4 and para.5 of The Customs Tariff Law(that prior to the revision by Law No.7 of 1980); (Concerning 1) Article 3, para.2 of the Administrative Case Litigation Act; (Concerning 2 to 7) Article 21 of the Constitution; (Concerning 4 and 5) Article 67 and 76 of the Customs Act

Article 21, para.1, item 3 and para.3 of The Customs Tariff Law
(1)Any goods specified in any of the following sub-paragraphs shall not be imported.
(iii) Books, drawings, carvings and any other articles, to injure public security or public morals.
(3)When any person who received the notification provided for in the preceding paragraph has a complaint about it, he may file with the Director-General of Customs who made the notification the complaint in writing, stating the reason for his complaint, within one month from the date of his receipt of the notification.

The appeal shall be dismissed.
The costs of the appeal shall be borne by the appellant.

Concerning the ground for Jokoku appeal by the appellant's attorneys, Kunio Takano, Goro Irie, Jiichiro Oshima and Kosuke Shimosaka, and the ground for Jokoku appeal presented by the appellant:

The gist of the ground for the appeal is as follows;

(1) As the restriction of importation by means of the customs inspection of items as enumerated in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law (that prior to the amendment by Law No. 7 of 1980; hereinafter the same) amounts to censorship, which is prohibited absolutely under the Constitution, or puts restrictions beforehand on the right to know of the people, it violates the provision of the former part of paragraph 2 or paragraph l, Article 21 of the Constitution; (2) the words "to injure public security or public morals" as provided in sub-paragraph (3) paragraph 1 Article 21 of the Customs Tariff Law, is so vague that the restriction of importation using such a criteria violates the provisions of paragraph 1, Article 21, Article 29 and Article 31 of the Constitution; (3) the customs inspection of postal matters violates the provision of the latter part of paragraph 2. Article 21 of the Constitution, because they are likely enough to violate the secrecy of personal correspondence; (4) the judgment of the court below in this case which says that all goods at issue correspond to "books and drawings to injure public morals", etc. as specified in sub-paragraph (3), paragraph l, Article 21 of the Customs Tariff Law, is illegal, having erred in interpretation and application of the said provision (The customs official's inspection conducted in the procedure of the importation of both foreign goods and postal matters referred to as "customs inspection"; hereinafter the same.).

1. Sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law specifies as import prohibited goods (articles specified in sub-paragraphs of the said paragraph hereinafter referred to as articles of sub-paragraph (1) to (4), respectively) "books, drawings, carvings and any other articles to injure public security or public morals", and the importation of those articles are prohibited. As the appellant in this case, who had received the notification from the Director of the Sapporo Branch of the Hakodate Customs, the appellee, as entrusted by the Director-General of the Hakodate Customs, the appellee, in accordance with the provision of paragraph 3 of the same Article, to the effect that the postal matters from foreign countries addressed to the appellant had contained some articles with respect to which there had been sufficient reasons to show that they had corresponded to articles of sub-paragraph (3), was dissatisfied with being unable to be dispatched or have them delivered and filed this case demanding revocation of the notification, etc. made by the Director of said Branch, we will examine each of arguments in order.

2. Concerning the procedure of the importation of foreign goods and postal matters

(1) As a rule, all foreign goods which have reached this country shall be stored at first in the bonded area, and any person who is to import the goods shall declare to the Director-General of Customs the name as well as the quantity and value to be taken as a basis for customs valuation of the goods and any other necessary matters with respect to the goods, and shall obtain an import permit, after necessary inspection of the goods concerned (customs inspection) (Articles 30, 67, and 67-2 of the Customs Act). Customs inspection contains not only the inspection of (i) whether there is a certification to the customs house in the case where it is required under the provisions of any other laws and regulations, that a permit or approval, etc. has been obtained, and whether there is a verification of the customs house that the inspection as required has been completed and so forth (Article 70 of the said Law), (ii) whether the goods show a false indication of origin, etc. (Article 71 of the said Law), (iii) whether the customs duty, etc. was paid (Article 72 of the said Law), but also the inspection of (iv) whether the goods concerned correspond to import prohibited goods (paragraph 1, Article 21 of the Customs Tariff Law), and, if the goods turn out to be import prohibited goods in the course of the inspection, the Director-General of Customs shall be authorized to forfeit and abandon the goods which correspond to articles of sub-paragraphs (1), (2), or (4), or to order any person who intends to import to reship such goods (paragraph 2 of the said Article); and in cases with respect to the goods where there are sufficient reasons to show that they correspond to articles of sub-paragraph (3), the Director-General of Customs shall notify this to the person who intends to import the said goods (paragraph 3 of the said Article). When the person who received the notification has a complaint about it, he may file with the Director-General of Customs (paragraph 4 of the said Article), and upon receipt of the complaint the Director-General of Customs shall make a decision concerning the complaint after referring to the Council on Imported Motion Pictures, etc., and shall notify the decision to the person who filed the complaint (paragraph 5 of the said Article).

Next, in examining the importation procedure of postal matters, although the procedure of import declaration and permit is not required, a custom official in the presence of an official of postal agency is to carry out necessary inspection (customs inspection) of any goods, excluding personal correspondence contained in the postal matters imported (Articles 76 to 78 of the Customs Act; Article 66 of the Cabinet Order for Enforcement of the Customs Act; paragraph 1, Article 21 of the Customs Tariff Law), and as a result of the inspection, in cases where any goods with respect to which there are sufficient reasons to show that they correspond to articles of sub-paragraph (3) in the postal matters have been found, the procedure of notification to be given by the Director-General of Customs, the filing of complaint about it and the decision thereon are the same as those concerning the goods other than those by mail (paragraphs 3 to 5, Article 21 of the Customs Tariff Law). (2) Then, we will examine the nature of the notification of the Director-General of Customs under the provision of paragraph 3, Article 21 of the Customs Tariff Law, as follows.

The appellee asserts that because the prohibition from importing the goods which correspond to articles of sub-paragraph (3) itself is caused by the general effect of the provision of paragraph I of the said Article, and the notification of the Director-General of Customs contributes nothing more to the general effect of import prohibition caused by the above paragraph and further, the Customs Act has no specific provisions which require the disapproval disposition to the import declaration, the Director-General of Customs will not make any disposition concerning goods not only to the import prohibited goods but also in the general procedure of importation. It is considered to be the same purport as asserted by the appellee in the court below to the effect that the said notification of the Director-General of Customs causes no effect of prohibition or disapproval of importation, and that the restrictions that the goods in question cannot be legally imported is caused as a matter of course by the substantial provisions of paragraph 1 of the said Article without requiring any disposition whatsoever, by the administrative authorities, of prohibition or disapproval, etc. of importation.

However, be it as the arguments assert that in cases where any goods declared for importation, or the goods contained in postal matters to be imported, other than personal correspondence, correspond to the import prohibited goods, the importation thereof is prohibited as a matter of course by the direct effect of the Law itself, it is axiomatic that the acknowledgement and judgment of the Director-General of Customs in determining the goods in question to correspond to import prohibited goods take precedence as essential prerequisite to admit the legal effect of prohibiting the importation of the goods in question, in the course of the practical procedure of customs, and in doing so, therein exists the exercise of administrative power in variance with the judgment of the general public. Therefore, though it is only natural that the Director-General of Customs cannot give an import permit with respect to the goods which turn out to be the import prohibited goods, the contention that the Director-General of Customs is not authorized to make disapproval disposition at all can only be said to be groundless, apart from the provisions of relevant laws.

Further, in viewing the issue of determination whether the goods in question correspond to the import prohibited goods or not from a practical viewpoint, though it is usually possible to determine leaving no room for doubt, by its shape or characteristics itself, for example, opium and other narcotics (articles of sub-paragraph (1)), the judgment of whether or not the goods in question correspond to articles "to injure public security or public morals" as specified in the provision of sub-paragraph (3), paragraph 1 of the said Article is a sort of value judgment matter, and in referring only to "public morals" at issue in this case, it is not inherently so clear that there is no room to interpret as to what are articles "to injure public morals"; therefore, the judgment of the Director-General of Customs that there are sufficient reasons to show that the goods correspond to articles of sub-paragraph (3) cannot be said that it would be approved always and necessarily.

In actual procedure of the customs, as stated above, the Director-General of Customs shall forfeit or abandon or order the importer to reship the goods which correspond to articles of sub-paragraphs (1), (2), or (4) among import prohibited goods (paragraph 2 of the said Article), and shall notify the importer that there are sufficient reasons to show that the goods correspond to articles of sub-paragraph (3) (paragraph 3 of the said Article). It is what the appellee admit themselves that it is the established practice in the procedure of importation that even in the cases where approval of import declaration is not given the disapproval disposition will not be made at all (even when the Director-General of Customs notifies with respect to articles of sub-paragraph (3), thereafter, the disapproval disposition will not be made anew). According to the foregoing, the notification of paragraph 3, Article 21 of the said Law is the first official expression of the opinion of the Director-General of Customs that the goods in question shall not be imported, and further, as there will be no disapproval disposition afterwards, in this sense, the notification may be considered as the final expression of rejection of the administrative authorities against the import declaration. It is quite the same for the importation of postal matters, which do not require the procedure of the import declaration and approval, that a notification of the said paragraph is the final expression of rejection. And, when a notification of the said paragraph is actually given to the person who made the import declaration, the goods other than the postal matters cannot be legally delivered from the bonded area (ref. paragraphs 1 and 2, Article 73 and paragraph 1, Article 109 of the Customs Tariff Law), and as for the postal matters, these cannot be dispatched nor delivered from the postal agencies to the addressee (ref. paragraph 4, Article 76, and paragraph 3, Article 70 of the said Law).

In the analysis as mentioned heretofore, in such an actual procedure of the customs a notification of the Director-General of Customs mentioned above can be said to substantially fulfill the function of a disposition of rejection (disapproval disposition), and it is proper to construe that the notification and the decision concerning the complaint (paragraph 5, Article 21 of the Customs Tariff Law) are recognized as a disposition and a decision of administrative agencies which can be objects of suits for revocation (Kokoku-litigation) (with the partial amendment of the Customs Act, etc. by Law No. 7 of 1980, paragraphs 4 and 5, Article 21 of the Customs Tariff Law were deleted, and concerning an appeal against notification of paragraph 3 of the said Article and a suit for revocation the express provisions were provided in Articles 91 and 93 of the Customs Tariff Law).

3. Restriction of importation in respect to articles of sub-paragraph (3) and censorship (the former part of paragraph 2, Article 21 of the Constitution)

(1) The former part of paragraph 2, Article 21 of the Constitution declares, "no censorship shall be maintained." The reason why the Constitution provides for such a specific provision on the prohibition of censorship, in addition to paragraph 1 of the same Article as a general provision which widely and generally guarantees the freedom of expression, shall be understood to be clarification of the intent that even the permissibility can be understood as the provision which declares the absolute prohibition of censorship on the basis of these experiences.

And in examining, standing upon the premise of interpretation as stated above based on the foregoing historical point of view, "censorship" as provided in paragraph 2, Article 21 of the Constitution should be construed to indicate that it has, as a special quality, the prohibition of publication of what are judged inappropriate, after the administrative authorities as the main organ, for the purpose of prohibition of publication as a whole or a part, covering the matters of expression of substance of thought, etc., conduct the comprehensive and general examination of the above specific matters of expression prior to its publication.

(2) Now, we shall judge whether the customs inspection of articles of sub-paragraph (3) correspond to "censorship" as provided in paragraph 2, Article 21 of the Constitution or not.

(i) As we adjudged heretofore, in cases where there are any declared goods such as books, drawings, and any other articles, or any goods excluding personal correspondence contained in the postal matters to be imported with respect to which there are sufficient reasons to show that they correspond to articles of sub-paragraph (3) as a result of inspection, and the Director-General of Customs so notifies to the person who intends to import the said goods or articles, there will be no means of legally importing them thereafter. As a result, substance of thought, etc. contained in the concerned matters of expression are deprived of the opportunity to be published in this country. As the guarantee of the freedom of expression, on the other hand, is considered to be accompanied by the right to know on the part of the recipient (ref. grand bench decision upon Case (Shi) No. 68 of 1969, decided on November 26, 1969, Keishu vol. 23, No. 11, p. 1490 and grand bench judgment upon Case (0) No. 927 of 1977, decided on June 22, 1983, Minshu vol. 37, No. 5, p. 793), the disposition of the Director-General of Customs deprives people of the opportunity to have access to the substance of thought and so forth contained in the concerned matters of expression, thereby resulting in restricting the above-mentioned freedom to know. On these points, it cannot be denied that the customs inspection has the effect of prior restraint of expression.

However, the matters of expression which is prohibited from being imported, generally speaking, has been published abroad already, and even if its importation is prohibited with respect to the matters of expression itself is involved, it does not purport to prohibit completely beforehand the publication itself. And those matters of expression is not forfeited nor abandoned by customs authorities but is merely prohibited from being imported, therefore, it cannot be said that the opportunity to publish shall be completely taken away. In that sense, it cannot be said that the customs inspection amounts to a prior restraint itself.

(ii) The customs inspection is conducted incident to and is a part of the procedure of collecting customs duties on all objects, not only on the matters of expression of the substance of thought and so forth but on all goods and articles to be imported, excluding personal correspondence contained in postal matters. Even with respect to articles of sub-paragraph (3) the purpose of customs inspection is not to exhaustively check and regulate the substance of thought, etc. itself, but merely to inspect to the extent possible where determination can be readily made during the aforementioned incidental procedure.

(iii) Although customs inspection is said to be conducted under administrative authorities, the customs agency, being the main constituent for this, is the organ that has the assessment and collection of customs tariff as part of their primary duty, and in especially taking the substance of thought, etc. as the object of regulation of this is not their original mission; moreover, as stated above, opportunities for judicial review are made available when a notification is made by the Director-General of Customs with respect to the substance of thought, etc.; therefore, the judgment by administrative authorities is not necessarily final.

Taking into consideration as a whole the points as mentioned above, it should be said that the customs inspection of articles of sub-paragraph (3) does not amount to "censorship" as specified in paragraph 2, Article 21 of the Constitution. In addition, the fact that in foreign countries, including countries with provisions in their constitution purporting the prohibition of censorship, customs inspection is conducted in connection with certain matters of expression, which is said to be corresponded to the above conclusion.

(3) Therefore, the argument of violation of the former part of paragraph 2, Article 21 of the Constitution is groundless.

4. Restriction of importation of articles of sub-paragraph (3) and the freedom of expression (paragraph 1, Article 21 of the Constitution)

(1) In the case at hand, the provision of sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law was applied, determining that the postal matters addressed to the appellant contained obscene books and drawings. As it is obvious that the obscene books and drawings are to be included in "books, drawings to injure public morals", etc. as specified in the said sub-paragraph, we, firstly, examine whether the restriction of importation of obscene books, drawings, etc. violates the provision of paragraph 1, Article 21 of the Constitution or not, and later examine whether or not the provision of the said sub-paragraph is lacking in definiteness as contended.

Though, it is needless to say that the freedom of expression should be regarded as occupying an extremely important place among fundamental human rights guaranteed by the Constitution, it is not an absolute and unlimited one, but comes under the restriction for the public welfare. It is clear that the protection of a sexual order and maintenance of a minimum sexual morality are to be considered parts of the public welfare, and distributions and so forth of the obscene literature is against the public welfare and it is also clear that to regard it to be object of the punishment does not violate the provision of paragraph 1, Article 21 of the Constitution in relation to the freedom of expression (ref. grand bench judgment upon Case (A) No. 1713 of 1953, decided on March 13, 1957, Keishu vol. 11, No. 3, p. 997; grand bench judgment upon Case (A:) No. 305 of 1964, decided on October 15, 1969, ibid. vol. 23, No. l0, p. 1239). When viewed from the standpoint of maintaining and securing sound sexual morals in our country, prevention of the unnecessary influx of matters of obscene expression from abroad is in conformity with the public welfare, and considering together with the provision of Article 1 of the International Treaty concerning Prohibition of Traffic in and Distribution of the obscene publications (Treaty No. 3 of 1936) which provides that it shall be the duty of the treaty powers to punish the acts of importation, etc. of the obscene articles for the purpose of distribution, etc. it cannot help being stated that the constitutional guarantee with respect to the freedom of expression is to be restricted to that extent, and that the restriction of importation of matters of obscene expression by means of the customs inspection as mentioned heretofore must be said not to be contrary to the provision of paragraph 1, Article 21 of the Constitution.

In our country, with respect to acts involving obscene literature, etc. its distribution, sale, and possession for the purpose of sale, etc. are to be the object of punishment (Article 175 of the Penal Code), and as mere possession is not the object of punishment, it is reasonable that the importation for the purpose of mere possession should be excluded from the object of restriction as minimum regulation. However, with what intent such are imported is not only difficult to be readily identified, but it is readily understandable that it is easy to put influxed matters of obscene expression into the process of distribution or sale. Therefore, in order to prevent effectively the sound sexual morality in our country from being impaired as a result of the influx and circulation of matters of obscene expression, it must be said that to check generally, preventing their influx at the so-called water's edge without identifying whether it is for the purpose of mere possession or not is unavoidable.

Moreover, as a result of the total prohibition against importation of books and drawings, etc. coming under matters of obscene expression, it cannot be denied that an opportunity for its publication is deprived as well as depriving the public of an opportunity to come in contact with it, thereby, the freedom to know is restricted. However, as for such books and drawings, etc., as has been already explained, their distribution and sale were prohibited in our country at the outset, and the freedom of publication and the freedom to know thereof has been extremely limited compared to other matters of expression in general, and taking it into consideration the above-mentioned restriction should be accepted as being unavoidable.

(2) As the appellant argues to the effect that the provision of sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law is lacking in definiteness and the wording is vague, and thus the said provision itself is unconstitutional and null and void, we examine on this point as follows. The said sub-paragraph specifies articles "to injure public security and public morals" as import prohibited goods among books, drawings, carvings and other articles, and it is construed that this may be separated into two categories of "public security" or "public morals" which are provided in a single sub-paragraph as the object of regulation for the sake of convenience. Therefore, only the part relating to "public morals" which was applied to the appellant will be considered.

(i) Sub-paragraph (3), paragraph 1, Article 21 of the said Law specifies "books and drawings to injure public morals", etc. as the import prohibited goods. As the content and meaning of the words "public morals" within the provision contains in itself a variety of meanings such as sexual morals, social morals, religious morals, and so forth, it cannot be said, as is contended by the appellant, the wording itself is immediately clear as contained a single meaning. But, generally speaking, when we say "books and drawings to injure public morals", etc., as is said to be the object of legal restriction, it can be construed that they mean articles to injure sexual morals, that is to say, obscene books, drawings, etc. which is inferred from the fact that the old Penal Code (Dajokan Fukoku No. 36 of 1881) provided only the crime of public display and sale of obscene matters as the crimes in relation to matters of expression such as books and drawings, etc. in the Chapter "crimes of injuring public morals", and further the fact that under the existing Penal Code only obscene literatures and drawings as set forth in Article 175 are the object of the regulation as articles to injure public morals among matters of expression.

Consequently, when interpreting rationally the provision of "books and drawings to injure public morals", etc. as provided in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law, it can be said that the aforesaid "public morals" mean solely sexual morals, and that the object of prohibition of importation under the said provision is restricted to obscene books and drawings, etc. As far as the restricted interpretation is possible in this manner, the said provision is not lacking in definiteness, whatsoever, nor it is contrary to paragraph 1, Article 21 of the Constitution and should be said to be constitutional. The details are as follows.

(ii) In examining the relevant statutes concerning the regulation of matters of expression, the provision of the Penal Code is such as mentioned above, and the words "to injure public morals" as provided in sub-paragraph (3), Article 10 of the old Customs Tariff Law (Law No. 19 of 1907) and sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law which followed it, might be possible to understand that there had been room to include the concepts of "immorality" and such others maintaining "obscenity" as the core, when compared to the provisions under which "matters corrupting public morals" as provided in the Publications Law, and "matters injuring public morals" in the Newspapers Law had been the object of the regulation, both of which had been enforced at the time under the old Constitution. However, after the enforcement of the Constitution of Japan, consequent to the abolition of the said Publications Law and Newspapers Law, with respect to the matters of expression other than obscene matters, regulation on its distribution and sale have been removed, so far as that goes, grounds to prohibit importation thereof have been expired. But with regard to obscene matters, as Article 175 of the Penal Code has been retained, there still exists the necessity for prohibition of importation. Therefore, in consideration of the purport of the words "public morals", on the basis of the provisions of the Penal Code as a general law, and in view of the changes of statutes concerning regulations of matters of expression, which was already explained above, it can be said that it is fully reasonable to interpret that "books and drawings to injure public morals", etc. as provided in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law is restricted to obscene books and drawings.

(iii) As mentioned above, the freedom of expression among the fundamental human rights guaranteed by the Constitution is a matter requiring adequate attention, and in regulating the freedom of expression by law, consideration is necessary so that they do not bring about results to the extent that the freedom of expression primarily allowed under the Constitution would be unjustly restricted for reasons of the overbroadness and vagueness of the criteria of the said regulation. It should be said that this is especially so concerning the matter of prior restraint and the like. In interpretation of the law, above all, in interpreting the words of the provision restrictively, the requirement, as has been stated above, does not differ. Therefore, when restrictive interpretation of the provisions of the law regulating the freedom of expression to be permitted, by its interpretation, matters must be clearly segregated as to whether it is, or it is not the object of the regulation, and furthermore, only when it can clearly be the object of regulation that may be constitutionally regulated, and in addition, it should be the one that enables the general public to understand the criteria from the provision by which they can judge whether or not the matters in question come under the object of regulation in a concrete case (ref. grand bench judgment upon Case (A) No. 910 of 1973, decided on September 10, 1975, Keishu vol. 29, No. 8, p. 489). Presumably, if such conditions should not be imposed, not only the freedom of expression would be unjustly restricted due to the vagueness or the overbroadness of the criteria for regulation, but would also lead to result to the extent that the people to refrain from acts of expression that they may primarily carry out freely, for fear that the provisions may be applied.

(iv) Applying this to the case at hand, that the restriction of the freedom of expression by means of prohibition of importation of the matters of obscene expression is not contrary to the provision of paragraph l, Article 21 of the Constitution is as stated above, and by interpreting restrictively that "books and drawings to injure public morals", etc. as provided in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law are designated only obscene books and drawings, etc., it can be said that it has been made clear that matters to be regulated constitutionally are defined to be the object of the regulation. Furthermore, the words "books and drawings to injure morals" in the said provision solely means obscene books and drawings is not precluded to say that it conforms to the generally accepted idea in the society of our country under the present social circumstances. Then, the concept of obscenity has been defined by the accumulation of precedents in relation to the interpretation of the provision of Article 175 of the Penal Code, and the criteria for the distinction between what is the object of regulation and what is not is not lacking in requirement of definiteness. Consequently, when the provision of the said sub-paragraph (3) is interpreted restrictively as stated above, it can be said that there would be no fear of causing a person to shrink from intended acts of expression which deserves protection by the Constitution, and would not bring about the result of improper restriction of the freedom of expression.

(v) In short, when the interpretation is made to include those other than obscene matters within the category of "books and drawings to injure public morals", etc. as provided in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law, it cannot be avoidable that the scope of books and drawings, etc. to be the object of regulation becomes broad and vague, and in the purview of the provision of paragraph 1, Article 21 of the Constitution, such a provision should be said to be unconstitutional and null and void. Therefore, it can be accepted as constitutional only when utilizing the aforementioned restrictive interpretation.

Then, with regard to the provisions of the law which had been enacted prior to the enforcement of the Constitution of Japan, as in this case, it should be interpreted so as to harmonize with the Constitution and maintain its validity, so long as it may be possible within the limits of rational legal interpretation, and it is not proper to deny its validity by strictly adhering to the wording of the law.

(3) Such being the case, that "books and drawings to injure public morals", etc. as provided in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law should be construed to mean obscene books and drawings, etc., and that it cannot be said that the said provision is unconstitutional and null and void, because of its broadness and vagueness of the said provision, and that the regulation on importing matters of obscene expression under the said provisions does not violate the provisions of paragraph 1, Article 21 of the Constitution are as have been stated heretofore. Therefore, the appellant's contention of the violation of paragraph 1, Article 21 of the Constitution is groundless, and the contention of the violation of Articles 29 and 31 of the Constitution on the premise of vagueness of the said provision of the Customs Tariff Law is also improper.

5. The customs inspection of postal matters and the secrecy of communication (the latter part of paragraph 2, Article 21 of the Constitution)

With regard to postal matters, the provision of the latter part of paragraph 2, Article 21 of the Constitution guarantees the secrecy of personal correspondence. According to the proviso to paragraph l, Article 76 of the Customs Act, the customs inspection of postal matters is to be conducted on the matters other than personal correspondence, and the postal matters addressed to the appellant in this case did not correspond to the personal correspondence at all as legally found in the court below, so the said customs inspection which had been conducted on the postal matters does not violate the secrecy of personal correspondence. Therefore, the contention of violation of the provision of the latter part of paragraph 2, Article 21 of the Constitution is groundless without referring to other contentions.

6. The applicability of sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law to the goods in this case

The decision of the court below which held that all goods in this case had contained the elements of obscenity and correspond to "books and drawings to injure public morals" as provided in the provision of sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law, under the circumstances the court below legally found, is accepted as being justifiable and the decision of the court below is not illegal as contended.

7. Such being the case as has been stated above, all grounds for appeal cannot be accepted.

Accordingly, the Court by majority opinion of the Justices on the bench, aside from the supplementary opinion of Justice Susumu Ohashi, Justice Hisaharu Kidoguchi, Justice Reijiro Tsunoda and Justice Kouchi Yaguchi, the opinion of Justice Masato Fujisaki, the dissenting opinion of Justice Masami Ito, Justice Masataka Taniguchi, Justice Mitsuhiko Yasuoka and Justice Rokuro Shimatani, renders the judgment as set forth in the main text in accordance with Article 7 of the Administrative Case Litigation Act and Articles 396, 384, 95 and 89 of the Code of Civil Procedure.

The supplementary opinion by Justice Susumu Ohashi, Justice Hisaharu Kidoguchi, Justice Reijiro Tsunoda and Justice Koichi Yaguchi is as follows:

The appellant argued that the provision of sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law is unconstitutional and null and void because of vagueness of the wording. However, the majority opinion, upon examination relative to the part of "public morals" as set forth in the provision of the said sub-paragraph which applied to the case at hand, judged that "books and drawings to injure public morals", etc., which provided in the said provision as import prohibited goods should be construed to mean only obscene books and drawings, etc., and thereby rejected the arguments presented as being groundless. In relation to these points of arguments, we will further supplement some opinions.

The Customs Tariff Law in force was enacted in 1911 and the provision of sub-paragraph (3), paragraph 1, Article 21 of the same Law has followed the provision of sub-paragraph (3), Article 10 of the old Customs Tariff Law enacted in 1907, and its contents has remained the same from the time of enactment to the present date. Thus, with regard to laws which had been enacted in the old days prior to the enforcement of the Constitution of Japan and its contents have never been revised even after the enforcement of the Constitution and are still in force, it cannot be denied that the provision which leaves room for some doubts to arise in the light of the provisions of the Constitution may exist when reading its wording alone. In such cases it is not proper to determine the provisions to be unconstitutional and null and void by strictly adhering to the wording contained therein even where it is possible to interpret so as to harmonize with the Constitution, but it is proper to maintain its validity by interpreting it so long as it may be possible within the limits of rational legal interpretation in order not to be contradictory to the constitutional order. What the majority opinion previously stated is the exactly the same purport (foregoing 4 (2) (iv)), and it goes without saying that it does not mean that even the provisions which are clearly incompatible with the constitutional order should be perversely interpreted in order to conform to the Constitution.

In the first place, one of the causes for such an issue as this to arise is that the provisions of the old laws enacted in the Meiji period have been maintained even after the enforcement of the Constitution of Japan, retaining the words as they were, and it is that as explained in the majority opinion that matters to be prohibited from importation under the provision in relation to "public morals" as provided in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law are confined to obscene matters, and that, in the understanding of the general public, the said provision may be read as to contain such relevant contents as the criteria for restriction of importation. However, in view of the variety of meaning contained in the words "public morals" it cannot be avoided that the wording of the said provision is liable to be lacking in appropriateness. Therefore, apart from the fact that it is not contrary to the Constitution, it is not proper to leave the wording of the said provision as it is, and is desirable to be revised so as to be able to understand at one reading.

Furthermore, sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law provides books and drawings etc to injure "public security" as import prohibited goods. As the part concerning the said "public security" is not relevant to the case at hand, it is a matter of course that the majority opinion has not referred to its constitutionality, but as it is extremely vague as to what is indicated by that, and being different from "books and drawings to injure public morals", etc. there can be no room for application of the rational and restrictive interpretation which has been stated previously, and it should be said that questions cannot be avoided as to the said part violating paragraph l, Article 21 of the Constitution because of its lacking in definiteness or being excessively overbroad. Therefore, from our standpoint that the part in relation to "public morals" as provided in the provision of sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law is desirable to be revised as stated above, we add that the part relating to "public security" as provided in the same provision should also be examined together.

The opinion of Justice Masato Fujisaki is as follows

I agree with the conclusion of the majority opinion that the appeal shall be dismissed and I have no objection to the point among grounds of conclusion that the customs inspection does not amount to censorship as provided in paragraph 2, Article 21 of the Constitution. However, I cannot agree with the conclusion of the majority opinion which states that "books and drawings to injure public morals", etc. as provided in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law should be construed to be confined to obscene books and drawings, etc. and that only when construing in such a restrictive way it can be said that the said provision does not violate paragraph 1, Article 21 of the Constitution. Furthermore, I cannot agree with some other points of the majority opinion and I would also like to refer to the dissenting opinion, too. Therefore, I will state my opinion on these points, as follows:

1. Although there are some questions of what sort of matters are the object to be regulated as provided in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law "books and drawings to injure public morals", etc. (hereinafter referred to as the provision at issue), it is without question that at least obscene books and drawings, etc. are included in the object. And because, with respect to the goods at issue, only their obscenity is argued, the appellant is not entitled to dispute the vagueness of the extension of the provision at issue. Therefore, I consider that the argument presented by the appellant on this question could have been dealt with only by explaining the aforesaid gist. But in this case, as the majority opinion discusses the substantial questions directly without examining this point, I will also state my line of thought on these.

2. It may be said that "public morals" as stipulated in the provision at issue, in light of the usage of legal terms, means good public morals and that in the abstract it indicates the public order supported by the values of sound moralistic and ethical views of the general public. But the wording of the provision are abstract and comprehensive and do not show the object of regulation concretely or individually. Then the question arises as to what kind of things are included concretely in the object of regulation. As an interpretation of the words of the provision, for example, matters of extremely cruel expression should be said to be included in addition to matters of obscene expression. For, it cannot be denied that this kind of matters of expression injures public morals. On the other hand, it seems that the object of regulation is confined to matters of obscene expression in the present practice of the customs inspection. But this practice might be approved, considering that there is no legal regulation in relation to matters of cruel expression in our country. Thus, my opinion is the same as the conclusion of the majority opinion in regard to the actual practice in application of the provision at issue. It is on the question of the vagueness of the provision at issue that my opinion differs from the majority opinion. That is to say, the majority opinion states that the provision at issue is not lacking in definiteness because it can be construed restrictively to confine to only matters of obscene expression. On the other hand, it states that the provision at issue itself would be unconstitutional and null and void without employing such a restrictive interpretation. It is true that the object of regulation as specified in the provision at issue is abstract and comprehensive, and so even assuming that it should be construed to include, for example, matters of extremely cruel expression in addition to matters of obscene expression, it cannot be said that it is necessarily clear, judging from the wording of the provision, therefore, it cannot be denied that the provision at issue is lacking in definiteness. But I consider that because their vagueness is not serious that the provision containing them itself need not be construed to be unconstitutional and null and void in relation to paragraph l, Article 21 of the Constitution. Therefore, it is not necessary to construe restrictively in order to make the provision at issue conform to the Constitution. The reasons for this opinion will be as mentioned in the next paragraph 3.

3. Essentially, there exists no necessity to consider that the guarantee of the freedom of expression under the provision of paragraph 1, Article 21 of the Constitution should be given equally as to all kinds of expression, and it is reasonable to consider that the degree of guarantee differs according to the contents of expression, etc. In considering the contents, under a democracy which is the fundamental principle of the Constitution, the most importance must be attached to the freedom of publication of political opinions and such freedom of expression should be most highly respected. But it cannot be said that, for example, the freedom of obscene expression should be respected as equally as that of publication of political opinions. Further, what is essential for the freedom of expression is the freedom of active publication by a subject to express, and it may be said that the freedom of passive access to it and to know the contents thereof is secondary one. And I consider that restriction of such a freedom may not be so strictly restrained to the same degree as that of the freedom of publication. The restriction of importation under the provision at issue restricts only the freedom of passive access to the matters of expression injuring public morals which have been already published in foreign countries. I think it is obvious that the provision at issue belongs to a less important category from the standpoint of the fundamental principle of paragraph 1, Article 21 of the Constitution.

Furthermore, the dissenting opinion holds that the provision at issue is unconstitutional and null and void on the ground that a vague provision of the regulations causes a so-called shrinking effect, and though the majority opinion takes such an effect into consideration, but as to the question of what kind of matters of expression in the concrete are given up to import in reality on the ground of the existence of the provision at issue, for example, supposing in cases of matters of cruel expression which is the most serious problem from the standpoint of being apprehensive of the shrinking effect, it is hardly imaginable, as a matter of fact, that the importation thereof is given up due to the existence of the provision at issue. Consequently, in regard to the said provision of the Customs Tariff Law the shrinking effect is practically nil and even if the provision at issue is lacking in definiteness, it cannot be supposed that it will cause actual harm to the freedom of expression. This is also one of the reasons why the provision of the law in force need not be determined to the extent of being unconstitutional and null and void.

4. The appellant argues that because the words "to injure public morals" as provided in the provision at issue are extremely vague, the restriction of importation by applying such a criteria violates Articles 29 and 31 of the Constitution. In regard to the violation of Article 31 of the Constitution it is understood as the purport that the appellant argues that the mere wording "books and drawings to injure public morals" and so on are not clear enough as a definition of the object constituting a crime and that it violates the principle of the guarantee of due process of law. However, the case at hand is an administrative litigation case in which the propriety of revocation of a disposition of notification informing that the goods correspond to the import prohibited goods is disputed, and it is not a question in this instant case whether or not the words "to injure public morals" is lacking in definiteness as a factor constituting a crime. Therefore, I consider that the contention presented on the ground that this is lacking is not proper.

The dissenting opinion of Justice Masami Ito, Justice Masataka Taniguchi, Justice Mitsuhiko Yasuoka and Justice Rokuro Shimatani is as follows:

1. We have no objection to the majority opinion both on the point that a notification, etc. under paragraph 3, Article 21 of the Customs Tariff Law, which is given by the Director-General of Customs when there is a sufficient reason to believe that any goods which are about to be imported correspond to articles of sub-paragraph (3), is recognized as a disposition and so on of an administrative agency which falls under the object of suits for revocation (Kokoku-litigation) and on the point that the restriction of importation by the customs inspection in regard to articles of sub-paragraph (3) does not amount to censorship stipulated in the first half of paragraph 2, Article 21 of the Constitution.

But we cannot agree with the majority opinion on the point that because the provision of the said sub-paragraph providing "books and drawings to injure public morals", etc. can be restrictively construed reasonably, the provision does not violate paragraph 1, Article 21 of the Constitution as a result.

2. When a provision of law to regulate the freedom of expression, which is one of the particularly important rights among the fundamental human rights, is not clear and fails to show with a clear criteria for what will be the object of regulation or what will not be the object of regulation, it does not fulfill its function to notify people properly of what kind of acts will be the object of regulation and it is likely to lead to an arbitrary application by an authority in charge of the regulation. As a result, it cannot be denied that it tends to make people, who fear that it will be applied to their acts, withhold even expressions which are within the scope of what they can originally act freely on. Therefore, the provision to regulate the freedom of expression must show a clear criteria by itself. In particular, when the freedom of expression is regulated in advance, it is required that the provision shows the clearest criteria, as much as possible, in legislation. Therefore, when a provision to regulate the freedom of expression cannot fulfill its function to notify people properly of what will be the object of regulation and it is so vague as to leave room for the possibility of its arbitrary application by an authority in charge of the regulation, the provision in question should be determined to violate paragraph 1, Article 21 of the Constitution and is null and void.

In addition, even if the provision itself of the law that regulates the freedom of expression is not vague with regard to what is the object of regulation, in cases where a provision includes acts which are not permitted to be regulated under the Constitution as the object of regulation, likewise, it should be said that it would lead to self-restraint of acts which were originally permitted. Accordingly, when the extent of application of a provision of the law that regulates the freedom of expression is so broad, and when it cannot be disregarded the possibility that it may be applied to even acts which are not permitted to be regulated originally it must also be judged to be unconstitutional and null and void on the ground of paragraph 1, Article 21 of the Constitution.

In viewing the case at issue from this standpoint, that the restriction of importation by the customs inspection in regard to articles of sub-paragraph (3) has the character of prior restraint of expression is the same as pointed out by the majority opinion.

And, it cannot be said that what are concretely indicated in the provision of "books and drawings to injure public morals", etc. as specified in sub-paragraph (3), paragraph l, Article 21 of the Customs Tariff Law is not clear as contained a single meaning from its wording itself of the provision. Supposing that it is possible to interpret that the matters of obscene expression are included in the said provision, it is indefinite what are included as the object of regulation other than those under the said provision, but only part of the object of regulation has become clear. The contents and meaning of the words "public morals are so equivocal as to cover sexual, social and religious morals, etc. and there exists no ground to interpret that "books and drawings to injure public morals", etc. are limited to the matters of obscene expression confining it to be the sexual morals as stated in the majority opinion. Even if in the present practice of customs inspection, as the appellee admits, treatment of the said books and drawings, etc. are confined to the obscene matters, in view of the wording itself the possibility cannot be denied that the said provision might be applied to matters other than obscene ones. For example, although there is room for possible interpretation that the said provision is designed to include matters of cruel expression as the object of regulation, in the case of matters of cruel expression, it is not only unclear as to what kind of matters are included in it, but also it should be said that there is a possibility to connote even the expressions which is to be guaranteed by the Constitution, and the said provision is both vague and overbroad.

Such being the case, as it is considered that the provision "books and drawings to injure public morals", etc. is not only vague but also, at the same time, is overbroad; and that the possibility that it will be applied to cases where regulation thereof should not be permitted cannot be ignored, it must be held that it violates paragraph 1, Article 21 of the Constitution and is null and void.

3. The majority opinion states that by interpreting restrictively that "books and drawings to injure pubic morals" etc. as provided in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law are confined to matters of obscene expression, it is constitutional. However, considering that the freedom of expression is the most important among the fundamental human rights there should be a more severe limit to the restrictive interpretation as to the provision of law to regulate it than in other cases. And only the restrictive interpretation which is reasonably inferred from the purpose and the contents of regulation and in relation to other provisions, is permitted. The interpretation that "books and drawings to injure public morals", etc. are confined to matters of obscene expression should not only be said to exceed such limit, but also the above-mentioned interpretation is not thought to be possible by an average person with ordinary ability of judgement. Furthermore, it is considered that in judging whether the provisions to regulate the freedom of expression is definite or not, an important meaning is attached to whether it is possible or not to make a more clear legislation, and as the majority opinion states, if the provision "books and drawings to injure public morals", etc. of the said sub-paragraph is to regulate only importation of matters of obscene expression, it should be easy in the legislation of providing said provision with "obscene books and drawings", etc. to make it a more clear one. In view of this point, it is difficult to say that the said provision of the said sub-paragraph, which has the character of prior restraint of the freedom of expression, meets the definiteness required of by the Constitution and it is not proper to make it constitutional by means of adding the restrictive interpretation.

Furthermore, even on the premise that the goods at issue correspond to obscene matters as the court below held, it should be said that the appellant can dispute the validity of the said provision, asserting that it is vague or overbroad. For, when it is to be said that the said provision is unconstitutional because of its vagueness or overbroadness from the aforesaid point of view, its validity should be denied without considering the aspect of concrete application of the said provision. Moreover, in consideration of the said effect caused by such a provision, it should be said that it is proper to admit an early exclusion of the validity of the unconstitutional provision which regulates the freedom of expression unfairly.

Incidentally, in this connection, the part of the argument presented in the supplementary opinion by Justice Susumu Ohashi, Justice Hisaharu Kidoguchi, Justice Reijiro Tsunoda and Justice Koichi Yaguchi, on the validity of the provision of books and drawings, etc. to injure "public security" as specified in sub-paragraph (3), paragraph 1, Article 21 of the Customs Tariff Law should be said to be a natural conclusion from our standpoint.

Justice Jiro Terada
Justice Masato Fujisaki
Justice Tadayoshi Kinoshita
Justice Yoshinori Shiono
Justice Masami Ito
Justice Masataka Taniguchi
Justice Susumu Ohashi
Justice Hisaharu Kidoguchi
Justice Keiji Maki
Justice Seiichi Wada
Justice Mitsuhiko Yasuoka
Justice Reijiro Tsunoda
Justice Koichi Yaguchi
Justice Rokuro Shimatani
Justice Atsushi Nagashima