1975.09.10

1973(A)910

Keishu Vol.29, No.8, at 489

Judgment upon the case concerning the relationship between Article 3, sub-para.3 and Article 5 of the Ordinance for Parading in a Group and Demonstrations (Ordinance of Tokushima City No.3 of 1952), Article 77, para.1, sub-para.4 Article 77, para.3 and Article 119, para.1, sub-para.13 of the Road Traffic Law and Article 11, sub-para.3 of the Detailed Enforcement Regulations of Road Traffic in Tokushima Prefecture

Case to be brought against subject for violation of the Ordinance of Tokushima City for group parades and demonstrations and violation of the Road Traffic Law

Judgment of the Grand Bench, original judgment was quashed and decided by the Supreme Court

Takamatsu High Court, Judgment of February 19, 1973

1. Article 77, para.1, sub-para.4 of the Road Traffic Law does not have a purpose to prohibit the respective local municipal entities from stipulating a certain regulation from the viewpoint of maintaining traffic order in addition to the regulations of the Road Traffic Law for cases where respective local municipal entities stipulate regulations in order to maintain the security and order of local public security by means of an Ordinance with respect to the special use of a specified road. Although the stipulations of Article 3, sub-para.3 and Article 5 of the Ordinance for Parading in a Group and Demonstration (Ordinance of Tokushima City No.3 of 1952), Article 77 of the Road Traffic Law and the Detailed Enforcement Regulations of Road Traffic in Tokushima Prefecture based on the preceding Article 77 partially overlap, it should be understood that the regulations by the Road Traffic Law apply only to the scope beyond the regulations of the Ordinance, therefore, Article 3, sub-para.3 and Article 5 of the Ordinance do not contravene Article 77, para.1 sub-para.4, Article 77, para.3 and Article 119, para.1, sub-para.13 of the Road Traffic Law or Article 11, sub-para.3 of the Detailed Enforcement Regulations of Road Traffic in Tokushima Prefecture. 2. Whether or not the penal regulations violate the Constitution due to their ambiguity should be decided by means of whether an ordinary person can understand the criterion, by which they can make a decision on the applicability of the said act in a specific case. 3. Article 3, sub-para.3 of the Ordinance for Parading in a Group and Demonstrations (Ordinance of Tokushima City No.3 of 1952) stipulates the matter of "To maintain traffic order" as a matter to be observed for a parade. It is understood that, in a case where a parade is carried out on a road orderly and smoothly in general, it serves to prevent an act, which may cause a particular hindrance of traffic order that exceeds the level of hindrance of traffic order accompanying an orderly parade. On this understanding, the said stipulation does not contain an ambiguity that would lead to a violation of the Constitution because it is regarded as a crime-constituting conditions as provided in Article 5 of the Ordinance. 4. For the case where the accused stood near the leading group outside the parade, walked in a weaving fashion, blew a whistle and made signals by swinging both arms, by which he provoked and agitated the demonstrators to walk in a weaving fashion, the act of agitating the demonstrators to conduct an act which contravenes traffic order as provided in Article 3, sub-para.3 and Article 5 of the Ordinance for Parading in a Group and Demonstrations (Ordinance of Tokushima City No.3 of 1952) stands in an ideal concurrence with the act of walking in a weaving fashion against the conditions to the permission for using roads that are specified by the chief of the police station as provided in Article 77, para.1, sub-para.4 Article 77, para.3 and Article 119, para.1, sub-para.13 of the Road Traffic Law as well as Article 11, sub-para.3 of the Detailed Enforcement Regulations of Road Traffic in Tokushima Prefecture.

(concerning 1, 3 and 4) Article 3, sub-para.3 of the Ordinance for Parading in a Group and Demonstrations (the Ordinance of Tokushima City No.3 of 1952) The Public Safety Commissioner must, when receiving an application in accordance with the preceding provision, render the permission except for cases where it is apparent that a parade or demonstration causes danger directly to the public security. Provided that, necessary conditions can be attached to the following respective items. (iii)Matters concerning the maintenance of traffic order Article 5 of the Ordinance for Parading in a Group and Demonstrations (the Ordinance of Tokushima City No.3 of 1952) Article 5 An organizer who submitted an application for permission by making a false entry therein, or an organizer, a leader or an agitator of a parade or demonstration, which was carried out violating the conditions attached in accordance with the stipulation of Article 1, Article 2 and Article 3, para.1 proviso or violating the stipulation provided in Article 3, para.3, shall be punished with penal servitude for not more than one year or imprisonment or a fine of not more than 50,000 yen. (concerning 1 and 4) Article 77, para.1, sub-para.4 and Article 77, para.3 of the Road Traffic Law Article 77, para.1, sub-para.4 A person falling under any of the following respective items must, with respect to the act mentioned in said respective items, respectively obtain the permission of the chief of police station having jurisdiction over the place pertaining to said acts (hereinafter referred to as the "chief of the competent police station" in this Section) (if the place pertaining to the said act extends over the jurisdiction areas of the chiefs of two or more police stations under control of the same Public Safety Commission, the permission of any of the chiefs of those competent police stations; hereinafter the same in this Section) (iv) In addition to those mentioned in the preceding respective items, a person intending to do acts whereby a road is used in such a way or manner as will exceedingly affect general traffic because of people assembling on a road or taking pictures on location, which the Public Safety Commission designates it necessary to do so for preventing dangers on a road or otherwise promoting safety or smoothness of traffic, depending upon the state of the road or traffic in the area concerned. Article 77, para.3 The chief of the competent police station may, if, in the case of granting the permission under the provision of paragraph 1, considered necessary, attach the conditions necessary for preventing dangers on a road, or otherwise for securing safety and smoothness of traffic, change the conditions attached in accordance with the provision of the preceding paragraph, or attach new conditions. Article 119, para.1, sub-para.13 A person falling under any of the following respective items shall be punished with penal servitude for not exceeding three months or a fine not exceeding 30,000 yen. (xiii) A person who has violated the conditions attached by the chief of police station in accordance with the provision of Article 77 (Permission for using a road) paragraph 3, or changed or specified by the chief of the police station in accordance with the provision of paragraph 4 of said Article Article 11, sub-para.3 of the Detailed Enforcement Regulations of Road Traffic in Tokushima Prefecture (before amendment by the Regulation No.1 of Tokushima Prefectural Public Safety Commission of 1972) Acts which require the permission of the chief of police station in accordance with Article 77, para.1, sub-para.4 shall be mentioned in the following respective items. (iii) An act of holding a competition, a dance, a costume parade and a parade (concerning 2 and 3 ) 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. (concerning 4) Article 54, para.1, first paragraph of Penal Code When a single act results in two or more crimes or when the means or result of committing a crime constitutes another crime, it shall be punished by the gravest penalty.

The judgment of the original instance court and that of the first instance court shall be quashed. The accused shall be punished with a fine of 10,000 yen. In a case where the accused cannot pay the fine completely, he shall be kept in detention in a workhouse for a period calculated by converting 1,000 yen to one day. The accused shall owe the whole cost of the lawsuit.

Concerning the grounds for the Jokoku-appeal by the public prosecutor No.1 History of the case Following is the summary of the facts charged. "The accused was a manager of Full-time staff member and Tokushima Antiwar Young Committee of the Japan Labor Union Council and on December 10, 1968, he participated in a demonstration held by the prefectural antiwar young committee, claiming that "Military bases in Matsumo and Wada island should be removed, laws against rioting should be abolished and the Cabinet which promotes the security alliance should be overthrown." from Aibahama park in Tokushima city through Shinmachibashidori, Higashishinmachi, Hatagoyacho, Ginzadori, Higashishinmachi and Motomachi to Tokushima Station with around 300 young people and students. Between around 6:35 p.m. until around 6:39 p.m. of the same day, several dozen members of the leading demonstration group started out from the South-east entrance of the Aibahama park and walked in a weaving fashion on the road down the west-side of Shinmachibashi to Hoeido, a notions store in A-chome, No.B, and took action against the maintenance of traffic order. He also walked in a weaving fashion, stood in the near of the forefront and blew a whistle, raised his arms and swung them back and forth provoking the other demonstrators to also walk in a weaving fashion, and agitated them to take action against the maintenance of traffic order, violating the permission for using the road issued by the chief of the competent police station with respect to the said demonstration. Conditions were attached to the permission such as "not to take action which may causes disturbance of traffic order". Among the above acts of the accused, the act that he "walked in a weaving fashion" fell under Article 77, para.3 and Article 119, para.1, sub-para.3 of the Road Traffic Law (Law No.105 of 1960), and the act that he "provoked the demonstrators to walk in a weaving fashion and agitated them to take action against the maintenance of traffic order" fell under Article 3, sub-para.3 and Article 5 of the Ordinance No.3 of Tokushima City on January 24, 1952 (hereinafter referred to as the "Ordinance") and an accusation was brought against him. The judgment of the first instance court delivered a verdict of guilty for the point concerning Article 77, para.3 and Article 119, para.1, sub-para.13 of the Road Traffic Law, however, with respect to the point concerning Article 3, sub-para.3 and Article 5 of the Ordinance, it gave a decision of not guilty. Following is the grounds for the decision of not guilty. It is understood that Article 77 of the Road Traffic Law regulates acts in groups including a parade, which is guaranteed as freedom of expression in Article 21 of the Constitution. With respect to acts in groups, in a case where the Prefectural Public Safety Commission decided that it falls under Article 77, para.1, sub-para.4 of the Road Traffic Law, the chief of the competent police station may attach conditions to the permission for using the road in accordance with Article 77, para.3. Therefore, the relationship between the conditions to the permission for using the road and "to maintain traffic order" as provided in Article 3, sub-para.3 of the Ordinance should be considered. Ordinances can be stipulated so long as it is not concurrent with national laws. In a case where an ordinance contrives national laws, its formal validity is not approved, therefore, "to maintain traffic order" should be understood to cover acts other than those covered by the permission for using the road as provided in Article 77, para.3 of the Road Traffic Law. However, it is not clear, what kind of acts fall under the provision, and in the end, the provisions of Article 3, sub-para.3 of the Ordinance is general, abstractive and polysemic and it is difficult to interpret reasonably and specifically. Therefore, it can be concluded that the provision lacks definiteness so much as to decide the content of the elements of an offence, which is to be punished by Article 5 of the Ordinance, and it contravenes the purpose of Article 21 of the Constitution. The original decision dismissed the Kokoku-appeal by the public prosecutor by claiming that there was no error in the decision of the original instance that had decided that Article 3, sub-para.3 of the Ordinance lacks the clarity sufficing to become the content of penal regulations, thereby contravening the principle of legality of crimes and punishment as well as violating Article 31 of the Constitution. The grounds for the Jokoku-appeal by the public prosecutor, claims the error in interpretation and application of Article 31 of the Constitution with respect to the decision of the original judgment. No.2 Opinion of our Court 1 Concerning the relationship between Article 3, sub-para.3 and Article 5 of the Ordinance and Article 77 and Article 119, para.1, sub-para.3 of the Road Traffic Law The Road Traffic Law was enacted in order to prevent dangers on roads, to promote safety and smoothness of traffic and to contribute to prevention of impediments caused by road traffic. Article 77, para.1 of the law stipulates that "a person falling under any of the following respective items, with respect to the act mentioned in said respective items" must obtain the permission of the chief of the competent police station. Article 77, para.1, sub-para.4 of the law stipulates that "in addition to that mentioned in the preceding respective items, a person intending to do acts whereby a road is used in such a way or manner as will exceedingly affect general traffic because of people assembling on a road, such as holding a festival or ceremony on a road or making a motion picture on location, which the Public Safety Commission designates it necessary to do so for preventing danger on the road or otherwise promoting safety or smoothness of traffic, depending upon the state of the road or traffic in the area concerned". Article 77, para.3 of the law stipulates that the Chief of the competent police station may, in the case of granting the permission under the provision of paragraph 1, if considered necessary, attach the conditions necessary to said permission for preventing dangers on the road, or otherwise for securing safety and smoothness of traffic. Article 119, para.1, sub-para.13 of the law stipulates that a person who has violated the conditions attached by the chief of the police station under the Article 77, para.3 of the law shall be liable to penal servitude not exceeding three months or a fine not exceeding 30,000 yen. In Tokushima Prefecture, the Tokushima Public Safety Commission designates an "act of holding a competition, a dance, a costume parade or a parade on the road" as an act which requires permission in accordance with Article 11, para.3 of the Detailed Enforcement Regulations of Road Traffic in Tokushima Prefecture (Rules of Tokushima Prefectural Public Safety Commission No.5 on December 18, 1960). With respect to the demonstration of the case, the promoter filed with the chief of Tokushima Higashi Police Station which has jurisdiction over that area, an application for permission for using roads in accordance with Article 77, para.1, sub-para.4 of the Road Traffic Law and Article 11, sub-para.3 of the Detailed Enforcement Regulations of Road Traffic in Tokushima Prefecture, and received permission from the chief of Tokushima Police Station with four conditions including "not to conduct the following acts which may disturb traffic order: to walk in a weaving fashion, to march in a circle, to break into a run or to walk very slow, to stop, to sit-down, to move parallel with a foregoing group, to overtake a foregoing group and French demonstration". On the other hand, the Ordinance stipulates in Article 1 that "in a case where having a parade on roads or other public places and carrying out a demonstration regardless of places, excluding the case where the act falls under the item para.1 and para.2 of Article 1, must report to the Tokushima Public Safety Commission." Article 3 of the Ordinance stipulates that "a person who intends to have a parade or demonstration must observe the following items in order to maintain the order of the parade or demonstration as well as to maintain public security." 1. He or She should not disturb public services 2. He or She should not carry equipment, which may be used for endangering life or body, for example, knives or clubs. 3. He or She should maintain traffic order. 4. He or She should not disturb tranquility at night. Article 5 is a penal provision which stipulates that a promoter, leader and agitator of a parade or demonstration which was carried out contravening the stipulations of Article 3 (hereinafter referred to as the "Parade") shall be punished with penal servitude or imprisonment without labor for not more than one year or a fine not more than 50,000 yen. The first and the second instances made a decision concerning the clarity of Article 3, sub-para.3 of the Ordinance which constitutes the corpus delicti of the penal provision, by attaching conditions such as in accordance with Article 94 of the Constitution and Article 14, para.1 of the Local Autonomy Law, ordinances of local public entities must not contravene national laws, therefore, "to maintain traffic order" must exclude those acts which are regarded as an object of permission for using roads as provided in Article 77, para.3 of the Road Traffic Law. It is to be examined whether such conditions should be specified. The Road Traffic Law was enacted, as previously mentioned, in order to prevent dangers on roads, to promote safety and smoothness of traffic and to contribute to maintain road traffic order, therefore, it goes without saying that conditions for permission in accordance with Article 77, para.3 of the Road Traffic Law by the chief of police station must be rendered for this purpose. With regard to this, objects of the Ordinance are parades on roads or other public places and demonstrations regardless where they are carried out, which excludes excursions, school trips and athletic events of students as well as ordinary ceremonial functions. The aforementioned acts in a group include expression of thought and argument concerning politics, economic, labor issues and views of the world that typically appeal to the public and the authorities. Those acts should be respected by the Constitution in a sense, however, different from expressions by mere speech or publication, they are carried out by the physical activity of many people. They have been characterized by being supported by a collective force of many people, that is, a certain kind of potential physical force. From these characteristics, in a case where those acts are not carried out orderly and smoothly, they are in fact left to do as they please, it may cause not only harm to the interests of residents and sojourner in that area but also to disturb the calm. In order to prepare for such contingencies and to promote harmony between interests of those who carry out acts in a group and have various conflicting social interests, Article 1 of the Ordinance requires a prior notification with respect to acts carried out by a group, Article 3 stipulates those acts that must be observed by participants of a parade, and Article 5 stipulates penal provisions against a promoter, leader and agitator of a parade who violates the matters to be observed, and by these means, it aims to maintain peace and order of local public entities. As mentioned above, the Road Traffic Law aims to maintain road traffic order, on the other hand, the Ordinance aims to maintain not only road traffic order, but also peace and order of local public entities, that is, the object of the Ordinance is much broader and more comprehensive, therefore, they don't have the same purpose of regulations. However, the idea of maintaining peace and order of public entities is broad and it contains the maintenance of road traffic order, which is the purpose of the Road Traffic Law. Consequently, if the items to be observed as provided in Article 3, sub-para.3 of the Ordinance cover the maintenance of minor violation of traffic order, it can be said that it overlapping of the conditions of permitting road use by the chief of the police station as provided in Article 77, para.3 of the Road Traffic Law. However, it cannot be directly concluded that Article 3, sub-para.3 of the Ordinance contravenes the Road Traffic Law, a national law. Article 14, para.1 of the Local Autonomy Law stipulates that ordinary local public entities can enact ordinances with respect to the service as provided in Article 2, para2 of the law, within the bounds of the law, therefore, it is evident that if an ordinance enacted by an ordinary local public entity contravenes national law, it is not effective. In order to decide whether ordinances contravene national laws, it is to be decided by comparing not only the coverage and the language of both stipulations, but also the purpose, object, content and effect of them and by determining whether there are contradictions among them. For example, even if there are no provisions in national laws that regulate a specific matter, considering the laws as a whole, when the non-existence of such a stipulation intends to leave the matter as it is without any regulations in particular, the enactment of an ordinance that establishes regulations for it may contravene national law. On the other hand, even in a case where there are both national laws and ordinances which regulate a specific matter, when the ordinance has an intention of a regulation based on a different purpose from national laws and application of the ordinance doesn't harm the purpose or effect which is intended by the national laws, or even if they have the same purpose, when it can be interpreted that the national law doesn't intend to apply uniform regulations throughout the country, but to allow respective local public entities to apply specific regulations in accordance with the actual situation of the local public entities, there are no contradictions between national laws and ordinances, therefore, no problem can be seen concerning such ordinances contravening national laws. Taking a look at Article 77 of the Road Traffic Law and the Detailed Enforcement Regulations of Road Traffic in Tokushima Prefecture and the Ordinance based on it, so long as the part is concerned where regulations of acts are applied in order to maintain road traffic order, it cannot be denied that there exist two concurrent regulations. However, Article 77, para.1, sub-para.4 of the Road Traffic Law entrusts respective Public Safety Commissions to decide discretionally whether the acts of specific use of roads in a form and act of traffic as provided by the said item is to be regarded as a general prohibited matter, which can be permitted individually by the chief of the police station, depending on the situation of roads and traffic in the ordinary public local entity and it prevents a uniform decision throughout the country. Taking this attitude into consideration, in applying regulations by respective local public entities in order to maintain peace and order by the ordinances with respect to the special use of roads which is covered by the regulations as one means, it cannot be regarded that the said stipulation has the purpose of rejecting to apply certain regulations from a view point of maintaining traffic order in addition to the regulations by the Road Traffic Law. The Respective Public Safety Commission, in cases where an ordinance which applies such a kind of regulation exists, taking this into consideration, it is reasonable to understand that it can be decided whether the said regulations by the Road Traffic Law should be applied to the act and what kind of regulations should be applied. Consequently, in cases where concrete regulations against a parade on roads is carried out in order to maintain road traffic order, by means of Article 77 of the Road Traffic Law as well as the Regulations of the Public Safety Commission based on the law, and by means of the Ordinance with overlaps, so long as there are no contradictions between them and the overlapping regulations by the Ordinance has a specific meaning and effect, the regulations by the Road Traffic Law does not deny or exclude the regulations by the Ordinance, and it is reasonable to interpret that it can be applied to the scope beyond the regulations by the Ordinance. Therefore, the Ordinance cannot be determined as contravening the Road Traffic Law. The Ordinance stipulates specific and general regulations, as previously mentioned, against a parade, including those that take place on roads, considering the particular characteristics of those social acts, in order to maintain peace and order in public local entities, for example, to maintain road traffic order. Although the purpose and object of regulations by Article 77 of the Road Traffic Law and the Detailed Enforcement Regulations of Road Traffic in Tokushima Prefecture based on it, are partially in common with those of the Ordinance, it has an original purpose and significance, therefore, its rationality can be approved. Taking a look at its content, the Ordinance adopts a notification procedure instead of a permission procedure toward a parade, which does not mean to exclude the necessity of permission under the Road Traffic Law. Article 3 of the Ordinance stipulates matters to be observed, however, as to be mentioned later, it does not include regulations which disturb the purpose of the Road Traffic Law, for example, to release acts from prohibition in particular, which have been prohibited in accordance with the law, therefore, no contradiction can be seen. However, Article 5 of the Ordinance imposes a penal servitude for not more than one year or a fine of not more than 50,000 yen on a promoter, a leader or an agitator. However, Article 119, para.1, sub-para.3 of the Road Traffic Law imposes a penal servitude for not more than three months or a fine not more than 30,000 yen on a person who has violated conditions of permission which were specified by the chief of the police station in accordance with Article 77, para.3 of the law. Comparing both stipulations, there is a difference in statutory penalty against the violation of prohibition in order to maintain the same road traffic order. The Ordinance imposes a different penalty that is not provided in the Road Traffic Law, and it imposes a heavier penal servitude or fine, which may cause doubt that the Ordinance might contravene the law. However, the penal provisions of the Road Traffic Law are provided in order to secure the effectiveness of regulations as provided in Article 77 of the law by taking the matters such as the following into consideration; how high the possibility is of violation of special use of roads in general, and how high the risk of infringing on the safety of road traffic caused by such violation. The penal provisions of the Ordinance, to the contrary, are provided by taking the following matters into consideration as a whole, for example, how high the possibility of infringing on peace and order of the various public entities which may be caused by a parade, an act of specific character, the character of an expected infringement and its degree. In particular, with respect to the safety of traffic on roads, it can be regarded that those penal provisions are provided by taking the following facts into consideration; a parade may not only infringe the safety of traffic but also disturb the peace of the area depending on the circumstances. In the end, although the said penal provisions stipulate imprisonment without labor as a statutory penalty, which is not stipulated in the Road Traffic Law, and they impose a penal servitude and fine with an upper limit higher than the penal servitude and fine of the Road Traffic Law, it can be regarded as reasonable. As previously mentioned, the Road Traffic Law can be interpreted as allowing the Ordinance to regulate a parade in a different way, therefore, it cannot be interpreted that the law prohibits the Ordinance to stipulate rational and special provisions in order to increase the effectiveness of the regulation. In conclusion, the provisions of Article 5 of the Ordinance cannot be determined as invalid for contravening the law in the statutory penalty. From all of the above, it cannot be regarded that Article 3, sub-para.3 and Article 5 of the Ordinance contravene Article 77, para.1, sub-para.4, Article 77, para.3 and Article 119, para.1, sub-para.13 of the Road Traffic Law and Article 11, sub-para.3 of the Detailed Enforcement Regulation of Road Traffic in Tokushima Prefecture. Therefore, with respect to the matters to be observed as provided in Article 3, sub-para.3 of the Ordinance, it is not necessary to put a restriction on them from the viewpoint of the Road Traffic Law, and the decision of the original instance on this point cannot be accepted. 2. Concerning the clarity of Article 3, sub-para.3 and Article 5 of the Ordinance as elements of an offence Next, it must be examined whether the wording of the stipulation "to maintain traffic order" is definite as a factor composing the elements of an offence. Taking a literal reading of the above stipulation, the stipulation orders only to maintain road traffic order in an abstract manner, but it doesn't concretely mention the content of duty, for example, what kind of act must be done or must be avoided. For a large number of public safety regulations, the following method is adopted: That is, to adopt a permission system for a parade and in rendering such permission, to specify the duty to be observed in conditions with respect to the matters concerning the maintenance of traffic orders. Even in the case of the Ordinance, which stipulates duties to be observed, it is to be regarded as extremely inappropriate as legislative proceedings, because it does not make any consideration on specifying the content of duties as much as possible by enumerating typical acts which may infringe traffic order, although it is quite possible to clarify the content of the duties. However, for the following reason, a case where the element of on offence in a penal provision is regarded to contravene Article 31 of the Constitution and therefore, it is invalid due to its ambiguity and indefiniteness. That is, such a provision does not show the criterion that enables the discrimination of prohibited acts from other acts for an ordinary person who has a usual sense of judgment, therefore it does not carry out the function of notifying the public to what acts are covered by a penalty by the provision in advance. Additionally, how to implement the stipulation depends on the subjective judgment of the state or local public entities that are going to apply it, therefore, it tends to become arbitrary, which may cause a serious and harmful effect. Laws in general have a limitation in their expression and due to their characteristics, they are abstractive to some extent. Penal provisions are no exception, therefore, the criterion that enables one to distinguish between prohibited acts and an accepted act is not always an absolute one, but it may require a rational decision for some cases. Therefore, in deciding that a penal provision contravenes Article 31 of the Constitution because of ambiguity should depend on whether a person with ordinary judgment can understand the criterion, by which he can decide whether the provision is applicable to an act in a specific case. First of all, a parade on a road involves a group of many people occupying some part of the road continuously, and using the roads by means of walking and other forms, therefore, it cannot deny the possibility of infringing on traffic order to a certain extent, which can be maintained when such an act is not performed. Considering that a parade has some elements to be guaranteed by the Constitution as a form of expression, the Ordinance adopts the notification system, by means of which it accepts a disturbance of traffic order on roads to be occurred inevitably by such a parade. Therefore, it is fairly evident that infringement of traffic order that is prohibited by Article 3, sub-para.3 of the Ordinance does not mean infringement inevitably accompanied by said parade. However, a parade as an act of expressing thought is carried out, as previously mentioned, by a large number of participants in order to make an appeal to the general public with respect to their common claim, demand, and thought by means of a unified act such as a parade, and its substantial significance and value exist solely in showing it in a form of a unified act. Against such an act, even though it is demanded to be carried out in good order and quietly, and not to disturb local public peace and order more than necessary, it can only be regarded that the substantial significance and value of a parade as an act of expressing said thought would be lost and freedom of expression guaranteed by the Constitution would be restricted unreasonably. As one of the items to be observed in order to maintain public peace by a person intending to carry out a parade, Article 3 sub-para.3 of the Ordinance mentions the matter, "to maintain traffic order." It can be interpreted that it is stipulated because it orders to prevent an act of particular disturbance of traffic order which exceeds the degree of traffic disturbance accompanied by an ordinary parade on roads in good order and smoothly. When a person with ordinary judgment decides in a specific case, whether his intended act would violate the prohibited matter by said stipulation or not, it would not be very difficult to generally determine this by taking the following matters into consideration; that is, whether their intended act would solely cause a usual disturbance of traffic accompanied by a parade carried out in good order and smoothly, or a particular disturbance of traffic order. For example, the following acts which can be seen often in a parade on a road in various places, such as walking in a weaving fashion, parading in a circle, a sit-down and a French demonstration that is carried out by occupying the road entirely, can easily be determined as being regarded as acts of disturbing traffic order in particular, which exceed the degree of traffic disturbance accompanied by a parade that is carried out in good order and smoothly. As previously mentioned, said acts that would cause particular traffic disturbance are not essential elements of an act of expressing one's thoughts, therefore, when they were prohibited, it would not restrict the legitimate execution of the constitutional rights of the people. Usually, it is not very difficult to decide whether an act is regarded as an act of disturbing traffic order in particular, therefore, there are no cases where Article 3, sub-para.3 of the Ordinance may disturb the legitimate execution of the constitutional right of the people, or it may allow an arbitrary operation by the organizations of state and local public entities. (Considering the actual operation of the Ordinance from the record, there is no evidence of disturbing the legitimate exercise of the constitutional right of the people by Article 3, sub-para.3 of the Ordinance or causing an arbitrary operation by the organizations of state and local public entities.) From all of the above, it is true that the wording of Article 3, sub-para.3 of the Ordinance is abstract, however, it is possible to determine some criterion concerning the observance of road traffic order in a case of a parade, and it cannot be concluded that it lacks the clarity as an element of an offence and contravenes Article 31 of the Constitution. In conclusion, in the judgment of the original instance and that of the first instance maintained by the original instance, which decided otherwise, it is to be concluded Article 21 of the Constitution was mistakenly interpreted and applied, therefore, the given line of argument can be accepted. In the end, in accordance with the main text of Article 410, para.1 of the Code of Penal Procedure, the judgment of the first instance and original judgment shall be quashed, and because the court deems that it may forthwith render a judgment, the case is to be decided according to proviso of Article 413 of the Code of Penal Procedure. Based on the findings of the first instance court, the accused participated in a demonstration held by the Tokushima antiwar young committee on December 10, 1968, claiming that "Military bases in Matsumo and Wada island should be removed, the law against rioting should be abolished and the Cabinet which promotes the security alliance should be overthrown" starting from Aibahama park in 2-chome Aibamachi, Tokushima city, down Shinmachibashidori, Higashishinmachi, Hatagoyacho, Ginzadori, to the Marushin Department Store in Higashishinmachi with around 300 young workers and students. To the demonstration, the chief of the Tokushima Higashi Police Station, having jurisdiction over that area, attached a condition such as "not to conduct the following acts which may disturb traffic order; to walk in a weaving fashion, to march in a circle, to break into a run or to walk very slow, to stop, to sit-down, to move parallel with a foregoing group, to overtake a foregoing group or perform a French demonstration." However, around 80 members of the leading group of the demonstration walked in a weaving fashion and disturbed traffic order, from around 6:36 p.m. until 6:38 p.m. of the day starting from a driveway in the neighborhood of the south-east entrance of Aibahama Park in 2-chome, Tokushima city, the Prefectural Highway, Eikura Tokushima Line to the south of the west side of the road of Shinmachibashi, spreading out about 70 meters long and a maximum of 8 meters wide, which is almost the same breadth as the width of the road, and at around 6:39 p.m., starting from the northern end of the pedestrian crossing in front of Yaohide Food Shop in 2-chome, Tokushima city to the vicinity of Hoeido Variety Store spreading around 35 meters long and a maximum of 5 meters in width occupying around two thirds of the width of the driveway. On this occasion, the accused stood outside the rank next to the leading group, walked in a winding fashion with the leading group intermittently, blew a whistle, and gave the signal by swinging his both arms, by which he provoked and agitate the demonstrators to walked in a weaving fashion, to conduct an act which contravenes the maintenance of traffic order and violated the condition on permission of road use attached by the chief of the Tokushima Higashi Police Station. (Based on the evidence listed in the evidence of the judgment of the first instance and the statement by Witness a, Witness b, Witness c and Witness d at the trial court of the first instance.) To the above facts, stipulations of laws are to be applied as follows. Among said acts of the accused, the act of standing outside the rank next to the leading group, walking in a weaving fashion, blowing a whistle, swinging both arms and agitating the demonstrators to walk in a weaving fashion, and agitating them to conduct an act of violating the maintenance of traffic order covered by Article 3, sub-para.3 and Article 5 of the Ordinance (according to Article 6 and Article 10 of the Penal Code, the amount of the fine is to be decided by the amount stipulated in Article 2, para.1 of the Law for Temporary Measures concerning a Fine before amendment by Law No.61 of 1972.) The act by the accused, who walked in a weaving fashion and violated the conditions on the permission of road use specified by the chief of the Tokushima Higashi Police Station is covered by Article 77, para.1, sub-para.4 Article 77, para.3 and Article 119, para.1, sub-para.3 of the Road Traffic Law and Article 11, sub-para.3 of the Detailed Enforcement Regulations of Road Traffic in Tokushima Prefecture (concerning the amount of fine, same as above.) This is a case where a single act results in two crimes, therefore, according to the first paragraph of Article 54, para.1 and Article 10 of the Penal Code, it is to be punished as a single act and it is to be punished by the grave penalty as provided in Article 3, sub-para.3 and Article 5 of the Ordinance. Among the statutory penalty, when a fine is chosen and the accused is to be punished with a fine not exceeding 10,000 yen, but he cannot pay the fine in full, according to the main text of Article 181, para.1 of the Code of the Penal Procedure, he shall be detained in a workhouse for a period that is calculated by converting 1,000 yen to one day in accordance with Article 18 of the Criminal Code, and the accused shall owe the whole cost of the lawsuit according to the main text of Article 181, para.1 of the Code of Criminal Procedure, and a judgment was rendered in the form of the main text. With the exception of a supporting opinion by Justice OGAWA Nobuo and Justice SAKAMOTO Yoshikatsu, that of Justice KISHI Seiichi and that of Justice DANDO Shigemitsu and an opposing opinion of Justice TAKATSUJI Masami, the judgment was rendered with the unanimous consent of the judges. The following is the supporting opinion of Justice OGAWA Nobuo and Justice SAKAMOTO Yoshikatsu. We are in agreement with the majority opinion, however, with respect to the following points, a supporting opinion is to be given for the sake of good order. A parade is an act that is carried out by a large number of people, by means of appealing their claim, demand and ideas concerning social, political and economic issues openly to the public in general. Therefore, due to their nature, it is not always carried out in good order, but may exceed the limit to some extent and this is to be accepted. The majority opinion interprets the meaning of "to maintain traffic order" provided in Article 3, sub-para.3 of the Public Security Ordinance in Tokushima City as "to give an order for preventing an act of particular disturbance of traffic order which exceeds the degree of traffic disturbance accompanied by an ordinary parade on roads in good order and smoothly. Therefore, the above interpretation can be understood that the following acts can be acceptable, such as an act of particular disturbance of traffic order that may exceed the degree of disturbance accompanied by a usual parade, and an act of having a parade that may exceed the degree of an orderly parade due to the nature of a parade. Yet, in a case where the disturbance exceeds the limit, such kind of traffic disturbance should be prevented by order, therefore, we are in agreement with the majority opinion. This is an important issue concerning the freedom of expression for people, which is guaranteed by the Constitution, so We request that an excessive regulation should not be conducted from misinterpretation. Besides this point, we are in agreement with the supporting opinion of Justice Shigemitsu Dando. Following is the supporting opinion of Justice Seiichi Kishi. I am in agreement with the majority opinion and would like to support the opinion with respect to the restriction of a parade and freedom of expression. (1) For a case regarding controlling the freedom of expression by regulations, in deciding whether it contravenes Article 21 of the Constitution, I think it is necessary to consider the purpose separately, that is, whether the purpose is to control the expression or the purpose is to control the acts accompanied by the said expression. In the first place, every act of expression is accompanied by an action of some kind, therefore, the said separation does not intend to make a difference in the degree of constitutional guarantee by means of dividing the act of expression, such as expression as it is and expression which is accompanied by an action. The purpose of the control must be emphasized and by deciding whether the emphasis is placed on preventing the harmful effect caused by the expression or the emphasis is placed on preventing the harmful effect caused by the action accompanied by the expression, and due to the necessity of precise examination of constitutionality of the control, the said discrimination is to be carried out. I think it is very meaningful method because it enables a precise decision to be made and to help understanding. (2) In a case where the purpose of regulation is to control expression as it is, it is nothing but to allow the nation and local public entities to discriminate between favorable expressions from unfavorable expressions for them, and it can be regarded as the acceptance of censorship, which suppresses the freedom of expression as basic human rights, therefore, it should be decided as nothing but unconstitutional. With respect to the following regulations, the judicial precedents of the court has decided that, not by means of weighing up advantages and disadvantages, those acts of expression deviate from the restriction inherent in the freedom of expression and do not deserve the constitutional guarantee, therefore, they do not contravene Article 21 of the Constitution; for example, stipulations for punishment of an act of agitating not to perform an important statutory duty of a citizen (Judgment of the Grand Bench on May 18, 1949, Keishu Vol.3, No.6,at 839 and Judgment of the Grand Bench on February 21, 1962, Keishu Vol.16, No.2, at 107, etc.), an act of distribution of obscene literature (Judgment of the Grand Bench on March 13, 1957, Keishu Vol.11, No.3, at 997 and Judgment of the Grand Bench on October 15, 1969, Keishu Vol. 23, No.10, at 1239), and an act of defamation of other people without reason (Judgment of the First Petty Bench on April 10, 1958, Keishu Vol.12, No.5, at 830 and Judgment of the Grand Bench on July 4, 1956, Minshu Vol. 10, No.7, at 785). The judicial precedents can be understood that the said control has the above nature and in order to decide the said regulations to be constitutional, it requires substantial and fundamental reasoning. For the record, among the above precedents in the past, some precedents used the phrase of "to contravene the public welfare", however, considering the true intention of the precedents, they do not mention the public welfare without much thought, but mention that there are restrictions inherent in the freedom of expression, which can be understood through the whole text of the judgment. The Judicial precedents of the United States Supreme Court apply the principle of "clear and present danger" in deciding continuality because the purpose of regulations is to control the expressions as they are, and it is striving to decide the constitutionality of such regulations by a strict standard. The principle was originally used for deciding the constitutionality of punishing the acts such as instigation or agitation of the acts that cause a substantial harmful effect that may be constitutionally prevented by the nation. The grounds for the control can be seen in the idea that those expressions that may cause imminent danger of a substantial harmful effect can be regarded as an action causing such a harmful effect, therefore, there is no time to wait for a natural control by exchange of free expressions. The said principle has been applied widely especially since the 1930s and in deciding the control over the acts of freedom to be unconstitutional, the phrase has appeared like a cliche, however, consideration has been accumulated on the scope of its application, and in 1950, it has become clarified that the principle does not apply to every case, as it does not apply to the case where the purpose of control is to prevent the critical and harmful effect caused by the action. In 1951, it was pointed out that the principle had been widely applied to cases where guaranteed interests are insignificant and are not sufficient to regard the control as constitutional. Even for the control that intends to prevent the harmful effect of expressions themselves, when the interests to be guaranteed are extremely important, the range of control can be expanded and with respect to the application of the principle, it has become evident that the consideration is required by means of weighing up the advantages and disadvantages. In 1965, it was decided that the acts of parades and gatherings are a mixture of action and expression, therefore, in order to prevent a substantial harmful effect caused by the phase of action, to punish a demonstration in the neighborhood of the courts is constitutional. In 1968, with respect to a case of a symbolic action, that is the act of burning a draft card in public, when an act of speech and non-speech are combined to one action and a sufficient national interests can be seen in controlling the phase of non-speech, it is not unconstitutional to restrict the freedom of expression that was accompanied by the restriction. Further, in the judicial precedent in 1973, which decided that prohibition of political action by public officials is constitutional, an important consideration was given to the distinction between a genuine speech and a speech with action. It goes without saying that I do not doctrinally follow the judicial precedents in the U.S. Among the said summarized judicial precedents, there are opposing opinions which are worth listening to, however, some of the cases have a different nature of content from those in question in Japan. Nevertheless, the reason for having cited them, I think it is worthwhile paying attention to the change of application of the principle in the above judicial precedents. That is, I think it is important to consider that the change of its application was not deducted by mere logic, but as a result of induction based on experience, the emphasis is placed on the choice of rational values in the judicial procedure, and even if there was an age of expanding the application of the principle, these days, it has been consciously used as a standard for deciding the constitutionality of the control over expressions. (3) However, in a case where the purpose of regulations is to control the action accompanied by expressions, different situations can be seen. The regulations in said case do not have the same nature as censorship that is carried out by the nation or local public entities. Additionally, when all of the acts accompanied by expressions are to be regarded as holding an absolute position in the Constitution, only because of having an element of expression, it should not escape the reproach for forgetting the essence of constitutional interpretation, that is, the harmonization of contrasting interests by means of weighing them up (I think it is to be regarded as an average harmonization but a distributive one). Based on the above consideration, it can be understood that, with respect to the above stereotyped regulations, by means of weighing up interests appropriately, the conventional judicial precedents of the court have decided the following regulations to be constitutional; Ordinance for Outdoor Advertising of Osaka City (Judgment of the Grand Bench on December 18, 1968, Keishu Vol.22, No. 13, at 1549), Article 1, sub-para.33 of the Minor Offense Law prohibiting the act of posing a bill on other people's houses or other works (Judgment of the Grand Bench on June 17, 1970, Keishu Vol.24, No.6, at 280) and the act of prohibiting political activities carried out by public officials (Judgment of the Grand Bench on November 6, 1974, Keishu Vol.28, No.9, at 393, at 694 and at 743). In a case where there is a single or an extremely important meaning for the said act of expressions involving such actions, those actions themselves can be regarded as a transmission of thought and opinion, and they can be worthwhile being guaranteed by the Constitution like expressions themselves. Even in such cases, so long as the true purpose of regulations can be seen as not a restriction of transmission of thought and opinion carried out by action, but as preventing a substantial harmful effect caused by the action itself, it cannot be decided to be unconstitutional. With respect to regulations of a collective action, in some cases, they are decided to be constitutional, so long as they are a certain kind of temporal, local and methodical ones or the regulations against an act (an act with certain attributes) of a certain form. It is because such regulations can be usually regarded as the regulations for preventing a harmful effect of the said action, and the true grounds can be seen as above. In other words, with respect to a certain form of a collective action, it is not decided to be constitutional at once because they are regulations that are restricted to a certain form, but because they are nothing but the regulations against an action that may cause a substantial harmful effect and the degree of regulations against the expressions accompanied by the actions are acceptable as a method of appropriately weighing up interests. Even in a case where the regulations prohibit a collective action in a certain form and there is no room for carrying out the expressions in other forms, so long as the purpose of the regulations can be seen in restricting the expressions themselves, the regulations should be regarded as unconstitutional. (4) With respect to the Public Security Ordinance in Japan aiming to control the collective action, as in this case, based on the above-mentioned consideration, in a case of intending to regulate the expressions because they are unfavorable for the nation or local public entities, it should be regarded as unconstitutional. However, it is evident that the Ordinance of Tokushima City of the case is not aiming to carry out such regulations but to prevent a harmful effect caused by actions. It is a different question whether an act of expression which may cause a particular disturbance of road traffic order, such as a parade by means of walking in a weaving fashion, parading in a circle, performing a sit-down and a French demonstration that is carried out by occupying the roads entirely deserve the name of the freedom of expression, but from the above viewpoint, I don't see any objection to decide that the regulations are constitutional. (5) In conclusion, I am of the opinion that the conventional judicial precedents of the court should be maintained, which distinguish expressions themselves from those accompanied by action, and I am in accordance with the majority opinion based on the idea. Following is the supporting opinion of Justice Shigemitsu Dando. I am in accordance with the majority opinion, but with respect to some points, I would like to give a supporting opinion. (1) First, I would like to mention with respect to the issue of restriction of the freedom of expressions. In this issue, it should be considered by distinguishing expressions themselves from those accompanied by action. For a mere form of expressions, that is, in a case where the purpose of expressions can be satisfied by other means, not by the means in question, upon weighing up legal interests, even in order to protect minor legal interest such as a simple road traffic order, it should be regarded that restrictions of expressions by the said form can be acceptable. The majority opinion mentions the "peace and order of local public entities" as a wide-ranging concept which "contains the maintenance of road traffic order," and it can be understood so long as it concerns the form of expressions. The case can be seen as a case, where the purpose of expressions can be achieved not by means of action that was carried out by the accused, therefore, the majority opinion is justifiable. To the contrary, those regulations against expressions themselves are to be decided differently. When expressions are suppressed by abusing the Ordinance for a mere "maintenance of traffic order", it is apparent that such a kind of disposition is unconstitutional. It goes without saying that the Ordinance does not allow the suppression of the freedom of expressions. I make a distinction between expressions themselves and the form of expressions, but I am not in line with the opinion that makes a distinction between "genuine speech" and "action", therefore, for confirmation, this point is to be clarified. Expressions tend to be accompanied by actions and in a case where the purpose of the expressions cannot be achieved by the action from an objective and rational point of view, such action should be regarded as expressions themselves. Therefore, the reason for stipulating the guarantee of freedom with respect to not only "speech" but also "speech, press and all other forms of expression" by the Constitution should be understood because it contains the above implication. (2) Next, I would like to mention concerning the clarity of the elements of an offence. Article 5 and Article 3 of the Ordinance stipulate the elements of an offence of the case, however, Article 3, sub-para.3 merely provides that "to maintain traffic order" and although the phrase is to be interpreted with the phrase "in order to maintain public peace" in the text of the provision, as the majority opinion accepts, it should be regarded as "it lacks appropriateness extremely as legislative proceedings." The principle of the legality of crimes and punishment requires that elements of an offence should be definite. The reason for the requirement is as follows. As an aspect of the judicial code, arbitrary exercising of punitive authority should be avoided. On the other hand, as an aspect of conduct of code, it aims to guarantee the freedom of conduct of citizens by means of clarifying the border between punishable conduct and non-punishable conduct. The freedom of conduct in the latter aspect is very important with respect to the freedom of expression. When the border between the punishable conduct and non-punishable conduct is not definite, and it causes a situation where the citizens hesitate to take an action that belongs originally to the freedom of expression, it should be decided that it is a serious violation of the freedom of expression of citizens in general. This is a matter of atrophic and deterrent function caused by indefinite elements of an offence against the freedom of expression of citizens in general. Of course, there is some doubt whether to go into the matter with respect to the case is allowed, as the exercise of judicial power, because in this case, it should not examine whether the citizens in general (residents in Tokushima City and sojourner in general) have suffered or are suffering atrophic and deterrent influence with respect to the freedom of expression by the provisions of the Ordinance. However, this idea causes a result of restricting greatly the function of the court that guarantees the freedom of expression of the citizens in general. I do not think it is the purpose or the Constitution. Therefore, in examining the matter of clarity of elements of an offence as provided in Article 3 and Article 5, I intended to take the atrophic and deterrent effect of it into consideration, which may be exercised on the citizens in general with respect to the freedom of expression. I think that the majority opinion is based on the same standpoint. Firstly, the majority opinion mentioned that "looking at the actual situation of the application of the Ordinance which can be seen on record, there are no cases where Article 3, sub-para.3 of the Ordinance may disturb the legitimate execution of the constitutional right of people, or it may allow an arbitrary operation by the organizations of state and local public entities", which makes clear that the atrophic and deterrent function was not in fact found (actually, on the record, no action of proof from the party of defense can be seen). Secondly, taking a look at the stipulation as it is, with respect to the adequacy of its application, "when a person with ordinary discretion in a specific case" "would not normally find difficulty in deciding ", which is the same as the argument of the majority opinion. For the crimes as provided in the Public Safety Ordinance, a certain form can be seen, and with respect to the crime of the Ordinance, there are no examples, however, for the citizens in general, the contents of them have already become a matter of public knowledge. Although there are some questions from a genuine literal point of view, taking all the above into consideration, the argument of the majority opinion is nothing but justifiable. However, it should be pointed out again that the way of stipulating the elements of an offence by the Ordinance can be regarded as just constitutional, but it lacks adequacy extremely as legislative proceedings. (3) Thirdly, with respect to the purpose of Article 3, sub-para.3 of the Ordinance, the majority opinion mentions that the phrase of "to maintain traffic order" in the Article, "it can be understood that it orders to prevent an act of particular disturbance of traffic order which exceeds the degree of traffic disturbance accompanied by an ordinary parade carried out on roads in good order and smoothly." In this case, I think that the phrase of "an ordinary parade carried out on the road in good order and smoothly" is stipulated because it must have taken a normal parade into consideration. To this effect, I am in accordance with the supporting opinion of Justice Ogawa and Justice Sakamoto. Following is the opinion of Justice Masami Takatsuji. I am in accordance with the result of the majority opinion that has quashed the original judgment. However, I am not in accordance with the majority opinion with respect to the clarity of Article 3, sub-para.3 and Article 5 of the Ordinance as elements of an offence. I would like to give my opinion by clarifying this point. 1. It goes without saying that in a case where the clarity of elements of an offence as provided in penal laws is definite or not, it should not mainly take the aspect of function as a judicial code into consideration, but as a code of conduct, and the standard time for the decision should not be at trial but the time of conduct by the person. Therefore, I am in accordance with the majority opinion that mentions that the decision "should be made depending on whether a person with ordinary judgment can understand the criterion, by which he can decide whether the provision is applicable to an act in a specific case." "There is no need to dwell on the point to be taken into consideration most in deciding whether such criterion can be read, is the word of the stipulation itself." 2. However, Article 3, sub-para3 of the Ordinance which is considered in the case, as the majority opinion mentions, "the said word of stipulation orders only to maintain road traffic order in an abstract manner, taking a literal reading of the word, but it doesn't concretely mention the content of duty, for example, what kind of act must be done or must be avoided." First of all, in applying stipulations, interpretation cannot be avoided, therefore, with respect to interpretation, not only the word of the stipulations should be taken into consideration, but also the relationship between the stipulation and the law as a whole, the purpose of law and the nature and actual condition of the object of the stipulation. The majority opinion has taken the above points into consideration time and again, and interpreted that Article 3, sub-para.3 of the Ordinance "orders to prevent an act of particular disturbance of traffic order which exceeds the degree of traffic disturbance accompanied by an ordinary parade carried out on roads in good order and smoothly." Although this interpretation is justifiable as an interpretation, I am doubtful whether based on the said interpretation, a general actor, an ordinary person with ordinary judgment can understand it at once at the time of conduct. With respect to the point of finding out "the criterion enables to discriminate prohibited act from other act", the actor is expected to have a common understanding, that is, to understand naturally from the word of stipulation by a person with ordinary judgment, but not to have the interpretation which is obtained by thoughtful consideration as mentioned by the majority opinion. 3. Although a general actor with ordinary judgment is expected to have interpretations gained by thoughtful consideration as mentioned by the majority opinion, is the result of the interpretation insufficient to show the "criterion enables to discriminate a prohibited act from other acts"? Article 3, sub-para.3 of the Ordinance prohibits the "act which may cause particular disturbance of traffic order" by a parade, but from here, no specific act as limitation can be seen. Therefore, it cannot be regarded as "criterion enables to discriminate prohibited act from other act", either. It is true that, as mentioned by the majority opinion, "walking in a weaving fashion, parading in a circle, performing a sit-down and a French demonstration that is carried out by occupying the road entirely" can be understood that they are typical of "acts which may cause particular disturbance of traffic order." Such kind of typical acts can be "easily regarded as" the act prohibited by Article 3, sub-para.3 of the Ordinance because they are typical. This understanding can be gained by a person with ordinary judgment from the wording of the stipulation within the scope of common sense. However, with respect to an act, which is not typical of a parade, but an act that may cause to exceed the orderly form of parade, it is doubtful to what extent of such an act can be regarded as the "act which may cause particular disturbance of a traffic order", and it also remains doubtful in deciding definitely that "it is not difficult to decide as usual." I think it is a different case from the one where prohibited acts are exemplified, by which a criterion is shown on which prohibited acts are only the said examples and the acts nearly equal the examples. 4. From all of the above, I think that there are some doubts in the general idea, which claims that from Article 3, sub-para.3 of the Ordinance, the criterion of obeying road traffic order in a case of a parade can be seen, therefore, it does not lack the definiteness as content of elements of an offence. However, because of the following reasoning, I am in accordance with the result of the judgment, which has quashed the original instance. As already mentioned, there are no doubts of understanding that, in the scope of commonsense of a person with ordinary judgment, the act of walking in a weaving fashion of the case is regarded as the act to be prohibited by Article 3, sub-para.3 of the Ordinance as a typical violation of traffic order. Therefore, even if applying Article 3(iii) and Article 5 of the ordinance to the case, it does not necessarily cause the violation of the right of the accused that is guaranteed by Article 31 of the Constitution. First of all, the decision of constitutionality of legislation is carried out with the exercise of judicial power. Therefore, it is reasonable to restrict the scope that is necessary for the application of the said regulations to a specific fact at the time of trial, and it should be restricted to the extent. In this case in particular, there are no reasons for making a decision by arguing the existence of clarity of the said stipulations as penal provisions concerning the whole scope of application including other cases, which beyond the application of the concrete fact. However, in a case where the act covered by the penal laws concerns the expression of thought or the use of means of expression that is inseparable from the expression of thought, and the existence of regulations may inhibit the acts which should be conducted without any restraint, or it may cause a irreparable loss of the freedom, taking the significance of concern over its guarantee by the Constitution, it should be concluded that there is a constitutional rationality to which different attention should be given and requirements which are derived from the Constitution. However, the act to be regulated in the case is not the act of carrying out a parade as means of expression, but it is related to the form at the time of the parade, therefore, this case cannot be regarded as a case where a particular consideration should be given. 5. In summary, I am not in accordance with the majority opinion that has mentioned that Article 3, sub-para.3 of the Ordinance does not lack clarity as elements constituting the contents of elements of an offence. However, with respect to the facts of the case that can obviously be regarded as the elements of an offence as provided in Article 3, sub-para.3 and Article 5 of the Ordinance, from the above reasoning, the application of such regulations should not be avoided, in the end, the original judgment should be quashed. The public prosecutor, OISHI Hiroshi, KANBARA Daisuke, UMIJI Tatsunorii and ISHIHARA Kazuhiko were present at the trial.

Justice MURAKAMI Tomokazu Justice SEKINE Kogou Justice FUJIBAYASHI Masuzo Justice OKAHARA Masuo Justice SHIMODA Takezo Justice KISHI Seiichi Justice KISHIGAMI Yasuo Justice ERIGUCHI Kiyoo Justice OTSUKA Kiichiro Justice TAKATSUJI Masami Justice YOSHIDA Yutaka Justice DANDO Shigemitsu Justice OGAWA Nobuo retired from office and Justice SAKAMOTO Yoshikatsu was overseas on business, therefore, they could not sign and seal the judgment. Presiding Judge, Justice MURAKAMI Tomokazu