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HOLDING
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For
the purpose of implementing the rule of certain laws, an
agency may issue interpretive rulings, so as to provide a
necessary basis for future action by the same agency or its
subordinate agencies. The letter ruling at issue, (81)
Chiang-Ban-Tze-02275 (February 10, 1992) is considered
constitutional, as it exemplifies a reading of the
prohibitive provision of Article 32, Subparagraph 3, of the
Publication Act in the context of determining whether a
publication would, in its content, be considered in
contravention of Article 235 of the Criminal Code which
prescribes the offenses of obscenity. The letter ruling
containing specific requirements for discerning obscene
materials, including the requirement of whether or not they
appeal to prurient interests, does not simply apply to nor
thereby outlaw all written or pictorial publications under
challenge; it therefore conforms to the referenced purpose
of the Publication Act and is not in conflict with the
Constitution. Obscene publications are those publications
that, by objective standards, can stimulate or satisfy a
prurient interest, generate among common people a feeling of
shame or distaste, thereby offending their sense of
morality, and undermine societal cultural ethics. To
distinguish obscene publications from legitimate art,
medical or educational publications, one must examine the
features and aims of the publications at issue as a whole,
and adapt them to the contemporary common values of society.
In addition, cultural ethics often vary subject to social
development and changing customs. Any rulings of the agency
in- charge must be flexible rather than rigid, and should be
improved and adjusted from time to time, in light of both
the true intent of the Constitution to safeguard freedom of
speech and press, and the government's interest in
maintaining a moral social fabric and the welfare of
children and youth. As to determining whether in any
individual cases the definition of obscenity has been met,
it goes without saying that the judge shall make his
decision in light of concrete factual situations, pursuant
to his independent judgment, in both fact-finding and law
application, without being bound by the interpretive ruling
of the executive branch.
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REASONING
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That
the judges shall, in accordance with law, try cases
independently is set forth in Article 80 of the
Constitution. The judges, when trying cases, are not bound
by interpretive rulings of law made by various
administrative agencies based upon their respective
authorities. However, if a judge applies a ruling to a case,
the parties to the case may in turn petition for this Yuan's
interpretation pursuant to Article 5, Paragraph 1, Sub
aragraph 2, of the Constitutional Interpretation Procedure
Act. The final and binding judgment in the case at issue
relies on the letter ruling of the Government Information
Office, Executive Yuan, (81) Chiang-Ban-Tze- 02275, as the
basis for its fact-finding. The applicant specifically
challenges the letter as being constitutionally
questionable, and as stated above, we shall take the case
for review. Freedom
of the press is one of the foundations of constitutional
democracy. Publications are an important medium in which
people can express their thoughts in writing, through which
public opinion may be reflected, democracy strengthened, and
cultural, moral, economic development nurtured, and for
these reasons, are protected by Article 11 of the
Constitution. However, given the vast and deep influence
upon society that widely disseminated publications may bring
about, anyone who enjoys the freedom of press must be
self-disciplined, undertake the associated social
responsibility and refrain from abusing his freedom.
Therefore, anyone whose publications lower moral values
and customs, jeopardize social harmony and public order may
be subject to legal sanctions imposed by the state. What
laws may prescribe are often abstract norms. For the purpose
of implementing the rule of certain laws, an agency may
issue interpretive rulings, so as to provide a necessary
basis for future action by the same agency or its
subordinate agencies. The standard for judging whether a
publication constitutes a crime of obscenity by instigating
obscene conduct may vary because of differences in customs
and ethics in various nations, but one thing in common among
different nations is the governmental regulation of obscene
publications. Obscene publications are those publications
that, by objective standards, can stimulate or satisfy a
prurient interest, generate among common people a feeling of
shame or distaste, thereby offending their sense of sexual
morality, and undermining societal cultural ethics. To
distinguish obscene publications from legitimate art,
medical or educational publications, one must examine the
features and aims of the publications at issue as a whole,
and adapt them to the contemporary common values of society.
The Government Information Office of the Executive Yuan,
under Article 7 of the Publication Act, is the agency in the
Central Government in charge of implementing the said Act.
Having considered the social environment and customs of this
nation, its issuance of the letter ruling at issue, (81)
Chiang-Ban-Tze-02275 ( February 10, 1992), stating that
whether a publication in its content contravenes, or
instigates others to contravene, the obscenity offenses
prescribed in Article 32, Subparagraph 3, of the Publication
Act, is to be judged according to the following criteria: 1)
if its content appeals to prurient interests; 2) if the
emphasis is on sexual, prurient conduct; 3) if pictures of
the human body intentionally reveal breasts, buttocks, or
genitals, not for the purpose of academic studies or art
exhibitions; 4) if it is a publication containing pictures
of naked females, making sexually suggestive gestures, while
not revealing breasts, buttocks or genitals; 5) if it
overtly depicts sexual behavior while relating to medical,
hygienic, or health matters; is considered constitutional,
as it exemplifies a reading of the prohibitive provision of
Article 32, Subparagraph 3, of the Publication Act in the
context of determining whether a publication would, in its
content, be considered in contravention of Article 235 of
the Criminal Code prescribing the offenses of obscenity, and
therefore subject to the
rulings set forth in Articles 37, 39, Paragraph 1,
Subparagraphs 3 and 40, and Paragraph 1, Subparagraph 4, of
the same Act. The letter ruling containing specific
requirements for discerning obscene materials, including the
requirements of whether or not they appeal to prurient
interests with emphasis on prurient conduct, are
intentionally revealing or overtly suggestive, etc., does
not simply apply to nor thereby outlaw all written or
pictorial publications under challenge. It helps establish
the criteria for judging offenses of obscenity under Article
32 of the Publication Act and Criminal Code, by the agencies
of local government, but does not create more restrictions
than what the said Act has prescribed over people's freedom
of publication. It therefore does not conflict with the
Constitution. In addition, cultural ethics often vary
subject to societal development and changing customs. Any
rulings of the agency in-charge must be flexible rather than
rigid, and should be improved and adjusted from time to
time, in light of both the true intent of the Constitution
to safeguard freedom of speech and press, and the
government's interest in maintaining a social moral fabric
and the welfare of children and youth. Administrative
offenses and criminal offenses contain different constituent
elements. Criminal adjudication and administrative
adjudication must function differently in terms of
fact-finding. To determine whether in any individual cases a
certain pictorial or written publication has met the legal
definition of obscenity, the judge shall make his decision
in light of concrete factual situations, pursuant to his
independent judgment, in both fact-finding and law
application, without being bound by the interpretive ruling
of the executive branch. It is to be noted here that this
interpretation is made upon the referenced ruling of the
Government Information Office of the Executive Yuan only,
and is not dispositive on any other issues about the
Publication Act.
* Translated by Nigel N.T. Li.
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