The Constitutional Review On The Restriction Of Obscene Speech

China has always adopted a highly banned attitude towards obscene speech.It causes a controversy of the violation of freedom of expression.Freedom of expression has always been an integral part of basic civil rights in law-based country,and has a very important value,the country should give maximum protection.But based on the characteristics of obscene speech,the country can restrict it.The protection and limitation of obscene speech has always been controversial,and it has gradually opened up with the development and changes of concept.The value of freedom of speech is to protect the self-expression of individual citizens,and any restrictions on speech should be based on this value and must not cross its boundaries.And it applies to restrictions on obscene speech.However,the current restrictions on obscene speech in various countries are often suspected of infringing on basic rights.Therefore,it is necessary to explore a boundary and improvement path that can meet the requirements of constitutional interpretation,so that the country’s restriction and protection of obscene speech can be protected by in balance with human rights.The motivation of restricting obscene speech in various countries today is not depend on its actual harm.There was no restriction on obscene speech in ancient Greece and Rome.The restriction on obscene speech is regulated by the canon law following the rise of Christianity in the Western countries and the doctrinal "evil" of sex.Afterwards,with the decline of religion and the division of social classes,the canon law’s control attitude and system for obscene speech expanded to the secular society and moved into the common law,and finally spread globally through the colonial expansion of the West,and continued to promote it through religious groups,constantly forming today’s restriction system.The legal restrictions on obscene speech in various countries(regions) mainly focus on the two aspects of criminal law and administrative law.The former imposes penalties on the content and methods of expressing that do not conform to the criminal law,while the latter requires the expressors to grade the content,otherwise it shall be punished by administrative penalties.Among them,there are many unconstitutional doubts about criminal law methods.Therefore,this article focuses on the normative analysis of the constitutional interpretation of the crime of dissemination of indecent articles in Article235 of Taiwan’s current criminal law,and believes that: Firstly,the term "indecent" does not meet the requirements of the principle of clarity.Secondly,the crime takes the "sexual value common to the majority of society" as its legal benefit,and protects an empty and uncertain value with the criminal law,which is hardly constitutional in terms of purpose.Thirdly,even if the protection of children’s physical and mental health,the protection of sexual autonomy,and the prevention of sexual crimes are legal benefits according to academic principles or legislation of other countries(regions),since there is insufficient evidence to prove that indecent speech is actually harmful to the above legal benefits,penal measures are difficult to pass Test of the principle of proportionality.Fourthly,Taiwan’s Judicial Yuan Interpretation No.617’s constitutional interpretation may not only go beyond the constitutional and political divisions,but also infringe the equality rights of the "minority cultural ethnic group",resulting in this ethnic group being in a secondary position in the protection system of obscene speech.China has an absolute prohibition of obscene speech.Based on various techniques for constitutional review of legal restrictions,this article proposes improvements to the crime of disseminating indecent articles: Firstly,it should be decriminalized or lightly sentenced,which is actually harmful behavior that accompanies the ideology of indecent speech.Return to the corresponding provisions of the Criminal Law.The second is to establish and improve a grading system,pay attention to the self-discipline grading of the industry,and take into account the right to receive children’s information.The third is to establish a civil tort damage compensation system for obscene speech that forms "dominance".The fourth is to take higher standards of judicial review.The fifth is one of the most fundamental paths,namely perfecting sex education and gender education.