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| Title: | 晚清繼受外國法中無夫姦存廢的世紀之爭 |
| Other Titles: | To Maintain or not to Maintain?—A Study on the Controversy overthe Abrogation of the Statute on Fornication During the LegalReception Period in the Late-Qing Dynasty |
| Authors: | 黃源盛
Huang, Yuan-Sheng |
| Date: | 2006-06 |
| Issue Date: | 2008-12-12 14:26:41 (UTC+8) |
| Abstract: | 食色，性也。對於男女間無夫妻關係而私通野合（Fornication）的行為，究竟該齊之以刑？還是要導之以禮？於帝制中國法時期較少爭議。時至晚清，在繼受外國法的過程中，由於內在與外鑠的雙重因緣，禮與刑的意識形態與社會秩序該如何聯結？禮教派與法理派雙方展開激烈而深刻的爭議，可以說，這是中國法制史上一段相當罕見的世紀禮法論戰。
本文，以傳統中國刑律「姦非罪」的法律規範面及其法理根據面為緣起；接著，置重心在重現清末變法修律期的刑事立法活動，禮法兩派人士對無夫姦存廢的辯難，以明其社會變遷中價值觀與規範抉擇的困惑；次而論列西潮衝擊下禮制與法律的纏結與走向；最後，從廢除無夫姦到當今通姦罪可能除罪化話百年滄桑，並做出結語。
According to the ancient Chinese, “the appetite for food and sex is part of human nature.” Fornication, stemming from sexual impulses, was nevertheless regarded as one of the illicit intercourses that needed to be rectified in society. within addressing people’s misconducts, “is it better to regulate them by criminal penalties, or to restrain them by the rules of decorum?” It was a question that aroused controversy between the Confucianists and the Legalists in the pre-Zhin era. By means of judgments, and even more, by legislation based on the principles of decorum, the controversy was harmoniously resolved during the Han dynasty. From the Tang dynasty onward, parties convicted of fornication were sentenced to criminal penalties as clearly regulated in the penal code. It remained in effect until the emergence of the western powers which wielded a formidableinfluence onthe old empire at the end of the Qing dynasty. A new policy was made that led to a full revision of the traditional legal system, which led to the reception of western-styled-law. But, as the reform took place by leaps and bounds, it brought with it numerous complications, among which was the rivival of the ancient controversy between the Confucianists and the Legalists. Concerning the issue of fornication, both paraties engaged in fierce debates, one of which revolved around the maintenance vs. the abolishment of such a statute. It was the most compelling argumentation in Chinese legal history.
In this article, the writer firstly attempts to interpret the meanings and nature of the crimes of illicit sexual intercourses prescribed in the traditional Chinese penal codes. It will examine the correlation of the norms and how the legal reasoning proceeded. Following will bean inquiry into the precise nature of legal revision, especially in regard to whether the statute about fornication had to be maintained or deleted; thus, the concerns and doubts on social values and on moral choices in the changing society of the late Qing dynasty could be distinctly comprehended. Secondly, an attempt will be made to explore how the mutual effects of the legal system and the rules of decorum worked under the then powerful western impact. Concluding remarks on the centuries-old history will focus on the vicissitudes from the abrogation of the statute about fornication to the possible decriminalization of the crime |
| Relation: | 政大法學評論,91,35-98 |
| Data Type: | article |
| Appears in Collections: | [法律學系] 期刊論文
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