法學期刊
論著名稱: 西法東漸中無夫姦存廢之爭(To maintain or not to maintain?- A study on the Controversy over the Abrogation of the Statute on Fornication During the Legal Reception Period in the Late-Qing Dynasty)
編著譯者: 黃源盛
出版日期: 2006.06
刊登出處: 台灣/政大法學評論第 91 期 /35-98 頁
頁  數: 36 點閱次數: 1388
下載點數: 144 點 銷售明細: 權利金查詢 變更售價
授 權 者: 黃源盛
關 鍵 詞: 禮法之爭無夫姦通姦罪姦非罪大清新刑律繼受法
中文摘要: 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為緣起;接著,置重心於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。
英文關鍵詞: The Li v. Fa controversyFornicationAdulteryIllicit Sexual Intercoursethe New Criminal Code of the Great QingReceptional Law
英文摘要: The ancient Chinese said, “the appetite for food and sex is part of humane nature.” Fornication, which resulted from the sexual impulse, was nevertheless regarded as one of the illicit intercourses that needed to be rectified in the society. For coping with 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 controverted between the confucianists and the legalists in the pre-Zhin era. By means of judgments, and even more, of legislation according to the principles of decorum, the fire ceased during the Han dynasty concordantly. From the Tang dynasty onward, parties concerned with fornication must be sentenced to criminal penalties as clearly regulated in the penal code. It was until the western powers emerged and charged a formidable oppression to the old empire in the later days of the Qing dynasty that a new policy was made to have a full revision on the traditional legal system; and it directed to the reception of the western-styled-law. But, as the reform took place by leaps and bounds, it brought about numerous complicated problems; therefore, the ancient controversy between the confucianists and the legalists was almost revived. As on the issue of fornication, fierce debates were engaged between both of the parties; of which, one insisted on the maintenance of such a statute, the other one on the abolishment of it. It was the most attractive argumentation in the Chinese legal history.
In this article, the writer is firstly to interpret the meanings and contains of the crimes of illicit sexual intercourses prescribed in the traditional Chinese penal codes; that is to examine what the norms been correlated and how the legal reasoning been proceeded; thereafter, to inquire about the exact activities of legal revision, especially on whether the statute about fornication had to be maintained or to be deleted; thus, the worries and doubts on social values and on normal options in the changing society of the late Qing dynasty could be distinctly comprehended. Secondly, to explore how the mutual effect between the legal system and the rules of decorum worked under the then powerful western impact. Finally, to make a conclusion on the hundred-years-old history, which include the vicissitude from the abrogation of the statute about fornication to the possible decriminalization of the crime of adultery.
目  次: 壹、序說
貳、傳統中國刑律中「姦非罪」的規範與法理
一、《唐律》中的姦非罪
二、《大清律例》中的和姦罪
三、唐清律中處罰「姦非罪」的理論基礎及其表徵
參、晚清變法修律中「姦非罪」的立法轉向與爭議
一、《大清新刑律》對姦非罪的規範轉型
二、禮法兩派對無夫姦存廢的辯難
三、社會變遷中價值重建與規範抉擇的困惑
肆、西潮衝擊下禮制與法律的纏結與走向
一、倫理道德與法律秩序的分合界限
二、自由主義與個人主義思潮下的情慾與禮法
三、法益保護思想與社會價值觀念的轉變
伍、從無夫姦到通姦罪除罪化的百年滄桑
一、晚清禮法之爭平議
二、民國初期無夫姦罪的來去徘徊
陸、結語
相關法條:
相關判解:
相關函釋:
    相關論著:
      返回功能列