摘要
本文旨在考察清代前期，特別是自順治朝起至雍正朝為止，清 律「殺死姦夫」條的內容及其裁判實態。就立法面言，清律「殺死 姦夫」條的規定承襲明律，並受到明代末期律學者編纂的註釋書影 響，其後歷經順治三年及雍正三年的立法，律本文與條例的內容逐 步被建立。另外，值得注意的是雍正五年制定的「擬抵」條例，針 對夫只殺死犯姦妻的犯罪，重新調整夫與姦夫的罪責。就裁判面 言，本文聚焦於考察裁判官員如何審理各種不同類型的「殺死姦 夫」案件。根據裁判史料，可以發現此時期的裁判官員審判「殺死 姦夫」事案時，呈現一種不安定的現象，亦即裁判官員並不當然引 用「殺死姦夫」條的規定進行裁判。其原因可能在於既有規定不足 以應付各種類型的案件，且各條文間亦存在罪刑不平衡的問題所 致。藉由這些事案的分析，更可以看到清代裁判官員在個案中嘗試 調整罪刑不均衡的努力。
This paper attempts to explore the provisions concerning “Killing an Adulterer” by traditional Chinese law in early Qing Dynasty from 1644 to 1735. This paper will discuss the origin of these provisions and their evolution. This paper will analyze the criminal judicial cases about “Killing an Adulterer.” Through the elaboration, this paper suggests: (a) For legislation, the provisions concerning “Killing an Adulterer” of Qing Code can be attributed back to the influence of Ming Code and the commentaries on the law edited by law scholars in late Ming Dynasty. These provisions of Qing Code were established through the legislation in 1646 and 1725. Furthermore, It is notable that a new code means “ni di (擬 抵)” which was legislated in 1727. When a husband killed his wife who committed adultery, he and the adulterer’s crime and the guiltiness were readjusted under code “ni di”. (b) For judiciary, this paper tries to discuss how the judges handle those “Killing an Adulterer” cases. By reviewing these criminal judicial archives, this paper shows that the judges did not necessarily use the provisions concerning “Killing an Adulterer” to handle these cases during this period. The uncertainty behind these cases can be related to two reasons: Firstly, the existed provisions concerning “Killing an Adulterer” are not comprehensive enough for the judges to sentence all of the “Killing an Adulterer” cases. Secondly, the bureaucracy for judiciary and legislation in Qing Dynasty, which frequently balanced the crime and the guiltiness of cases about “adulterer murder”, and continuously managed to adjust the unbalanced situation caused by legislation or judiciary.
關鍵詞
清律、殺死姦夫、通姦、刑事裁判、註釋書
Qing Code, killing an adulterer, adultery, criminal judiciary, commentary