摘要
父母服闋後，未婚女兒與兄弟分產可分得多少？她有沒有財產繼承權？根據宋初法典《宋刑統》「分異財產」的戶令，她可以得到兄弟「聘財」的一半（聘財法），但根據南宋中葉案例彙編《名公書判清明集》的判決，她可以得到兄弟「承分」（繼承份額）的一半（男2女1法）。學人爭論了50多年而尚無定論，甚至懷疑《清明集》的判決是誤用法條。
本文指出，聘財法與男2女1法是同時並行的，各自適用於不同的場合。聘財法是適用於分產前已有聘財或嫁妝的先例的場合，而男2女1法適用於分產前未有聘財或嫁妝的先例的場合，兩者既不衝突，也不能互相取代。兩法同時適用，表示未婚女兒並沒有因為男2女1法的實施而取得財產繼承權違反了家族法原理；她的所得，在性質上仍一如聘財法，只是嫁資。男承分只是用來計算她的所得，並不表示她的所得就是跟男承分一樣的繼承權。
本文又說明男2女1法何以在南宋中葉出現，和嫁資何以從聘財的一半大幅增加為男承分的一半。各種因素包括厚嫁風氣的盛行、政府對私財的承認、江南女子的獨立自主和對家庭經濟的貢獻、父母生分的分產機制在南宋中葉被嚴格限制、《宋刑統》聘財法的漏洞及人倫或人情的不可靠等。此外，男2女1的比例不但出現在兄弟姐妹的分產，還出現在代位繼承的子女承父分。
佔絕對優勢的男性立法者和司法者為何如此寬待女性？本文認為，他們對法律公正性的尊重和維護，超過了他們對身分貴賤的重視和對男女性別的歧視。當事人的家庭身分和社會地位可以相當懸殊，但法律地位卻是應該盡量維持平等的。
What share an unmarried daughter could get vis-a-vis her brother when they divided the family property after mourning their deceased parents for 27 months? Did she have inheritance rights? A statute on households（hu-ling） regarding "property division" in the Penal Code of the early Northern Sung stipulated that she get half of her brother's betrothal gifts（the betrothal-gift rule）, but some judicial decisions collected in a mid-Southern Sung case book, Enlightened Judgments of Famous Officials, gave her half of her brother's inheritable share（the half-share rule）. How to explain this discrepancy and its legal and social significance? No conclusion has been reached over 50 years of debates, while doubts arose that the Famous Officials might have misapplied the rules.
This essay argues that the betrothal-gift rule and the half-share rule were applicable at the same time but to different situations. The betrothal-gift rule was applied to cases where a precedent of a betrothal-gift or dowry existed before the division of family property, while the half-share rule was applied when there was no such precedent. Mutually they were neither contradictory nor replaceable. Their coexistence implies that the share an unmarried daughter got under the half-share rule was the same in nature to the share she got under the betrothal-gift rule: both shares were dowry instead of inheritance. Her brother's inheritance was only used as a marker to calculate her share, not to bring upon her any inheritance right as a coparcener. The half-share rule did not violate the traditional patrilineal principles which only permitted men to inherit the family line and property.
This essay also tries to explain why the half-share rule emerged in the mid-Southern Sung, and why the dowry increased tremendously from half a son's betrothal gift to half of his inheritance. Reasons included the prevalence of large dowry, the government's approval of private property within a family that upheld "communal living and common property"（t'ung-chu kung-ts'ai）, the independence of women in south China and their contribution to family finance, the restrictions on the parental rights to divide family property in the mid-Southern Sung, the loopholes in the betrothal-gift rule, and the unreliability of human nature and kinship. The half-share principle also entitled a daughter to half of her deceased and heirless father's share when the family property was divided among him and his living brothers.
Why was it that the preponderant male law-makers and adjudicators were so lenient towards women? This essay suggests that it was due to their respect and defense of legal justice that outweighed their sexual and class discriminations. The plaintiff and the defendant ought to be held equal before the law, regardless of their differences in gender, family status, and social standing.
關鍵詞
未婚女、嫁資、承分、家族法原理