清代夫权的法定与恣意——基于《大清律例》与刑科档案的考察

On Legality and Autarchy of the Husband’s Rights in Qing Dynasty ——Research on the Laws of Qing Dynasty and Criminal Division Files

理学是清代统治阶级所尊奉的正统学说,夫权具有深厚的生存土壤。从《大清律例》与刑科档案考察,清代的夫权主要包括夫可自由处分家产而不受限制的财产权;夫肆意詈骂妻而不被处罚、殴妻轻罚与不罚及过失杀妻勿论的教令权;妻犯七出时的休妻权;妻背夫逃亡或者犯奸时的嫁卖权;妻殴骂夫之直系尊亲属或犯奸时,杀死该有罪之妻的选择权等。清律法定的夫权至上,导致现实生活中夫权被恣意发挥,这也是清代夫犯妻案件多发的主要原因。

In Qing Dynasty, the Neo-Confucianism became the orthodox doctrine which had enriched the primacy of the husband’s rights. Based on the Laws of Qing Dynasty and criminal division files, the husband was endowed such rights as to dispose family property without restriction; to scold the wife free from punishment; the disciplinary right to wife battering with lenient or no punishment in case of negligent killing; to repudiate the wife under seven causes; to sell the wife on her escaping or adultery; to kill the wife who scolded or hit the elder relatives of the husband or committed adultery. The above listed legitimate rights led to the husband’s abuse exercise of those rights in reality accounting for the frequently occurred cases of the husband encroaching upon the wife in Qing Dynasty.