秦汉律简“同居”考论

A Research on the "Cohabitation" Based on Qin and Han Bamboo Scripts

同居,作为秦汉法律术语,曾在20世纪《睡虎地秦墓竹简》公布后引发学界讨论。但材料的局限使讨论不能深入进行,且结论有失偏颇。现今随着张家山汉简、三国吴简、里耶秦简的相继出土,关于这个问题可以作进一步探讨。从同居的涵义和范围、同居的法律效力等来看,秦汉律中"同居"有两层涵义,一层是同居数,一层为同居不同数。同居法适用于妻子儿女、父母同产、伯叔堂兄弟、妻系母系等亲属,以及奴婢、客、隶等非亲属。同居的"共财"特征,使其法律效力与财产和继承直接相关。

The term of ＂cohabitation＂, as a legalese of cussion after the announcement of ＂The Qin Tomb Bamboo discussion failed to go thoroughly due to the limitation of Nowadays,the unearthing of the Han bamboo slips in the Qin and Han Dynasties,led to an academic dis- Slips in Shuihudi＂ in the 20th century. However, the materials,which contributed to biased conclusions. Zhangjiashan,the Wu bamboo slips in the Three Kingdoms and the Qin bamboo slips in Liye provide further discussion for this issue. Based on cohabitation＇s meaning,the scope of definition and the legal effect,this paper holds that cohabitation has two approaches in the Qin and Han law： same-household-registered cohabitation ; different-households-registered cohabitation. The law of cohabita- tion could be applied not only to relatives,such as wives and children,parents with properties,uncles and cousins, and maternal relatives, but also to non-relatives, such as slaves and guests. The ＂property in common＂ of cohabitation had its legal effect directly related to property and inheritance.