清代“家长奸家下人有夫之妇”例考论--满、汉法律融合的一个例证

On the Sub-statute on "Masters Engaging in Illicit Sex with Their Married Servant Women"

清代"家长奸家下人有夫之妇"例源于满族法,在康熙时期才应用于汉人。满人设立此例的本意可能是限制主人对奴仆的人身权,而汉人社会则基于主仆名分强调家长与仆妇发生性关系是自甘堕落,应当予以惩罚。乾隆以后,清廷处理主婢之间性关系时更注重妇女贞节,逐步赋予仆妇反抗家主强奸的"权利"。

The sub-statute on ' Masters Engaging in Illicit Sex with Their Married Servant Women' actually originated from Manchu law and it was not applied to the Han people until the Kangxi reign.Manchus established this sub-statute probably in order to restrict the masters' 'right of the person' over their slaves.Jurists in Han society,however,emphasized the status hierarchy and argued that masters who had engaged in sex with dieir married servant women debased themselves and therefore they should be punished.From the Qianlong period onward,when the Qing court handled illicit sex cases between masters and their female servants,it emphasized more and more on women's chastity and gradually granted the servant women the 'rights' against sexual assaults from their masters.