因奸杀夫案中妻的消极法律保护传统

Wife's Negative Legal Protective Tradition in Cases of Killing the Husband by Adultery

中国传统法特点之一是维护儒家的纲常伦理,强调"夫为妻纲",要求妻子对丈夫的忠贞,夫有权当场杀死奸夫奸妇而不被追究刑事责任。如果妻子存在奸情又因此杀死丈夫则是罪上加罪,将面临法律最严厉的惩罚,重至凌迟处死。但是,清代延至民初的司法实践案例则表明即使在因奸杀夫这类案件中亦会考虑具体情状对妻子予以减免,体现出同情保护妻子的一面,保证在合理张力内隐性的平衡个案公平。相较于明显的维护夫权的积极的法律保护传统,我们可以将其视为一种消极法律保护传统。最重要的是司法实践中的案例相较于僵化的法律文本语言,更能够体现出妻子在相关案件中的法律主体地位,而不是被无视的一方。

One of the characteristics of Chinese traditional law is to safeguard the Confucian ethical code, stressing ＂the husband guides wife＂ which asks the wife should be loyal to the husband, and the husband has the right to kill adulterer and adulteress on the spot without being investigated for criminal responsibility. If a wife killed her husband by adultery, the wife should face the harshest punishment by law even being slicing executed. But from Qing Dynasty to the early Republic of China, cases of judicial practices show that even in this kind of case punishment also can be reduced or exempted in accordance with the specific circumstances to the wife, manifesting the sympathy to protect the wife within a reasonable tension balance. Compared with the positive protection of the husband＇s rights, we can with the rigid legal text language, the cases in judicial regard it as negative legal protective tradition. Compared practice can reflect the legal status of wife in the related cases, rather than being ignored.