晚清民国禁革人口买卖再探

Revisiting the Ban on Human Trafficking in the Late Qing Dynasty and Republic of China

传统中国,历代统治者为了巩固专制政体,总是把社会成员按其不同阶级、身份、地位、职业,分为不同等级,赋予不同的法律地位,这明显是一种身份等差的社会秩序。汉以后的法律,尤其从《唐律》到《大清律例》,奴婢均被列为"贱民"。而所谓的"贱民",名称并不一致,唐代主要包括部曲、客女、乐人、杂户、官户、奴婢等;清代则以士、农、工、商四民为良,奴婢及娼优、隶卒为贱。历朝各代对于略卖及诱卖良人为奴婢均有禁条,但"奴婢买卖"却是法之所许,奴婢在法律上是属于所谓"半人半物"的性质。这种规范的背后制度为何?思想理据何在?降及清末,为什么一反过去,有了新局面出现?吊诡的是,到了21世纪的今天,打开台湾地区现行"刑法"第296条及第296条之一,赫然还有"使人为奴隶"及"买卖质押人口"的两种犯罪类型,何以致之?这攸关百年来晚清民国的"自由、平等、尊严"的人权发展历程,很值得仔细考察。法制历史的迷人处,在变与不变之间。何以奴婢等人口买卖现象在中国历久不衰?到了晚清民国,又何以突然生变?探讨历史事件不仅在于厘清当时的历史事实是什么,还要追问为什么历史的现象会是如此,甚至要再进一步联结历史的过去、现在与未来,探讨其中意义之所在。

In order to consolidate their authoritarian regimes, the rulers of different Chinese dynasties always divided social members into different categories according to their classes, identities, statuses, occupations, and gave them different legal statuses. This was obviously a kind of social order based on class differentials. In the laws after the Han Dynasty (especially those ranging from The Tang Code to The Great Qing Code), handmaidens were listed as 'untouchables', but the humiliating titles referring to the underprivileged group varied in different times. In the Tang Dynasty, the 'untouchables' mainly included those from the classes identified as buqu, kenü, yueren, zahu, guanhu and nubi, while in the Qing Dynasty, intellectuals, peasants, craftsmen and businessmen were regarded as good, but servants, prostitutes, showbiz people and government servants as untouchables. Every dynasty banned buying or selling good people as handmaiden by force or temptation, but allowed buying or selling handmaidens who were legally considered a special type of property. What was the rationale behind this? In the Late Qing Dynasty, why was there new developments? Paradoxically, even in the 21st century today, Taiwan's 'current criminal law' still specifies two types of crime called 'making people as slaves' and 'buying, selling or pledging human beings'. What leads to this specification? This is related to the development of human rights over the past one hundred years initiated from the Late Qing Dynasty and the early years of the Republic of China, which is worthy of careful investigation. The charm of legal history research comes right from the interaction between what is constant and what is variable. Why is handmaiden trafficking a timeless issue in China? In the period of Late Qing Dynasty and the early years of the Republic of China, why was there a sudden change? The research on historical events is not only to clarify the historical facts, but also to ask why they are what they used to be. Furthermore, it is necessary to explore the significance behind the historical facts by bridging the past, the present and the future.