晚清上海陋俗治理中的司法困境与中西矛盾——以法租界内的台基案为例

Judicial Dilemma and Sino-foreign Divergence in Undesirable Customs Governance in Shanghai during the Late Qing Dynasty——Focused on the Cases of Taiji in French Concession

“台基”指男女赁屋宿奸之所,晚清时期曾在上海盛行一时,尤以法租界为甚,被视为地方陋俗的代表。上海道台、知县和租界会审公廨谳员严加禁止,报章也多有挞伐,皆收效甚微。究其原因,禁令和舆论皆从道德出发,指斥台基毁人名节,淡化其违法属性。加之奸罪取证困难,以致法官无法严格依据清律断案,仅以薄惩示儆。此外,中西法典对通奸罪的定性不同,法租界内华洋会审体制下法国陪审和巡捕房对华人案件的干预,使得会审公廨中方谳员难以肆意对台基案犯施以重刑。台基之风折射出上海陋俗治理中道德与法律的纠结,以及华洋当局在司法观念和城市管理上的差异。

“Taiji”(台基)refers to the place where men and women rent houses and commit adultery.It was prevalent in Shanghai in the late Qing Dynasty,especially in the French Concession,and was regarded as a representative of local undesirable customs.Taiji activities involving adultery violated the law and moral principles,so the Shanghai Daotai,magistrates and Chinese juges of mixed courts strictly prohibited them and local newspapers also had a lot of criticism,all with little effect.The reason is that both official prohibition and public opinion were based on morality and downplayed the illegal nature of Taiji activities.In addition,it was difficult to obtain evidence for the crime of adultery,so that judges could not examine cases strictly according to the Great Qing Code,only exercised a light punishment as a warning to others.What’s more,the Qing and Western codes had different definitions of adultery.The intervention of the French assessor and police in Chinese criminal cases makes it difficult for the Chinese magistrates to arbitrarily impose heavy penalties on the suspects in Taiji activities.The Taiji trend reflected the tangle of morality and law in Shanghai’s undesirable customs governance,as well as the differences in judicial concepts and urban management between the Chinese and Western authorities.