明清“典律—例”法律形式和法律体系形成及意义——兼论中华法系后期的特质

法律形式的分类和法律体系的构成问题是中国古代法律史研究中的核心问题,是准确把握中华法系本质特征的基础。明清时期法律形式和法律体系是前两个时期演进下的一种混和产物。明清时期法律形式由会典和律典构成,其中,典是设范立制,律是正刑定罪,是西晋确立的令律分类原则的延续。明清时期法律体系是“典律—例”体系,具体由“会典—则例”与“律典—条例”两种次体系组成。这种法律体系是秦汉时期律令法律体系的产物,是基于法律效力等级和制定程序的分类结果。明清“典律—例”法律体系的理论基础是经学义理化下“经—传”理论。中国古代帝制时期法律形式和法律体系的分类和结构是一种实践理性下的自然演进产物,体现出中华法系在世界法律样式中的独有特质。

Homicide, Same-Sex Rape, and the Pursuit of Justice in Early 19th Century China

This paper examines early nineteenth century legal cases in which Qing jurists had to determine a just way to punish a male offender who had murdered a man in order to defend himself against rape. Earlier, in the eighteenth century, jurists judging such cases exhibited considerable skepticism that same-sex rape had occurred. They regarded the claim of rape as an excuse offered by the murderer, demanded an extraordinary measure of proof that there had been a rape, and pun- ished the murderers harshly. But over time, as illustrated in model cases gathered together in the Xing＇an huilan ~lj~ or Conspectus of Punishment Cases, various officials pursuing their judicial responsibilities came to acknowledge a broader range of possible circumstances in which same-sex rape might have occurred and hence showed greater leniency to males who claimed to have tour- dered because they had been raped or judicial practice came to a climax in 1825 threatened with rape. This evolution in when the Court of Revision petitioned the Emperor to approve even greater leniency but the Board of Punishments refuted the argument.