明代婦女買賣案件中的法律推理

Legal Reasoning in Wife-Selling Cases during the Ming Period

法律中明令為犯罪的「婦女買賣」行為，審判之中通常買賣雙方都必須要負擔刑責，並且取消交易。但是到了明末的律學註釋出現了「因貧賣妻」的說法，不僅不按照原本的法律規範給予買賣雙方相應的刑責，甚至是採取承認交易的作法。本文透過明代社會的法律知識環境、審判者的法律推理、婦女買賣案件中的法律推理等方面，推究此一註釋出現的社會因素與審判者的態度。分析判牘所記載的婦女買賣案件及審判者的判決後可以發現，除了透過依法審判以強烈打壓婦女買賣行為之外，也有部分情況是透過彈性的判決以解決因為婦女買賣行為所衍生的犯罪問題，但其背後的原因還是為了穩定社會秩序，並減少訴訟的問題。相對的，明代社會營造出一個可透過數種途徑獲取法律知識的環境，民眾很有可能至少擁有粗識法律的程度。或許「因貧賣妻」註的立意良好，意在解決賣妻者困苦的經濟，但其後受到「奸民」的利用，因此成為奸民用以「脅迫」審判者承認其買賣行為的手段。 This article analyzes judges’ legal reasoning in their adjudication of wife-selling cases in the late Ming. According to the Legal Code, wife-selling was illegal. However, the phrase “wife-selling due to poverty” (yin pin mai qi 因貧賣妻) appeared with growing frequency in late Ming case books, indicating that judges not only refrained from punishing wife-sellers, but also adopted a permissive attitude toward the phenomenon. Indeed, according to this analysis of cases, it is clear that judges turned a blind eye when it came to wife-selling, except in cases involving violent crimes. This flexible attitude actually maintained societal order and decreased the number of lawsuits brought to court.

This article analyzes judges’ legal reasoning in their adjudication of wife-selling cases in the late Ming. According to the Legal Code, wife-selling was illegal. However, the phrase “wife-selling due to poverty” (yin pin mai qi 因貧賣妻) appeared with growing frequency in late Ming case books, indicating that judges not only refrained from punishing wife-sellers, but also adopted a permissive attitude toward the phenomenon. Indeed, according to this analysis of cases, it is clear that judges turned a blind eye when it came to wife-selling, except in cases involving violent crimes. This flexible attitude actually maintained societal order and decreased the number of lawsuits brought to court.