倫紀與是非──清朝存留養親適用條件的演變

Ethics and Right and Wrong: Qing Dynasty Development of System of Exoneration of Only Child Crime Because of Adoptive Parent

從唐至明，各朝關於獨子犯罪存留養親制度的條文均較為粗糙，亦不經常實踐，遂多淪為具文。直至清代，基於相當豐富的司法實踐，存留養親呈現出制度化和規範化的嶄新面目。清代統治者積極吸收儒家親倫觀念，從法外施仁的恤刑觀念出發，對獨子案犯適用的「老親」、「孀婦」、「單丁」家庭類別作了詳細描述與擴充。同時依據儒家「父其父，子其子」的對等倫理觀念，結合司法實踐中的「一家人共犯」、親子分居、子孫違反教令和再犯問題等複雜現實，康雍乾時期統治者逐步在「倫紀」中考慮「是非」問題，為存留養親適用條件進一步做出了相當客觀而嚴謹的規範。

In the Qing Dynasty, there was a great development of the system of exoneration of only child crime because of adoptive parent (duzi fanzui cunliuyangqin獨子犯罪存留養親), which was ignored by the academic circle. Before the Qing Dynasty, the provisions on the system of exoneration of only child crime because of Adoptive parent in each dynasty were relatively simple and rough, and were not often put into practice, so they were often reduced to a mere formality.In the Qing Dynasty, the rulers actively absorbed the Han Confucian concept of kinship, and from the concept of compassionate punishment outside the law, they described in detail and expanded the categories of“elderly relatives,”(laoqin老親),“widows,”(shuang fu孀婦) and“single children”(danding單丁) families applicable to one-child offenders. At the same time, according to the Confucian equivalent ethical concept of“father is father, son is son,”combined with the complex reality of“the whole family accomplice”(yijiaren gongfan一家人共犯), parent-child separation, violation parents’orders by Ldescendants (zisun weifan jiaoling子孫違反教令) and recidivism (zaifan再犯) in judicial practice, the rulers in the period of Kangxi-Yongzheng-Qianlong gradually considered the right and wrong issues in the ethics, and made quite sincere regulations on the applicable conditions of the provisions of exoneration of only child crime because of a doptive parent.