清代「家長奸家下人有夫之婦」例考論──滿、漢法律融合的一個例證

On the Sub-statute on 'Masters Engaging in Illicit Sex with Their Married Servant Women'

清代家長奸家下人有夫之婦」例源於滿族法，在康熙時期才應用於漢人。滿人設立此例的本意可能是限制主人對奴僕的人身權，而漢人社會則基於主僕名分強調家長與僕婦發生性關係是自甘墮落，應當予以懲罰。乾隆以後，清廷處理主婢之間性關係時更注重婦女貞節，逐步賦予僕婦反抗家主強姦的權利」。The sub-statute on 'Masters Engaging in Illicit Sex with Their Married Servant Women' actually originated from Manchu law and it was not applied to the Han people until the Kangxi reign. Manchus established this sub-statute probably in order to restrict the masters' 'right of the person' over their slaves. Jurists in han society, however, emphasized the status hierarchy and argued that masters who had engaged in sex with their married servant women debased themselves and therefore they should be punished. From the Qianlong period onward, when the Qing court handled illicit sex cases between masters and their female servants, it emphasized more and more on women's chastity and gradually granted the servant women the 'rights' against sexual assaults from their masters.