秦漢律令中的婚姻與奸

本文自張家山漢簡中一個自稱娶妻、卻遭以奸論處的案例出發，思索婚姻與奸的關係，探究律令中關於婚姻成立、解消與奸的規範。在婚姻成立方面，收集整理婚姻成立的實質要件，包含當事人結婚權利、結婚意願與雙方關係限制等，並據司法案例推論，當時判斷婚姻存在與否不僅依據戶籍登錄，亦考量社會認知。另亦分析妻、妾、婢三種配偶型態的差異，指出其區別未若後世明顯。在婚姻解消方面，先論證女性刑徒無婚姻權，成為形刑徒則婚姻自然解消，再嘗試為七出、義絕等後世離婚要件尋找淵源。在夫妻相告、夫妻相害、丈夫犯奸等狀況下，夫妻間無須連坐，婚姻關係已實質解消。妻可告夫，以及夫害妻、夫犯奸時妻子獲得保障，特別值得注意。關於奸，則先辨析秦漢「奸」、「姦」二字在書寫上有所區隔，「奸」為性犯罪之意。司法案例顯示秦漢時代未婚男女相交亦構成奸，有其刑罰。接著討論奸的類型，指出在強奸、當事人具特定身分或關係、奸發生於特殊時間或地點時，對奸採取加重懲處。婚姻與奸以「性」為其共通本質，故當婚姻不被許可時，奸的法規可援引而為刑罰。然而若說性關係非婚即奸，亦過於絕對。主婢之間不存在婚姻名分，社會及法律卻默許其性關係，即屬灰色地帶。

關鍵字

婚姻；奸（姦）；秦律；漢律；簡牘

並列摘要

Bamboo slips from the Zhangjiashan tomb no. 247 record a judicial case involving a man charged with adultery as a result of his claim to have married a woman. This paper aims to examine the relationship between marriage and adultery, particularly the laws and regulations stipulating the formation of marriage, dissolution of marriage, and adultery. On the formation of marriage, I discuss the substantial requirements of marriage, including the right to marry, the willingness to marry, and the restrictions on the relationship between parties. In my analysis of judicial cases, I argue that social recognition is as important as household registration when determining the existence of a marriage. In addition, by comparing three types of spouses, namely wife, concubine, and maidservant, I point out that their distinction is not as clearly defined as it would be in later times. On the dissolution of marriage, I argue that women being sentenced to hard labor leads to annulment of marriage. The same, however, does not apply to men. I also trace the origins of ＂seven conditions for disowning a wife＂ and ＂breaking the bond of a couple,＂ which are legal divorce requirements in subsequent dynasties. In the event where an accusation is brought by husband and wife against each other, a harm caused by husband and wife against each other, as well as the husband committing adultery, the matrimonial relationship in actuality is dissolved. It should be noted that a wife could accuse her husband, and that a wife's rights were protected when her husband attacked her or committed adultery. On adultery, I point out that 姦 and 奸 in Qin and Han dynasties are two distinctly different characters with the latter denoting a sex crime. In my investigation of judicial cases, I find that there is criminal punishment imposed on unmarried men and women engaging in sexual intercourse, which constitutes adultery. As to the types of adultery, I point out that heavier punishment is imposed in the case of rape, when the parties concerned are of specific identities or relationships, or when adultery is committed in a specific time or place. Marriage and adultery both involve matters of sex. As such, where marriage is not permitted, punishment in respect of adultery laws and regulations could then be imposed. However, it would be too extreme to claim that sexual relationship outside of marriage is adultery. The relationship between a master and his maidservants, for instance, is one gray area where it is not matrimonial but implicitly approved by society and law.