法律的文明之旅：近代中國關於女性合法性交年齡的爭論（1911-1938）

清末民初刑法進行了多次改革，旨在促進男女平等，將中國對外展示為一個文明的現代國家。本文旨在透過《中華民國刑法》（1928年）第240條和《中華民國刑法修正案》（1934年）第218條，仔細研究該議程之形成、轉變與含義。這兩條法律條文禁止與法律認定為未成年人的女子發生性關係，無論其是否自願。在民國早期，提高合法性交年齡的決議與修正受到了更嚴格的檢視，某種程度顯示中國政府已將保護女性安全的行動視為其自身作為現代國家的使命；另一方面，社會大眾對此議題亦表現出高度關注。或許可以說，從政府和公眾的觀點與行動，顯示了「文明」和「現代」國家對其使命的自覺與實踐。從社會史來說，這個新法條的實施也改變了人們對性生活的看法與實踐模式。女性不是這一罪行的肇事者，但那些在妓院內外從事性工作更廣泛的性行業工作的未成年女子被迫與尋求保護她們的法律體系互動。與未達合法性交年齡者發生性行為的男子，則會受到審判、定罪，他們往往試圖在法庭上為自己的行為辯護，而那些因與幼女雛妓發生關係以至獲罪的人更是如此。於此同時，民國流行的小報、報紙和女性雜誌等刊物編輯也加入辯論。本研究注意到，儘管中國法律在二十世紀初期基於日本和西方法典思維的影響而經歷了重大的現代化進程，但當涉及到和姦年齡的爭論時，顯然有保守的一方的立法委員認為，將西方的和姦年齡標準複製移植到中國並非恰當之舉。其次，透過分析報刊當中對於具體的討論，本研究主張，當案件涉及與未成年人的性關係時，若未成年受害者（即為法律層面上犯罪行為的受害者）是性工作者，則其職業身份往往會影響判決與社會輿論。在輿論中，未成年受害者被分為兩類，一類為性工作者，另一類人則否：與未成年性工作者的性行為，但凡經過同意，便使成年者免於違法之虞；另一方面，那些不屬於性工作者的未成年「民女」則被認為更值得國家的保護。

關鍵字

刑法；未成年；強姦；生存策略；婦女期刊；轉型時代

並列摘要

At the end of the Qing dynasty (1644-1912) and the beginning of the Republic of China (1912-1949), the criminal law was reformed many times, aiming to promote gender equality, and to present China as a civilized and modern country to the outside world. This paper aims to study the formation, transformation and meaning of this agenda carefully through Article 240 of the Criminal Code of the Republic of China (1928) and Article 221 of Amendment to the Criminal Code of the Republic of China (1934). The two legal provisions prohibit sexual relations with women who are legally considered minors, whether voluntary or not. In the early years of the Republic of China, resolutions and amendments to raise the age of consent were subject to stricter scrutiny. To some extent, it shows that the Chinese government has regarded the protection of women’s safety as its own mission as a modern country. Perhaps it can be said that from the point of view and actions of the government and the public, it shows the consciousness and practice of the mission of portraying China as a “civilized” and “modern” country. From the perspective of social history, the implementation of this new law also changed people’s views on sex and their sexuality. Women are not the perpetrators of this crime, but underage girls who work in the wider sex industry in and out of brothels were forced to interact with the legal system that ostensibly sought to protect them. Men who have sex with people under the legal age of sexual intercourse are tried, convicted, and, in many cases, attempt to justify their actions in court. This was especially the case when the person was convicted of having sex with someone that was below the age of consent that worked in the sex industry. At the same time, editors of popular tabloids, newspapers, and women’s magazines joined the debate over the age of consent. This study notes that although Chinese law underwent a major modernization process in the early twentieth century based on the influence of Japanese and Western legal codes and ways of thinking, when it came to the debate on the age of consent, there was clearly a view among conservative legislators that it was not appropriate to copy and transplant the Western legal age of consent as a standard for China. Secondly, by analyzing the discussion about specific legal cases in newspapers, this study argues that when a case involved sexual relations with minors, social class and occupational status were important factors defining how the victim was portrayed. Public opinion on underage victims (in the strict legal sense that they were victims of a crime as defined by law) are divided into two categories: sex workers and the non-sex workers. This essay shows that, while it was a non-literal interpretation of the law, commentators and lawyers argued that men who engaged in sex with underage sex workers should–provided consent was obtained–be exempt from breaking the law. On the other hand, women under the age of consent who were not sex workers–even when consent was provided–were deemed more deserving of state and legal protection. This clearly shows how class and occupational status impacted people’s understanding of how the age of consent law should be applied to actual cases.