清代法律视野下的男风现象

发布时间：2018-03-02 18:24

本文选题：男风　切入点：大清律例　出处：《重庆大学》2009年硕士论文　论文类型：学位论文

【摘要】： 清代法律视野下的男风现象,究其根本,探讨的乃是儒家伦理法思想发展到了清代,在司法实践中对男风案的影响。本文由五部分组成,内容依次如下: 第一部分,绪论。本部分主要简析了男风、儒家伦理法、清律与比附类推和成案等几个关键概念。此外,男风案与男风现象及律例之间具有的不可分性,男风案中的儒家伦理法思想,亦值得注意。第二部分,清代男风现象及其原因。清袭明风,其社会性爱风气的糜烂,加之社会财富多年的聚积,以及清政府的“禁妓令”,使得有清一代男色盛行。回顾清代以前的男风现象,自先秦及汉的传世典故,到魏晋南北朝的魏晋风流、盛唐两宋风月场上的男色,以及明代的男风大炽,清代的男风现象与前朝历代相比,不论是皇室贵族阶层,还是官员士人阶层、坊间庶民阶层,其男风因文化、经济、政治及特殊情境因素等的影响不退反盛。第三部分,清代男风律例及其解读。清承明制,其律例条文以明律为基,复经几代修正,使得清代的男风律例区别于明代处于边缘性性质的比附律条而日益完备。相较于宋代简陋的禁止男娼条例和明代以“比依秽物灌入人口律”为代表的诸多比附律条,清代的男风律例颇为详尽,主要包括了保护幼童免遭性侵犯和性迫害、维系良贱之间的鸿沟不得逾越、严惩极具恶性的鸡奸类犯罪行为、限制男子拒奸杀人拟杖流的适用条件、严本宽济地处理洋盗案内被胁鸡奸者等五类男风律例的规定。第四部分,清代男风案之法律分析。清异于明,政府官员和书坊商人重视刊印案类法律书籍,使得律、例、案三者并行逐渐成为清代司法审判的主要法源。清代法律视野下的男风现象因此而展现了其与此前历朝历代截然不同的景象——清代司法者既基于清律的规定对各类男风案断案,亦会比照成案定罪量刑,而不论何类案件,强奸图奸案、拒奸杀人案、职官有犯案、师徒血亲案、暗娼优伶案或是洋盗案,儒家伦理法精神均蕴于其中。第五部分,结论。从殿堂到乡野,不论尊卑贵贱,总会有耽于此风之人的存在、与此风相关之案件的发生,一味地视而不见已然行不通,法律有对其进行规制的必要。法律虽对此作了详尽具体的规制,但是其规制仍然受限于儒家伦理法思想。
[Abstract]:The phenomenon of masculinity in the legal field of the Qing Dynasty is the root of it, and it explores the influence of the Confucian ethics and law thought on the male style cases in the judicial practice. This paper is composed of five parts, and the contents are as follows:. The first part is introduction. This part mainly analyzes several key concepts such as masculine style, Confucian ethics law, law of Qing Dynasty and analogy with analogy and case of success. In addition, the phenomenon of masculine style and the phenomenon of masculine style and the inseparability of laws and regulations are also discussed. The Confucian ethics and law thought in the male style case is also worthy of attention. The second part, the phenomenon of male style in Qing Dynasty and its causes. The Qing attack on Ming wind, the erosion of social sexual atmosphere, and the accumulation of social wealth for many years. And the "prostitute ban" of the Qing government, which made the male character of the Qing Dynasty popular. Looking back on the phenomenon of male style before the Qing Dynasty, from the legend of the pre-Qin and Han dynasties to the Wei and Jin dynasties in the Wei and Jin dynasties and the Wei and Jin dynasties in the Northern and Southern dynasties, the male color on the stage of the wind and moon of the two Song dynasties in the Tang and Tang dynasties, As well as the great male style of the Ming Dynasty, the phenomenon of the male style in the Qing Dynasty compared with the previous dynasties, whether it was the royal aristocrat, the official scholar class, the common people stratum, its male style was due to culture and economy. The influence of political and special situation factors is not retreating. The third part, the Qing Dynasty male style law and its interpretation. Qing Chengming system, its legal provisions are based on the Ming law, after several generations of amendments, This makes the laws and regulations of the Qing Dynasty more and more perfect than those of the marginal laws of the Ming Dynasty. Compared with the simple regulations on the prohibition of male prostitutes in the Song Dynasty and the laws of the Ming Dynasty, which were represented by the population Law of the Ming Dynasty, The laws and regulations of the Qing Dynasty were quite detailed, mainly including the protection of young children from sexual abuse and persecution, the maintenance of the gap between good and humble must not be crossed, the severe punishment of extremely vicious sodomy crimes, and restrictions on the applicable conditions for men to refuse to commit rape and murder. Yan Ben-Kuanji deal with foreign theft in the case of sodomy and other five types of male customs provisions. Part 4th, legal analysis of male style cases in Qing Dynasty. Qing Yi Yu Ming, government officials and booksellers attach importance to the publication of law books, making the law, example, As a result, the phenomenon of masculinity in the legal field of the Qing Dynasty shows a very different scene from the previous dynasties-the judiciary of the Qing Dynasty not only decided the cases on the basis of the laws of the Qing Dynasty, but also decided all kinds of cases on the basis of the laws of the Qing Dynasty. They will also be convicted and sentenced by comparison, regardless of the types of cases, rape, rape, rape, homicide, official crimes, blood and blood cases, prostitution cases, or foreign theft cases, the spirit of Confucian ethics and law are embedded in them. Part 5th, conclusion. From the temple to the countryside, regardless of the inferiority, there will always be the presence of the wind, the occurrence of cases related to the wind, blindly blind to no longer work, It is necessary for the law to regulate it. Although it is regulated in detail and concretely, its regulation is still limited by the Confucian ethics thought.
【学位授予单位】：重庆大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D929

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