【作者】 艾晶；

【导师】 陈廷湘；

【作者基本信息】 四川大学 ， 专门史， 2007， 博士

【摘要】 清末民初，中国社会处于一种新旧交替的转型期，女性的地位发生了翻天覆地的变化。随着西学大举东来，国内知识分子的大力鼓吹，使得妇女问题开始受到社会的重视。但人们关注最多的往往是精英女性，或是比较辉煌的女权运动的种种成果，如女子教育，废缠足，女子参政等，而对平民女性关注不多，特别是女性犯罪，关注者更是寥寥。但在清末民初，女性犯罪却开始大量出现，成为一大社会问题。此时，国家法律做出了一定的调整，各种法律文件、司法公文都对女性犯罪的惩罚做出了合乎实际的规定。从当时司法年报中对女性犯罪的明细统计，亦可以看出女性犯罪已经开始引起了司法界的注意。本文拟主要考察这一时期女性犯罪情况，着重探讨女性犯罪的成因、程度及与其他相关因素的关系。本文由导言、正文、结语及附表、参考文献等五大部分所构成，全文主体共分五章，各章要点如下：第一章清末以前女性犯罪概述，主要阐说清末以前的女性犯罪情况。在清以前，由于女性生活环境的局限，接触社会不是很多，所以触犯法律的机会也少。就目前留存下来的资料看，女性犯罪类型主要为奸非罪和杀人罪，且尤以奸情杀人为多。针对女性特殊的生理特点，统治者制定了专门针对女性的刑具和刑罚并对犯罪女性进行了宽宥处理。到了清季，女性犯罪出现了多样化的趋势，除了奸非罪和杀人罪外，还出现了拐逃、诬告、窃盗等犯罪类型。针对日益增多的女性犯罪，国家法律和家法族规都对其进行了相应的调整。到了清中后期，因战乱的增加和社会的发展，女性大量地参与到社会中来，女性犯罪的类型已不再仅仅局限于清前期的奸情、杀人、拐逃等罪，而是有所增加和发展。最明显的表现就是婚姻冲突下的女性犯罪增多，表明女性已开始向传统的婚姻家庭提出挑战，但从冲突的结果来看，很多女性却仍然处于备受压迫的状态。这一时期，礼法随着社会的发展开始有所松动，女性犯罪的处罚环境较前也显得相对宽松。部分审判者在处理女性案件中，往往会不拘成法，做出有利于女性的判决。第二章清末民初女性犯罪的统计分析。这一时期大量的统计数据，再现了女性犯罪的数量、类别、被处徒刑及缓刑等情况。清末犯罪统计的资料虽然很少，但从中仍可以看出新律影响的痕迹及犯罪女性的一些基本情况。到了民国初年，犯罪统计相对来说比较详细具体，对女性犯罪的统计亦趋于明细。由统计中可以看出，民初犯罪女性的数量大大增加，职业种类也有所增多。犯罪女性多为已婚妇女和寡妇，年龄则集中在20—40岁之间，且多为没有职业、未受过教育者。考其原因，主要有如下数种：一是中国的女性开始大量地走向社会并承担家庭的重担，犯罪机会增多；二是婚姻家庭的不平等束缚迫使部分女性对之进行反抗，但方式不当而触犯刑律：三是社会的发展，促使女性逐渐觉醒，认识到自身的自由和权利的重要性。为了维持生活，为了摆脱婚姻家庭的不平等束缚，有的女性便不惜触犯当时的法律。此外，中国的女性犯罪与同期其他国家相比，因所处环境的差异而呈现出了不同的特色。第三章女性犯罪的类别。清末民初的女性犯罪，仍然以性犯罪为其主体。社会风气的开化使得部分女性意识到了自身的性自由，当被束缚的性欲一旦发泄出来，便一发不可收；同时因为女性缺乏一定的教育，有时不知怎样控制自己的欲望而容易被人引诱；而经济上的困境也使得部分女性靠出卖肉体(卖淫或与人通奸)来获取最基本的生活资料。因此当时女性的性犯罪之所以居多，与社会因素有很大的关系。女性的性犯罪与女性的其他犯罪存在千丝万缕的联系，常常成为其杀人、拐逃、诬告等犯罪行为的诱因。同期，由于各种原因而与家庭成员及邻里发生矛盾冲突走向犯罪的女性亦不少，这使得杀伤罪成为其时女性犯罪的又一大典型。很多家庭都存在虐待女性问题，处于卑幼地位的子媳、妾、婢女等备受摧残。而社会对女性性生活的严格压制，更使得女性的心态趋于一定的极端性。因此在杀伤罪中，女性的奸情杀人占有很大的比例并成为其犯罪的一大典型。清末民初，妇女解放的声浪很高，使得部分女性遭遇不幸时已不再像以前那样忍气吞声，而是通过出逃来改变自身的命运；另外社会也给女性提供了一定的生存空间，就业的机会相对以前有所增多，也增加了部分女性出逃的勇气，特别是那些地位比较低下的妓女、婢女等更是希望通过出逃来摆脱不幸的境遇；近代以来，更多的女性因经济压力的增加而不得不出外觅工，和男人一样承担起家庭的重负，但社会上工作的难寻及工资的低廉也让其乐于从事诱拐活动。很多中老年妇女甚至把诱拐作为自己的“职业”，因此拐逃罪也成为女性犯罪的一大类型。对于女性诱拐者来说，从事这一犯罪活动多数是以营利为目的，也不乏一些想帮助被诱人的好心人，但法律却也对之进行了严惩。此外，其他如鸦片、赌博、诈骟钱财等在当时也逐步成为具有一定规模的女性犯罪。这些犯罪行为的发生多与女性的不良嗜好及经济困境有关，因其并未威胁到国家的政权和社会上的伦纪大防而多以罚金了事。第四章对女性犯罪的惩治。清末民初女性的法律地位有了一定程度的提高，但仍存在男女不平等的现象。清朝的《大清律例》中出现了专门针对女性犯罪的条款，可以看出国家对女性犯罪的重视；清末修律后，由于受西方文化的影响，法律对男女犯罪的惩罚趋于平等，但仍然存在一定的争议。新律废除了凌迟、枭首等酷刑及笞杖刑，对非死刑案件，多处以罚金和拘役。到了北洋政府时期，法律上虽然沿袭了清末修律的成果，对女性犯罪的惩罚有所减轻，但在司法实践中却加强了对女性犯罪的控制：大理院频繁颁发相关的解释例，对女性案例的审判进行一定的监督和指导；此外，加大对奸情罪和拐逃罪等的控制力度，以期更好地遏制女性犯罪的发生。同时，清末民初虽然废止刑讯的呼声很高，但因司法的腐败，禁止刑讯的法规很多时候行同具文。而且废止刑讯的规定为部分官员办案的拖沓提供了一个很好的藉口，使得积案问题成为其时司法部门的又一大痼疾。这一时期的家法族规也随着社会的发展而对女性越轨行为的惩罚有所减轻，但对其日常的行为规范仍然控制严格。针对日益增多的女性犯罪，国家和社会也采取了一定的防治措施，但因各种干扰的存在，所谓的防治措施未能收到预期的效果。第五章清末民初的社会变迁与女性犯罪。由该时期的女性犯罪，可以看出当时女性实际的生活状况及社会存在的妇女问题。其时，虽然女权运动高涨，妇女解放的声浪很高，但多数女性的生活状况并没有发生太多的改变，这也在一定程度上加剧了女性犯罪。有的妇女因婚姻不能自主，家庭地位低下，备受摧残而奋起反抗，付出了惨重的代价。有的妇女则因就业机会及受教育机会少，沦为无业者和低工资阶层，在无知状态下走上了犯罪路。特别是一些处于经济困境中的女性，有时犯罪实为其解决温饱问题的一种无奈选择。本文研究的一个主要特点是分析当时的官方统计数据，充分运用档案资料及报刊杂志中大量案例的同时参照时代背景进行详尽论述，以期揭示出处于这一时代变迁中的女性犯罪的真实状况。更多还原

【Abstract】 In Late Qing Dynasty and early Republic of China, with the society of China undergoing a transformation, the status of female experienced a fundamental change. With the introduction of western civilization and the advocation of intellectuals, female problems commenced to be brought in light. However, attentions were simply diverted to the female elite, or the achievements of women’s emancipation, such as female education. Little attention was given to average female civilians, especially on female crimes. During that particular period of time, the rate of female crimes had been on the rise, constituting a serious social problem which made the nation adjust its laws accordingly. As a result, laws and other legal documents stipulated fair and impartial regulations as to the penalty of female crimes. Judicial attentions to female crimes also had been seen from the statistics of female crimes then in judicial reports. This dissertation focuses on female crimes during this period of time, analyzes the casusation, degree and relevent elements of them.This article consists of introduction, body, conclusion, attached tables and bibliography, totally five chapters. The summary of each chapter is as follows:Chapter OneA general introduction of female crimes before Late Qing Dynasty statesBefore Qing Dynasty, due to the limitations of living environment and lack of communication with society, female had little chance to breach laws. According to the historical documents, female crimes then were mainly adulteries and homicides, most of which were adultery-related homicides. Based on the physical characteristics of female, rulers invented particular instruments of torture and penalties for female, adopting comparatively less harsh treatment. In Qing Dynasty, female crimes showed the tendency of variety. Besides sexual crimes and homicides, abduction, slander and theft emerged. With the growing number of female crimes, laws as well as clan regulations and family rules found their place in the control of them. In Middle and Late Qing Dynasty, because of frequent warfares and social development, female were more involved in the society, which made more crimes added to the category of female crimes. Feudal ideology tended to collapse in this period of time, so the penaltiesof female crimes were still not harsh. Some judges, not confined to written laws, were inclined to settle cases in favor of female. Meanwhile, female crimes resulting from conflict of marriage were on the rise, which indicated female started challenging parent-arranged traditional marriages. From the result of conflict, female were still under oppression.Chapter TwoThe statistics of female crimes in Late Qing Dynasty and early Republic of ChinaLarge amount of statistical data relfects the details of crime quantity, categories, penalties and probation, etc.. Although statistics on crimes are rare in Late Qing Dynasty, the trace of new law influence and the basic information on female crimes are not hard to find. Since the beginning of the Republic of China, crime statistics tended to be more specified, especially on female crimes. According to the stattistics, the quantity and categories of femal crimes amounted to a considerable scale, with categories of professional crimes on the rise. Female defendants were mostly married women and widows, with age ranging from 20 to 40, most of which were illiterates without occupations. That is attributed to the following reasons: 1. Chinese women in this period of time got more involved in the society and burdened with more family responsibilities, which contributed much to the rising female crime rate. 2. Unequal status with male in family and marriage forced female to fight against the social system. Unappropriate ways of protest led to the breach of laws. 3. The development of society aroused female to sense the importance of freedom and rights. In order to change the unequal status in family and marriage, some women risked breaching the laws. In this period of time, because of different backgrounds, female crimes in China and other parts of the world exhibitted different characteristics.Chapter Three The Categories of Female CrimesFemale crimes in Late Qing Dynasty and early Republic of China were mainly sexual crimes. More open-minded society with corruption made certain female aware of their sexual freedom. Oppressed sexuality, once burst out, was out of control. Meanwhile, lacking of education and not knowing how to control their desire, female were easy to be seduced. Financial situations in part led some women to get involved in prostitution and adultery. It was the social factor that contributed to the fact that female crimes were mostly sexual crimes at that time. Female sexual crimes - usually the causes of homicide, abduction and slander - were closely related to other crimes they committed. During the period of time, female crimes resulting from conflicts between family members, or in the neighborhood, were not infrequent. And another characteristic of female crimes at that time was that homicide and crimes of injury constituted an important part in the category. Maltreatment of female existed in many families, and most victims were daughters-in-law, secondary wives and maidservants. Sexual mortification made female’s state of mind extreme so that adultery homicide constituted a great proportion in female crimes. With women’s emancipation developing in China in this period time, some women, especially those in inferior class, such as prostitutes and maidservants, chose to protest agaist their misfortune by running away. New opportunities of employment for women built up their determinaiton to get away. And those who lacked of social experience were easy to be abducted. Since Late Qing Dynasty, more women were forced to seek their fortune due to fanmily financial problems to support the family. However, cheap labor and rare job opportunites made some women take up abduction. Some middle age or senior women even regarded abduction as their career, so abduction made up another catetory of female crimes. For most female abductors, it was just a means of income; but some were trying to help the runaways. No matter what purposes they had, they could not escape the severe punishment. In addition, female were also involved in crimes like opium smuggling, gambling, deception and the like, most of which were committed for bad habits and financial reasons, punishable by fine.Chapter Five Penalty of Femal CrimesLegal status of female in Late Qing Dynasty and early Republic of China, to some extent, improved, but unequality between male and female still existed. Specific legislation on female crimes appeared in Qing Dynasty Code (Daqing Lv Li) indicated the government’s emphasis on female crimes. After the new law stipulated, because of the influence from western civilization, the penalty of male and female crimes tended to be equal, although controversies still existed. The new law abolished severe penalties like beheading, and imposed fine and imprisonment instead. During the reign of Beiyang Military Government, the new law in Late Qing Dynasty was kept, and the punishenment of female crimes was lessened to some degree. However, in judicial practice, the government strenghened the control over female crimes: Da Li Yuan (a similar institution to the Supreme Court) published judicial intepretations to direct and supervise the trials of female crimes; meanwhile, it laid more emphasis on the control of adultery and abduction to reduce female crime rate. During the period of time, torture was discouraged, which became an excuse of officials’ inefficiency. Punishements from clan regualtions and family rules were also comparatively reduced, but control over daily behaivors was still strict. Women somehow were usually to some extent forgiven for their crimes, but imprisoned female criminals suffered from many hardships. Although precautions were taken to prevent female crimes, for various reasons, the effects were small.Chapter Five Social Transformation and Female Crimes in Late Qing Dynasty and Early Republic of ChinaIn this period of time, female crimes implied the practical living conditions and female problems. Although women’s rights movement and women emancipation were in the heat, most women’s living conditions did not change much. To some extent, they boosted the rising of female crime rate. Those who could not stand the arranged marriage, inferior status in family, and the maltreatment they suffered arose to fight back usually at dear costs. Some committed crimes simply because of lack of education and ignorance. Those who suffered financial hardships sometimes considered crimes simply as an option to solve bread and butter issue. And then so-called women emancipation actually did not achieve its goals, leaving most women problems unsolved.This dissertation is characterized by the analysis of official statistics then; with historical documents and large number of cases in newspapers and journals, it specifies the factual situations of female crimes in the particular changing times.更多还原