元代籍没妇女的命运与籍没妻孥法的行废

籍没法是元代刑法中的一种附加刑,是指没收犯者的全部或部分资产甚至包括犯者的妻孥和奴婢以充公。籍没妻孥的处境相当悲惨,他们一部分成为官奴隶,到官营匠局劳作;一部分被转赐为私人奴隶,其中一些妇女则被官府指配为他人妻妾。籍没妻孥本是蒙古人的传统习俗,元代一直沿袭不辍。元文宗朝,由于燕铁木儿对上都派政敌采取大规模的籍没行动,社会上要求废止籍没妻孥的呼声十分高涨,统治者不得不做出政策修改,并于元顺帝朝基本废止此法。籍没妻孥法的行废,实质反映的是蒙汉两种不同文明在政治、文化、思想意识、道德观念等领域的一场冲突和较量,其结果是汉法对蒙古旧法斗争的一次局部性胜利。这一结果对明初法律的制定也产生了重要影响。

The Fate of Confiscated Women and the Implement and Abolishment of Confiscation Law upon Criminal's Wife and Children in Yuan Dynasty

Confiscation,which means forcing all or part of the criminal's possession to public,even including his wife,children and slaves,was an additive criminal law in Yuan Dynasty.The situation of confiscated family members were very miserable,some of them were assigned to be slaves for government,worked in the official workshop,and the others were made to be private slaves.The confiscation upon the criminal's wife and children was Mongol traditional habit that continued in the Yuan dynasty.Because of the punishment of Wenzong Dynasty to Shangdu Party,the voice was very high which call for abolishing the confiscation upon the criminal's family members and raised fierce dispute in society,which forced the governors to modify the policy and the policy was abolished in Shundi Dynasty.The implement and abolishment of confiscation law reflected the conflict and bout between Mongol and the Han nationality in politics,culture,ideology,morality fields.As a result,Chinese law win over Mongol law.At the same time,it brought great influence on constituting Ming Dynasty law.