本文对古代法律体系中“干名犯义”条款在历史上的发展进行了梳理，着重对清代的干名犯义进行深入探讨，使用现代刑法的分析思路对干名犯义的主客观要素、司法实践运用等进行分析，考察干名犯义在清末修律中的争论及其向现代化的演变，并就现代法律体系中家庭伦理的潜在发展提出了个人的建议。所谓干名犯义，即禁止亲属之间互相告发犯罪的行为，其背后所体现的是传统的伦理纲常思想，直观维护了传统家庭中的家长权。“干名犯义”的定义首次出现在元朝，专指亲属之间互相告发犯罪的罪名，对于被告发者均按照自首进行处理。直至明清，干名犯义的规定更加细化，并且范围也逐步扩大，将奴婢佣人告主、诬告等情形也纳入干名犯义的定义中，且通过对母杀父、所养父母杀所生父母、被期亲以下尊长殴伤或夺财、与女性姻亲义绝等情况的特殊规定，明确了家族内部不同伦理关系之间的价值排序。总体来说，清代的干名犯义对卑幼告发尊长的行为作出了更加严格的限制，无论告发罪名是否属实，只要有告发行为即可入罪，且被告发的尊长亲属作为自首处理，从而维护了古代家族中的尊长权。关于干名犯义的条例则主要针对奴婢告主的情况，明确了清代良贱有别的社会价值与法律原则。在司法审判层面，清代的审判官员则主要根据所告发罪名应判罚的罪行、所告发的情况是否属实、告发与被告发双方的身份关系，基于干名犯义律文规定进行判罚。如果案件中有比较特殊的情况，按照律文判罚会导致畸轻或畸重，则审判官员会综合考虑相关条例、以往案例中的判罚、性质类似的其他律文规定，请示后对判罚进行调整，力求在法与情之间找到平衡。干名犯义在经过清末修律后基本被完全消除，现代中国刑法中也难以寻求体现伦理关系的条款。然而现代法律体系下的犯罪人亲属权利义务之间存在冲突，一方面，犯罪人亲属具有告发亲属犯罪行为的义务，现代司法体系也以从轻、减轻处罚的方式鼓励犯罪人亲属劝说、陪同犯罪人自首，但却并未考虑犯罪人此后在回归家庭时是否会因此而心存芥蒂，无法拥有正常的家庭关系。另一方面，在犯罪人伏法后，犯罪人亲属可能在求职时因为亲属的犯罪记录受到不平等的待遇。因此，笔者认为现代法律体系下仍旧可以保留部分对家庭伦理的保护，从而从更长远的角度实现社会稳定性的维护；另一方面，针对犯罪人亲属的权利义务，也可以考虑引入近亲属作证豁免权，从而实现几种价值导向之间的平衡。
The author briefly summarizes the development of the clause of "Violating Status and Offending against Righteousness" in the ancient Chinese legal system; focuses on the in-depth study of "Violating Status and Offending against Righteousness" during the Qing Dynasty, and analyzes the elements of "Violating Status and Offending against Righteousness" along the lines of modern criminal law, as well as the judicial practice regarding it. A brief introduction is made to the debate on the amendment in the late Qing Dynasty and its evolution to modernization; and personal suggestions are put forward on the potential development of family ethics in the modern legal system.The so-called "Violating Status and Offending against Righteousness" refers to prohibiting relatives from accusing crimes of each other. The definition of "Violating Status and Offending against Righteousness" appeared for the first time in the Yuan Dynasty, and it specifically refers to crimes where relatives accusing crime of each other, and the defendants are all treated as surrenders. Until the Ming and Qing Dynasties, the laws on Violating Status and Offending against Righteousness were more detailed, and the scope was gradually expanded, including slaves and servants accusing the master and false accusations. The special stipulations for mother killing father, foster parents killing biological parents, being beaten or robbed by the elder distant relatives, and being divorced from the female in-laws have clarified the value order of different ethical relationships within the family. Generally speaking, the Violating Status and Offending against Righteousness in Qing Dynasty imposed stricter restrictions on the behavior of the youngers to accusing their elders. Regardless of whether the accusation was true or not, as long as there was an act of accusing, they could be convicted, and the accused elder relatives were to be treated as voluntary surrenders, therefore the patriarchal right in the traditional family was maintained. The regulations on Violating Status and Offending against Righteousness are mainly aimed at the situation of slaves and servants accusing their masters, and clarified the social values and legal principles of the distinction between citizen and pariah in the Qing Dynasty.With regarding to judicial proceedings, the judges of the Qing Dynasty found a verdict mainly based on the provisions of the law, the punishment for the accused crimes, whether the accusing is true, and the relationship between the accuser and the accused. If there are special circumstances in the case which will lead to a unconformity between the severity of nature of the crime and punishment according to the laws, the judges will comprehensively consider the relevant regulations, the verdict in previous cases, and other legal provisions of a similar nature, and adjust the punishment to balance between nature and punishment after asking for instructions. After the amendment of laws in the late Qing Dynasty, crimes for accusing relatives were basically eliminated, and it is difficult to find clauses that reflect ethical relations in modern Chinese criminal law. However, there is a conflict between the rights and obligations of the relatives of the criminal under the modern legal system. The relatives of the criminal have the obligation to accusing their criminal behavior. The modern judicial system also encourages the relatives of the criminal to persuade or accompany the criminal to surrender by lenient and mitigated punishment. However, it did not consider whether the criminal would have a grudge because of being accused by relatives when coming back to the family. On the other hand, after the criminal comes to justice, their relatives may receive unequal treatment when applying for a job due to criminal record of their relatives. Therefore, the author believes that part of the protection of family ethics can still be retained under the modern legal system, so as to maintain social stability from a longer-term perspective; immunity, so as to achieve a balance between several value orientations between the obligations of relatives of criminals.
