1

TRANSLATING THE ENGLISH LEGAL LEXICON INTO

CHINESE

By Dr Alan Tse

2

MAJOR ISSUES TO CONSIDER:+ [a] consistency and uniformity+ [b] role of context+ [c] adopting Chinese legal terms

used in Mainland China+ [d] the use of existing translations + [e] style and register

3

CONSISTENCY AND UNIFORMITY

+ Precision— the relative

stability of the conceptual link between a word and the concept it stands for.

+ independent of the context

+ high degree of consistency in the translation

4

CHOSE IN ACTIONA thing recoverable by action, as contrasted with a chose in possession which is a thing of which a person may have not only ownership but actual physical possession.有權通過訴訟獲得的動產

5

CHINESE TRANSLATIONS:

1. 據法權產 s 9 Assignment of debt or chose in action, Law Amendment & Reform (Consolidation) Ordinance, Cap 23

2. 法據動產 s 3 Interpretation of words and expressions, Interpretation & General Clauses Ordinance, Cap 1 (under 財產 )

3. 無形動產 s 63(2) and (4) of the Securities & Futures Commission Ordinance, Cap 24 (1997 version, repealed in 2002)

6

IN GOOD FAITH/NOT IN GOOD FAITH

+ In good faith: 善意、真誠 、 秉誠 (in some bills)

+ Not in good faith: in the Commissioner for Administrative Complaints Bill 1987 申訴專員條例草案 (later changed to The Ombudsman Ordinance, Cap 397; 申 訴 專 員 條 例 ) was translated into 用心不良

7

(b) the subject matter of the complaint is trivial;(c) the complaint is frivolous or vexatious or is not made in good faith; or(d) any investigation or further investigation is for any other reason unnecessary.

(b) 申訴關乎微不足道的事；(c) 申訴事屬瑣屑無聊、無理取鬧或非真誠作出；或(d) 因其他理由而無須調查或進一步調查。

(s 10 THE OMBUDSMAN ORDINANCE, Cap 397; 申訴專員條例 )

8

+ (a) his performance or purported performance in good faith of any function (including that under each of the paragraphs of section 5(1)) under any of the relevant provisions; or

+ (a) 真誠地執行或其本意是真誠地執行任何有關條文授予的職能 ( 包括第 5(1) 條各段授予的職能 ) ；或 (s 380, SECURITIES AND

FUTURES ORDINANCE, Cap 571; 證券及期貨條例 )

9

(A) CONSISTENCY AND UNIFORMITY

Law (esp. statute laws and contracts)+ notoriously fastidious about the

meanings of words+ must be able to express what the

drafter/legislator wishes to express+ disputes on the interpretation of

certain expressions in a law (statutory interpretation)

+ few disputes on the interpretation of the words and expressions in a judgment, not to mention textbooks on law

10

(A) CONSISTENCY AND UNIFORMITY

In a bilingual setting

one language version is intended to exist with the other and work in exactly the same way

lawyers will contest a point or justify their interpretation of a particular law by comparing the two language versions

11

[B]THE ROLE OF THE CONTEXT

+ [context refers to] the total setting in which a word is used, including the cultural context and the lin guistic context, which in turn consists of the syntactic context and the semiotic context. One function of the context is to select for each word the single appropriate meaning, and so to avoid ambiguity in a discourse.'

(Nida and Taber 1982: 199)

observe the consistency rule as far as possible

12

A LEGAL TRANSLATOR SHOULD

have a reasonable degree of freedom and flexibilityA term has different

meanings in different contexts?

YES

Otherwise

13

CONTEXT-FREE TRANSLATIONS

+ Plaintiff: a person who brings a legal action against somebody 原告、起訴人

+ Arbitration: settling of a dispute by a person or people chosen to do this by both sides in the dispute 仲裁

14

TERMS ASSOCIATED WITH DIFFERENT CONCEPTS

Custody+ (1) confinement or impris onment 羈押 (Fugitive Offenders Ordinance)+ (2) control and possession of some

thing or person 保管 (Road Traffic Ordinance)+ (3) the right to look after a child after a

divorce 管養權 or 看管權 (Protection of Children & Juvenile Ord.)

15

TERMS ASSOCIATED WITH DIFFERENT CONCEPTSPremises+ house or building with its outbuildings, land, etcresidential premises rendered as 住宅樓宇+ In the Drug Trafficking (Recovery of Proceeds)

Ordinance 販毒追討利益條例 s 22, Cap 405: “premises” includes vehicles, vessels, aircrafts

etc. However, “premises” was still rendered as 房產

in the ordinance.

16

MORE ON “PREMISES”In order to reflect the broad scope of the definition of “premises” in English, it was translated into “ 處所” elsewhere:e.g. The Aviation Security Ordinance ( 航空保安條例 )LexisNexis bilingual law dictionary

17

Will it create confusion if legal terms used in China and

Taiwan are adopted in the translation of statutes in the present context, since we are dealing with three different

systems?

18

[C] ADOPTING CHINESE LEGAL TERMS USED IN MAINLAND CHINA

+ Rabies+ translated into 狂犬病 rather than 瘋狗症 狂犬病 generally used in both China and

TaiwanWhy not adopt 瘋狗症 (which is more

common in HK) ? system neutral (more of a medical

concept than a legal concept?) 狂犬病 carries a more formal tone than 瘋狗症

19

ADOPTING CHINESE LEGAL TERMS USED IN MAINLAND CHINA+ The case of Murder and manslaughterIn Hong Kong+ translated into 謀殺 and 誤殺 respectively In China+ 謀殺 and 誤殺 do not feature in the criminal

codes+ Instead, there is the crime of 故意殺人 , which

literally means `killing a person intentionally' and the crime of 過失殺人 , which means `killing a person negligently‘

20

故意殺人罪+ 故意殺人罪 ( 中國刑法第 232 條 ) ，是指故意非法剝奪他人生命的行為+ 是一種最嚴重的侵犯公民人身權力的犯罪…+ 本罪是故意犯罪，包括直接故意和間接故意。+ 直接故意是有明確的殺人目的，並且希望其行為能致使被害人死亡；+ 間接故意是對自己的行為可能造成被害人死亡的後果採取放任的態度。

21

故意殺人罪本港貨櫃車今年 4 月在深圳撞傷女子及捲走嬰兒車釀成子死母重傷一案，涉案香港司機昨在深圳被起訴故意殺人罪…代表周家的律師史聞紅表示，被告在法院上承認車禍罪名，但否認直接殺人罪，相信因為直接及間接殺人兩罪的判刑差太多，前者可判死刑，後者最高判無期徒刑。辯護律師應會為被告求情，希望法院能以間接殺人罪名來判刑。

22

過失殺人罪( 官方名稱為過失致人死亡罪，中國刑法第 233 條 )

+ 是指過失致人死亡的行為，包括疏忽大意的過失致人死亡和過於自信的過失致人死亡+ 疏忽大意的過失致人死亡是指行為人應當預見自己的行為可能造成他人的死亡結果，由於疏忽大意而沒有預見，以致造成他人死亡+ 過於自信的過失致人死亡是指行為人已經預見到其行為可能會造成他人死亡的結果，但由於輕信能夠避免以致造成他人死亡。

23

過失殺人罪【明報專訊】去年底深圳羅湖汽車站發生旅巴剷行人路車禍， 3 名港人及 2 名內地人死亡，另 5 人受傷的，涉案被捕的內地旅遊巴司機，近日在羅湖區人民法院一審被判「過失致人死亡」罪名成立，判處有期徒刑 5 年。但初步被告不服判決，並已提出上訴。

24

+ (1) A person who causes the death of another person by driving a motor vehicle on a road dangerously commits an offence and is liable-

+ (a) on conviction on indictment to a fine at level 5 and to imprisonment for 10 years; (Amended 23 of 2008 s. 5)(b) on summary conviction to a fine at level 4 and to imprisonment for 2 years.

+ (1) 任何人在道路上危險駕駛汽車引致他人死亡，即屬犯罪─ +

(a) 一經循公訴程序定罪，可處第 5 級罰款及監禁 10年； ( 由 2008 年第 23 號第 5 條修訂 )(b) 一經循簡易程序定罪，可處第 4 級罰款及監禁 2年。

ROAD TRAFFIC ORDINANCECAUSING DEATH BY DANGEROUS DRIVING, S 36

25

DANGEROUS DRIVING IN CHINA全国政协委员、四川鼎立律师事务所主任施杰在 2010 年政协会议上提交提案， 建议增设“危险驾驶罪”。他说，目前无证、醉酒和超速驾车行为最严重的处罚也就只行政拘留十五天，不足以震慑酒后驾车等危险驾车行发生。

Source:

http://baike.baidu.com/view/3355825.htm

26

DANGEROUS DRIVING IN CHINA

本报北京 4 月 28 日电 (记者王亦君何春中 )《刑法修正案 (八 )》即将从 5 月 1 日起实施，最高法院、最高检察院今天发布《关于执行〈中华人民共和国刑法〉确定罪名的补充规定(五 )》，补充、修改了 10项罪名。其中，备受关注的醉酒驾驶、飙车等行为入刑后，正式有了一项新罪名：“危险驾驶罪”。

Source: http://www.sina.com.cn 2011 年 04 月

29 日 06:23 中国青年报

27

謀殺 / 誤殺 VS 故意殺人 / 過失殺人+ At the technical level,

malice aforethought ( 預懷惡意、預謀 ) is a requisite for the conviction of murder in the common law

故意殺人 does not match perfectly with the notion of with malice aforethought ( 預懷惡意、預謀 )

Murder is also related to such concepts as mens rea ( 造意、犯罪意圖 ), deliberation and premeditation ( 預謀 )

過失殺人 should not be regarded as equivalent to `manslaughter’, which is related to such concepts as `diminished responsibility’( 減輕罪責 ) and `provocation’

28

VOLUNTARY MANSLAUGHTER 自願誤殺Voluntary manslaughter occurs when the defendant kills with malice aforethought (an intention to kill or cause grievous bodily harm), but one of those partial defences which reduce murder to manslaughter applies…The Homicide Act 1957 now provides two defences which may be raised to allow the court to find the accused guilty of voluntary manslaughter: diminished responsibility and suicide pact. The Coroners and Justice Act 2009 creates the defence of "loss of control".

29

INVOLUNTARY MANSLAUGHTER 非自願誤殺Involuntary manslaughter arises where the accused did not intend to cause death or serious injury but caused the death of another through recklessness or criminal negligence. For these purposes, recklessness is defined as a blatant disregard for the dangers of a particular situation.

30

LEGAL RELATIVISM

• The common-law concepts of murder and manslaughter have developed in a legal system which is entirely different from the one in China

• The cases heard and precedents quoted have all borne on the development of the concepts

31

LEGAL RELATIVISM (CONTINUED)

• During the process of their development, the concepts of murder and manslaughter have entered into a structural relationship with other related concepts, and as such they have formed an internal/closed system. The identity of any related concept is situated within this internal system.

32

LEGAL RELATIVISM (CONTINUED)

• Homicide 殺人 , culpable homicide 應受處罰的 ( 有罪的 ) 殺人 , justifiable homicide合法殺人 , mens rea, actus reus 犯罪行為 , self-defence, provocation, state of mind, insane and non-insane automatism神志不正常及神智正常的自動作用

33

IN EVERYDAY USE:

+ However, the laymen often equate 故意殺人with murder and 過失殺人 with manslaughter because in their conceptual world, these concepts are quite similar.

34

[D] THE USE OF EXISTING TRANSLATIONS

+ Communication will be effectively enhanced since people are more familiar with existing translations than with new ones.

+ The translated term and the source-language term already share a common reference scheme.

+ E.g. `Murder' and ` 謀殺 ' are now conceptually equivalent.

35

CREATING ESOTERIC NEW TERMS + The creation of some esoteric new terms to

replace translations already in existence and use would only lead to a breakdown in communication

(e.g. Satisfied 信納 : 「信納」一詞，早已有之，見《晉書．裴秀傳》，只是信任、任用、委以重任之意，如「軍國之政，多見信納」或「尊尊親親，信納大臣」，顯非港府今用之義。 )

+ Compromising the legal effect of the Chinese terms.

36

SOURCES OF EXISTING TRANSLATIONS OF ENGLISH LEGAL TERMS

1.Legal & Para-legal activities Most Chinese legal terms have originated

from legal and para-legal activities.

Legal activities: linguistic interaction between Chinese and English at the court of law and during the legislating process of statutes)

In para-legal activities, the various law

enforcement agencies (the police, the Immigration Department and so on) and law firms.

37

SOURCES OF EXISTING TRANSLATIONS OF ENGLISH LEGAL TERMS

2. leaflets and pamphlets + Laws which were thought to be of public interest

were translated into Chinese and published in the forms of leaflets and pamphlets.

+ These Chinese texts contained a repertoire of translated terms which we use today as `existing translations'.

+ Before the Interpretation and General Clauses (Amendment) Ordinance 釋義及通則（修訂）條例 and the Official Languages (Amend ment) Ordinance 法定語文（修訂）條例 formalized the bilingualization of Hong Kong statutes in 1987

38

SOURCES OF EXISTING TRANSLATIONS OF ENGLISH LEGAL TERMS

3. Chinese-language newspapers, magazines

+ Most local Chinese-language newspapers feature daily coverage of court news. High-profile cases are also reported in popular magazines.

+ In reporting court news, they have inevitably come up with a pool of Chinese trans lated terms.

+ In reporting criminal cases, the press has frequent contact with the police and other law-enforcement bodies in the government.

+ Therefore, the Chinese legal terms in local newspapers are quite similar to those commonly used by the police and other law-enforcement agencies.

39

USING CHINESE LEGAL TERMS IN LOCAL NEWSPAPERS

+ Disadvantage: Most newspapers concentrate on the reporting of criminal cases, and only civil cases involving high-profile personalities are reported.

+ The concentration of reporting on criminal cases means that the scope of the translated terms is largely restricted to criminal cases.

+ Terms for the civil facet of the law come few and far between.

40

SOURCES OF EXISTING TRANSLATIONS OF ENGLISH LEGAL TERMS

4.Books written in the Chinese language for lay readers

+ Relatively marginally, there are also the `unofficial' translations in books written in the Chinese language for lay readers who are interested in certain aspects of the law.

+ There have been few such books published in Hong Kong.

+ But the situation is changing in response to the promotion of legal bilingualism in the territory.

41

ACCURACY OF THE TRANSLATIONS

+ The production of a complete legal lexicon entails systemicity.

+ As far as the four sources are concerned, it seems that the translation of English legal terms has generally been done in a piecemeal manner ( 零零碎碎地 ) , which defies systemicity.

+ It is understood that very few news papers, for instance, distinguish linguistically, and probably conceptually, between defamation, libel and slan der. 誹謗 is used for all of the three concepts.

42

SENSE RELATION WHICH HOLDS BETWEEN DEFAMATION / LIBEL / SLANDER+ defamation (the tort consisting in the

publication of a false and derogatory statement respecting another person without lawful justification)

+ libel (defamation by means of writing, print, or some other perma nent form)

+ slander (defamation by means of spoken words or gesture).

The translation of these three terms should attempt to reflect their (subtle) differences.

+ In Commercial Press' Concise English-Chinese Law Dictionary, `Defamation' is translated into 誹謗 , `libel' into 書面誹謗 and `slander' into 口頭誹謗 .

43

ACCURACY OF THE TRANSLATIONSlikely 相當可能very likely 很可能most likely 極可能Possible 可能Probable 頗有可能 + Semantic field+ To reflect the degree of probability.

44

MORE EXAMPLES:

+ Laws of Hong Kong:+ Chapter 章+ (Short title) 簡稱+ Section 條+ Subsection 款+ Article ( 公約 ) 條文；第…條+ Clause ( 合約 ) 條款；第…條+ Sub-clause 副條款+ Rider 附加條款

45

[E] STYLE AND REGISTER + Legal language is widely recognized

as belonging to a formal register.

+ “certificate of absence of marriage record” + 寡佬證+ 無結婚紀錄證明書

46

STYLE AND REGISTEReviction+ translated into 驅離 rather than 趕走 . illegitimate (child not born in a valid

marriage) + rendered into 非婚生子 rather than 私生子

(child born privately or in secret),+ 私生子 is colloquial and carries a social

stigma.

47

STYLE AND REGISTERBurglary

+ The official translation was 入屋行劫罪 (entering a place to rob)

+ Later changed to 入屋犯法罪 (Theft Ordinance, Cap 210)

+ The expression 爆竊 (break in a place to steal. cf: burgle 爆格 ) which denotes the same crime has been known to almost every Chinese speaker in Hong Kong.

+ Possible explanation?

This depends on the text-type of a particular legal text. i.e. In the case of statutes (written laws 成文法 ) and contracts, the need for adherence to standardized translations and faithfulness to the original text is much greater than in the case of law textbooks and arguably judgments ( 判詞 ).

Does a translator have the right to, adjust an established translation of a term in order to suit

the style of a particular text, for example, in terms of collocation (搭配 )?

A SENSE OF PROPORTION/PRIORITY

+ Within a piece of legislation, there are terms which contain heavier `information load' than the others.

+ E.g. In the Rabies Ordinance, the disease is beyond dispute the central theme.

The translator/draftsman should always keep to the same translation for the term `rabies'.

LESS IMPORTANT PHRASE+ In `possess information',

`possess drugs' and `possess animals',

+ the verb `possess' can be translated into 掌握 (as in the Securities (Insider Dealing) Ordi nance), 藏有 (as in the Dangerous Drugs Ordinance) and 管有 (as in the Rabies Ordinance) respectively.

THE END

Merci Beaucoup