法律文本的语言特点及其翻译策略
On Language Features of Legal Documents and Translation Strategies
2013/3/28 23:55:15 点击率[5736] 评论[0]
【法宝引证码】
    【学科类别】其他
    【出处】本网首发
    【写作时间】2013年
    【中文摘要】随着中国的改革开放的深入发展,法律制度的建立和完善已成为迫切的需要。因此,为促进日益频繁的经济交流和对外合作,大量的法律和法规已经制定并投入使用。为了确保外界充分了解和理解这些法律法规,他们需要被翻译成正确的英语。因此,法律文件的翻译已经受到越来越多的关注。此外,中国成为世贸组织的新成员,也将有力地刺激了这一类的翻译需求。我们知道,法律文件的翻译有两种,即中文或英文翻译。本文通过典型实例分析,提出了法律文体翻译的基本原则,并认为这一适用原则实质上是由法律语言的自身特点及其特殊的社会功能所决定的。作为一个特殊的文本翻译,法律词汇有其自身的的特点,这些词的使用具有严格的标准;普通词在法律场合被赋予特殊的意义。由于法律文本讲究严肃性,所以法律翻译必须忠于原著内容,同时语言风格也要和原著相对应。因此,“忠实和严格,规范和平稳”是非常重要的原则。理想的法律翻译应该是以上两点的完美结合。由于法律翻译的独特性,它不仅要求翻译工作者必须有高超的翻译技巧,同时也需要他们具有良好的法律意识。离开这些前提,法律文件的翻译质量无法得到保证。
    【中文关键字】法律文件;翻译;基本原则;社会功能
    【英文关键字】法律文件;翻译;基本原则;社会功能
    【全文】

       1 General Introduction of Legal Documents

       Legal document is a legal term of art that is used for any formally executed writing that can be formally attributed to its author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or right, and therefore evidences that act, process, or agreement. Examples include a certificate, deed, bond, contract, will, legislative act, notaries act, court writ or process, or any law passed by a competent legislative body in municipal (domestic) or international law. Many legal instruments were written under seal by affixing a wax or paper seal to the document in evidence of its legal execution and authenticity (which often removes the need for consideration in contract law); however, today many jurisdictions have done away with the requirement of documents being under seal in order to give them legal effect. Others, such as Australia, have re-interpreted sealing as a formally attested signature.

       Legal Document is a document that states some contractual relationship or grants some right

       Classified under:

       Nouns denoting communicative processes and contents

       Synonyms:

       Legal instrument; official document; instrument

       Hyponyms ("legal instrument" is a kind of...):

       Document; papers; written document (writing that provides information (especially information of an official nature))

       Jurisprudence; law (the collection of rules imposed by authority)

       Hyponyms (each of the following is a kind of "legal instrument"):

       Derivative; derivative instrument (a financial instrument whose value is based on another security)

       Deed of trust; trust deed (a written instrument legally conveying property to a trustee often used to secure an obligation such as a mortgage or promissory note)

       Conveyance (document effecting a property transfer)

       Income tax return; return; tax return (document giving the tax collector information about the taxpayer''s tax liability)

       License; license; permit (a legal document giving official permission to do something)

       Letters patent; patent (an official document granting a right or privilege)

       Judgment; judgment; legal opinion; opinion (the legal document stating the reasons for a judicial decision)

       Acquaintance; release (a legal document evidencing the discharge of a debt or obligation)

       Judicial writ; writ ((law) a legal document issued by a court or judicial officer)

       Authorizations; authorization; mandate (a document giving an official instruction or command)

       Affidavit (written declaration made under oath; a written statement sworn to be true before someone legally authorized to administer an oath)

       Written agreement (a legal document summarizing the agreement between parties)

       Bill of indictment; indictment (a formal document written for a prosecuting attorney charging a person with some offense)

       Impeachment (a formal document charging a public official with misconduct in office)

       Arraignment (a legal document calling someone to court to answer an indictment)

       Assignment (the instrument by which a claim or right or interest or property is transferred from one person to another)

       Deed; deed of conveyance; title (a legal document signed and sealed and delivered to effect a transfer of property and to show the legal right to possess it)

       Living will (a document written by someone still legally capable requesting that they should be allowed to die if subsequently severely disabled or suffering terminal illness)

       Negotiable instrument (an unconditional order or promise to pay an amount of money)

       Passport (a document issued by a country to a citizen allowing that person to travel abroad and re-enter the home country)

       Manifest (a customs document listing the contents put on a ship or plane)

       Debenture (a certificate or voucher acknowledging a debt)

       Power of attorney (a legal instrument authorizing someone to act as the grantor''s agent)

       Letters of administration (legal document naming someone to administer an estate when no executor has been named)

       Letters testamentary (a legal document from a probate court or court officer informing you of your appointment as executor of a will and empowering you to discharge those responsibilities)

       Work papers; work permit; working papers (a legal document giving information required for employment of certain people in certain countries)

       Act; enactment (a legal document codifying the result of deliberations of a committee or society or legislative body)

       Law (legal document setting forth rules governing a particular kind of activity)

       Bill; measure (a statute in draft before it becomes law)

       Brief; legal brief (a document stating the facts and points of law of a client''s case)

       Testament; will (a legal document declaring a person''s wishes regarding the disposal of their property when they die)

       Certificate; security (a formal declaration that documents a fact of relevance to finance and investment; the holder has a right to receive interest or dividends

       With the onset of the Internet and electronic equipments such as the personal computers and cell-phones, legal instruments or formal legal documents have undergone a progressive change of dematerialization.

       2. Features of Legal Documents

       2.1 Features In Lexicon

       When opening up English legal documents, we can easily find such a phenomenon, that is, to express a single concept by combining two or more synonyms, which can be referred to as “repetition of synonyms”. Some of the most commonly used can be listed as follows:

       Rules and regulations

       Provisions and stipulations

       Terms and conditions

       Damage or injury

       Full force and effect

       Property or chattels or goods

       Larceny or theft or stealing

       Null and void

       Safe and sound

       Due or collectible

       Repetition of synonyms plays a very important role in English legal documents, which can be summed up into the following two aspects:

       a. Enhancing the preciseness of Legal Documents As we know, preciseness is the soul and life of Legal Documents and repetition of synonyms can just work in this drive. Perhaps, that’s why the sentence “When in doubt, say it twice.” has become the motto of many legal professionals.

       b. Making Legal Documents easy to remember: From such phrases as aid and abet, part and parcel and safe and sound, it is not so difficult for us to recognize that they apply the figure of speech called “alliteration”, which makes them easier to remember and read.

       Some formal compound prepositional phrases such as for the purpose of, in place of , by virtue of, in accordance with, with regard to, etc. are frequently used in legal documents, the reason for which is that legal professionals think it lacks preciseness to use single prepositions and may lead to misinterpretations. In view of their construction, such compound prepositional phrases usually appear to be a pattern of “preposition + noun + preposition”.

       2.2 Features In Grammar

       2. 2. 1 Usage Of Non-Predicate Verbs

       “The letter was the symbol of her calling. Such helpfulness is found in her so much power to do and power to sympathize — that many people refuses to interpret the scarlet letter “A” by its original signification” (Rubinstein, 1988). We can see that the meaning of the scarlet letter “A” changes from adultery to being able, angel and admirable. At the beginning, people living in the town looked down upon the woman because of her crime. But later, they find that Hester is so skillfully in needlework and she always help the poor and sick without expecting any return or thanks. She is unselfish and always ready to help others considerately and patiently. People in the town then realize her noble nature and change the view on her. “Do you see that woman with the embroidered badge? It is our Hester — the town’s own Hester — who is so kind to the poor, so helpful to the sick, so comforting to the afflicted” (Hawthorne, 1994). The people in the town soon begin to regard the letter “A” as a badge served to ward off the evil. This is a kind woman who should not shoulder the shame and be looked down upon by others. Hester is an angel sent by God to the people in the town. And she should win the respect and sympathy of others instead of being punished by having to show her crime to the public by wearing the scarlet letter. People and the author of the novel really admire her pure nature and ability.

       The three changes in the scarlet letter are significant; they show the progressive presentation of her sin, her lonely life, and her ability. Hester is an admirable woman who experiences more emotional torture than most people go through in a lifetime.

       2.2.2 Omission Of Articles

       When particularly referring to something or somebody, the definite article can not be omitted. However, as a branch of Legal Documents, English for L/C often leaves out the definite article “the”, which can be illustrated by the following sentences.

       w Expiry Date: October 31, 1998 in country of beneficiary unless otherwise specified (the definite article “the” disappears before “country” and “beneficiary”)

       In Contract English, “the same” is often used to refer to a noun or a noun phrase already appeared in the same sentence, which functions as “it” or “them” applied in other styles. For instance:

       w Within 60 days after Party A has received the documents from Party B, if Party A does not declare any shortage and request to cover the same, it is considered as accepted. (Of which, “the same” refers to “any shortage”)

       In addition, “the same” can also be simplified as “same” by omitting “the”. For example:

       w We have heard from your branch office and have replied to same.

       2.3 Features In Sentence Pattern And Structure

       2.3.1 Usage Of Assertive Sentences

       As is known, English sentences can be classified into assertive sentences, interrogative sentences, imperative sentences and interjectional sentences in line with the purposes in applying them. As legal documents concern rights and obligations, everything should be based on actual facts without either subjective wills or personal emotions being involved in. Therefore, assertive sentences take a lion’s share in  Legal Documents with the exclusion of interrogative sentences, imperative sentences and interjectional sentences. For instance, the United States Constitution and Vienna Convention on Diplomatic Relations is almost dominated with assertive sentences. Specific examples can be offered as below:

       w The arbitration Commission has one honorary Chairman and several advisers.

       w The Chairman performs the functions and duties vested by him by these Rules and the Vice-Chairman may perform the Chairman’s functions and duties with Chairman’s authorization.

       w The arbitration tribunal shall hold oral hearings when examining a case.

       In judicial practice, due to the needs for inquiries, questioning and interrogations, various types of interrogative sentences may be used. For example:

       w Mr. Smith, you just said the victim was one of your good friends, didn’t you?

       In describing prohibitive and obligatory rules and regulations, the legal language can sometimes resort to imperative sentences. For example:

       w Prohibit the sale of alcohol to minors.

       In addition, interjectional sentences are sometimes applied in both statements of defense and public prosecution for the purpose of playing up the atmosphere and making the statements convincing.

       2.3.2 Usage Of Complete Sentences

       Owning to the structural integrity and notional preciseness of legal documents, sentences with both subjects and predicates available, namely, complete sentences are usually deployed in ELP with little usage of elliptical or mononuclear sentences so as to prevent ambiguity and distortion. For example:

       w “Invention” in the Patent Law means any new technical solution relating to a product, a process or an improvement thereof. “Utility Model” in the Patent Law means any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. “Design” in the Patent Law means any new design of the shape, pattern, color, or their combination, of a product, which creates an aesthetic feeling and is fit for industrial application.40

       As indicated in this sentence, unlike common English, Legal Documents does not leave out but repeat the same part by using complete subject-predicate sentences so as to fully deliver the contents of legal documents.

       3 Related Principles in Chinese-English translation of Legal Documents

       Over the years, “faithfulness, expressiveness and elegance” has always been taken as the standard in evaluating the quality of translations. In view of the unique features of Legal Documents its translation should adhere to the criteria of “preciseness, conciseness and infirmness”, which can be referred to as an echoing for the standard of “faithfulness, expressiveness and elegance”. In addition, special attention should also be paid to the following principles in translation of legal documents.

       3.1 Principle Of Using Formal Words And Expressions

       As legal documents are of frozen style, it is natural for their wording and phrases to be different from those applied in other styles of daily use. Due to direct involvement in rights and obligations of the parties concerned, the expressions in legal documents tend to be solemn and unemotional, which by all means should be taken into account in the translation of legal documents. For example:

       w 余…,本院业已作出你和王…的离婚判决,自本公告发出之日起60日内要求你来本院领取判决书。否则,既视为送达。

       Yu X X, this court has made a judgment of divorce between you and Wang X X. You are requested to receive the judgment at this court within 60 days starting the publishing date of this announcement. Otherwise, the judgment would be deemed to have been served.

       In this announcement, “要求” and “视为” are translated into such formal words as request and deem instead of informal words like ask and consider in a bid to reflect the solemnity of legal documents.

       w 合同的变更、解除或者终止,不影响当事人要求赔偿损失的权利。

       Modification, dissolution or termination of a contract does not deprive a party of the right to claim for damages.

       Likewise, in this translated sentence, we can find such formal words as modification, dissolution and termination, etc., while alter, cancel and end with the same meanings are not used here because of informality.

       3.2 Principle Of Preciseness

       To be precise, it requires correct understanding and explicit delivery of the true meaning in translation of Chinese legal documents. In doing so, we must shake ourselves off the influence resulting from the traditional ways of thinking in Chinese as much as possible and pay keen attention to the differences between Chinese and English languages at the same time. More importantly, wrong choices of words in translation must be avoided, which often subsequently lead to inaccuracy so as to result in absolutely different legal consequences. For example:

       w 陪审团宣告被告谋杀罪不成立。

       The jury acquitted the respondent of the charge of murder.

       In this sentence, it is not proper to translate “被告” into “respondent”, which should be put into “the accused”. The word “respondent” refers to a defendant in a civil case, especially in a divorce one, while “the accused” means the person charged in a criminal case. As a matter of fact, the translations of “原告” and “被告” into English often vary with the types of cases. For instance, in civil cases, they should be translated into “plaintiff” and “defendant” respectively; in divorce cases, they should be translated into “petitioner” and “respondent”; in maritime case, “libellant” and “libellee”. While in criminal cases, “自诉人/公诉人” and “被告人” should be put into “private/public prosecutor” and “the accused”. Hence, we can conclude that it would be impossible to exactly reflect the statuses of various parties concerned in translation of legal documents without much knowledge of these words.

       w 技术转让许可一般分为三种:普通许可、排他许可和独占许可。

       The license of technology assignment usually falls into three kinds, i.e., simple license, sole license and exclusive license.

       In this sentence, “技术转让” should be rendered into “technology transfer”, because “assignment” normally refers to the transfer of capital and debt, such as assignment of capital or debts. In addition, “独占许可” should be translated into “exclusive license”, which is often mistaken as “sole license”. The three kinds of license set down different rights and obligations for parties concerned, so even a minor error is not allowed at all in translations. Out of the aforesaid examples, we can see that it is by no means easy to achieve preciseness in translation of Chinese legal documents.

       3.3 Principle Of Conciseness

       Apart from preciseness, the translation of Chinese legal documents should also stick to the principle of conciseness, that is, to give a lot of information in a few words, as the simplest and most concise language is the best for legislation. Therefore, in translation of legal documents, we should strive for simplicity rather than complexity and guard against verbosity arising out of word-for-word translation. For example:

       w 英文如与中文有歧义,以中文为主。

       a) If the interpretation of the English version is different from that of the Chinese version, the latter shall be taken as the standard.

       b) In case of any misinterpretation of the English version, the Chinese one prevails.

       c) In case of any discrepancy between the English and the Chinese versions, the latter prevails.

       Among the three versions of translations, Version a) renders a clear meaning but lacks conciseness, while Version b) and c) not only conform to English ways of expression but also embody the requirement for conciseness in legal documents.

       w 房屋购买人应向房地产登记处办理登记手续。

       a) The vendee shall effect registration with the real estate registration office.

       b) The vendee shall register with the real estate registry.

       Such an example provides us with an opportunity to see how the word-for-word translation affects the conciseness. In practice, we often neglect the conciseness in our English translations for fear that the original sentence can not be fully delivered in meaning. As a result, we do the translation on a word-for-word basis, which causes inconvenient redundancy. Here, we can see clearly that Version b) is better than Version a) in terms of conciseness.

       w 约翰·史密斯在中国居住期间没有受过刑事制裁。

       a) John Smith has no record of committing offences against the Criminal Law during his living in China.

       b) John Smith has no record of criminal offences during his living in China.

       From the two translated versions, it is easy to observe that only 6 words in Version b) are used to function as powerfully as the 9 words in Version a) for the same phrase “没有受过刑事制裁”. Which is more preferable, it is self-evident.

       3.4 Principle Of Term Consistency

       In case of translation of literary works, we tend to express identical concepts or matters with a variety of words and phrases for the sake of diversity. But, for translation of legal documents, it will be not the case. With a view to ensure the constant consistency in legal meanings for identical concepts or matters so as to ward off ambiguity, once a word is selected, it will keep going throughout the whole text no matter how many times it will be repeated. Anyhow, the principle of term consistency should be strictly abided by in translation of Chinese legal documents. For example:

       w 前款所指的支付各种应纳税的款项,包括现金支付、汇款支付、转账支付和有价证券或实物支付时折算的金额。

       The various kinds of taxable payments referred to in the proceeding paragraph include payments in cash, payments by remittance, payments through transfer accounts and payments in marketable securities or in kind, which are rendered into equivalent amount of money.

       As can be seen, the word “payments” are repeated five times in the translation, which just serves to achieve the goal of term consistency. Sometimes, “支付” may be mistranslated into “disbursement”. It is noteworthy that “payment” means “paying or being paid”, while “disbursement” only means “paying out”.

       w 被告(宝洁公司)从未以任何方式向原告(雇员)施加精神压力。被告可以拿走原告的文档和他使用的电脑,这是公司的规章制度所规定的,其目的是防止公司的商业秘密被泄露。

       …the defendant (P & G) never exerted any spiritual pressure in any form on the claimant. The defendant was free to take away all the plaintiff’s files and the computer he had being using, strictly in accordance with the company’s stipulations, and that such actions were aimed at preventing the company’s trade secrets from being disclosed.

       In the translation, what catches our eyes is that two different words “claimant” and “defendant” are applied to refer to the same object “被告” in the original text, which is prohibited in translation of Chinese legal documents. If doing so, “claimant” and “defendant” might be regarded as two separate parties. Similarly, there are two words “infant” and “minor” in English for “未成年人”, which can not be used alternately in the same context in translation. Thus, without due attention to the consistency of term use, it will inevitably lead to ambiguity in translation of Chinese legal documents.

       3.5 Principle Of Using Legal Terms

       As an academic discipline, the science of law certainly has its own professional terms, namely, legal terms. Each legal term is strictly defined with special implications. In practice, we can cite many occasions in which legal terms are misinterpreted into lay expressions. This principle is hereby emphasized to remind those engaged in translation of legal documents to bear legal terms always in their minds. For example:

       w 举证责任由被告承担。

       The responsibility of proof rests with the defendant.

       In Legal Documents, there is a special term for “举证责任”, i.e., “burden of proof” or “onus of proof”. So this sentence should be placed into:

       The onus of proof/burden of proof rests with the defendant.

       w 本细则的解释权属于中华人民共和国财政部。

       The right of interpreting the Detailed Rules belongs to the Ministry of Finance of the People’s Republic of China.

       We can note that “belong to” for “属于” is not appropriate in meaning. The correct translation should be as follows:

       The right of interpreting the Detailed Rules resides in/is vested in the Ministry of Finance of the People’s Republic of China.

       4 Specific approaches In translation of Legal Documents

       4.1 Proper Use Of Nominalization Structures

       although nominalization structures normally appear in the form of phrases, they are equivalent to a sentence in meaning. So, it is not strange for us to see a wide application of them in English. However, in Legal Documents, we can find a lot more of them in actual use than in common English for the purpose of conciseness and compactness. In addition, the structures of “verb + object” and “subject + predicate” in Chinese are often inter-translatable with nominalization structures in English. Undoubtedly, this provides another effective tool for us to apply in Chinese-English translation of legal documents. Examples can be given as below:

       w 国家提倡劳动者参加社会义务劳动,开展劳动竞赛和合理化建议活动。

       The state shall advocate the participation of laborers in social voluntary labor and the development of their labor competitions and activities of forwarding rational proposals.

       w 劳动合同变更需经双方协商同意,并办理劳动合同变更手续。

       Modification of a labor contract shall be implemented through consultation and agreement of the parties involved, procedures for the modification shall be undertaken.

       4.2 Proper Use Of Passive-Voice Sentences

       As discussed above, Legal Documents are full of passive-voice sentences. Such a phenomenon is serving for the semantic consistency on one aspect, and more importantly, passive-voice sentences involve no personal emotions that satisfy the requirement of legal documents for objectivity and reality. Although passive-voice sentences are also used in common English, they have a particular bearing for Legal Documents That is why I pick it up as a unique feature of Legal Documents for discussion here. With due attention to this point, it is certainly of tremendous benefits for Chinese-English translation of legal documents. For example:

       w 劳动合同签订后,应当于一个月内到当地劳动行政部门签证。集体合同订立后,应报送当地劳动行政部门备案。

       A concluded labor contract shall be submitted to the local labor administrative department for signature and confirmation within a month from the day when it is concluded; a concluded collective contrast shall be reported to the local administrative department for record.

       w 民事诉讼通常是指因违反合同、民事犯罪或侵权所提起的诉讼。

       Civil actions generally are brought for breach of a contract, or for a wrong or tort.

       4.3 Rational Analysis And Conveying The True Meanings

       As we know, translation is a kind of logical thinking activities. On one hand, it is imperative to conduct logical analysis for a thorough understanding of the original text; on the other hand, we can not do without logical analysis in organizing and rendering our translations. With regard to the Chinese-English translation of legal documents, special attentions should be paid to the following aspects:

       Conclusion

       Legal document professional-specific, meaning Inheritance, grammar, passive, stylistic characteristics of a formal nature, the accuracy in the translation to be maintained, refined and the principles of normative language.

       Legal translation is the translation of texts within the field of law. As law is a culture-dependent subject field, legal translation is not a simple task. When translating a text within the field of law, the principles should be kept in mind. The legal system of the source text is structured in a way that suits that culture and this is reflected in the legal language; similarly, the target text is to be read by someone who is familiar with another legal system and its language. Most forms of legal writing, and contracts in particular, seek to establish clearly defined rights and duties for certain individuals. It is essential to ensure precise correspondence of these rights and duties in the source text and in the translation.

    【作者简介】
    杨乐,广东商学院2011级法律硕士。

    本网站文章仅代表作者个人观点,不代表本网站的观点与看法。
    转载请注明出自北大法律信息网
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