Skip to content
Publicly Available Published by De Gruyter Mouton May 19, 2016

A study of legal translation from the perspective of error analysis

Pi-Chan Hu and Le Cheng EMAIL logo

Abstract

In this research, we established a small scale corpus with abstracts in English and Chinese from the law reviews of Taiwan. We identified problems found in these abstracts and classified them into several categories. After analyzing the problems, we found that translators are faced with numerous problems when translating legal texts: the influence of ordinary language, lack of reliable reference tools, insufficiency of legal knowledge, deficiency in the target language or source language, and the peculiar characteristics of legal language. These problems simply render the task of translating even more intricate. Strategies will be proposed to enhance the ability of legal translators and to help them to overcome these obstacles.

1 Introduction

With the ever-developing trend of globalization, the demand for well-trained and competent legal translators is on the increase. The high frequency of interaction among global members renders legal translation even more essential in modern times. Legal language differs from ordinary language in a great many aspects and it is impossible to separate language from the law since law cannot exist in vacuum. The major difference between translated legal texts and other types of translated texts is that most of the legal texts serve a legal purpose and any error or mistake in the target texts may and will give rise to legal consequences in most circumstances. For example, most of the merger cases in Taiwan involve more than billions of New Taiwan dollars and it is a common practice for the relevant contracts and agreements to be written in English. In cases as such, both the lawyers and legal translators are under tremendous pressure.

Despite the fact that legal translation plays a vital role in modern times, it has not received due, if any, attention both in academic as well as practical circles in Taiwan. Courses and modules in legal translation at tertiary institutions are extremely limited. The questions where suitable candidates can be recruited and what the nature of their training should be now arise. In fact, it is practical and necessary for institutions of translation to design programs or modules for interested students to elevate their qualifications in order to meet the market demand by supplying suitably trained and competent legal translators. The fact that few researchers have identified methods and training with regard to legal translation is what motivates us to conduct a study on such a topic.

2 Literature review

In Taiwan, the study of legal translation is still on an emerging stage. Very little research has been done in the related area. An earlier study is done by Chou (1994) in investigating the translation of German legal terms taken from the German Federal Election Law and the Federal Election Regulations. From the viewpoint of text translation, Chou placed a great stress on the communicative purpose of legal texts by elucidating the key points of legal documents and catering to the legal effects of the translation products. Then, Lu (2007) did a research on court interpreting. After having collected and analyzed qualitative data from interviews with persons directly involved with court interpreting in the legal system, Lu suggested that Taiwan still needs to address legislative and funding issues, conduct research to gather reliable data, better ensure access to competent interpreters for persons with limited Mandarin proficiency, and implement measures aimed at improving the institutional framework of Taiwan courts and courtroom procedures.

Moreover, Liao (2009) probed the explicitness and simplification features in Taiwan’s and China’s versions of translation texts of General Agreement on Trade in Services (GATS). It proved that language materials of Taiwan and China contain the universals of translation, which also indicates that both Taiwan and China simultaneously achieve the goal of explicitness and simplification. Then, Tsai conducted a text analysis of patent abstracts (Tsai 2010). Her analysis involves the deconstruction of information within a text including text structure, text pattern, linguistic features, lexical analysis, and syntactic analysis. She indicated that English translated texts presented a more consistent use of short sentences than in the original Chinese texts, and a common usage of shorter words was also evident in the translated texts. In 2012, Chen and Liao did a research on the multi-roles of the court interpreter in Taiwan discussing the dynamic change in role-playing of interpreters from conduits to initiators (Chen and Liao 2012). In addition, Chen, a professor of Intellectual Property, proposed a new theory for translation of Taiwanese courts decisions from the perspective of a legal professional (Chen 2012). Other than these researches, the area of legal translation research in Taiwan can be said to be a barren field waiting to be irrigated and cultivated.

Compared with the situation of Taiwan, the study of legal translation has gained a great deal of attention abroad. For example, in China and Hong Kong there are a lot of academic institutions established to do research on that area. In America and Europe, the study is growing in prominence in the past three decades. Here is a brief introduction to the major researches in legal translation in the Western culture.

According to Mattila (2006: 7), the first legal text translated from one language to another, and which has survived until today is the peace treaty in languages between the Egyptians and the Hittiles, dating back to 1271 B.C. A famous example of the early history is the Corpus juris civilis, first translated into Greek and later into many other languages (Šarčević 1997: 23–28). In medieval times, legal translation focused around Latin: texts were translated from different vernaculars into Latin and from Latin into various vernaculars (Mattila 2006).

Šarčević (1997) presents a comprehensive study of legal translation, which is an interdisciplinary study in law and translation theory. The discussion is not bound to any specific languages or legal systems, although emphasis is placed on translation between Common Law and Civil Law jurisdictions. The main focus is on the translation of texts which are authoritative sources of the law; examples are cited primarily from statutes, codes and constitutions, as well as instruments of the European Union and international treaties and conventions. Šarčević’s areas of specialization include legal translation, legislative drafting, legal lexicography and multilingual communication in the law. She has published extensively in leading journals (Šarčević 2000).

Then with a focus on the problems of translating English legal language, Alcaraz and Hughes (2002) offer a wide-ranging view of one of the most demanding and vital areas of contemporary translation practice. They deal with legal English as a linguistic system, special concepts in the translation of legal English, the genres of legal translation, and offer a series of practical problems together with discussions of proposed solutions, as well as insight into the pragmatic ways translators go about finding solutions. The very piece of work can serve as a manual in the translation class and as an invaluable reference work. The numerous examples and discussions of specific terms are extremely useful for students, teachers, self-learners and professional translators.

Moreover, Cao indicates that the translation of law has played an integral part in the interaction among nations in history and is playing a greater role in our increasingly interconnected world today (2007). She investigates legal translation in its many facets as an intellectual pursuit and a profession. The study examines legal translation from an interdisciplinary perspective, covering theoretical and practical grounds and linguistic as well as legal issues. It analyses legal translation competence and various types of legal texts including contracts, statutes and multilateral legal instruments, presents a comparative analysis of the Common Law and the Civil Law and examines the case law from Canada, Hong Kong and the European Court of Justice. Cao attempts to demonstrate that translating law is a complex act that can enrich law, culture and human experience as a whole.

3 Methodology

For the project research, we collected abstracts of the past three years from articles of law reviews. The law reviews selected are those listed in the category of law in Taiwan Social Science Citation Index (TSSCI). [1] We collected the issues of the following journals released from January of 2013 to March of 2015 and established a small scale corpus. The journals are shown as follows:

Academia Sinica Law Journal
Chengchi Law Review
Chung Yuan Financial & Economic Law Review
Fair Trade Quarterly
National Taiwan University Law Journal
National Taiwan University Law Review
Soochow Law Review
Taipei University Law Review
Tunghai University Law Review

These law reviews are widely regarded as better academic journals among all the law publications in Taiwan. Their quality is supposed to be beyond the average standard but there are still problems in the translation both from Chinese to English and from English to Chinese. With the abstracts of Chinese and English, we established a small scale corpus. The corpus contains approximately 350,000 words.

Among these law reviews, National Taiwan University Law Review is completely written in English. Articles in other reviews are mainly written in Chinese. And it’s a common practice to give the abstract both in Chinese and English. Therefore, our samples can be texts translated from Chinese to English and texts English to Chinese. A variety of phenomena of translation problems were observed. Then, we would classify the translated errors into several types, analyze the cause of each individual type and propose strategies to avoid and overcome the problems.

4 Issues in legal translation

Before conducting the research since a lot of issues contribute to the difficulty and problems of legal translation, let’s give a brief introduction to each of them.

4.1 Typology of legal translation

According to Šarčević (1997), legal translation can be classified according to the functions of the legal texts in the source language into the following categories: (1) primarily prescriptive, e. g. laws, regulations, codes, contracts, treaties and conventions. These are regulatory instruments containing rules of conduct or norms. They are normative texts; (2) primarily descriptive and also prescriptive, e. g. judicial decisions and legal instruments that are used to carry on judicial and administrative proceedings such as actions, pleadings, briefs, appeals, requests, petitions etc.; and (3) purely descriptive, e. g. scholarly works written by legal scholars such as legal opinions, law textbooks, articles etc. They belong to legal scholarship, the authority of which varies in different legal systems (Šarčević 1997: 11). Šarčević (1997: 9) defines legal translation as special-purpose communication between specialists, excluding communication between lawyers and non-lawyers.

Both Harvey (2000) and Cao (2007) point out the existing classifications of legal translation are problematic since the classifications are based on the function or use of the original legal texts in the source language, without due regard to the various target language factors, such as the functions or status of the translated texts. Instead, Cao (2007: 9) distinguishes between main categories and sub-categories of legal texts, such as (1) legislative texts which include national and provincial legislation, bylaws, ordinances, etc.; (2) judicial texts which are written by judicial officials and other authorities as part of the judicial process; (3) academic texts or metatexts, which are descriptive texts about the law, such as textbooks and books on legal topics; and (4) private legal texts, such as contracts, wills, letters of demand, lease agreements, etc. The abstracts collected for this research belong to the third type but its content may deal with legislative, judicial or private legal issues. Therefore, the term legal translation in this proposal is used in its widest sense to refer to the translation of all four categories of legal texts.

4.2 Legal competence versus translation competence

There has been disagreement as to the amount and extent of specialized knowledge required of legal translators. A lot of scholars put great stress emphasis on the importance of a solid foundation and training in law (e. g. Schwarz 1977; Rotman 1995–1996; Kennedy 2000). In this regard, Schwarz (1977: 21) remarks:

As in all other fields of knowledge, the translation of a legal and administrative text depends on the translator’s full understanding and comprehension of the subject matter in question.

As a matter of fact, sometimes even lawyers and judges have difficulty with the complexity and technicality of legal language and find it difficult to understand legal texts written in their own languages (Kennedy 2000: 428). Translated legal texts are often even more difficult to understand and sometimes the difficulty is often caused by the interventions of non-lawyer translators. Šarcevic (1997:113) indicates that “all LSP (language for special purposes) translation is interdisciplinary in nature,” which means the legal translator must be able to make both legal and linguistic decisions. This view presupposes competence in law and in translation. With regard to specialized terminology, Rotman (1995–1996: 195) asserts that a thorough knowledge of both the source and target legal systems is required, and that legal translation “requires not only knowledge of the law in general, but also solid acquaintance with the specialized field, its doctrines, and particular models.” Schroth (1986: 55–56) also indicates that “… the legal translator must know how to achieve the same legal effect in the target language.”

On the other hand, some scholars believe that as long as the legal translator can fully understand the legal source text, he or she is not required to interpret such texts in the way a lawyer would – that is, in the legal sense (Šarcevic 2000: 5)

4.3 Legal equivalence

Due to the differences in legal systems and cultures, sometimes it is difficult or impossible to find an absolute legal equivalent (Cheng and Sin 2008; Šarčević 1997). It is therefore not surprising for us to see some arguments of the impossibility of exact equivalence in legal translation. For instance, Kischel (2009: 8) contends that the existence or lack of a legal and terminological equivalent is not, however, a question of yes or no but rather one of degree To tackle this problem, Nida (1982, 2001) puts forward a theory of functional equivalence which has a great influence on translation, including legal translation. The term functional equivalence highlights the impact the message has on the target language and the source language reader. In this regard, Šarčević (2000: 238) divides functional equivalence into three groups: near-equivalence, partial equivalence, and non-equivalence. The method that the legal translator chooses depends on the degree of equivalence within the concept. While near equivalence may require the translator to simply find a phrase in the target language with the same meaning, non-equivalence needs more involvement, where the translator needs to paraphrase carefully, without losing any of the original information and intent.

5 Result and discussion

Some of the above-mentioned TSSCI law journals are released quarterly, and some half-yearly. The total issues we collected are 82, and nearly 360 research papers are used for analysis. The total number of words is approximately 350,000 words. The total errors found in these abstracts are 2059 items. And the errors are divided into four types. A detailed description of the result is presented in Table 1.

Table 1:

The result of the total errors found.

Description of errorsNumbersPercentage
Type 1Errors concerning incorrect titles of the law924.47 %
Type 2Lexical errors92845.07 %
Type 3Syntactic errors89343.37 %
Type 4Others1467.09 %
Total2059100.00 %

The examples shown in Table 2 are errors with incorrect titles of the law. The underlined words are the wrong parts and the inserted words in parenthesis are the correct versions provided by us. Some of the wrong titles look very similar to the official ones. However, when it comes to titles of law or regulations, only the official versions, i. e. those provided by the Judicial Yuan, [2] are acceptable. That is to say, every word has to be exactly the same as the official version whether it be a content word or a function word. There is no space for any variation even if one word is missing. For example, the title Securities and Exchange Act shown in Ex 2 cannot be simplified as Securities Exchange Act. In the field of legal language, precision is highly emphasized. As a matter of fact, such errors are very easy to avoid so long as translators look up the title in the website of the Judicial Yuan where all of the official versions of English titles are provided, a fact that some translators may not be familiar with. All it takes is some labor work. In many cases, the direct literal translation from Chinese to English following one’s own instinct turns out to be the wrong one. This is what translators have to bear in mind.

Table 2:

Errors concerning incorrect titles of the law.

Example numberSource [3]Source textTarget text
Ex 1002003立法院在民國 98 年三讀通過「勞資爭議處理法」修正案…

‘lifayuan zai minguo 98 nian sandu tongguo “laozi zhengyi chulifa” xiuzhengan…’
The Legislative Yuan [4] of Taiwan passed in 2009 the Act for Settlement of Labor Disputes (the Act for Settlement of Labor-Management Disputes)…
Ex 2004007證券交易法規定, 內線交易的犯罪所得金額達新台幣 1 億元以上者, …

‘yi zhengquan jiaoyi fa guiding, neixian jiaoyi de fanzui suode jine da xintaibi 1 yi yuan yishangzhe, …’
Under the Securities Exchange Law (Securities and Exchange Act), where the amount of gain from insider trading reaches NT $ 100 million or more…
Ex 3004008在台灣,公寓大廈管理條例雖已增訂「公寓大廈費用優先權」,

…‘zai taiwan, gongyu dasha guanlitiaoli suiyi zengding “gongyu dasha feiyong youxianquan”,…
Although a provision concerning condominium liens has been added in the Condominium Regulation Act (Condominium Administration Act Building Administration Division) in Taiwan…
Ex 4005011兒少保護法作為藝術自由之限制

…‘ershao baohufa zuowei yishu ziyou zhi xianzhi’
Children and Youth Protection Law (The Protection of Children and Youths Welfare and Rights Act) as a Limitation in the Freedom of Art…
Ex 5006004本文的目的即在於從新近通過的「個人資料保護法」的觀點…

‘benwen de mudi ji zaiyu cong xinjin tongguo de “geren ziliao baohu fa” de guandian…’
Thus, this paper aims to comprehensively review the related issues based on the newly enacted Personal Data Protection Act (Personal Information Protection Act) …
Ex 6006008更針對2013及2014年2月最新修正的違反食品安全衛生管理法第49條之罪…

‘geng zhendui 2013 ji 2014 nian 2 yue zuixin xiuzheng de weifan shipin anquan weisheng guanli fa di 49 tiao zhi zui…’
we will also discuss the “Act Governing Food Sanitation (article 49 of Act Governing Food Safety and Sanitation)” modified on 2013 and February of 2014, article 49

The examples shown in Table 3 are lexical errors. Lexical errors can be further divided into two types: one is linguistic errors and the other is errors in legal terms. In example 1 of Table 3, the term 後半段 ‘houbanduan’ is mistakenly translated as the last part but the correct expression should be the latter part. In example 2 of Table 3, apparently the translators are not aware that the correct English legal term for 條 ‘tiao’ is article and the term for 項 ‘xiang’ is paragraph.

This type of errors takes up the largest percentage (45.68 %) among all types of errors. The large number of errors in this respect is actually way beyond our expectation. As we know, all of the research papers are written by law professors but the abstract may not necessarily be translated by the authors. Some of the authors translated the abstracts by themselves, some asked their students to translate the abstracts and some have translation centers do the translating. Therefore, the translators of these abstracts are of various backgrounds. They can be law professors, law students, English majors or others.

In addition, the error shown as Example 10 in Table 3 indicates that the usage of ordinary language poses a great influence on the translators. Chances are that translators did not have the knowledge of the correct terms of these words in legal language so they simply translated the words into everyday language. Similar errors are very common such as translating adoption and robbery into 領養 ‘lingyang’ and 搶劫 ‘qiangjie’, but the correct terms should be 收養 ‘shouyang’ and 強盜搶奪 ‘qiangdao qiangduo’ respectively. Even though the terms 領養 ‘lingyang’ and 搶劫 ‘qiangjie’ are commonly seen or heard every day, they are not the terms used in legal language. Translators cannot be too cautious about this type of errors. Furthermore, Taiwan and the US belong to different legal systems so translators have to be alert of the differences that can be reflected in lexicons in some cases as well.

Table 3:

Lexical errors.

Example numberSourceSource textTarget text
Ex 1002004第53條第 1 項後半段…

di 53 tiao di 1 xiang houbanduan…’
the last (latter) part of Section one, Article 53 (Paragraph one of Article 53) …
Ex 2002006證券交易法第 20 條第1項規定……

‘zhengquan jiaoyi fa di 20 tiao di 1 xiang guiding……’
Section1 Article 20 (Paragraph 1 of Article 20) of Securities Exchange Act (Securities and Exchange Act) provides that…
Ex 3002013嚴格來 說, 該項僅規範「重大修繕有承攬人抵押權 的適用」,而就…

‘yange laishou, gaixiang jin guifan “zhongda xiushan you chenglanren diyaquan de shiyong”, erjiu…’
Strictly speaking, the paragraph only regulates “mechanic’s liens (undertaker’s mortgages) apply to vital repairs”, but it does not…
Ex 4002021權利侵害[5]‘quanli qinhai’infringement (infringement) of rights
Ex 5005013所得稅法第15條第1項規定…

‘suodeshuifa di 15 tiao di 1 xiang guiding…’
Section 15 (paragraph 1 of article 15) of the Income Tax Act…
Ex 6006004均先區辨當事人對事實之誤判, 是發生在動機或表示,…

‘junxian qubian dangshiren dui shishi zhi wupan, shi fasheng zai dongji huo biaoshi,…’
…it should first be distinguished whether the mistake regarding facts and law lies in the motive or declaration of the declarant (expression)…
Ex 7009022本文建議廢除公司法第 235 條第2

‘benwen jianyi feichu gongsifa di 235 tiao di 2 xiang…’
a proposal is made herein as follows: Paragraph 235 subparagraph 2 (paragraph 2 of article 235)of Taiwan Corporate Act could be abolished.
Ex 8009038電腦與網路對於我們現今日常生活中的地位已無庸贅言…

‘diannao yu wanglu duiyu women xianjin richangshenghuo zhong de diwei yi wuyong zhuiyan…’
Needless to say, the Internet and concerned (this word should be deleted) information technology take a pivotal role in daily life nowadays.
Ex 9010005確保刑事訴訟的過程滿足程序正義

‘quebao xingshi susong de guocheng manzu chengxu zhengyi…’
to assure the public that the criminal procedure meets procedure justice (procedural justice or due process) …
Ex 10010006…the loss, theft, or damage of the equipment…設備的損失(滅失)、竊盜(失竊)或破壞(毀損) …

‘shebei de sunshi(mieshi), qiedao(shiqie) huo pohuai(huisun)…’

Some examples of syntactic errors are shown as Table 4. As we can see, some of the lexical examples are repeated here. In this case our focus is the syntactic aspect such as the correct word order of the expression. For instance, the correct way of expressing “第 53 條第1項 ‘di 53 tiao di1 xiang’ (Ex 2 in Table 4)” is Paragraph one of Article 53 rather than Section one, Article 53. That is, even if the expression is translated by the correct lexicons, we still need to delete the comma and insert the preposition of to make the legal term correct. Examples 3 and 7 are similar errors. The fact that similar errors as such take up 102 items of this type explains that a lot of translators do not have the legal or linguistic knowledge in this respect. In Chinese a specific item of a rule is expressed in a top-down manner such as 證券交易法第 20 條第1項 ‘zhengquan jiaoyi fa di 20 tiao di 1 xiang’ (literal translation: Securities and Exchange Act, Article 20, Paragraph 1); however, in English a specific item of a rule is expressed in a bottom-up manner such as Paragraph 1 of Article 20 of Securities and Exchange Act. It is a must for translators to know this legal style since such expressions are omnipresent in legal language.

On the other hand, some errors are purely caused by the deficiency of language proficiency or linguistic competence. Errors include the incorrect usage the verb forms, articles or word orders. For instance, the errors shown as examples 6, 8, 10, 11, 13 and 14 can be avoided without difficulty if the translators are proficient and careful enough with English language. And the spelling error shown as example 4 in which infringement is misspelled as infringement also manifests this demerit.

Table 4:

Syntactic errors.

Example numberSourceSource textTarget text
Ex 1002003職是, 本文乃藉由引介德國學說與實務關於公務員職務調動之發展脈絡

zhishi, benwen nai jieyou yinjie deguo xueshuo yu shiwu guanyu gongwuyuan zhiwu diaodong zhi fazhan mailuo…’
In the above light (In light of the above), this article intends to discuss the juridical nature of transfer of duties as the concept has been developed in doctrines and practice in Germany…
Ex 2002004第 53 條第1項後半段…

di 53 tiao di 1 xiang houbanduan…’
the last part of Section one, Article 53 (Paragraph one of Article 53) …
Ex 3002006證券交易法第 20 條第 1 項

‘zhengquan jiaoyi fa di 20 tiao di 1 xiang ……’
Section1 Article 20 (Paragraph 1 of Article 20) of Securities Exchange Act (Securities and Exchange Act)…
Ex 4005013所得稅法第 15 條第 1 項規定…

‘suodeshui fa di 15 tiao di 1 xiang guiding…’
Section 15 (paragraph 1 of article 15) of the Income Tax Act…
Ex 5005024促參案件因政策更迭致半途而廢者, 雖不眾多, 但並非罕見

cucan anjian yin zhengce gengdie zhi bantuerfei zhe, sui bu zhongduo, dan bingfei hanjian…
Promotion of Private Participation in Infrastructure Projects because the policy to gave up halfway, by no means rare, (It is not rare that Promotion of Private Participation in Infrastructure Projects were given up before completion because the policy changed.)…
Ex 6006004向來之學說與實務見解, …

‘xianglai zhi xuexuo yu shiwu jianjie…’
The legal academy and practice has (have) long hold the position that…
Ex 7006008本文除針對違法普通刑法之第191條「製造販賣陳列妨害衛生物品罪」…

‘benwen chu zhendui weifa putonxingfa zhi di 191 tiao “zhizao fanmai chenlie fanghai weisheng wupin zui”…’
In this paper, we will discuss ordinary criminal code article 191 (article 191 of Criminal Code) about offense of manufacture…
Ex 8009005梅根法案(可能) 1990 年代美國有關性犯罪加害人社區預防處遇相關法案中最重要的法案之一。…

‘meigenfaan (keneng) shi 1990 niandai meiguo youguan xingfanzui jiahairen shequ yufang chuyu xiangguan faan zhong zuizhongyao de faan zhi yi…’
In (the) United States, Megan’s Law probably is (is probably) the most controversial and influential sex offender law.
Ex 9009022本文建議廢除公司法第 235 條第 2 項

‘benwen jianyi feichu gongsifa di 235 tiao di 2 xiang…’
a proposal is made herein as follows: Paragraph 235 subparagraph 2 (paragraph 2 of article 235) of Taiwan Corporate Act could be abolished.
Ex 10009023勞資之間對於工資已約定每月給付定額工資, 該工資包含加班費部分時, …

‘laozi zhi jian duiyu gongzi yi yueding maiyue jifu dinge gongzi, gai gongzi baohan jiabanfei bufen shi,…’
a monthly fixed salary which includes the overtime payments has been agreed by a (an) employer and a(an) employee…
Ex 11009024目前法院實務認為勞雇雙方於勞動契約成立時…即不應認為違反勞動基準法之規定, …

‘muqian fayuan shiwu renwei laogu shuangfang yu laodong qiyue chengli shi… ji buying renwei weifan laodongjizhunfa zhi guiding,…’
The court currently holds that the agreement, which the employer and the employee has (have) entered into, should not violate the Labor Standards Act…
Ex 12009026為維持與保養勞動力, 我國勞動基準法第38明定…

wei weichi yu baoyang laodongli, woguo laodong jizhunfa di 38 tiao mingding…’
Maintenance and maintenance of labor (To maintain and conserve labor), (Article) 38 of the Labor Standards Law in Taiwan stipulates that…
Ex 13009034我國成年監護制度於 2008 年進行全面修正, 廢除禁治產宣告制度之後, …

‘woguo chengnian jianhu zhidu yu 2008 nian jinxing quanmian xiuzheng, feichu jinzhichan xuangaozhidu zhi hou,…’
The Taiwanese adult guardianship law has been (was) amended in 2008, and the law on the adjudication of interdiction has been (was) revoked and replaced by…
Ex 14009034德國立法者於1990年代起, 即重視高齡化社會所產生的法律問題, …

‘deguo lifazhe yu 1990 niandai qi, ji zhongshi gaolinhua shehui sho chansheng de falu wenti,…’
From (the) 1990s, the German legislators have (been) fully concerned with the legal problems of aging society,…
Ex 15009040某程度而言可以說, 在法官作成判斷的過程中, 其實…

‘mou chengdu eryan keyi shuo, zai faguan zuocheng panduan de guocheng zhong, qishi…’
To certain extent we can certify that the process during the judge making judgments (during the process of the judge’s judgment-making) is in fact…

The errors shown in Table 5 are those which cannot be clearly divided. For instance, in the abstracts a number of phrases or sentences are left untranslated such as example 1 of Table 5. The focus of example 1 is the phrase 其中第 53 條第1項後半段 ‘di 53 tiao di 1 xiang houbanduan’ (‘the latter half of paragraph 1 of article 53’), which is missed in the translation. Another kind of errors such as Example 3 in Table 5 simply involves too many factors such as lexical errors, phrasal errors, legal expressions and sentence structures. Therefore, it is categorized into others. As to the Example 4, the target text is a direct literal translation from the source text which does not make much sense even though the target text looks a lot similar to the source text. These errors with complex structures highlight the stark reality that legal language varies so greatly from ordinary language that translators cannot mistake legal language for ordinary language combined with legal terms (Philips 2003).

Despite the brute fact that no two languages completely overlap, neither two legal systems nor two cultures and the reality that there are many existing errors in the translated legal texts, we still hold that both theoretically and practically exact equivalence can be achieved just the simple fact that a term, an expression in law is a sign vehicle not born with an inherent sense but invested with a sense by language users (Cheng and Sin 2008; Cheng et al. 2014a, 2014b).

Table 5:

Others.

Example numberSourceSource textTarget text
Ex 1002003立法院在民國 98 年三讀通過「勞資爭議處理法」修正案, 其中第 53 條第 1 項後半段增列「權利事項之勞資爭議, 不得罷工」之規定。

‘lifayuan zai minguo 98 nian sandu tonguo “laozi zhengyi chulifa” xiuzhengan, qizhong di 53 tiao di 1 xiang houbanduan (the underlined part is left untranslated) zenglie quenlishixiang zhi laozi shengyi bude bagong…’
The Legislative Yuan of Taiwan passed in 2009 the Act for Settlement of Labor Disputes (the Act for Settlement of Labor-Management Disputes) (in) which (the latter half of paragraph 1 of article 53) [6] regulates that strikes are not allowed when right disputes are concerned.
Ex 2009005不論是在東方或是西方的社會, 與其他犯罪相較, 性犯罪總是較容易引起社會上之關注與討論。20年來世界各國有關各類犯罪加害人處遇法制之發展, 亦偏重於性犯罪加害人之治療與預防(the underlined part is left untranslated) 。其中, 對於性犯罪之加害人最為嚴厲的制度, 當屬從美國的梅根法案所發展出 來的性犯罪加害人登記與公告制度。

‘bulun shizai dongfang huoshi xifang de shihui, yu qita fanzui xianjiao, xingfanzui zongshi jiao rongyi yinqi shehuishang zhi guanzhu yu taolun. Jin 20 nianlai shijiegeguo youguan geleifanzui jiahairen chuyu fazhi zhi fazhan, yi painzhong yu xingfanzui jiahairen zhi zhiliao yu yufang (the underlined part is left untranslated). Qizhong, duiyu xingfanzui zhi jiahairen zuiwei yanli de zhidu, dangshu cong meiguo de meigenfaan suo fazhan chulai de xingfanzui jiahairen dengji yu gongao zhidu.’
In today’s world, society loathes sex offenders more than almost all other criminals, laws regulating sex offenders evidence this public enmity.(In the past two decades, as far as the law of sex offenders is concerned) most of the countries put emphasis on the cure and prevention of sex offenders. In (the) United States, Megan’s Law probably is (is probably) [7] the most controversial and influential sex offender law. Enacted in 1996, Megan’s Law created a statewide registration and notification program and urged all states to implement similar statute.
Ex 3009025第一, 相對應最基本的是允許個人結合父母姓氏成為第三姓之可能性。第二,允許在有「重大理由」或「正當利益」之特定情形時得以變更姓氏。第三,原則允許變更姓氏,只在特定狀況下才不允許。

‘Diyi, xianduiying zuijiben de shi yunxu geren jiehe fumu xingshi chengwei disanxing zhi kekengxing. Dier, yunxu zai you “zhongdaliyou” huo “zhengdangliyi” zhi tedingqingxing shi deyi biangeng xingshi. Disan, yuanze yunxu biangeng xingshi, zhizai tedingzhuangkuang xia buyunxu….’
The bottom line could be a combined surname; a middle way is to allow changing surname for significant reasons; the advanced approach is to permit changing of surname unless in special conditions. [8]
Ex 4009026他山之石可以攻錯

‘tashan zhi shi keyi gongcuo…’
Stones from other hills may serve to polish the wrong,…(People can learn from others’ experiences or suggestions.)

6 Suggestions and conclusion

Based on the discussions presented above, we can see that the errors in these abstracts are caused by failure to consult reliable law databases, the influence of ordinary language, insufficiency of legal knowledge, deficiency of linguistic knowledge and the unique characteristics of legal language. These problems simply render the task of translating even more intricate.

Here, we would like to make some suggestions to legal translators. First of all, translators should always look up legal terms with reliable reference tools. Never use resources designed for ordinary language. The following example is taken from Yahoo online dictionary. [9]

manslaughter

KK [ˋmæn͵slɔtɚ] DJ [ˋmæn͵slɔ:tə]

同義詞 killing, homicide, murder, assassination

n. 名詞

1. 殺人 ‘sharen’ (‘murder’)

2.【律】一般殺人罪; 過失殺人【law】yibansharenzui; guoshisharen

(‘murder; manslaughter’)

From the standard of law or the perspective of legal professionals, none of the information except the phonetic transcription presented here is correct. In the field of Criminal Law, each of the so-called synonyms mentioned here such as killing, homicide, murder, assassination has its own definition and each is made up of different constituent criteria in terms of law. Moreover, the correct legal translation of manslaughter is 過失致死 ‘guoshizhisi’ rather than 過失殺人 ‘guoshisharen’. As a matter of fact, there is no such legal term as 過失殺人‘guoshisharen’ in our Criminal Law since 殺人 ‘sharen’ (‘murder’) is considered a volitional act by the law; therefore it’s impossible for 殺人 ‘sharen’(‘murder’) to collocate with 過失 ‘guoshi’(‘negligent’). In other words, the correct terms by the law with regard to homicide are 過失致死 ‘guoshisharen’ (‘manslaughter’) or 故意殺人 ‘guyisharen’(‘murder’). This incorrect legal term is commonly seen in the mass media such TV, the Internet, magazines and newspapers, which explains why the error is so widespread. The example explicates the unreliability of references of ordinary language.

Translators of legal texts often consult law dictionaries, especially bilingual law dictionaries. They should be cautious as some bilingual law dictionaries are of poor quality and their use may lead to mistranslation. In fact, there are a lot of databases specifically designed for legal professionals. In Taiwan, these databases are a lot better programmed and user-friendly than those provided by the official databases provided by the Judicial Yuan. A brief introduction to the databases is presented as follows.

Lawbank (法源法律網), [10] established in 1986, is the first online database for legal research in Taiwan. It provides a variety of data concerning law such as codes, court rulings, articles from law reviews and the latest information of judiciary institutions. Nowadays most of the codes are provided with two versions: Chinese and English.

Another database of Taiwan is Lawdata. [11] The database started with a law journal called the Taiwan Law Review. Then the journal has developed into a series of journals and a database which provides numerous data such as online reference books, commonly-used codes, court rulings, and articles from law reviews.

Westlaw [12] is one of the primary online legal research services for lawyers and legal professionals in the United States and is a part of West. In addition, it provides proprietary database services. Information resources on Westlaw include more than 40,000 databases of case law, state and federal statutes, administrative codes, newspaper and magazine articles, public records, law journals, law reviews, treatises, legal forms and other information resources.

LexisNexis Group [13] is a corporation providing computer-assisted legal research services. During the 1970s, LexisNexis pioneered the electronic accessibility of legal and journalistic documents. As of 2006, the company has the world’s largest electronic database for legal and public-records related information. LexisNexis encompasses authoritative legal-publishing brands dating back to the nineteenth century including; Butterworths® in the United Kingdom, Canada, the Asia-Pacific region, Les Editions du Juris Classeur in France, and Martindale-Hubbell® and Matthew Bender® worldwide. As precedents matter a great deal in Common Law countries, it is a must to learn how to find data in such databases as Westlaw or LexisNexis. In fact, in most of the law schools in America, students are required to takes lessons for a certain length of time to get acquainted with searching in the databases. Unfortunately, both of these databases are a lot more complicated than Lawbank and Lawdata, but once translators get used to handling the methods of searching, the databases will be highly conducive to finding the authentic usage of the target legal terms.

Additionally, given the large number of errors made in syntactic or lexical aspects, we believe it is necessary for translators to enhance their language proficiency to stay away from errors such as using inappropriate lexicons or wrong tenses. They also need to get acquainted with legal style of writing in order to convince their clients that they are competent enough. And most of all, they have to enhance their legal knowledge. At least they should know to what specific field of law the document they are dealing with belongs. Thus, they will be able to know where to look up for the target term. For example, the official code (sometimes also termed as act or law) provided by the Judicial Yuan is a relatively reliable reference compared with some other databases. In fact, to read the code in both Chinese version and English version from time to time is a good way to strengthen one’s comprehension ability in legal language. Besides, court rulings can also be good reference as well.

Judging from the multi-faceted nature of legal language, there is no doubt that legal translation is a challenging and complicated process. The errors shown in earlier sections explicate that linguistic competence is as important as legal competence. Overall, legal translators need to be alert to the influence of ordinary language, use reliable reference tools for legal language, improve their legal knowledge, enhance proficiency in the target language and source language, and mind the peculiar characteristics of legal language. Hopefully, the analysis of the problems and strategies presented by this research project can be of great use to translators and all the stakeholders.

Funding statement: The authors hereby give their full gratitude to the grant of the Ministry of Science and Technology (MOST 103-2410-H-030-085-) in Taiwan and the grant of the National Social Sciences Foundation in the PRC (15BYY012).

References

Alcaraz, Enrique & Brian Hughes. 2002. Legal Translation Explained. Manchester: St. Jerome Publishing.Search in Google Scholar

Cao, Deborah. 2007. Translating law. Clevedon: Multilingual Matters.10.21832/9781853599552Search in Google Scholar

Chen, Ping-Hsun. 2012. A New Theory for Translation of Taiwanese Courts Decisions: A Case Study of the Taiwan Intellectual Property Court. Paper presented at 2012 LTTC International Conference: the Making of a Translator.Search in Google Scholar

Chen, Ya-Ling & Posen Liao. 2012. From conduit to active initiator: A study of the roles of the court interpreter in Taiwan. Paper presented at 2012 LTTC International Conference: the Making of a Translator.Search in Google Scholar

Cheng, Le. & King Kui Sin. 2008. Terminological equivalence in legal translation – A semiotic approach. Semiotica 172. 33–45.10.1515/SEMI.2008.088Search in Google Scholar

Cheng, L., King Kui Sin. & W. Cheng. 2014a. Legal translation: A sociosemiotic approach. Semiotica 200. 165–184.10.1515/sem-2014-0019Search in Google Scholar

Cheng, Le. King Kui Sin & W. Cheng. 2014b. Revisiting legal terms: A semiotic perspective. Semiotica 202. 167–182.10.1515/sem-2014-0051Search in Google Scholar

Chou, Chung-Yu. 1994. A discussion of the translation of German legal terms taken from the German federal election law and the federal election regulations. Unpublished MA thesis of Fu-Jen Catholic University.Search in Google Scholar

Harvey, Malcolm. 2000. A beginner’s course in legal translation: The case of culture-bound terms. In: La traduction juridique: Histoire, théorie(s) et pratique Legal Translation: History, Theory/ies, Practice. Bern and Geneva: ASTTI/ETII 357–369.Search in Google Scholar

Kennedy, Rose. 2000. Much ado about nothing: Problems in the legal translation industry. Temple International & Comparative Law Journal 14(2). 423–444.Search in Google Scholar

Kischel, Uwe. 2009. Legal cultures – Legal languages. In Olsen et al. (eds.), Translation issues in language and law, 7–17. NY: Palgrave Macmillan.10.1057/9780230233744_2Search in Google Scholar

Liao, Hsueh-Chun. 2009. A comparative study on the Chinese translation texts of general agreement on trade in services between Taiwan and China. Unpublished MA thesis of Fu-Jen Catholic University.Search in Google Scholar

Lu, Yong-Chiang. 2007. Court interpreting in Taiwan: An issue of equal access to justice for persons with limited mandarin proficiency. Unpublished MA thesis of National Taiwan Normal University.Search in Google Scholar

Mattila, Heikki. 2006. Comparative legal linguistics. Burlington: Ashgate Publishing.Search in Google Scholar

Nida, Eugene A. & Charles R. Taber. 1982. The theory and practice of translation. Leiden: E.J. Brill.Search in Google Scholar

Nida, Eugene A. 2001. Language and culture: Contexts in translating. Oxford: John Benjamins Publishing.10.1075/btl.41Search in Google Scholar

Philips, Alfred. 2003. Lawyers’ language: How and why legal language is different. London & New York: Routledge.10.4324/9780203220313Search in Google Scholar

Rotman, Edgardo. 1995–1996. The inherent problems of legal translation: Theoretical aspects. Indiana International & Comparative Law Review 6(1). 187–196.10.18060/17592Search in Google Scholar

Šarčević, Susan. 1997. New approach to legal translation. The Hague: Kluwer Law International.Search in Google Scholar

Šarčević, Susan. 2000. Legal translation and translation theory: A receiver-oriented approach. http://www.tradulex.org/Actes2000/sarcevic.pdf (accessed 10 December 2015).Search in Google Scholar

Schroth, Peter. 1986. Legal translation. American Journal of Comparative Law (supplement) 34. 47–65.10.1093/ajcl/34.suppl1.47Search in Google Scholar

Schwarz, Hanz. 1977. Legal and administrative language. Babel 23(1). 19–22.10.1075/babel.23.1.04schSearch in Google Scholar

Tsai, Yvonne. 2010. Text analysis of patent abstracts. The Journal of Specialized Translation. http://www.jostrans.org/issue13/art_tsai.php (accessed 12 November 2013).Search in Google Scholar

Published Online: 2016-5-19
Published in Print: 2016-4-1

©2016 by De Gruyter Mouton

Downloaded on 7.12.2022 from frontend.live.degruyter.dgbricks.com/document/doi/10.1515/ijld-2016-0007/html
Scroll Up Arrow