Keywords
Authentic translation of a legal text
Chinese legal terminology
Commission contract
Good faith
Multilingual legal text
Oblique procedural action
Official or private translation of a legal text
Comparative law
Public policy
Trust
cause and consideration
hardship and frustration
Hohfeldian analysis
How to Cite
Abstract
Observing the phenomenon of the translation of statutory texts in China, it is noteworthy that the source language was mainly German until after the plethoric legislation under Deng Xiaoping. Then the pendulum swung back. Chinese is now the source language and statutes are translated into English.
What is for a Chinese Court the legal value of the translation of a legal text, for instance of a disposition of the Civil Code? A difference has to be made between an authentic translation, and an official or a private one. Only in the hypothesis that both language versions are authentic, the court will have the obligation to reconcile them in case of divergence between them.
For a court having to apply a particular disposition of a statute in a pending case – or for an arbitrator, a legal counsel or a scholar – the practical value of a translation is that the interpretation by the translator himself of the text which has to be translated (even a non-authentic translation), can influence and facilitate their subsequent interpretations by others. If made timely, it could also help the legislator to draft a clearer final text. The same is true for the drafter of a treaty or of a commercial contract.
The obvious negative aspect of a translation is that it can contain errors and can by consequence create confusion and misunderstanding by those who later on will have to apply the disposition. Some examples hereof can be found in the Chinese Civil Code.
Two recommendations can in conclusion be made, one concerning the moment of the translation, and one concerning a desirable supervision by a comparative lawyer during the translation process.
References
An, Jing and Sun, Jiahui. 2022. Translation strategy of legal terms with Chinese characteristics in Civil Code of the People’s Republic of China based on Skopos theory. PLoS ONE, 17(9): e0273944. DOI: https://doi.org/10.1371/journal.pone.0273944
Bodde, Derk, and Morris, Clarence. 1967. Law in Imperial China. Cambridge: Harvard University Press. DOI: https://doi.org/10.4159/harvard.9780674733213
Bodde, Derk. 1982. Basic concepts of Chinese law: the genesis and evolution of legal thought in traditional China. In: Essays on Chinese civilization, eds. Le Blanc and Borei, 375–398. Princeton (New Jersey, USA): Princeton University Press.
Cao, Deborah. 2004. Chinese law. A language perspective. Abingdon: Tailor and Francis, Ltd.
Chang, Wejen. 2016. In search of the way. Legal philosophy of the classic Chinese thinkers. Edinburgh, University Press. DOI: https://doi.org/10.1515/9780748669578
Chen, Weizuo. 2004. German Civil Code. Beijing: Law Press China.
Chen, Weizuo. 2020. German Civil Code. 5th edition. Beijing: Law Press China.
Cohen, Jerome A., Yvonne Y.F Chan and Ho Yuk Ming. 1988. Contract laws of the People’s Republic of China. New York: Longman.
Cohen, Jerome, (ed.). 1970. Contemporary Chinese law: Research problems and perspectives. Cambridge: Harvard University Press. DOI: https://doi.org/10.4159/harvard.9780674594838
Cohen, Jerome, Edwards, R. Randle and Fu-Mei Chang Chen. 1980. Essays on China’s legal tradition. Princeton (New Jersey, USA): Princeton University Press.
Ding, Yijie, Peter Leibküchler, Nils Klages, Knut Benjamin Pißler. 2020. Zivilgesetzbuch der Volksrepublik China. German Journal for Chinese Law, vol. 27, no. 3-4: 207–417.
Dölle, H. 1961. Zur Problematik mehrsprachiger Gesetzes- und Vertragstexte. Rabels Zeitschrift für ausländisches und internationales Privatrecht, 26: 4–39.
Glendon, Mary Ann, Carozza, Paolo, and Colin, B. Picker. 2015. Comparative legal traditions in a nutshell. 4th ed.. St. Paul (USA): Western Academic Publishing.
Gutteridge, Harold C. 1953. Le droit comparé. Paris : L.G.D.J.
Gvelesiani, Irina. 2016. EU Policies regarding the development of trust-like devices. Recent challenges, achievements, projects and terminological insights. CES Working Papers 8 (1): 93–102.
Herbots, Jacques Henri, 1973. Meertalig rechtswoord, rijkere rechtsvinding. Interpretatie van rechtsteksten in meer dan één taal door middel van vergelijking der verscheidene versies. Gent: Story-Scientia.
Herbots, Jacques Henri. 1985. L’interprétation des lois à formulation multilingue en Belgique. In : Les Cahiers de Droit de l’université Laval, ed. Faculty of Law, 959–972. Laval, Canada : University of Quebec. DOI: https://doi.org/10.7202/042633ar
Herbots, Jacques Henri. 1986. La traduction juridique en Belgique. In : Rapports Belges au XIIe Congrès de l’Académie internationale de droit comparé, ed. by Bruylant, 35–72. Brussels: Bruylant.
Herbots, Jacques Henri. 2000. Cause et ‘considération’: une cause célèbre en droit privé Sud-Africain. In : Le rôle de la volonté dans les actes juridiques. Études à la mémoire du professeur Alfred Rieg, ed. Bruylant, 457–481. Brussels: Bruylant.
Herbots, Jacques Henri. 2021. The Chinese new Civil Code and the Law of Contract. China-EU Law Journal, 7: 39–49. DOI: https://doi.org/10.1007/s12689-021-00090-6
Hong Kong E-Legislation, Department of Justice. 1998. A paper discussing cases where the two language texts of an enactment are alleged to be different. https://www.elegislation.gov.hk/othdissem?OTH_DISSEM_CONTENT_ATTACH_ID=24 (Accessed on May 7, 2023).
Ivrakis, S.C. 1955. Official translations of international instruments. Practice of the I.L.O., the L.N. and the U.N.. Revue Hellénique de droit international, 8: 213–222.
Jian, Qu. 2021. Trust as an idea. Transplantation and Regeneration of Trust Law in China. Ph.D. Thesis KU Leuven.
Keller, Adolf. 1960. Die Kritik, Korrektur und Interpretation des Gesetzeswortlautes. Winterthur: P.G. Keller.
Legislative Affairs Commission of the Standing Committee of the National People’s Congress. 2021. Civil Code of the People’s Republic of China. Chinese and English Bilingual Version. Law Press: China.
Lubman, Stanley B., 1970. Methodological problems in studying Chinese communist civil law. In: Contemporary Chinese law: research problems and perspectives, (ed.) Cohen, Jerome, 230–260. Cambridge: Harvard University Press. DOI: https://doi.org/10.4159/harvard.9780674594838.c11
Mac Cormack, Geoffrey. 1996. The spirit of traditional Chinese law. Athens (Georgia): University of Georgia Press.
Monti, Federica. 2020. Codice Civile della Repubblica Popolare Cinese. Parte Generale. Translation and Notes. Padova: CEDAM.
Nida, Eugene. 1964. Toward a Science of Translating - with special Reference to Principles and Procedures involved in Bible Translating. Leiden: Brill. DOI: https://doi.org/10.1163/9789004495746
Nida, Eugene, and Taber, Charles, Russell. 1969. The Theory and Practice of Translation. Leiden: Brill.
Novaretti, Simona. 2010. General clauses and practice of Chinese courts. European Review of Private Law, vol. 18, nr. 5: 953–981. DOI: https://doi.org/10.54648/ERPL2010072
Peerenboom, Randall P., 2002. China’s long march toward rule of law. Cambridge: Cambridge University Press. DOI: https://doi.org/10.1017/CBO9780511493737
Schlesinger, Rudolf B. 1960. Comparative law. London: Stevens.
Zweigert, Konrad, and Kötz, Hein 1998. Introduction to comparative law. (translated from German by Tony Weir). Oxford: Clarendon Press.
License
Copyright (c) 2023 Jacques Henri Herbots
This work is licensed under a Creative Commons Attribution 4.0 International License.
When submitting a paper the author agrees to the following publishing agreement and processing personal data.
PUBLICATION AGREEMENT, COPYRIGHT LICENSE, PERSONAL DATA PROCESSING CONSENT
This is a publication agreement and copyright license (“Agreement”) regarding a written manuscript currently submitted via Pressto platform
(“Article”) to be published in Comparative Legilinguistics International Journal for Legal Communication (“Journal”).
The parties to this Agreement are:
the Author or Authors of the submitted article (individually, or if more than one author, collectively, “Author”) and Comparative Legilinguistics International Journal for Legal Communication (“Publisher”), address al. Niepodległości 4, 61-874 Poznań, represented by its editor in chief Aleksandra Matulewska.
§1. LICENSE OF COPYRIGHT
a) The Author and the Publisher agree that the Author grants a Creative Commons Attribution 4.0 International License, which is incorporated herein by reference and is further specified at Creative Commons — Attribution 4.0 International — CC BY 4.0 copyright license in the Article to the general public.
b) The Author grants to the Publisher a royalty-free, worldwide nonexclusive license to publish, reproduce, display, distribute, translate and use the Article in any form, either separately or as part of a collective work, including but not limited to a nonexclusive license to publish the Article in an issue of the Journal, copy and distribute individual reprints of the Article, authorize reproduction of the entire Article in another publication, and authorize reproduction and distribution of the Article or an abstract thereof by means of computerized retrieval systems (such as Westlaw, Lexis and SSRN). The Author retains ownership of all rights under copyright in the Article, and all rights not expressly granted in this Agreement.
c) The Author grants to the Publisher the power to assign, sublicense or otherwise transfer any and all licenses expressly granted to the Publisher under this Agreement.
d) Republication. The Author agrees to require that the Publisher be given credit as the original publisher in any republication of the Article authorized by the Author. If the Publisher authorizes any other party to republish the Article under the terms of paragraphs 1c and 1 of this Agreement, the Publisher shall require such party to ensure that the Author is credited as the Author.
§2. EDITING OF THE ARTICLE
a) The Author agrees that the Publisher may edit the Article as suitable for publication in the Journal. To the extent that the Publisher’s edits amount to copyrightable works of authorship, the Publisher hereby assigns all right, title, and interest in such edits to the Author.
§3. WARRANTIES
a) The Author represents and warrants that to the best of the Author’s knowledge the Article does not defame any person, does not invade the privacy of any person, and does not in any other manner infringe upon the rights of any person. The Author agrees to indemnify and hold harmless the Publisher against all such claims.
b) The Author represents and warrants that the Author has full power and authority to enter into this Agreement and to grant the licenses granted in this Agreement.
c) The Author represents and warrants that the Article furnished to the Publisher has not been published previously. For purposes of this paragraph, making a copy of the Article accessible over the Internet, including, but not limited to, posting the Article to a database accessible over the Internet, does not constitute prior publication so long as the as such copy indicates that the Article is not in final form, such as by designating such copy to be a “draft,” a “working paper,” or “work-in-progress”. The Author agrees to hold harmless the Publisher, its licensees and distributees, from any claim, action, or proceeding alleging facts that constitute a breach of any warranty enumerated in this paragraph.
§4. TERM
a) The agreement was concluded for an unspecified time.
§5. PAYMENT
a) The Author agrees and acknowledges that the Author will receive no payment from the Publisher for use of the Article or the licenses granted in this Agreement.
b) The Publisher agrees and acknowledges that the Publisher will not receive any payment from the Author for publication by the Publisher.
§6. ENTIRE AGREEMENT
a) This Agreement supersedes any and all other agreements, either oral or in writing, between the Author and the Publisher with respect to the subject of this Agreement. This Agreement contains all of the warranties and agreements between the parties with respect to the Article, and each party acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except those warranties and agreements embodied in this Agreement.
b) In all cases not regulated by this Agreement, legal provisions of Polish Copyright Act and Polish Civil Code shall apply.
c) Any disputes arising from the enforcement of obligations connected with this Agreement shall be resolved by a court competent for the headquarters of the Publisher.
d) Any amendments or additions to the Agreement must be made in writing and signed by authorised representative of both parties, otherwise being ineffective.
e) This Agreement is signed electronically and the submission of the article via the PRESSto platform is considered as the conclusion of the Agreement by the Author and the Publisher.
f) Clause for consent to the processing of personal data - general
g) The Author shall give his or her consent to the processing of their personal data in accordance with the Act of 10 May 2018 on the protection of personal data and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of persons physical in connection with the processing of personal data and on the free movement of such data, and repealing Directive 95/46 / EC (General Data Protection Regulation) for the purpose and in connection with making publications available on the PRESSto scientific journals platform and DeGruyter platform, guaranteeing the security of services rendered, and improving them.
I HAVE READ AND AGREE FULLY WITH THE TERMS OF THIS AGREEMENT.
The Author The Publisher