Equivalence Theory and Legal Translation

2.1 The meaning of the words is obviously professional

Legal terminology is a core part of the legal system, and it is fixed down after its meaning has precipitated gradually through use over a long period of time. A term may mean a legal concept (such as object, legal person, or person having no capacity for civil conduct in civil law) or a legal system (such as consideration or estoppels), or may even be associated with a special historical background (such as sealed contract), the meaning of which cannot be understood solely from the literal words that constitute it (Xiao 2001: 44–47).

2.2 The meaning of the words is exclusive

In general, after the formation of the legal terms, there is a specific group of users and a relatively fixed meaning, and therefore they have certainty in form. Even if some of the terms are not very accurate during their formation, if their meaning is well known, they should not be arbitrarily changed. In other words, the meaning of legal terms must be unique and fixed. Any people under any circumstances should have the same interpretation. For example, in Chinese, gu yi (intentional) cannot be replaced by cun xin (consciously) or te yi (deliberately), and fan zui xian yi ren (suspect) cannot be replaced by fan zui ke yi ren (criminally suspicious man). In English, negligence cannot be replaced by mistake; uncompleted murder cannot be replaced by failure in murder. Not only do legal terms require a unique meaning, but also the legal terms that are transformed from the national common language must also express a unique legal concept.

2.3 The meaning of the words is conservative and authoritative

Compared with general language, the meaning of legal terms is relatively stable and accurate and changes very little, which is to reduce the arbitrary application of law and to achieve social justice. Ancient Chinese words, such as xing fa (criminal punishment) and zi sou (surrender), are mainly classical Chinese expressions that still exist in the real world through historical process. They are inherited as the legal culture of human beings. Among English legal terms, there are a large number of ancient words derived from the Old English and Middle English periods. They largely originate in two sources, French and Latin, with a small number coming from Greek and other foreign words, such as suit or testimony.

3.1 Taking the words literally – the misuse of general terms as special terms

The translation of legal terms involves dealing with the relationship between legal terms and their popularization. Terminology, also known as theorization, refers to the essential features of the alleged legal things (phenomena) that are revealed in the naming and selection of legal terms, which can reflect the legal concept and theory. In 1998, the People’s Republic of China published the Chinese–English Laws and Regulations Vocabulary Handbook, which translated wu zheng as material evidence. In this translation, wu (thing) literally corresponds to material in English, while zheng (evidence) matches evidence. This translation seems correct, but in fact, the meaning of this expression is far from the meaning to be expressed. According to Black’s Law Dictionary (7th edition), the interpretation of the term material evidence actually is “evidence having some logical connection with the consequential facts or the issues.” It may be both verbal evidence and physical evidence. The term wu zheng in Chinese has a special corresponding legal term in English, which is real evidence. Therefore, the word material in material evidence does not mean material, but means “(the evidence) that is case-related, and is necessary and very important in order to prove the truth of the case.” It is in this sense that the translation of material evidence should be shi zhi xing zheng ju (substantial evidence) (Dong 2011: 56).

Another example is that some translators use the third party to translate di san zhe (the third person who steps into the marriage of others) in Chinese legal terms. In fact, the third party refers to di san fang, di san ren (the client involved in the civil action that is other than the accuser and the defendant and who considers that the outcome of the case has an interest in itself and is therefore applied to by the court or added to the lawsuit between the accuser and the defendant). However, di san zhe in Chinese refers to the intervention, interference, and destruction of the legal marriage of others, either male or female, both married or unmarried (Chen 2000: 67).

3.2 Lack of understanding of the legal culture and language of China and the other country

A lack of understanding of the legal culture and language of China and the other country may lead to confusion of one translation of a legal term with another. For example, China’s criminal law illegalizes intrusion into others’ houses. How should this be translated into English? The English word burglary has the meaning of “breaking and entering into the dwelling house of another person,” so some translators have translated fei fa qin ru zhu zhai zui (crime of illegal intrusion into a house) in our criminal law as burglary, without knowing that the objective aspect of burglary is that the perpetrator commits theft after illegally gaining entry to a room or building, which is quite similar to the crime of theft in our country.

Article 5 of the Law of the People’s Republic of China on Chinese–Foreign Equity Joint Ventures stipulates that foreign joint venturers shall compensate for loss or losses if they intentionally deceive through backward technology and equipment and subsequently cause loss or losses. In some English translations, this is rendered as: “If it causes losses by deception through the intentional use of backward technology and equipment, the foreign joint venture shall pay compensation for the losses.”

The translator in this version did not carefully consider the meaning of loss in numbers; they ignored the differences between the Chinese and English language, and simply translated this as loss. We know that there is no distinction between singular and plural forms in Chinese, whereas this is quite obvious in English. Sun shi (loss) is both singular and plural in Chinese. Therefore, it is necessary to use loss or losses or briefly loss(es) in English where singular and plural forms are both possible (Li & Zhang 2006: 112).

3.3 Contrary to the specific connotations of the legal terms

Some translators render the same legal concepts in Chinese texts in many different English legal terms. For example, the English version of the Copyright Law of the People’s Republic of China has the act qin fan translated as prejudice (e.g. Article 12) and infringe (Article 48). However, according to the meaning and examples of many English dictionaries, the emphasis of infringe is on violations of rights, whereas prejudice is more on the violation of people, things, and their interests. An example of the use of the word infringe is found on page 549 in the Modern Advanced English–Chinese Dictionary, Oxford University Press, 1978. It is quoted as “infringe a rule (an oath, copyright, a patent).” From the usage of the term, infringe is mainly associated with “right” in the sense of intellectual property rights. The example of the use of the word prejudice on page 826 in the dictionary refers to an infringement of “any existing right or claim.” It can be seen that infringe is more purposeful in meaning, mainly referring to the violation of intellectual property rights, whereas prejudice has a more general meaning, referring to the violation of people, things, and interests in any sense whatsoever.

In terms of the translation of lian dai ze ren and gong tong ze ren, in accordance with the relevant provisions of the Civil Code, lian dai ze ren refers to the joint implementation of an offense or offenses by two or more people, all being at fault, and they should jointly bear the responsibility for the consequences of damage. There are two kinds of joint responsibility: joint liability and shared responsibility. Joint liability arises from the violation of related debt or joint acts of tort where there is a joint relationship between those who shoulder responsibilities. This joint liability is a statutory duty, which cannot be changed due to people’s internal agreement, and the obligees can choose either all or some of the people liable to undertake the due obligations, and every person liable is likely to assume full responsibility. However, there is no joint liability between those people liable if they bear the shared responsibility independently. If the law does not stipulate or the parties do not agree, it is presumed that the people liable should bear the same share. Therefore, lian dai ze ren should be translated as joint and several liability; gong tong ze ren should be translated as concurrent liability.

4.1 Using exact equivalents when concepts are equivalent

If there are typical equivalent terms in the legal sources of the Chinese mainland, they can be translated directly using the exactly equivalent words corresponding to the meaning of English legal terms. These legal terms are easy to translate; we only have to give one-to-one correspondence between the target words and source words, such as court–fa ting, suspect–fan zui xian yi ren, action–su song, will–yi zhu, party–dang shi ren, arbitration–zhong cai, answer–shang su, and so on.

4.2 Using functional equivalents when concepts are nearly or partly equivalent

Sarcevic (1997: 278–279) argues that functional equivalence should be used only when there is no exact equivalence. So-called functionally equivalent words refer to the concept of “the shared function of a particular concept in the legal system between the target language and the source language.” By choosing the nearest functionally equivalent words, we can ensure that English and Chinese legal terms can obtain relatively accurate translation when there is no exactly equivalent word. The choice of the target equivalent word depends on whether the function is equivalent in terms of the concept of the target language and the source language, in other words, whether the legal effect is equal. For example, should the word mortgage be translated as an jie or di ya? In the legal sense, the difference between mortgage and pledge lies in the debtor’s possession of the real estate. The definition of mortgage according to Black’s Law Dictionary (2004: 3198) is:

mortgage: A conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon payment or performance according to the stipulated terms. The chief distinction between a mortgage and a pledge is that by a mortgage the general title is transferred to the mortgagee, subject to be revested by performance of the condition; while by a pledge the pledger retains the general title in himself, and parts with the possession for a special purpose. By a mortgage the title is transferred; by pledge, the possession.

In fact, it can be seen that a mortgage refers to a real estate property being given as security by the real estate mortgagors to creditors to guarantee the debt, and the debtor is still in possession of the title to the real estate. This is different from the concept of pledge in China’s mainland civil law system. According to Article 179 of the Property Law of the People’s Republic of China, the creditor’s rights in general refers to the creditor’s right to change the disposition of mortgaged property and the priority to receive compensation when the obligor fails to perform the debt or when the parties realize the mortgage according to their agreement. Therefore, the translation into an jie is closer in legal functional equivalence.

Another example is the term hun he guo cuo (mixed fault) in Chinese tort law, which refers to the occurrence or expansion of the damage caused by the tort. In this situation, not only is the perpetrator at fault, but also the victim. Hun he guo cuo is also called guo shi jing he. Article 131 of the General Principles of Civil Law of the People’s Republic of China stipulates explicitly the liability in mixed fault: “The infringer’s civil liability can be reduced when the victim should also be responsible for the damage.” The legal terminology of the infringing mistake in the Anglo-American law system is contributory negligence and comparative negligence. According to The Free Dictionary of Legal Terms, these are defined as:

contributory negligence: a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence “contributed” to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident.

comparative negligence: a rule of law applied in accident cases to determine responsibility and damages based on the negligence of every party directly involved in the accident.

Thus, in the Anglo-American law system, contributory negligence is due to the victim’s fault, and the infringer does not bear any civil liability; comparative negligence is decided according to the proportion of the victim’s and infringer’s civil liability. It is doubtless that comparative negligence is consistent with China’s Civil Law General Provisions and judicial practice in that they both partially exempt the infringer’s civil liability when hun he guo cuo (mixed fault) occurs.

4.3 Using paraphrase, neutral, borrowed, or new words when concepts are totally different

If the translator cannot find the corresponding word due to the inequality of the legal system, the following solutions can be used.