Peking University Linguistics Research

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Peking University Linguistics Research

Volume 4

Series Editors

Rui Guo, Chinese Department, Peking University, Beijing, China

Wangqi Jiang, School of Foreign Languages, Peking University, Beijing, China

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Peking University Linguistics Research (PKULR) is a cooperation project between Springer Nature and Peking University Press. This series presents the latest discoveries and developments of significance in linguistic research conducted by famous Chinese scholars. Titles in this series are carefully evaluated, examined and selected by Peking University (which ranks No. 10 in the world and No. 1 in China in the QS World University Rankings-Linguistics 2016) and Peking University Press (which was honored as the most influential publisher in linguistics according to Chinese Book Citation Index, 2016), covering all major aspects of linguistics—

phonetics, phonology, pragmatics, semantics, morphology, syntax, theoretical linguistics, applied linguistics and inter-disciplinary studies. PKULR aims to provide an invaluable guide to the very nature of language. On the one hand, it tries to offer a thorough grounding in the fundamental concepts of linguistics; on the other hand, it also attaches great importance to the practical application of these concepts, esp. in Chinese context.

More information about this series athttp://www.springer.com/series/15701

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Falian Zhang

A Comparative Study of Chinese and Western

Legal Language and Culture

Translated by: Qing Zhang, Hongfang Zhao

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Falian Zhang

China University of Political Science and Law Beijing, China

This book is funded by Chinese Fund for the Humanities and Social Sciences.

ISSN 2662-3129 ISSN 2662-3137 (electronic) Peking University Linguistics Research

ISBN 978-981-15-9346-8 ISBN 978-981-15-9347-5 (eBook) https://doi.org/10.1007/978-981-15-9347-5

The printed edition is not for sale in China Mainland. Customers from China Mainland please order the print book from co-publisher Peking University Press.

© Peking University Press 2021

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Preface

“The law is the beginning of governance”. The rule of law marks the maturity of politics. The Fourth Plenary Session of the 18th CPC Central Committee emphasized that “to uphold the law-based governance of the country, first we must adhere to the governance of the country based on the Constitution; to adhere to exercising state power on the basis of the law, first we must adhere to exercising state power on the basis of the Constitution”, which marks opening up a new era of building China into a rule of law country and modernizing the governance in China. National governance modernization is governed and regulated by the rule of law. People’s rights and interests and social justice need to be safeguarded by the law.

Legal language is the carrier of safeguarding judicial and social justice. It bears the main body of legal culture and reflects legal culture as a mirror. Legal culture is the wisdom crystallization and spiritual wealth of legal affairs in the process of human civilization, the cultural foundation for social legal phenomena to exist and develop, and also the macrocontext for legal language to form and evolve.

The CPC Central Committee has comprehensively put forward a series of new concepts, ideas and propositions in comprehensively promoting the rule of law, for which major strategic plans and grand top-level designs have been made, which provide new tasks, opportunities, and directions for new theoretical innovations and practical development for socialist rule of law with Chinese characteristics, and have also unprecedentedly attracted the concern and attention to legal language that serves as the carrier of judicial justice and efficiency, and legal culture that reflects the progress of the socialist rule of law and the advancement of democracy.

With the rapid development of the world today, the process of economic globaliza- tion is advancing by leaps and bounds, international exchanges and cooperation are being strengthened, reforms and opening up have been continuously deepened, and foreign-related legal affairs are unprecedentedly frequent. Many of the problems we face in the globalization wave are actually legal issues, and the vast majority of these issues fall into the category of foreign-related laws. The development and completion of these foreign-related legal work, such as improving the foreign-related laws and regulations system, actively participating in the formulation of international rules, handling foreign-related economic affairs in accordance with the law, strengthening foreign-related legal services, and deepening international cooperation in judicial v

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vi Preface

field, are inseparable from legal language and legal culture. There are new chal- lenges, hopes, and demands put forward for the study of legal language and legal culture.

The Fourth Plenary Session of the 18th CPC Central Committee proposed improving the work concerning foreign-related laws. Legal English is a world language widely used in international economic trade and legal affairs; Western legal culture shows a significant influence on International Conventions and the exchange and cooperation. Therefore, in order to successfully improve foreign-related legal work and the localization of legal transplantation, it is of great practical significance for the contrastive and comparative study of Chinese and Western legal languages and cultures.

A comparative study of Chinese and Western legal languages and cultures involves different dimensions and levels, including diachronic and synchronic dimensions.

First of all, it is necessary to pay attention to the differences, that is, the basic frame- works and static observations corresponding to Chinese and Western legal languages and cultures. Secondly, it is necessary to pay attention to the changes; that is, the historical evolution and basic motivation before the legal languages and legal cultures of China and the West meet. Third, it is necessary to pay attention to its integration;

that is, to explore the conflicts and changes of Chinese and Western legal language and legal culture in China since modern times, and to sort out the introduction, transplantation, and transformation of Western legal culture.

Therefore, this book is divided into two major parts: “Comparison of Chinese and Western Legal Language” and “Comparison of Chinese and Western Legal Culture”. The former covers the contents of Chapter One and Chapter Two, specifi- cally including the characteristics of vocabulary and syntax of Chinese and Western legal language with contrastive studies. The latter covers the contents of Chapter Three to Chapter Seventeen, specifically including the functions and classifications of culture, the definition and classification of legal culture, and the ideological and spir- itual differences in the legal cultures of China and the West in values, legal concept, legal spirit, legal standards, legal attributes, justice systems, and legal beliefs. It also includes the differences in legislative bodies, judicial institutions, and law enforce- ment agencies, as well as the system of judges, lawyers, juries, legal education, legal professions, and other differences in terms of facilities. It also needs to be pointed out that Western legal culture in this book mainly refers to Anglo-American legal culture, especially American legal culture.

This book is a real-time response to changes in the times and academic progress.

As a contrastive and comparative study of Chinese and Western legal languages and legal cultures, the purpose is to examine their similarities and differences, recognize their merits and demerits, and try to gradually realize integration through debating differences, performing social and cultural functions, taking into account both theo- retical and practical values, and expressing the author’s academic insights, cultural positions, and social and political opinions. It hopes to provide a useful reference for the development of modern legal language and the construction of legal culture in China.

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Preface vii

The contrastive and comparative study of legal language and legal culture is rather a new area in China. In the process of writing this book, the author referred to almost all the papers and works related to the legal language and legal culture at home and abroad in recent years. Here, I would like to express my gratitude to the original authors. Without their foundation, it is impossible to complete this book. I also would like to express my gratitude to Associate Professor Zhang Jianke (teaching at the China University of Petroleum), a doctoral student at Tongji University under my supervision, who has provided many valuable research materials for the writing of this book.

As to the possible limitations and shortcomings in the book, please give your advice and suggestions to me.

Beijing, China March 2017

Falian Zhang

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Contents

1 Comparison of Vocabularies Between Chinese and Western

Legal Languages . . . . 1

1.1 Introduction . . . 1

1.2 Comparison of Vocabularies Between Chinese and Western Legal Languages . . . 4

1.3 Implications of the Comparison of Vocabularies Between Chinese and Western Legal Languages for Translation . . . 31

References . . . 33

2 Comparison of Syntactic Features Between Chinese and Western Legal Languages . . . . 35

2.1 Introduction . . . 35

2.2 Comparison of Syntactic Features between English and Chinese Legal Languages . . . 37

2.3 Implications of the Comparison of Syntactic Features Between English and Chinese Legal Languages for Translation . . . 69

References . . . 97

3 Legal Culture . . . . 99

3.1 Language and Culture . . . 99

3.2 Definitions of Legal Culture . . . 103

3.3 A Brief History of Western Legal Culture . . . 107

3.4 Classifications of Legal Culture . . . 109

References . . . 113

4 Comparison Between Chinese and Western Legal Values: Harmony and Justice . . . . 115

4.1 Introduction . . . 115

4.2 Comparison Between Chinese and Western Legal Values . . . 117

ix

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x Contents

4.3 Implications of the Comparison Between Chinese

and Western Legal Values . . . 125 References . . . 129 5 Comparison Between Chinese and Western Legal Concepts:

Law Following Nature and Natural Law . . . . 131 5.1 Introduction . . . 131 5.2 Comparison Between Chinese and Western Legal Concepts . . . . 132 5.3 Implications of the Comparison Between Chinese

and Western Legal Concepts . . . 138 References . . . 142 6 Comparison Between Chinese and Western Legal Principles:

Rule of Man and Rule of Law . . . . 143 6.1 Introduction . . . 143 6.2 Comparison Between Chinese and Western Legal Principles . . . . 145 6.3 Implications of the Comparison Between Chinese

and Western Legal Principles . . . 153 References . . . 160 7 Comparison Between Chinese and Western Legal

Orientations: Obligations and Rights . . . . 161 7.1 Introduction . . . 161 7.2 Comparison Between Chinese and Western Legal

Orientations . . . 162 7.3 Implications of the Comparison Between Chinese

and Western Legal Orientations . . . 169 References . . . 178 8 Comparison Between Chinese and Western Legal Nature:

Public and Private Laws . . . . 179 8.1 Introduction . . . 179 8.2 Comparison Between Chinese and Western Legal Nature . . . 181 8.3 Implications of the Comparison Between Chinese

and Western Legal Nature . . . 190 References . . . 200 9 Comparison Between Chinese and Western Legal Justice:

Substance and Procedure . . . . 201 9.1 Introduction . . . 201 9.2 Comparison Between Chinese and Western Legal Justice . . . 203 9.3 Implications of the Comparison Between Chinese

and Western Legal Justice . . . 214 References . . . 220

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Contents xi

10 Comparison Between Chinese and Western Legal Beliefs:

Ethics and Religion . . . . 223

10.1 Introduction . . . 223

10.2 Comparison Between Chinese and Western Legal Beliefs . . . 224

10.3 Implications of the Comparison Between Chinese and Western Legal Beliefs . . . 239

References . . . 243

11 Comparison Between Chinese and Western Legislatures . . . . 245

11.1 Introduction . . . 245

11.2 Current Legislatures in China . . . 246

11.3 Legislatures in the U.S. . . 252

11.4 Implications of the Comparison Between Chinese and American Legislatures . . . 258

Reference . . . 265

12 Comparison Between Chinese and Western Judicatures . . . . 267

12.1 Introduction . . . 267

12.2 Current Judicatures in China . . . 268

12.3 Judicatures in the United States . . . 282

12.4 Implications of the Comparison Between Chinese and Western Judicatures . . . 292

References . . . 300

13 Comparison Between Chinese and Western Law Enforcement Agencies . . . . 301

13.1 Introduction . . . 301

13.2 Current Law Enforcement Agencies in China . . . 302

13.3 Current Law Enforcement Agencies in the United States . . . 311

13.4 Implications of the Comparison Between Chinese and Western Law Enforcement Agencies . . . 319

References . . . 322

14 Comparison Between Chinese and Western Judge Culture . . . . 325

14.1 Introduction . . . 325

14.2 Comparison Between Chinese and Western Judge Culture . . . 328

14.3 Implications of the Comparison between Chinese and Western Judge Culture . . . 345

References . . . 351

15 Comparison Between Chinese and Western Lawyer Culture . . . . 353

15.1 Introduction . . . 353

15.2 Comparison Between Chinese and Western Lawyer Culture . . . . 354

15.3 Implications of the Comparison Between Chinese and Western Lawyer Culture . . . 371

References . . . 376

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xii Contents

16 Comparison Between Chinese Assessor System and Western

Jury System . . . . 379 16.1 Introduction . . . 379 16.2 Comparison Between Chinese Assessor System

and Western Jury System . . . 380 16.3 Implications of the Comparison Between Chinese Assessor

System and Western Jury System . . . 394 References . . . 399 17 Comparison Between Chinese and Western Legal Education

and Legal Professions . . . . 401 17.1 Introduction . . . 401 17.2 Legal Education and Legal Professions in China . . . 402 17.3 Legal Education and Legal Professions in the United States . . . . 411 17.4 Implications of the Comparison Between Chinese

and Western Legal Education and Legal Professions . . . 420 References . . . 427

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