Terminological features of the Chinese legal language
1.Introduction
Yan Fu (1854–1921), one of the most influential Chinese modern thinkers and a leading translator, in his Chinese translation of Montesquieu’s De l’esprit des lois published in 1913, explained the meanings of fa (law) and associated words in Chinese as compared to law in the Western languages this way:11.The Chinese language uses characters in writing, not words, strictly speaking. Despite the difference, for convenience, this essay uses “word” to describe the Chinese language.
In the Chinese language, objects exist or do not exist, and this is called li [order in nature, things as they are, or the law of nature]. The prohibitions and decrees that a country has are called fa [human-made laws]. However, Western people call both of these “law”. Westerners accordingly see order in nature and human made laws as if they were the same. But, by definition, human affairs are not a matter of natural order in terms of existence or non-existence, so the use of the word “law” for what is permitted and what is prohibited as a matter of law of nature is a case in which several ideas are conveyed by one word. The Chinese language has the most instances in which several ideas are expressed by one word, but in this particular case the Chinese language has an advantage over Western languages. The word “law” in Western languages has four different interpretations in Chinese as in li [order], li [rites, rules of propriety], fa [human-made laws] and zhi [control]. Scholars should take careful note (Yan 1913 cited in Cao 2007b).
Yan Fu was not the only person who saw the linguistic difficulty and complications inherent in understanding the legal terminology in Chinese as compared to English in cross-cultural communication. For the past century, translators and legal scholars have been pondering the question of whether the Chinese fa is indeed the equivalent of the English “law”. Furthermore, Chinese is certainly not the only language that presents challenges in legal terminology (as shown in the other chapters in this book). For our purpose, it is commonly acknowledged that one distinctive feature of legal language is the complex and unique legal vocabulary. Legal terminology is the most visible and striking linguistic feature of legal language as a technical language. This common feature of the language of law is found in most languages, but there are various differences in each language, often unique (Cao 2007b). Legal vocabulary in a language, including both legal concepts and legal usage, is usually extensive. It is resulted from and reflects the law of the legal system which utilizes that language.
As we know, in real life including legal life, words matter. Besides, in law, words carry legal consequences and are often the subject of legal disputes. Thus, it is necessary to have an in-depth knowledge of the basic vocabulary and terminological features of a legal language if one is to have an adequate understanding of the law of a legal order.
In this essay, Chinese legal linguistic features, specifically, the terminological features, are outlined as found in the Chinese legislative language (for discussions of the syntactical and other features of the Chinese legal language (see Cao 2004 and Cao 2018)). It first considers the historical and cultural context in which classical Chinese conception of law was situated in traditional China, including the keywords in classical Chinese. It then goes on to discuss the emergence and development of the modern Chinese legal language as a translated legal language against the backdrop of China undergoing enormous and unprecedented social, political and legal changes in the late eighteenth and early nineteenth centuries introducing Western law, legal practices, legal concepts and terminology to China. The essay illustrates some of the intricacies of the Chinese legal terminological features with examples in domestic and international laws.
2.Cultural background of traditional Chinese law and keywords
Traditional Chinese law is one of the oldest legal traditions in the world. Traditional Chinese law refers to the laws, legal rules, and legal cultures of imperial China (221BCE to 1912CE). The Confucian idea of societal control through moral education, as well as the Legalist emphasis on codified law and criminal sanction, dominated ancient China’s philosophical thinking about law and its laws for the majority of its history (Cao 2004, 2018; Liang 1989). In modern China, after the end of the imperial dynasties, the Republic of China in mainland China (1912–1949) modelled after a Western-style legal framework and legal code in the 1920s and 1930s, with the core of modern Chinese law heavily influenced by the European civil law. The establishment of the People’s Republic of China (PRC) in 1949 and the period up to 1960s absorbed significant influence from the former Soviet Union and its system of socialist law. Since the end of the disastrous and chaotic Cultural Revolution (1966–1976), and especially since the reform and opening policy that began in the 1980s, Chinese law has been heavily influenced by Western law (Timoteo 2015). Throughout those transitional years from the imperial to modern, as well as the more recent past, including today, traditional Chinese legal thinking from the distant past has remained in the background and in people’s minds, exerting influence in both explicit and implicit ways. In many aspects, modern Chinese law during the last two centuries or so can be considered a hybrid, incorporating traditional Chinese legal thinking and Soviet and Western laws in its construction and transition. It nevertheless has maintained the underlying Chinese perspective and mindset towards law in its classical tradition. After all, the Chinese language functions as the constant and continual thread and the means of communication negotiating between the past and the present in Chinese society and life, including law.
In this connection, it is necessary to clarify what modern Chinese legal language refers to, the focus of this essay. Modern Chinese legal language began to take shape around the turn of the twentieth century when Western laws were translated and introduced to China. Despite the fact that many of the legal texts translated into Chinese from Europe in the late 1800s and early 1900s were written in classical Chinese, new legal concepts and terms from modern legal systems and laws were introduced and created in the Chinese language, which were very different from those found in imperial Chinese law (Cao 2004). Furthermore, modern Chinese legal language was greatly enriched in the early 1900s when many new words of Western legal concepts, usages, and practices were added to the Chinese language, often via borrowing from the Japanese (Lackner, Amelung, and Kurtz 2001). These efforts helped to lay the foundations of modern Chinese legal system and of modern Chinese legal language. The laws enacted by the Republic of China from 1912 onwards signal the formal start of modern Chinese law, and hence the formal start of modern Chinese legal language. Due to the historical and linguistic continuity of the Chinese written language, the important law-related words used in classical Chinese are an integral part of the modern Chinese legal language, even though some of their meanings have evolved and changed.
As for the roots of the Chinese legal language, the traditional Chinese conception of law and the roles of law in society differ greatly from those in modern societies including today’s China. So is the language used in classical Chinese law.22.Many years ago, Lubman (1970) proposed that there was no such a thing as legal language in China. This is not true, either in imperial China or modern China, although the legal language in classical Chinese was limited and modern Chinese legal language is very different from the legal language in English. Admittedly, Chinese legal language is still developing and evolving, and it has peculiarity of its own. It is beyond the scope of this essay to discuss traditional Chinese law. Here more relevantly, we only briefly look at three keywords, or three key characters, associated with law in classical China, to illustrate their meanings and what they reflect regarding the notion of law in Chinese culture and society. They are: Fa 法 (law, laws), xing 刑 (punishments, criminal law) and lü 律 (statutes, codes). They are closely related, and they mean more or less the same, that is, they all refer to what may be termed generally law or laws, in the traditional Chinese sense (for detailed discussions, see Cao (2018)). More specifically, law and the basic notion of law in traditional China was that law largely signified criminal punishments, and law essentially entailed a system of punishment. As pointed out (Liang 1989, 86–87), imperial Chinese laws and regulations were a manifestation of the development of the concept of xing (criminal punishments), and they are also a reflection of the people’s understanding of the concept of fa. To illustrate, the Tang Code, the most important Chinese imperial code in traditional China enacted and enforced during the Tang Dynasty (618–907 CE), contained twelve chapters on such varied topics as Administrative Regulations, Family and Marriage, Stables and Treasuries, and most clauses contain provisions of punishment; civil relationships like those of family relations, marriage, inheritance, property and creditor rights all incorporated the system of punishments. Such conception and use of law were not limited to the Tang Code but was a general distinguishing feature of the ancient law right up to the Qing Dynasty (1636–1912CE) (Liang 1989, 86–87). In early China law was not perceived as a means of preserving rights, freedom and justice; instead law was punishment, and it was also one of the methods of governing that could be used and constituted at will by the ruler (Liang 1989, 89). Given such an instrumental approach, law was a personified tool of governing, dependent on and confined by its function and of limited use (Liang 1989, 89). In other words as noted (MacCormack 1990, 48), traditional Chinese penal law is essentially a set of rules emanating from the emperor, which imposes punishments on officials or ordinary people who behave, or fail to behave, in certain ways; these rules are not concerned with the establishment of the rights of the individual or with the protection of individual freedom (Mühlhahn 2009).
There are other important words in classical Chinese law reflecting the basic conception of law as instrument and a system of punishments. An example is Xing bu 刑部. Xing bu refers to an imperial government department in imperial China, literally meaning Board of Punishments. It is often translated as the Ministry of Justice in English. For the most part of imperial China, Xing bu was a major central government department responsible for the national judicial and criminal matters, that is, in charge of punishing offenders of crimes for most of the imperial era in China. The last imperial Qing government made a name change in 1906 to rename it Fa bu 法部 (Ministry of Law) in an effort to distinguish it from its traditional past of focusing on penal punishment, to modernize and reform China’s legal system and to introduce elements of Western-style legal rule (Cao 2018).
Another relevant example is yamen 衙门, related to courts in traditional China (for more detailed discussions, see Cao 2018). The court as it is often used to describe criminal trials in traditional China does not actually exist as a physical space or as a special designated law court. It is the general English description for yamen trial proceedings held in a datang 大堂 (big hall) within a county yamen, which was the local government administrative headquarters in imperial China. Trials of first instance were normally held and adjudicated by the county chief in datang within yamen. Yamen is unique in its function and role in imperial China; it is not an easily translatable term and has no equivalent in English. Often, yamen is used as a transliteration in English. As the Oxford English Dictionary explains, yamen is the office or residence of a public official in the Chinese Empire. Yamen existed at the county, prefecture, province, and central government levels. Within a local yamen at the lowest level of administration of a county, officials managed the running of the local county or district under the direction of the chief official (often translated inaccurately as county or district magistrate (Cao 2018)) in charge of such matters as tax collection, local education and cultural matters, everyday civil affairs and law and order, investigating crimes, adjudicating civil and criminal cases, and issuing decrees and rules. In short, yamen or datang are not the same as court in the modern Western sense, even though court has been used in English to describe where trial proceedings were held in imperial China.
It is noted that the examples above Xing bu and yamen are no longer used in modern Chinese and have been replaced by Sifabu (Ministry of Justice) and fayuan or fating (courts) and these terms were introduced words, but fa, xing and lu are still used today although not exactly the same meanings or usage.
To sum up, the basic conceptualization of law in traditional China may be summarized as: Fa (law) refers to xing (punishments) as set out in the ritualized moral standards or norms embodied in the imperial lü (statutes) (Cao 2018). The meaning of law as a system of punishment seems to be the dominant meaning and function of law in traditional China. This interpretation does not contradict the suggestion that fa also embodies the meaning of model and standards. Nor does this contradict the argument that traditional Chinese law contained civil law and civil elements. Fa embodies a range of meanings: laws backed by coercion as well as to laws linked with moral standards; to positive laws issued by the state and to the more specific rules for special skills, such as military strategy (Liang 1989; Turner 1992). It is against such a backdrop that modern Chinese law and modern Chinese legal language came into existent and developed.
3.Development of Modern Chinese legal language
Imperial China which lasted over two thousand years ended in 1912. Without going into details about the historical background for the demise of the Chinese empire, for our purpose, as said earlier, modern Chinese legal language began to emerge around the mid-nineteenth century when China came to close encounter with the West on a formal and significant way. The introduction and translation of Western legal texts into Chinese is believed to be an important catalyst in this endeavour, often inventing or creating new words with entirely new meanings in the Chinese linguistic landscape and the minds of the Chinese (for detailed discussions, see Cao 2021). It was started under an imperial official, Lin Zexu (1785–1850), around 1839 (He 2001). (For detailed discussion of Chinese translation of foreign legal works during the late Qing period, with a list of the major translated works, their translators and other publication details (He 2004b; Tian and Li 2000). It is around this period that modern Chinese legal language started to take shape.
For the emerging modern Chinese legal language, I suggest, the efforts in translating Western laws from the second half of the nineteenth century till the 1930s created the building blocks for modern Chinese legal language and Chinese law (Cao 2004, 2021). Briefly, in the late nineteenth century, there was a desperately felt need and urgency in China for modernization, a historical process of transformation from a traditional to a modern society, which began with the advent of modern China in mid-nineteenth century with social change, both evolutionary and revolutionary, in all major areas of Chinese society (Soo 1989). Along with these efforts, it was recognized among the Chinese official and intellectual circles that law reforms and the need to establish a new or modern legal order with modern laws to deal with the West became a matter of urgent priority.
In terms of the development of modern Chinese law, a noteworthy and significant area is the practice called yijie. Yijie literally means translation and introduction or introduction through translation (Cao 2004). This can refer to any types of translated texts, but in legal translation, introduction includes not only introducing and describing foreign laws and legal systems, but more importantly, introduction is also intended for making Chinese laws through transplanting foreign laws. Yijie was started towards the end of the nineteenth century, and was very significant from 1896 to 1936 during which period the Chinese absorbed and codified their version of Western laws, largely through the translation of Western laws and scholarly legal works (Henderson 1970, 158). Thus, the translation of foreign legal works and laws had a definite purpose, that is, to transplant or to create Chinese laws modelled on the foreign laws to replace the ancient Chinese laws that were deemed outdate and ineffectual in dealing with modern realities.
As a result, modern Chinese legal language is by necessity a translated legal language. This peculiar legal language consists of new concepts and usage and translated language from Western laws and legal texts as well as borrowing from the Japanese legal language which had earlier translated from the Europeans. The role and medium of the Japanese legal language was critical and significant. Japanese law developed during the Meiji Period (1868–1914) involved in large part the Japanese translation of Continental European laws. Due to the closeness between the Chinese and Japanese writing systems, Chinese translators resorted to borrowing from the Japanese many legal terms without the need to creating new Chinese words on their own (Tao 2013). This speeded up the translation process and it also turned out to be highly efficient and effective. Early modern Chinese dictionaries included Xin er ya, a dictionary published in 1903, with a section on politics and a section on law, explaining new political and legal terminology, and Han yi xin falü cidian (New Legal Dictionary Translated into Chinese) published in 1905 (Yu 2001, 24–66). By the 1920s and 1930s, the basic framework for a new Chinese legal order modelled on European Continental civil law was taking shape together with the newly created Chinese legal language. The vast amount of translation and lawmaking activities by the reform minded Chinese scholars and jurists in translating and introducing Western law to China were seminal in laying the foundation of modern Chinese law and modern Chinese legal language as we know it today (He 2004b; Qu 2015; Qu 2013).
For our purpose, specifically, a large number of legal concepts, words, and other expressions (together with words in social science and science in general) were translated into or created in Chinese during this formative era. Most of the terms introduced during the period have now become established in the Chinese lexicon as an integral part of the Chinese legal language and political discourse, for instance, zhuquan 主权 (sovereignty), minquan 民权 (civil right), fayuan 法院 (court), zeren 责任 (responsibilities, liabilities, duties), liyi 利益 (interest), renmin 人民 (people), guoti 国体 (system of government), peichang 赔偿 (compensation), zizhi 自治 (autonomy), xianzhi 限制 (restriction), xuanju 选举 (election), sifa 司法 (judiciary), zhengduan 争端 (dispute), xianzhi 宪制 (constitutional government), lingshi 领事 (consul), guanxia 管辖 (jurisdiction), guohui 国会 (parliament), zhangcheng 章程 (bylaws), zhengzhi 政治 (politics), among others (He 2001; He 2004a, 2004b; Li 1997).
Slightly later in the beginning of 1900s, the Chinese translation efforts shifted from translating directly from European languages to translating or borrowing from the neighboring Japan, including laws from the U.K., U.S.A., Germany, France, Russia and others. Of this period, some legal terms that were borrowed from Japanese into Chinese include gongsu 公诉 (public prosecution), sisu 私诉 (private suit), jianchaguan 检察官 (public prosecutor), and sunhai 损害 (to harm, to damage), among others, gongzhengren 公证人 (notary public), zhongcai 仲裁 (arbitration), zhaiwu 债务 (debt), zhaiquan 债权 (credit), yiwu 义务 (obligations), faren 法人 (legal person or corporation), fayixue 法医学 (forensic medicine), suoyouquan 所有权 (ownership), jiashi 假释 (parole), yi’an 议案 (legislative bill), panjue 判决 (verdict), and xianfa 宪法 (constitution), jiancaguan 检察官 (prosecutor), xingfa 刑法 (criminal law), caipansuo 裁判所 (tribunal), gongsu 公诉 (public prosecution), susong qixian 诉讼期限 (time for litigation limitation), bianhuren 辩护人 (advocate, defense lawyer), wuqi tuxing 无期徒刑 (life sentence), weizheng zui 伪证罪 (perjury), qiangjian zui 强奸罪 (rape crime), and many others. All these terms are still in use in China today as part of the Chinese legal vocabulary (Hao 1997; He 2004a, b; Li 1997; Qu 2013; Tao 2013; Wang 2005). All of them were new and foreign concepts and words to the Chinese at the time. Since then, they have become well integrated into the Chinese language and law, and are some of the most commonly used words in Chinese legal, political and everyday language today. It is fair to say that most Chinese today are unaware of their foreign origin. It is interesting to note that a Chinese legal scholar and jurist, Chung Hui Wang (1881–1958) who was educated in China and also received his law degree from Yale University, produced one of the most influential English text of the German Civil Code (Wang 1907). He translated and annotated the widely acclaimed English text from German, published in London. His English translation was then translated into Japanese, which in turn was translated into Chinese. As a result, many of the legal concepts in civil law from German law were introduced into Chinese this way, having a seminal impact on modern Chinese civil law and Chinese law (Chen 2015) for discussions of the early English translation of the Chinese imperial code and related issues).
In short, as traditional Chinese law differs significantly from laws in modern societies, the classical Chinese language did not have a vocabulary for notions and concepts used in modern laws. As a result, as we have seen, translation of Western laws and borrowing from Japanese provided the building blocks for the development of modern Chinese legal language. Through those translations, the basic notions of legal science, legal philosophy, legal principles, legal practices, and legal concepts in Western law were introduced into Chinese. Examples include the concepts of the rule of law, separation of powers, judicial independence, jury, constitutionalism, presumption of innocence, legal person, federalism, presidential system, cabinet responsibility system, election, freedom of contract, liability, jurisprudence, civil law, criminal law, litigation law and procedures, international law, sovereignty, courts, judges, prosecutors, parliament, justice, property rights, claims, rights, obligations, among others. Words such as president, government, parliament, republic, rights, and many others also started to take on real life meaning and existence in modern Chinese society (He 2004a).
4.Key terminological features of the Modern Chinese legal language
One distinctive feature of legal languages and legal texts is the complex and unique legal vocabulary (Cao 2007b). A number of terminological features can be identified in the legal language used in China today. Such features include (but not exclusively) legal technical terms and conceptual issues and usage that are bound to the legal institutions and areas of law; characteristics of legal terms as part of the specialist language in terms of ordinary vs legal meanings, and legal synonyms; legal performative; and vagueness and uncertain meanings of words used in law to be briefly considered next.
4.1Three sets of Chinese legal vocabulary
First of all, a linguistic feature of modern Chinese legal language is that in the last century, it has evolved into three variations used in three legal speech communities, namely, mainland China, Hong Kong, and Taiwan and each has its own linguistic and legal characteristics (for the evolution of modern Chinese legal language and translation, see (Lackner, Amelung, and Kurtz 2001; Tian and Li 2000; Qu 2013; Yu 2001). Briefly, Hong Kong now is a bilingual jurisdiction with English and Hong Kong Chinese as its official legal languages in a Common Law jurisdiction, and its legal Chinese is mainly a translated language from legal English with influence from its indigenous dialect or language of Cantonese, very different from mainland China or Taiwan in terms of the legal system and language use (for further discussion, see the chapter in this book on the Chinese legal language in Hong Kong and (Clark 2019; Ng 2020; Sin 2018). The written language used in mainland China and Taiwan is largely the same writing system, but there are many variations due to historical, political and other reasons (for discussions of law and language in Taiwan (Price 2019; Wang 2002, 2015). The Chinese characters used in Taiwan are in the traditional form and its laws are traced to the beginning of the twentieth century. The mainland Chinese legal language mainly began in the 1950s when the People’s Republic of China started to enact laws and build legal institutions. It uses the simplified Chinese characters. There are also substantive differences in the actual laws of two jurisdictions. Linguistically, the legal language in mainland China is less formal and more modern, using more plain language, while Taiwan’s statutes are much more formal and have retained the classical style, usage and terminology from the previous age. Importantly for our purpose, one must not assume that meanings of identical legal terms from mainland China, Taiwan, and Hong Kong are similar or the same. In fact, very often, the meanings of many legal terms in the three jurisdictions differ considerably deriving their meanings from their respective laws and legal systems, although they may look similar or identical in writing. This sociolinguistic phenomenon also contributes to some of the difficulties in translating between Chinese and English. This essay focuses on the legal language used in mainland China.
4.2Emerging and expanding legal technical vocabulary
The legal language used in China today, as in other legal languages such as English, is teemed with a considerable stock of legal jargon and terms. Apart from those created in the last century described earlier, many more have been created or started to be used in the last thirty years or so with the significant increase of laws enacted during this period. Many of these legal terms are not much used outside legal discourse. They carry special technical meanings in law. This emerging and expanding legal vocabulary includes legal conceptual terms in different categories of law, legal jargon and usage that are bound to the legal institutions, personnel and areas of law. The legal vocabulary also includes ordinary words but they can be used in legal contexts and laws to denote special legal meanings different from their ordinary meanings and usage. In the following sections, selected few examples of Chinese legal terms are sampled. These examples represent only a small sample in a short general essay of this nature for illustrative purposes. This is not a quantitative or corpus study.
As mentioned earlier, many legal terms were created or borrowed in the previous age more than a century ago into Chinese, but it is essential to understand and interpret the meanings of such Chinese legal terms in the Chinese legal context and under the current Chinese law. For instance, the term for self-defense in Chinese, zhengdang fangwei 正当防卫, is derived from a Japanese rendition of the French legal term defense legitime that had been introduced into Chinese law in the beginning of the twentieth century, but the legal provisions on self-defense under Chinese law were written modelling after the German criminal law. Now, the meaning of this term today is found under the current Chinese criminal law, and what may constitute self-defense in Chinese law and its actual meanings as applicable to real life situations are still developing.
There are many specialist legal terms in Chinese law now. Take the newly promulgated Chinese Civil Code (2020) as an example, one of the most important legal codes in modern China that came into effect in 2021. Undoubtedly, it requires considerable knowledge about Chinese law and Chinese legal language to understand the provisions of the new Chinese Civil Code. Its legal terms and usage are extensive. For instance, in the sections on property law and property rights, there are many legal terms and concepts, such as wuquan 物权 (rights in rem, or property rights), wuquan de sheli, biangeng, zhuanrang he xiaomie 物权的设立、变更、转让和消灭 (creation, modification, transfer and extinguishment of rights in rem), yongyi wuquan 用益物权 (usufructs), diyi quan 地役权 (easements), tudi chengbao jingying quan 土地承包经营权 (right to land contractual management), zhaijidi shiyongquan 宅基地使用权 (homestead land use rights), danbao wuquan 担保物权 (security interest in property), diya quan 抵押权 (mortgage rights), zhiquan 质权 (rights of pledge), dongchan zhiquan 动产质权 (pledges in chattel), quanli zhiquan 权利质权 (pledges in rights), liuzhiquan 留置权 (rights in lien), dongchan zhiya 动产质押 (chattel hypothecation), among many others. Most of these are strictly legal terms, not much used in other contexts. It is beyond the scope of this essay to go into the complex legal meanings of these concepts under Chinese law, just as they are complex under the Common Law or English speaking jurisdictions such as the UK or Australia. Suffice to say that these legal terms are technical terminology with special legal meanings as defined and interpreted within the Chinese law. It is also noted in passing that it becomes much more complicated when these terms are translated into English, given the similar words in the two languages on the surface but substantial legal differences of the laws in the different jurisdictions.
Further questions arise from legal terms and usage. First, the issues of polysemy and synonyms. As we know, words often have multiple meanings, and it is true with many legal terms. This may give rise to the appropriate interpretation of the actual meanings of the words depending how they are used. For instance, in the Chinese Civil Code (2020) and Chinese property law in general, churang 出让 is a commonly used legal term which can be used as a verb or a noun. Its basic meanings include to transfer/transference, to assign/assignment, to grant/grant, to sell/sale, or lease/leasing depending on the actual use and context. Related to this is the issue of its synonyms such as zhuanrang 转让, chushou 出售, zulin 租赁, with similar meanings referring to the transfer, sale, or lease of real property or certain rights. Thus, to ascertain the actual meanings of churang, we need to see how it is used in the actual texts and contexts. When the term churang is used for land or real estate transaction in China, as dealings involving real property, especially land, are governed by the Chinese property law, it has very different meanings from the sale or dealings with real property in other countries. One major difference is that according to the Chinese law, there is the 70 years rule, that is, the maximum term for the assigned right (churang) to the use of land in China is 70 years for residential purposes (and 50 years for industrial and other purposes) as the Chinese state holds the perpetual ownership rights to all land in China. The relevant law stipulates that churang (assignment) of the right to the use of the land refers to the act of the State as the owner of the land who, within the term of a certain number of years, assigns the right to the use of the land to land users, who shall in turn pay fees for the assignment thereof to the State. So, any sale of land for residential use in China is in fact a long term lease or assignment, with the assigned rights to use the land for 70 years,33.In 2017, the Chinese government indicated that a real estate protection provision that would ensure an individual’s access to property under a 70-year lease would be renewed unconditionally is being drafted. but for the sale of land or land right use in China, the term zulin (lease) is not used. Furthermore, to contrast churang and zhuanrang, the law in China also states that the transfer of the right to the use of the land zhuanrang refers to the land user’s act of re-assigning the right to the use of the land, including the sale, exchange, and donation. So, churang and zhuanrang are not the same under the Chinese property law.
The following translations containing churang in Chinese legal texts can help illustrate to a degree its varied meanings, taken from a well-known law site hosted by Peking University in China (http://www.lawinfochina.com/index.aspx). These varied translations are not translation errors, but different usage and meaning of the same terms. The focus here is not on translation but the varied meanings of the relevant words (with bold and italics added):
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协议出让国有土地使用权规定 (2003)
Provisions on the Agreement-based Assignment [churang] of the Right to Use State-Owned Land (2003);
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国务院关于将部分土地出让金用于农业土地开发有关问题的通知 (2004)
Notice of the State Council on Relevant Issues concerning Using Part of the Land Transfer [churang] Fees for the Development of Cultivated Land (2004);
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最高人民法院行政审判庭关于拍卖出让国有建设用地使用权的土地行政主管部门与竞得人签署成交确认书行为的性质问题请示的答复 (2010);
Reply of the Administrative Tribunal of the Supreme People’s Court to Request for Instructions Re the Nature of Signed Purchase Confirmation Agreements between Land Administrative Departments and Winning Bidders in Auctions for Transfer [churang] of State-Owned Construction Land-Use Rights (2010);
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广州市城市国有土地使用权有偿出让和转让试行办法 (1989)
Tentative Procedures of Guangzhou City for Leasing [youchang churang] and Transferring [zhuanrang] the Right to Use Urban State-Owned Land (1989);
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中华人民共和国城镇国有土地使用权出让和转让暂行条例 (1990)
Interim Regulations of the People’s Republic of China Concerning the Assignment [churang] and Transfer [zhuanrang] of the Right to the Use of the State-owned Land in the Urban Areas (1990);
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国土资源部关于进一步规范矿业权出让管理的通知 (2006)
Notice of the Ministry of State Land and Resources about Further Regulating the Management of Transfer [churang] of Mining Rights (2006); and
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自然资源部关于实施海砂采矿权和海域使用权“两权合一”招拍挂出让的通知 (2019).
Notice by the Ministry of Natural Resources regarding Transferring [churang] the Bid Invitation, Auction, and Listing of the Sea Sand Mining Right and the Right to Use Sea Areas (2019)
The above brief illustrations show that churang can have multiple meanings and usages, translated as transfer, assignment, and lease in the different texts. It is also apparent that churang and zhuanrang are similar and was often translated as transfer. This example is not unusual or out of the ordinary as words used in law and other contexts often have multiple meanings. Words such as churang derive their meanings from the immediate context of use and from Chinese law. Similarly, words such transfer, assignment, and lease may have totally different meanings under the laws of another jurisdiction.
Another issue with legal vocabulary is that they can be used either as ordinary words or legal words. In Example 4 cited above, Tentative Procedures of Guangzhou City for Leasing and Transferring the Right to Use Urban State-Owned Land, banfa 办法 is a very commonly used Chinese word in everyday colloquial speech, meaning methods or ways, but in Chinese legal designation, it means administrative measures, or procedures, as used in the example above. It refers to a type of government regulation or directive. This is a case of an ordinary word used in legal contexts with legal or special meanings.
The above situation is common in Chinese legal language as it relies on ordinary everyday words to a large extent despite the increasing use of special legal technical jargon. Thus, it is important to recognize the legal meanings and usage in such situations. This is true for Chinese and other languages as well. To illustrate the point further, renmin 人民 and minzu 民族 are ordinary commonly used words in everyday use in Chinese. However, when used in legal texts, they may carry significant legal meanings. As an example, China signed the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) and the International Covenant on Civil and Political Rights (1966) (ICCPR) in the late 1990s. Relevantly, in the original Chinese text of the two international covenants, that is, the official United Nations (UN) Chinese-language version approved by the UN in 1966 and this is the official and authentic Chinese text of the covenants. Although they were translated from the English texts, the Chinese texts are authentic legal texts of the covenants with legal force. The background to this is that, at the time when the two covenants were translated into Chinese at the UN, China’s seat in the UN General Assembly was held by the government of the Republic of China in Taiwan. However, relevant to our discussion, now there are another second and more recent versions of the covenants translated within China and used by the Chinese government but these translations use different words from the original Chinese legal texts of the UN. The Chinese translations done in the PRC are not the official authentic UN texts and have no legal status, but they are cited and circulated and are the Chinese government preferred versions. There are significant differences between the two Chinese versions, and the unofficial Chinese version of the ICCPR deviated in many instances from the original meanings, and as one commentary stated that the unofficial Chinese version does violence to the plain meaning of the ICCPRC (Seymour, and Yuk-tung Wong 2015). One such difference in terms of choice of words in the two versions is the change of minzu 民族 used in the official Chinese version of the UN into renmin 人民 in the unofficial translation for the word peoples used in the English text. It was suggested that in the ICCPR, the word peoples is understood to mean minzu (ethnic groups) as was rendered in the original authentic Chinese version, not renmin (people, citizenries) as was changed to in the later unofficial Chinese translation (Seymour, and Yuk-tung Wong 2015). As pointed out, in terms of the substantive legal meanings, the principle of self-determination of peoples as distinct from citizenries was so important to the framers of the Covenant that they placed it in the place of a people and peoples in the first article of the Covenant (Seymour, and Yuk-tung Wong 2015, 522). It is believed that the change was made to renmin in the later Chinese translation in the PRC because of the changed attitude and policies of the Chinese government regarding the rights to self-determination of ethnic groups in China. It was argued that the use of renmin 人民 instead of minzu 民族 essentially eliminated the concept of ethnic groups’ rights to self-determination (Seymour, and Yuk-tung Wong 2015, 522). This is so despite the fact that minzu is imprecise as is the English word “peoples”. In this case, a deliberate choice of two similar words may carry major legal significance. For our purpose, this is also a case of ordinary words used in legal texts that may have different meanings depending on how they are used.
4.3Legal performatives
As in other legal languages, Chinese legal texts, particularly, Chinese statutes, make extensive use of legal performatives. Such performative lexical indicators, namely, bixu/xu 必须/须，ying/yingdang 应/应当，ke/keyi 可/可以，bude 不得，are used in Chinese statutes as speech acts with illocutionary forces of enactment and of ordering, conferring rights and duties and imposing prohibitions (for detailed discussions, see Cao (2004) and (Cao 2009)). Their usage can be summed up briefly this way. There are four sets of legal performative usage with illocutionary forces in Chinese legislation:
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Statutory provisions can have no explicit performative indicators but nevertheless carry legal force;
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Bixu/xu and yingdang/ying are used in the same manner to impose order or mandatory obligation with the more persuasive yingdang/ying being the dominant indicator and the more direct and forceful bixu/xu used less frequently used. Both sets of words convey the same legal meaning and the same or similar illocutionary force. These are similar to shall or must in English;
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The terms keyi/ke are used in China confer discretionary power – similar to may in English; and
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Bude is used for prohibition – similar to shall not, must not, or may not.
For (1), (3) and (4), the Chinese usage does not display any major differences as compared to English, which seem to be a universal feature in the illocutionary functions of legal language (for detailed discussions of Chinese legal performatives and their cultural meanings, see (Cao 2004, 2018)). A particular mention needs to be made here: yingdang/ying used in Chinese statutes and legal texts does not mean should which is the meaning of the same word used in ordinary Chinese. Yingdang/ying used in Chinee statutes indicates a mandatory sense of shall or must. It is a strictly legal usage, totally different from its ordinary meaning used in everyday Chinese. This is commonly misunderstood by Chinese language users, and often mistranslated when yingdang/ying used in Chinese statutes or legal texts is translated into English. Similarly, ke/keyi in legal Chinese carries the meaning of permission, equivalent to may in legal English, not the ordinary usage of can. Again, these are uniquely special use of ordinary words in legal texts with legal meanings.
4.4Lexical uncertainty
Language is inherently indeterminate, and all languages have uncertainty (Cao 2007a). Consequently, linguistic uncertainty is part of law. In the study of law and legal philosophy, for instance, if the law says: No vehicle is allowed in the park, what would vehicle mean? Hart asks in his classical example to illustrate linguistic and legal uncertainties inherent in legal language. In this hypothetical case, the word vehicle, Hart says, may refer to a number of things – a car, an ambulance or even a roller skater (Hart 1961/1994). In a real life case before the European Court of Justice, the meanings of the word vehicle became a question of legal contention in multiple languages (Case C-428/02 Fonden Marselisborg Lystba°dehavn v Skatteministeriet [judgment delivered on 3 March, 2005]) as it was used in a particular EU law. It turns out that the meaning of the word vehicle in the different versions of the law in French, English, Italian, Spanish, Portuguese, German, and Finnish is not the same to the meaning denoted by the word in Danish, Swedish, Dutch, and Greek (Cao 2007a).
For the Chinese legal language, it also has its own linguistic uncertainty or indeterminate property. In particular, it is characterized by imprecision and vagueness. I argued elsewhere that Chinese legal language is more imprecise and uncertain than English, and this is inherent, not a defect in the Chinese language (Cao 2004, 2008). Such a linguistic characteristic, in addition to the Chinese legislative drafting preference for broad, imprecise and all-inclusive language in law, often makes it difficult to translate into legal English which, in contrast, strives for precision in legal writing (for examples and detailed discussions relating to linguistic and legal uncertainty (Cao 2004, 2007a, 2018). A linguistic feature is the prevalence of the use of imprecise terms and synonyms that lack distinction giving rise to ambiguity. For instance, bufa 不法， feifa 非法, buhefa 不合法, and weifa 违法 are commonly used in Chinese law, and they all essentially mean illegal or unlawful. It is not always clear what the distinctions or different meanings of such synonyms carry. This is not helped by the fact that Chinese statutes do not often provide definitions of words except for a few major legal terms, and Chinese courts seldom elaborate on meanings of words, unlike Common Law judges. The examples given earlier such as churang and its related words are also examples of such linguistic and legal uncertainty.
To further illustrate, a recent example from Chinese law is the legal term xunxin zishi 寻衅滋事, literally picking quarrels and provoking troubles (Cao 2018). Under Article 293 of China’s Criminal Law (1997 amended), the offence of xunxin zishi can attract five years up to ten years’ imprisonment depending on the seriousness of the crimes, and it may be applied to a broad and unspecified range of offences. The xunxin zishi charge, along with several similar ones (Articles 290–293 of the Criminal Law (1997), are sometimes referred to more generally as disturbing social order. Previously, xunxin zishi was applied narrowly to actions disrupting public order, involving actual assault or property damage. In recent years, the application of this charge has been extended. It has been used to detain, charge, and convict people with a wide range of acts from ordinary assaults and public brawls, to public drunken and disorderly conduct, petition, assaulting medical staff in hospitals, destroying a roadside clothes donation bin, spreading rumors or false information on the internet, to journalists and rights lawyers simply doing their jobs. Given the uncertain and broad meanings of xunxin zishi, it can be translated into English using familiar English legal terms such as public nuisance, disorderly conduct, disturb the peace, or even trespassing, but picking quarrels and provoking troubles may be useful for this uniquely Chinese legal term. Xunxin zishi is indeed a very Chinese legal term and offence with its Chinese uniqueness, in both the word and legal substance. It is not at all the same as public nuisance or trespassing in English laws. In a case in September 2020, Beijing police started a criminal investigation into a shocking case of animal abuse on the basis of xunxin zishi. As China does not have any anti-cruelty law, acts of animal cruelty go unpunished as there is no legal basis for prosecution. In this case, the general and vague xunxin zishi may have served a useful legal purpose.
5.Conclusion
In this chapter, the key terminological features of the modern Chinese legal language are briefly outlined and illustrated. They include some uniquely Chinese features as well as some features that may be found in other languages such as legal English. The Chinese legal language is unique as it is common. After all, all human societies share commonality as well as having their uniqueness. Laws and legal languages are developed reflecting both the commonality and uniqueness as law as a human made and constructed social institution.