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    法律英語的語言特征(二)

    發布日期:2017-12-11 來源:澳门威利斯人

    【前言】法律英語,作爲英語語言的一個分支,遵循著語言運用的基本規則,但同時又具有其自身明顯的語言特點和文體風格。在上一期的文章裏我們探討了法律英語獨特的用詞規則,本文將繼續從句法運用方面,揭示法律英語的特點。

     

    On the Linguistic Features of Legal English

    Part II: Compound Syntax  法律英語複雜的句法

     

    Legal English is considered to be abstruse, not only because of its unique usage of lexis, but also because of its complicated sentence structure. The use of long sentences, various clauses and complex inserted compositions in Legal English additionally adds to the difficulty of comprehension. However, for the sake of realizing the obligations and rights of controversial parties, Legal English must apply a kind of compound sentence, which can contain as much information as possible.

     

    1. Long Sentences 長句的運用

     

    It is obvious that long sentences with several clauses and inserted elements can include a large amount of information, which helps realize a clear statement. There are three main factors that make the sentences long: Inserted Phrases, Usage of Clauses and Complex Stratification.

     

    1.1 Inserted Phrases

     

    In order to achieve a succinct and clear expression in legal documents and lighten the burden from the use of multiple clauses, various types of phrases are used in Legal English. They often have a function of modification. Such phrases include prepositional phrases, participial phrases, noun phrases and so on. See the following examples:

     

    (1) With regard to disputes between the parties to a contract arising from the understanding of any clause of the contract, the true intension of such clause shall be determined according to the terms and expressions used in the contract, the purpose for concluding the contract, the translation practices and the principle of good faith.

     

    Here, the phrase “with regard to brings about the specific situation in which this clause is applied. Such kind of prepositional phrase also includes: for the purpose of, in place of, by virtue of, in accordance with, in view of. For example:

     

    (2) From the standpoint of the parties to the dispute, such a preference might be reasonable in view of the present state of procedured law and practice.

     

    Here is an example of inserted participial phrases:

    (3) However relevant such considerations may be in regard to a claim for damages resulting from misconduct, they are irrelevant to a claim against a person occupying a fiduciary relationship towards the plaintiff for an account of the profits made by that person by reason and in course of that relationship.

    In this sentence, instead of using relative clauses, three participial phrases are used as attributes to modify the nouns damages, person and profits. In that case, the concepts in the sentence are not only clear but also succinct.

     

    Another example:

    (4) The parties may exclude the application of this convention or, subject to Article 12, derogate from or vary the effect of any of its provisions.

     

    1.2 Usage of Clauses

     

    Apart from inserted phrases, sentence in legal documents are always long and complicated with the reason of using multiple clauses. It must be admitted that long clauses in a sentence will make the statement tedious and difficult to understand. However, such usage is indeed essential to the clear and precise expression of legal documents. There are mainly three kinds of such clause including relative clause which is important to the clear understanding of the noun, adverbial clause that is useful for describing the situation of affairs and noun clause which is helpful to introduce the subject or object of a sentence. Here is an example:

     

    (1) Whoever selling deliberately a commodity whose registered trademark is falsely used, which constitutes a crime, in addition to making compensation for the losses suffered by the party whose right has been infringed shall been investigated for the criminal responsibility according to law.

     

    The two defining relative clauses led by whose clauses are used to modify two nouns, the commodity and the party. As a result, the type of the commodity which will cause the related legal liability and the controversial party are clearly defined. In addition, the non-defining relative clause led by which also defines the applied situation of this article. Therefore, by using three relative clauses, the legal relationship and requirement of the article are very clear.

     

    Another example:

    (2) Questions concerning matters governed by this convention which are not expressly settled in it are to be are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.

     

    The use of adverbial clauses is also frequent:

    (3) When a party assigns, wholly or in part, its contractual rights and obligations to a third party, it must obtain the consent of the other party.

    A Time Clause is led by when.

     

    (4) Where using others registered trademarks has been permitted, the names of the licensee and the production place of the commodity must be marked in the commodity using the registered trademark.

    Here, where leads a clause of place.

     

    1.3 Complex Stratification

     

    As is stated above, inserted phrases and clauses are frequently used in legal documents but in most time, these usages will not appear separately. They will be used comprehensively in a sentence and arranged in a special order, resulting in the form of complex stratification, where different levels are linked logically and presenting the precise meaning. Such usage contributes to the appearance of long sentences in legal writings. Here are some examples:

     

    (1) The rule of equity which insists on those, who by use of a fiduciary position make a profit, being liable to account for that profit, in no way depends on fraud, or absence of bona fides; or upon such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff, or whether the profiteer was under a duty to obtain in the source of the profit for the plaintiff, or whether he took a risk or acted as he did for the benefit of the plaintiff, or whether the plaintiff has in fact damaged or benefited by his action.

     

    This passage is a long sentence, which is comprised by six clauses, three prepositional phrases and one gerund phrase. Although it is long and complicated, by analyzing the sentence structure, it is easy to find that the arrangement in this sentence is very clear and the liability of The rule of equity to explain the profit is precisely presented.

     

    (2) Some academies, whilst accepting that terms like ratio decidendi and obiter dicta are used in judgments, and whilst accepting that at least some judges think they construct their judgments, on the basis of ratio and obiter in previous judgments, believe that important influences on decisions made by judges are to be found in the nature of matters such as the social background of judges, the economic circumstances of the time or even the very nature of language itself.

    In this sentence, the principal clause is Some academies believe that …”, the subject of which is Some academies. Then the that clause brings about an object clause as the object of believe. Also, two clauses of concession that omit the subjects and verbs “be are led by whilst, in which two object clauses led by that are used. The stratification is very complicated but the arrangement is logical.

     

    (3) The court may strike any insufficient defense from any pleading

    (I) on its own initiative at any time; or

    (II) on the motion of a party if:

    (a) the party moves to strike it before responding to the pleading; or

    (b) if these rules do not perm it the party to respond, then if the party moves to strike it within 20 days after the party was served.

    This sentence is also comprised by three adverbial clauses and two prepositional phrases. But when it is arranged in items, it becomes clear.

     

    2. Parallel Structure 並列結構

     

    In view of the large amount of information and contents that should be included in a legal document, the structure of a sentence is required to be rigorous and formal. Therefore, parallel structure in Legal English is used frequently. There are two kinds of parallel structure: first, the synonym, which has been discussed above; second, parallel usage in sentences. The latter is the focal point in this section.

    See the following example:

    (1) It is also sufficient if service of the summons and complaints is made:

    (A) in the manner prescribed by the law of the foreign country for service in that country an action in any of its courts of general jurisdiction; or

    (B) as directed by the foreign authority in response to letter rogatory, when service in either case is reasonably calculated to give actual notice; or

    (C) upon an individual personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or

    (D) ; or

    (E)  

    In this sentence, more than three parallel clauses are listed below the verb “made to clearly describe the conditions which service of the summons and complaints is made.

     

    (2) If the debtor fails to make a payment, the lender may:

    (I)    require that the debtor pay the full amount immediately,

    (I) sell the collateral, or

    (II) seize any deposit.

    This sentence is a typical example of parallel structure. The three clauses separately lead to three different behaviors of the lender in a succinct way.

     

    3. Usage of IF Sentence Pattern 條件句的運用

     

    In legal documents, especially in statutes and codes, a kind of conditional clause usually led by the word if is comprehensively used. In order to distinguish this sentence pattern from others, we use “IF” sentence pattern to define it. Most of the statutes and codes in Law consist of three parts: assumption, solution and legal consequence. Assumption is the condition in which certain statutes or codes may be applied. It refers to such kind of legal action which may probably occur in society and should be punished once it occurs with harmful consequence. And the solution and legal consequence are results under the condition of certain assumption. Therefore, IF sentence pattern is the rightful use for this composition. It is always expressed in the following forms: If X, then Y shall do Z or If X, then Y shall be Z. Here, X is the assumption, which decide the valid condition of the whole clause. In fact, this pattern is a type of adverbial clauses that are familiar in plain English, but, with specific contents and regularized structure, it can be regarded as one of the linguistic features of Legal English.

     

    Here are some examples:

    (1) If the offender has previously served a sentence of imprisonment of not less than six months or a previous Borstal sentence, then the restriction is not more than six months or less than eighteen months.

    (2) If there shall be any breach non-observance or non-performance then and in any case it shall be lawful for the lessors to re-enter upon the demised premises.

    (3) If a court finds that an accused knew that the act in question was on which he ought not to do, and if that act was in fact contrary to law, then he is punishable.

     

    It should be noted that though if is always used to lead such kind of sentence. It is not the only form. The phrases subject to, in the event of, in case of and in the absence of are also used in such pattern. For example:

     

    (4) We agreed to export these machines subject to the approval of export licence.

    (5) In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.

     

    4. Passive Voice 被動語態

     

    The passive voice which is frequently used in Legal English is subjected to the requirement of objectivity in legal documents. Because of the omission of subject, sentences with passive voice can possess less emotional factors and can be more objective. Sometimes, it is not easy and necessary to find the subject of a statement, so using passive voice is more flexible than using a rigid active voice. Furthermore, passive voice can also be used to emphasize the objects concerned in a legal affair or the controversial parties of an event. It is comprehensively used in statutes, verdicts, contracts and deeds.

     

    Compare the following sentences:

    (1) They have not persuaded us that defendant has established the probability of such loss.

    (2) We are not persuaded that defendant has established the probability of such loss.

    It is obvious that, sentence(2) is more objective than sentence(1), though there is no alteration in contents.

    Note the difference between these two sentences:

    (3) I have decided that you should be executed.

    (4) The death penalty shall be imposed.

    This is a sentence from a verdict. It is clear that sentence(3) which employs an active voice presents a very informal pattern of writing style. Such kind of pattern is not suitable for the legal documents which should be solemn and formal. Obviously, sentence(4) is better.

     

    Other examples:

     

    (5) These Rules are formulated in accordance with Arbitration Law of the Peoples Republic of China and provisions of the relevant laws and

    (6) Civil actions generally are brought for breach of a contract, or for a wrong or tort.

     

    In addition, the use of passive voice can also have a function of emphasis. The following sentences are cases in point.

    (7) Where a person over the age of 17 is convicted of an offence punishable with imprisonment, he may be dealt with by being ordered to perform unpaid work for between 40 and 240 hours.

    (8) The payment of the aforesaid expenses shall be effected against presentation of the original vochers after being checked.

    In these two sentences, a person over the age of 17 and The payment of the aforesaid expenses can be stressed by using the passive voice.

     

       文:区蝶莹  專職律師

    廣東威利斯人澳门)律師事務所

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