Methods of translation principle selection

This study aims to appreciate and examine the strategies in the translation of legal terms with Chinese characteristics in Chinese Civil Code, centering on five principles, namely, accuracy, readability, traceability, conventionality, and unification based on the corpus. Three methods are used in this paper:

1. Combination of quantitative and qualitative analysis. This paper collects and transcribes a remarkable corpus of legal terms with Chinese characteristics in Chinese Civil Code, with detailed quantitative and comprehensive qualitative analysis. The selection criteria will be provided in the following section.
2. Combination of examples and illustration. Typical examples from the Chinese Civil Code are demonstrated with profound explanation in light of related principles and strategies of legal term translation.
3. Combination of theory and practice. Based on the Skopos theory, this paper summarizes five principles and strategies that can be applied in the Chinese Civil Code and makes a thorough inquiry about the primary principle and about how to deal with the conflict between the principles.

The essence of translation is to spread ideas on condition that translations of terms are correct [36]. In this sense, the term translation is the destination of all kinds of translation. Therefore, four principles as follows could help with term translation [37]. First, the principle of accuracy refers to fully and correctly conveying the connotations of terms. Second, the principle of readability aims at translating terms understandable in the style of the target language. Third, the principle of traceability enables readers to recognize the sources of terms [38]. According to Jiang [37], in the face of the term translation dilemma, the principle of conventionality makes translation follow the habits and traditions. However, Hou [5] disagrees with Jiang’s conclusion: accuracy should be the first while readability and traceability the second, and readability and traceability can even be discarded for higher accuracy. Other scholars point out that when discussing the term translation, the most important thing is to be concerned with the conventionality of the term [38, 39].

Scholars raise the main problems in the translation of legal terms. Firstly, the unification and standardization of terms have received insufficient attention [40]. Secondly, there is a shortage of specialization, especially reflected in translating legal terms into common expressions or colloquial speeches, failing to follow the principle of “translating terms with terms”. One main reason is that translators lack solid knowledge of Chinese law and Anglo-American Law. The third problem is that some translations are unsystematic because legal terms exist in relation, not in isolation. At the same time, compared with translation principles of Anglo-American legal terms, we should focus on the advancement of legal terms for the meaning is constantly developing. In addition, expression habits and language connotations should also be taken seriously.

While translating legal terms with Chinese characteristics, translators should pay more attention to word selection and fully consider the connotation and the impact it may bring, because any slight negligence would lead to severe consequences. This part will analyze how to choose translation principles in legal terms in the Chinese Civil Law based on the Skopos theory in the following three aspects.

1. According to the Skopos rule, the translation process, including the selection of translation methods and strategies, is determined by the purpose of translation. For cultural communication and academic exchange of the Chinese Civil Law, the translation should be faithful to the original text, and translators are not allowed to add, delete or change the order as they please because any nuance would lead to huge differences and violate the principle of accuracy. However, even though accuracy is of great significance, it cannot achieve the skopos alone because the publicity effect is based on not only accuracy but also understandable connotations.
2. According to the fidelity rule, translators should judge whether the form and function of the source text meet the target culture’s requirements according to the predetermined Skopos to achieve interlingual coherence. However, it does not mean that translators should sacrifice everything for accuracy and cannot delete the repetitive expressions or even choose free translation. Translators could adopt the method of interpreting the connotation for higher readability; they could also follow the convention or make target readers identify the source of the term by literal features, which is the main content of the principle of conventionality and traceability.
3. According to the coherence rule, translations should meet the standards of intralingual coherence and be meaningful in the target language. Therefore, due to the connotation and serious political function of legal terms with Chinese characteristics, we cannot completely rely on foreign media or translators, leading to the principle of unification which requires the authorities to create formal translations and keep consistent in official documents.

All in all, five principles are concluded in the translation of legal terms with Chinese characteristics: accuracy, readability, traceability, conventionality, and unification.

Data collection

This paper focuses on the translation principles of legal terms with Chinese characteristics. Since there are many terms sourced in Anglo-American law, translations would be better to abide by the expressions in a source law. Therefore, this paper selects 42 legal terms with Chinese characteristics in the Chinese Civil Code as the research object, which can be divided into two categories: first, newly-coined legal terms from the pioneering system in China; second, the inherited legal terms learned from the Roman or German Law. The selection criteria and reasons are as follows:

1. Newly-coined legal terms are created by the Chinese legislative authorities and do not exist in legal systems of other countries. Therefore, these terms deserve great attention because the Chinese government attempts to share the pioneering legislative experience with the world, in which the translation quality determines the effect of publicity. Besides, there are no translation conventions to follow.
2. As for inherited legal terms, they are transformed from Roman or German legal terms. These terms are easier for translators because they learn from experience of many countries in civil law systems.

In Table 2, most selected terms are from three parts: Book One, Book Two, and Book Four of Chinese Civil Code, for the following reasons:

1. Book One of General Part includes legal person system related to Chinese political systems, which creates special legal persons with Chinese characteristics, such as state organ legal persons, rural collective economic organization legal persons, urban and rural cooperative economic organization legal persons, and so on. Therefore, legal terms in Book One are newly-coined.
2. Book Two of Real Rights contains the content of the unique registration system of immovable properties, the ownership structure that can be divided into state ownership, collective ownership, private ownership, and original types of usufructuary rights, which are all created by China. In conclusion, these terms are mostly related to the land system, explaining the separation of buildings and land, land functions determined by urban or rural areas, and land owned by the state and collective [41, 42]. Many legal terms in this book are newly-coined and only a few originate from Roman and German law.
3. Book Four, recently independent of Book One of General Part, presents protection to personality rights and interests. These legal terms are shared and accepted worldwide, all inherited legal terms.

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Table 2. Term distribution.

https://doi.org/10.1371/journal.pone.0273944.t002

This paper aims to divide selected legal terms into newly-coined and inherited terms, with the former referring to legal terms created by original Chinese systems and the latter to legal terms inherited, mainly from Roman law, according to China’s actual condition. Distribution could be seen in Table 3:

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Table 3. Type distribution.

https://doi.org/10.1371/journal.pone.0273944.t003

In handling legal terms with Chinese characteristics, translators should follow various translation strategies. Upon the corpus, this paper seeks to identify the relationship among strategies, as well as between strategies and legal term categories.

Principle of accuracy

A translated term should accurately convey the meaning of the original text. Otherwise, it would mislead the target readers. Accuracy, as the primary translation principle of “ABC” (Accuracy, Brevity and Clarity), should be considered more. Accuracy is of prime significance to the translation like a cornerstone to a building, and terms convey complex connotations and work as the foundation of the legal system, requiring more attention. It makes no sense if the translation conveys wrong meanings, no matter how elegant the translation is. In translating the Chinese Civil Code, the translator firstly comprehends the intention of the terminology, and tries to find the corresponding or similar terms in Anglo-American law, taking flexible means to seek common ground while reserving differences. The translation of “农村集体经济组织” is a good example for illustration.

“农村集体经济组织” refers to, based on the Agricultural Cooperation Movement and the people’s commune, the three types of collective economic organizations which emerged since the reform and opening up, including town, village, and group [43]. Since the connotation of this term is identical to its literal meaning, the translator divides it into four parts to find the corresponding words of every part and combines them according to English habits, contributing to the final translation “Rural collective economic organization”.

There are other examples, such as “不动产统一登记制度” into “Unified registration system with respect to immovable property”, “事业单位” into “Public institutions”, “国家所有权” into “State ownership”, “人格权” into “Personality right”, “不当得利” into “Unjust enrichment”, and “相邻关系” into “Adjacent relationships”. However, when legal terms have no corresponding concepts or notions in English, guided by the accuracy principle and the adaption approach proposed by Eco-translatology, the most appropriate and easy-to-understand words should be selected.

Theoretically, translators should take accuracy as the first and foremost principle to retain the original meaning. However, any process of pinpointing the corresponding expression in the target language is realized at the cost of losing a degree of accuracy, which is acceptable and reasonable. When translating other categories of terms, transliteration, interpretation, and colloquial expression are the final choice when there is no alternative. Another scholar points out that if there are no exact equivalents in Chinese, the translator can flexibly utilize functional equivalents, lexical expansion, paraphrasing, neutral terms, and borrowing on the premise of faithfulness [1]. However, the translation of legal terms, as a by-product of legal cultural exchange and transplantation [39], aims to be well comprehended by target readers. Transliteration is rarely used, and interpretation for functional equivalents would be advantageous for target readers to understand Chinese legal culture.

Similarly, Eco-translatology requires translators to make adaptive transformations of linguistic forms. This adaptive selection of linguistic dimensions for conversion is carried out in different aspects and at different levels. Chinese and English belong to different language families with remarkable differences. For example, English focuses on morphological fit, and the logic and structure between statements are often expressed through prepositions and clauses, etc. However, Chinese is an intentional spiral language, and logic is often expressed through context, chronological order, or sequence of event development.

Principle of readability

Together with accuracy, terms should be translated comprehensibly and understandably, which requires the precise positioning of the target readers, in order to spread ideas and cultures. However, when accuracy and readability cannot coexist, the former should be put in the first place, or readable translation without accuracy would inevitably overshadow the brilliance of the writer and become a recreation of the translator [37].

Therefore, in translating legal terms, readability of translation should be promoted on the foundation of high accuracy. Moreover, terms can be divided into two types. The first is terms with precise literal meanings, which can be translated word by word. For example, the word “国有财产” is converted into “The state-owned property” in English. The other is terms with complex connotation, difficult to be understood literally, which could be translated freely under the Skopos theory.

With strong nationality, this concept of “宅基地” does not exist in traditional civil law countries, and is the first independent institutional arrangement in the Chinese Property Law of 2007 [3]. On the basis of collective membership, “宅基地” refers to farmers’ obtaining rural land free of charge to build houses, which is a welfare security system [6].

In the translation of “宅基地使用权,” alien from “农村集体经济组织” that can be translated word by word, free translation is the best choice but should be applied under the Skopos theory. It is translated into “Right to use a house site”, in accordance with the Skopos rule [33] as follows:

1. A translation (or TT) is determined by its Skopos of spreading cultures and ideas. The official translation gives a concise definition, which can be unquestionably comprehended by English natives (also the target readers).
2. The top-ranking rule refers to the fact that the translation behavior is determined by its Skopos, which can also be interpreted as “the end justifies the means”. In this regard, the translator chose free translation instead of word-by-word translation or transliteration.
3. The fidelity rule requiring that translation should be as faithful as possible to the original texts, is fully abided by the official translation by emphasizing two points. First, “the right to use”, rather than “the right to own”, reveals the special system of separation of houses and lands and lands owned by state and collectives; second, the application of “a house site”, other than “a building site”, indicates that the purpose is limited to building a house for a living, not for commercial use.

Sometimes, although literal translation meets the requirements of accuracy, it will make target readers have difficulty in distinguishing one term from another, for example:

“身体权” and “健康权” are indistinguishable, and if they are translated into “Right to body” and “Right to health,” the target readers would be confused about the differences between “body” and “health,” considering the two terms are similar in meanings. However, in Chinese law, “身体权” is a right to protect the integrity of a person’s body, while “健康权” aims to protect the normal functioning of body tissues and organs. Therefore, “身体权” is officially translated into “Right to corporeal integrity” for better differentiation. Generally, these translations have enhanced the readability of legal terms, which is in line with the principles in the Skopos theory and Eco-translatology. Therefore, the translator should pay more attention to the transmission and interpretation of bilingual cultural connotations for better communicative demands.

Principle of traceability

Traceability enables the readers to easily identify the source of the translated terms and enjoy the characteristics of etymological language. However, if traceability is applied separately with accuracy and readability in term translation, readers might be confused by new terms, and cultural exchange will be impeded as a result.

For example, “准合同” properly deals with all kinds of legal obligations, such as unjust enrichment and management without cause. The term “准合同” possesses the corresponding concept in Anglo-American law and French law [32], tracing back to the “Quasi-contracts” in Roman law. Therefore, the official translation follows the concept in Roman law to make the target reader recognize the origin at a glance.

“居住权” originated from the concept “habitatio” of Roman law, which is the right of non-owners to live in houses owned by others [44]. The official translation “The right of habitation” shows its etymological characteristics.

There are pioneering undertakings in system designs of the Chinese Civil Code, which is a great initiative combined with China’s national conditions and Roman law. Therefore, accuracy can be ensured by citing the original expression in translations.

However, through comparing the English translation of the legal terms in civil law countries, although the inheritance relationship exists, there are many different expressions. Most English-speaking countries belong to the common law system. Therefore, when translating the terms in the civil law system into English, translators should first sort out the evolution of a term in civil law system, compare it with the similar concept in the common law system, and eventually find out the translation methods that can achieve equal interpretation between different legal systems [17].

“不动产” is translated into “Land” in German Civil Code, “Real estate” in Japanese Civil Code, while “Immovable property” in Chinese. However, in Anglo-American law, “Real property” refers to itself or the rights on the real estate, obviously different from “不动产” in the Chinese Civil Law. However, the word “Immovable” is generally used in the legislative texts and legal works of Anglo-American countries, manifesting that “Immovable property” is suitable in both Chinese and the target language.

Principle of conventionality

This principle means that in the face of different translations of a term, interference and unification are unnecessary, especially the administrative measures, because the language has its own rules. Democratic discussion and selection truly ensure the quality of term-translations.

In the translation of “无因管理” into “Negotiorum gestio”, obviously abiding by the tradition of Roman Law and German Law, is the best translation chosen by history and is familiar to many scholars even though it lacks readability to a certain extent.

The word “居住权” is translated into “The right of habitation”, which also embodies the principle of conventionality. Also, “法人” into “legal person” is in line with the convention of Anglo-American law.

Principle of unification

The Chinese-English translation of legal terms with Chinese characteristics lacks unity and changes at will, negatively impacting the quality of international communication in Chinese law. The principle of unification has the following requirements: (1) the unified translation shall be published by the highest authority or media; (2) when there are multiple versions published by the highest authorities, the latest one shall be taken as final [40].

However, the principle of unification is not rigid or universal, considering that some legal terms are cross-category with two or more functions (such as both nouns and verbs). Moreover, it is natural that there are various translation methods under the condition that the core part remains unchanged.

“集体所有权” is officially translated into “Collective ownership”, in which the word “collective” is a cross category word, both as a noun and an adjective.

Literal or free translation

In the Chinese Civil Code, 21 newly-coined terms are translated word by word, while some are free translated, including “农村承包经营户” into “Rural usufructuary households”; “预告登记” into “Registration of a priority notice”, and “宅基地使用权” into “Right to use a house site”, the inner connotation of which are difficult to be recognized literally. If these terms are translated word by word, the purpose of cultural communication and academic exchange would be impeded, fully violating both the Skopos and the fidelity rule.

In the translation of “预告登记”, “预告” is abstract, which means the obligee of a house can register before he or she owns the house. Its function is to protect the obligee, preventing the developers from selling the house to others, causing infringement to the obligatory right. The authority chooses “a priority notice”, meaning that there is a notice that someone has bought the house and owns the obligatory right when the second buyer registers the house, perfectly manifesting the connotation of the legal term by free translation.

However, for the rest of the legal terms, although they could be translated literally, the translation should also be guided under the Skopos theory. Therefore, the translation should not only rely on these terms to convey the literal meaning to meet the skopos rule and fidelity rule, but abide by the coherence rule and the principle of unification, because it is not a series of separate processes, but a closely integrated project. The principle of unification requires not only the standardization of translated terms across sectoral laws, but also the unification of terms in a code. In this way, although most newly-coined terms are translated word by word, they are still in line with unification in core parts. There are 18 inherited terms translated word by word for the same reason in our corpus.

For example, “权” is translated into “right of” or “right to”, such as in “Right to contractual management of land”, “Right to management of land”, and “Right to use land for construction purposes”. “农村”, as an adjective, is translated into “rural”, such as in “Rural usufructuary households”, “Rural collective economic organization legal persons”, and “Urban and rural cooperative economic organization legal persons”, embodying the principle of unification.