Tài liệu (obstacles to accurate legal translation and feasible solutions to this problem)

MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW GRADUATION THESIS B.A. DEGREE IN ENGLISH Major: Legal English (OBSTACLES TO ACCURATE LEGAL TRANSLATION AND FEASIBLE SOLUTIONS TO THIS PROBLEM) Supervisor: LUONG MINH HIEU, MA Student: PHAM THI THAO LINH Student ID: 1852202010038 Class: LE43B Ho Chi Minh City, 2022 ACKNOWLEDGEMENT Even though I am the author of my thesis, I could not have finished it without the assistance of others around me. I want to thank everyone for your support, which helps the process of writing this thesis become easier. The feedback, suggestions, and compliments boost my confidence and motivate me to believe in myself. First and foremost, I want to send an appreciation to Mr. Luong Minh Hieu, my mentor, who put the most time and effort to help me finish this thesis. He was the one who patiently sat down to guide me when I felt tough and confused during this process. Obviously, the process of doing a thesis would be even more difficult and strenuous without the teacher's dedicated guidance. Since I have never conducted any research projects during my time at university, this project for me is a very advanced experience, but also full of difficulties and challenges. The submission of this thesis marks my maturity after a four-year academic career at the University of Law and opens up new opportunities for the future. Besides, I would like to thank the other lecturers of the Legal English department as well as the teachers who have taught our class. All teachers and professors gave us the most fundamental knowledge in the industry. Moreover, the enthusiasm of the teachers in the teaching process is the biggest motivation for me to do the thesis. I want to leave a research project as a very special mark in this student journey. Thank Ms. Pham Thi Thuy Dung – my head teacher, she always takes the time to answer our questions as soon as possible. In addition, I would like to express my sincere and deep gratitude to Mr. Tran Thang Long (Deputy Head of Department of Legal English), Ms. Tran Ngoc Luong Tuyen, Ms. Le Nguyen Thao Thy (lecturer in Deparment of Legal English), and all the lecturers and staffs in Ho Chi Minh City University of Law for all the values and knowledge I have received on her 4-year journey. I also thank all Dat Bike staff, thank you Ms. Nguyen Thi Phuong Mai – Human Resources Manager, Mr. Pham Duc Nam Trung – Head of Finance and Operation, Ms. 1 Truong Phan Cao Hoang Phuc – Legal Executive, and the entire Human Resources team and Supply Chain team, who created a good environment for me to conduct surveys and interviews, giving me a lot of lessons and additional useful information for me to complete your thesis. Additionally, from bottom of my heart, I would want to express my gratitude to my best friends Hoa, Long, Nhi, and Ngoc for always being there and giving me the support, and courage to go through all of the challenges I had to face while attending university. Thanks to everyone who contributed to making my time in college more memorable and colorful. Last but not least, I would like to express my gratefulness to my family for always being there for me, protecting me, and helping me succeed in my decision. Family is always my reliable spiritual support when I am at my most vulnerable stage, loving me without conditions and encouraging me every step of my journey of life. I sincerely appreciate my parents for providing me with a superb learning and training environment so that I can move forward with more confidence. I am unable to mention everyone who has stood by me in silence over the past few months because there are so many people supporting me in my very significant turning point. However, in the end, for those whose names are not mentioned above, I still want to send sincere appreciation to all people I love most, who lifted me up during my most desperate time to become a better version of myself. Ho Chi Minh City, 27th June, 2022 2 ABBREVIATION SL: Source Language TL: Target Language CAT: Computer-Assisted Translation 3 LIST OF FIGURES Figure 1: The complex factors affect to legal translation process ...................................... 38 Figure 2: Number of each object doing my survey ............................................................ 46 Figure 3: The number of years students learning English .................................................. 47 Figure 4: The fields which surveyors working in ............................................................... 47 Figure 5: The obstacles which people meet most when translating Legal English ............ 48 Figure 6: Characters of Legal Translation .......................................................................... 51 Figure 7: Common errors in Legal Translation .................................................................. 52 Figure 8: The satisfaction of legal translators .................................................................... 52 Figure 9: Tool usually used in Legal Translation............................................................... 54 Figure 10: Useful methods for Legal Translation ............................................................. 54 Figure 11: Legal translation process................................................................................... 55 Figure 12: Stages in Pre-translation process ...................................................................... 56 Figure 13: Factors for successful target text in Legal Translation ..................................... 57 Figure 14: CAT tools .......................................................................................................... 68 Figure 15: Legal Translation process ................................................................................. 70 4 LIST OF TABLES Table 1: Challenges which translators have to cope with : ................................................ 50 5 TABLE OF CONTENTS ACKNOWLEDGEMENT .................................................................................................... 1 ABBREVIATION ................................................................................................................ 3 LIST OF FIGURES .............................................................................................................. 4 LIST OF TABLES ............................................................................................................... 5 CHAPTER 1: INTRODUCTION......................................................................................... 9 1.1 Background to the Study ............................................................................................. 9 1.2 Rationale ................................................................................................................... 12 1.3 Aims of the Study and Research Questions .............................................................. 14 1.4 The Scope of the Study ............................................................................................. 15 1.5 The Significant of the Study ..................................................................................... 16 1.6 Study Methodology ................................................................................................... 17 1.6.1 Study Design ....................................................................................................... 17 1.6.2 Data Analysis ...................................................................................................... 18 1.6.3 Subject of the Study ............................................................................................ 18 1.7 Outline of the Study .................................................................................................. 19 CHAPTER 2: LITERATURE REVIEW............................................................................ 21 2.1 Translation in General ............................................................................................... 21 2.1.1 Definition of General Translation ....................................................................... 21 2.1.2 Translation Method ............................................................................................. 22 2.1.2.1 Word-to-word Translation ............................................................................ 23 2.1.2.2 Literal Translation ........................................................................................ 23 2.1.2.3 Faithful Translation ...................................................................................... 23 2.1.2.4 Semantic Translation .................................................................................... 23 2.1.2.5 Adaptation .................................................................................................... 24 2.1.2.6 Free Translation ............................................................................................ 24 2.1.2.7 Idiomatic Translation ................................................................................... 24 2.1.2.8 Communicative Translation ......................................................................... 24 2.2 Legal Translation ...................................................................................................... 24 2.2.1 Definition of Legal Translation .......................................................................... 25 6 2.2.2 When is a Document a Legal Document? .......................................................... 27 2.2.3 Characteristics of Legal Translation ................................................................... 29 2.2.3.1 The Nature of Legal Discourse .................................................................... 29 2.2.3.2 A System-bound Discipline ......................................................................... 31 2.2.3.3 Fidelity.......................................................................................................... 32 2.2.3.4 Ambiguity and interpretation ....................................................................... 34 2.3 Complexities of the Legal Translator........................................................................ 35 2.3.1 Language ............................................................................................................. 35 2.3.2 Legal System ...................................................................................................... 36 2.3.3 Genre ................................................................................................................... 36 2.3.4 Purpose................................................................................................................ 37 2.4 Strategies of Legal Translation ................................................................................. 38 CHAPTER 3: METHODOLOGY ..................................................................................... 43 3.1 Research Design ........................................................................................................ 43 3.1.1 Definition of Quantitative and Qualitative Research ......................................... 43 3.1.2 The Design of the Research ................................................................................ 43 3.2 The Procedure of Data Collection ............................................................................. 44 3.3 Data Analysis ............................................................................................................ 46 3.3.1 The Subjects of the Survey ................................................................................. 46 3.3.2 The Obstacles and Challenges which Translators Meet Most. ........................... 47 3.3.3 The Characters of Legal Translation .................................................................. 51 3.3.4 Common Errors in Legal Translation. ................................................................ 52 3.3.5 Useful Methods for Legal Translators. ............................................................... 53 3.3.6 Legal Translation Process ................................................................................... 55 3.3.7 Factors for Successful Target Text in Legal Translation ................................... 57 CHAPTER 4: DISCUSSION ............................................................................................. 58 4.1 The Obstacles that Prevent Translators from Producing Accurate Target Documents ......................................................................................................................................... 58 4.1.1 The Influence of Linguistic Aspect on Legal Translation .................................. 59 4.1.1.1 Latinisms ...................................................................................................... 59 4.1.1.2 Legalese ........................................................................................................ 60 7 4.1.2 The Influence of Legal Aspect on Legal Translation ......................................... 62 4.2 The Possible Solutions to Overcome above Mentioned Obstacles ........................... 63 4.2.1 Improve Knowledge and Experience.................................................................. 64 4.2.2. Applying the Legal Translation Process ............................................................ 65 4.2.3 The Aid of Technology in Legal Translation ..................................................... 66 4.3 The Legal Translation Process .................................................................................. 68 CHAPTER 5: CONCLUSION ........................................................................................... 71 5.1 Conclusion................................................................................................................. 71 5.2 Limitations of the Study ............................................................................................ 72 5.3 Further Study............................................................................................................. 73 REFERENCES ................................................................................................................... 74 APPENDIX ........................................................................................................................ 76 8 CHAPTER 1: INTRODUCTION 1.1 Background to the Study In the integration process of globalization and the Fourth Industrial Revolution, international trade and the massive exchange of products occurs on a regular basis between countries, which leads to the development of cooperation between Vietnam and the rest of the globe. Furthermore, thanks to the advent of science and the support of modern technology, international crimes are evolving and becoming more sophisticated, especially cybercrime. According to Cyber Security Ventures, the damage that cybercrime cause in 2021 is $6 trillion, which is much more severe than the damage caused by natural disasters. That is the reason why more and more legal documents are promulgated and translated into many languages to become the common legal basis for international cases. Szmigiera (2022) studies and reports in her statistic that approximately one-third of the world's population, or 1.5 billion people, speak English. However, the vast majority are not natural English speakers. English, in addition, to be widely spoken, is by far the most widely learned foreign language on the planet, with French a distant second. Moreover, in terms of international economic integration and globalization, English become one of the most important means to communicate and absorb the elite knowledge all over the world. English is not only a vital tool to help people approach the most hightech devices and learn from developed countries but also the advantageous one to spur the quality of material and spiritual life. Because of its widespread use, English is always chosen as the common language for most sorts of international contracts and legal agreements, in order to eliminate any disadvantage of misunderstanding to cause damage to people or property. Language is the primary means of communication in all fields and social aspects. As a result, the legal translation method is significantly different from the literary 9 translation method. However, each new assignment involves a mix of old routines and new challenges, depending on the translator's experience and the nature of the task at hand. It should be noted that categories such as "scientific translation" and "literary translation" are not completely self-contained. Legal texts, like other types of texts, are hybrids: for example, knowledge of the history and culture maybe would be useful when translating international treaties or multilingual statutory instruments (Harvey, 2002). Therefore, legal translation requires a high level of expertise. It's even been called the "ultimate linguistic challenge". However, law firms or corporations that obtain translations from self-employed translation practitioners frequently struggle to understand the complexities of the task. Following extensive fieldwork examining how legal translation is commissioned and performed in various contexts, this paper aims to create a mini handbook that illustrates the textual agency of the legal translator, with the goal of communicating the complexities of translation performance to clients and other stakeholders. It may also be used to train new legal translators and to make practicing translators more aware of their overall task. The final result of this process will assist related people in understanding the significance of Legal English translation by providing reasons they need to understand, such as the full brief of the need for legal translators or the layers of skills involved. That is the reason why this paper focuses on "Barriers in Legal English translation", recognizing the challenges and focusing on how new changes can influence the value of translated legal documents technique at the moment. Legal English is usually a root of phobia for those who work and study in the legal field, because if the translation is incorrect, it will immediately jeopardize many people's rights and duties in that transaction. Obviously, the extremely difficult legal terminology and specific structure of legal documents prevent people from working with them. As a result, in order to reduce the difficulty and complexity of the translation process, it should be homogeneous according to common standards and methods. To begin, the legal translation must be precise, shortened, and clearly defined in both the source and target texts to avoid unforeseen misunderstandings during commercial discussions or 10 negotiations. Then, in order to make the process of translating legal documents easier, it is critical to find ways to limit the obstacles encountered. The purpose of the law is to protect the legitimate rights and obligations of individuals and organizations. Law spreads widely and justifies all social relationships The impact of law on social relations usually occurs in two directions: - For social relations in line with the process of social development and meeting the interests of the people, the law protects, strengthens, and creates conditions for them to develop. - For social relations that do not meet the interests of the people and do not conform to the rules of society's development, the law prevents and inhibits their development and gradually excludes them from social life. Therefore, law affects all different aspects and fields, particularly the numerous jobs relating to international commercial transactions, such as purchasing, sourcing, supply chain, logistic, and so on. Employees in this field have to manage and deal with crucial English contracts and documents on a daily basis. Small errors can have farreaching consequences for a company. Despite the importance of law as well as legal translation, it is still depreciated by law firms and other corporations. It becomes apparent that the market is severely impaired because the final edited version of the translation is deficient in information. To consolidate this statement, Hargitt (2013) presents in his study that if our world continues to globalize, the opportunities for legal language confusion and misunderstanding will grow. This problem leads to the result that they are relegated to an outlying position on numerous occasions. In such circumstances, it seemed worthwhile to seek ways to better target documents with market stakeholders – to benefit not only translators but also their clients through resulting quality improvements. While some argue that a global legal 11 language could be the ultimate solution to such problems, the current state of international systems is unprepared to develop such a structure. Moreover, people increasingly depend on high technology to assist them in daily tasks. However, in the legal translation field, technology development such as Google Translate only assists to support the translation process in part, in order to present legal papers correctly, a continuous process of learning and absorbing information, as well as investigating and amassing knowledge and experience, is required. Because English is not Vietnam's native language, the differences in language, political institutions, culture, history, people, and legal system make English in general, and Legal English in particular, extremely challenging, especially in countries where English is a second language. Therefore, in this paper, I focus on the barriers in legal translation and solutions to eliminate them. The document explores the complexities of legal translation based on four aspects: language, legal system(s), textual genre, and text purpose (Scott, 2017) which aims to encapsulate the complexities of legal translation performance in practice and communicate them to clients, trainee and practicing translators, and other markets as well as educational actors. 1.2 Rationale To demonstrate the significance of translation in the development of Vietnam, this document will go back to the period following the liberation of the South and the country's reunification in 1975. After convincingly winning the war against the United States of America (the US) in 1975, the Vietnamese government has used its best efforts to re-build the country, including, among other things, promoting the country's integration into international markets through a restructuring process known as "Doi Moi" that began in 1986. (Abbott, Bentzen, Pham & Tarp, 2007). As a result, one of Vietnam's most significant achievements for the country's development was its admission as the 150th member of the World Trade Organization (WTO) on January 11, 2007. It is the process of 12 negotiating major agreements for the sake of Vietnam's economy that required a significant amount of Vietnamese legislation to be translated into other languages and vice versa, with English serving as the primary language for international trade. As a result, legal translation has emerged as an essential course of action that has aided in the acceleration of global integration, and the demand for skilled legal translators has risen dramatically. Legal translation will continue to exist indefinitely as Vietnam's trade expands. Back to the present, the need to find out difficulties in legal translation relating to some basic reason. More and more law firms are being established to meet the demand for practical legal advice on cross-border transactions, and where there is a law firm to be built, there is a need for the legal translator(s). They will be in charge of supporting lawyers in work related to papers, documents, and translation. Because they are specific in legal translation, law firms will save more time in handling cases. Besides that, based on the current situation in Vietnam, import and export activities are increasing. As global corporations penetrate the Vietnamese market, they must also be familiar with Vietnamese law. Because of the two-way relationship, both parties have a clear understanding of the law as well as each other's legal rights and interests, possibly requiring the need for an increasing number of quality legal translators. However, the reality in Vietnam has yet to meet that demand; translated documents in Vietnam are frequently of poor quality because translators do not understand legal terms and cannot define legal genres. Furthermore, when people come across legal documents or contracts in English, they become confused, which slows down the process of accepting and receiving information. Another reason to conduct this research is that legal translation causes an enormous barrier that makes it difficult for the readership to understand properly and use for the right purposes. However, legal documents appear in almost every field and directly affect the legitimate rights and interests of each individual and also a business. Moreover, legal translation is no exception to the problems and difficulties that come with 13 specialized translation. This is primarily due to the fact that legal systems differ from one country to another. Besides that, Terminology and Grammatical Elements are two key difficulties and problems encountered in translating legal documents with specific illustrations, according to Tram Nguyen (2015), which is clarified further in the following section. In order to harmonize the above factors, legal translators need to be equipped with both legal knowledge and linguistic knowledge. In conclusion, in Vietnam, there is an idiom that says, "He who sees through life and death will meet the most success." Therefore, in order to dominate and master legal translation, we must first identify the translation process's impediments. After identifying problems using the first principle thinking rule, the process of finding solutions becomes easier, and people will be able to access legal documents from there. 1.3 Aims of the Study and Research Questions With an increasing number of transactions, the number of employees who must adapt to the market and be equipped with specific language and legal knowledge must also increase. As a result, in order to improve the quality of human resources and reduce the risks associated with the transaction and commercialization processes, this study must identify the barriers and methods for overcoming them. Basing on the information presented in the preceding sections, this study aims to accomplish the following main goals. Regarding the first issue, identifying the barriers that make legal translation difficult is the primary goal. Furthermore, recapitulating information from many experts allows people to gain a multi-dimensional overview, summarize the results, and make a final decision for the aforementioned answers, which helps employees and employers understand the difficulties of the legal translation process so that they can appreciate the translators' efforts. 14 After figuring out the barriers, this study also devises a strategy or figures out the solutions for optimizing the methods which remove the obstacles. Those solutions must change the situation and be practical so that they can be immediately applied in practice to change part or all of the translation process becoming easier, faster, and more convenient for people who are intending to approach legal English. Last but not least, the final purpose of this one is developing the most comprehensive translation process to ensure consistency in the translation process. Even novices and those just beginning to learn the legal language can use it to get the most literal translation. To gain those aims, this study is expected to provide answers to two major research questions: 1. What are the obstacles that prevent translators from producing accurate target documents? 2. What are the possible solutions to tackle those obstacles? 3. What is the possible process of legal translation a translator need in the practical setting? The primary goal of this paper could be achieved thanks to the answers to these questions, which is to discover a reality that legal translators cope with and avoid fault in their translation process. 1.4 The Scope of the Study According to the chart mentioned in the CSA Research about the Change in Localization Demand by Sector, May and December 2020, the demand for legal translation is decreased in the mid of the year because of the effect of the pandemic, however, it becomes steady demand at the end of 2020. Despite the fact that the pandemic has halted transactions, the demand for legal translation has remained steady and consistent. However, because the law in general, and the contract in particular, cover 15 other fields such as Logistics, Insurance, and so on, the actual number for the demand for legal translation requirements must be much higher than the survey above. Foremost, this paper is written not only for a law student or people working in the law field but also for anyone who works directly with legal documents. First of all, this research aims to get information from lawyers, legal translators, and also employees working with international contracts frequently. This paper collects perceptions from the interviews with Head of Finance, Purchasing Executive, and Legal Executive working in Dat Bike Viet Nam Company Limited – a manufacturing company with the mission to transfer all the gas vehicles into electronic vehicles. Obviously, electric vehicles are not popular in Vietnam, that is why they have to import the components from other countries and export the product to foreign countries. Employees in here work with international contracts and other legal documents every day, thus, they have enough information and experience for my research. Furthermore, the thesis includes a questionnaire that was distributed at the Ho Chi Minh City University of Law – the university which specifies in the education law field. This university is also one of only two in Vietnam that have Faculty of Legal English. The study collects notions from juniors and seniors who complete the Legal English course in the university about the difficulties that beginners and novices face when beginning to translate. On the other hand, this study also aims to fresh-graduated from this university about the frequency and their different perspective on this problem. Then, this paper has an opportunity to collect more general ideas that can be applied to a wide range of subjects, aspects, and fields. As a result, this thesis will contain an abundance of multidimensional information from a variety of professions, not just the law field. 1.5 The Significant of the Study This thesis is designed to provide learners with a general understanding of translation and the translation of delivery terms in legal documents. Aside from that, the 16 outcome of this analysis gives benefits readers who want to learn more about translation, particularly translation of Legal English. Furthermore, the research can be used by translators to practice translation and by lawyers and law students or purchasing executives to expand their vocabulary of legal terms. Moreover, the paper also allows legal learners to easily access documents and scientific articles from a variety of countries, broaden their legal knowledge, and create favorable conditions for acquiring legal information during the learning and researching process. Moreover, finding the obstacles provides everyone with an overview of the difficulties that are preventing the translation process, which directly interferes with the workload carried. Finally, this study will find a solution to prevent misunderstanding between parties in a contract so that transactions are carried out quickly and conveniently, thereby increasing contract success rates. Furthermore, this thesis will be a good source of accurate and useful information, the findings revealed in this thesis may help future researchers conduct new research or test the validity of other related findings. 1.6 Study Methodology 1.6.1 Study Design The thesis makes use of both qualitative and quantitative research. - With quantitative research: This is defined as a systematic investigation of information and data using statistical and mathematical techniques to comprehend these figures. A questionnaire of 16 questions will be conducted to collect data from the subjects mentioned in the previous section, and the data will be analyzed to determine the major roadblocks in the work of translation. - With qualitative research: consulting experts via the interviews and meetings which arranges between us. Then, for the thesis, summarize and draw 17 conclusions. In addition, senior translators and also seniors in other fields will be interviewed to answer questions and clarify outstanding issues. The interviewee was asked questions to clarify and supplement the concepts and views mentioned earlier, as well as to clarify the questions surveyed in the questionnaire. 1.6.2 Data Analysis The tool used to collect data for the above-mentioned research is Google Form, which is then displayed in the form of charts using Microsoft Excel. To better describe this process, we first create a data table using Google Form software. After everyone has taken the test, the results will be sent out. Furthermore, in order to collect enough data for statistics, questionnaires were printed and distributed to students at the school. Following the collection of sufficient data for quantitative and qualitative research, the next step is data processing, which includes statistics about the level and quantity of information as well as the problem mentioned in the questionnaire table. Finally, using the Microsoft Excel application, the data is transformed into a column, line, or table chart. The author will have an overall view to analyze, evaluate, and compare it to arrive at the final result. Similarly, in the case of interviews, the information gathered from interviewees will be statistically analyzed and arranged to provide a multi-dimensional view in addition to the usual perspectives derived from theoretical knowledge. 1.6.3 Subject of the Study In order to diversify the fields, information is gathered from a variety of industries. Those chosen for data collection, on the other hand, were from Dat Bike Limited Company and Ho Chi Minh City University of Law. The reason why I chose Dat Bike is that it is a production company that specializes in manufacturing electric motorbikes. Bike components must be imported; additionally, import and export transactions or investment calls are held on a regular basis from domestic and international suppliers and vendors. To ensure that those transactions go as smoothly as possible, a team of legal consultants must review the contract and provide advice before the parties enter into the 18 contract. With this survey, the author will assess the challenges that businesses face when dealing with international contracts, reducing the time spent reviewing contracts as well as the risks to the trading method. In addition, Ho Chi Minh City University of Law was chosen as a research location. Because this is considered the leading law school in the South of Vietnam, students receive extensive exposure to the legal system. Students will encounter certain barriers in acquiring knowledge or finding documents. There are some difficulties that are realized in the progress of studying and comparing the international documents. Legal English is a faculty member here, and students in this major will be trained in general knowledge in both language and law, which totally meets the demand of the market. As a result, they will have specific knowledge and experience for this survey. This survey will help to improve the quality of the translation service industry in Ho Chi Minh City and throughout Vietnam, benefiting both schools and businesses. As a result, international businesses and investors have a foundation to believe in Vietnam's human resource language ability. 1.7 Outline of the Study This paper is divided into five chapters, which are listed below in the following order. First, in the Introduction chapter, some general issues (the background, rationale, goal, research questions, significance, scope of the study, and methodology) are discussed. Then, in Chapter 2 - Literature review, the key terms relating to this topic are given. In addition, in this chapter, I examine some previous studies that have already been completed in my topic area. 19