Tag Archives: law

Swiss criminal law terminology / Terminologie des Schweizer Strafrechts

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This vocabulary doesn’t seem familiar to me. Go to the Obergericht, click on Dolmetscherwesen and then on Strafrechtsterminologie der Bundeskanzlei (D, F, I, E). It can’t be copied, but here’s one entry, scanned, to give an impression (scanned, OCR’d but not spellchecked for the various languages):

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Täter (1); Täterin (2); Straftäter (3); Straftäterin (4); Delinquent (5); Delinquentin (6); Straffälliger (7); Straffällige (8)Person, die rechtswidrig und schuldhaft einen gesetzlichen Tatbestand erfüllt hat.
PS: CH; USG: (7)(8) zu vermeiden
(1) Schweiz. Strafgesetzbuch, Art. 7 (SR 311.0): (2) BSG 321.1 G 150395, Art. 46 Abs. 1 Ziff. 1; (3) BFS/BJ,
Anstaltenkatalog, 1998, S. 11: (4) POMBE, Baechtold, 1995; (5) BFS, Rückfallraten, 1997, S. 21; (6)(DF)(USG)
T. Freytag, Universität Freiburg, Seminar für Strafrecht, 2001; (7)(8) BFS, Bewährungshiffe in der Schweiz, 2001,
S.4
auteur (1); auteure (2); auteur de l’lnfraction (3); auteure de l’lnfraction (4); auteur de l’acte (5); auteure de l’acte (6); auteur de l’acte punissabie (7); auteure de l’acte punissabie (8); deltnquant (9); delinquante (10); auteur dlrect (11); auteure directe (12); auteur materiel (13); auteure materielle (14); auteur immediat (15); auteure immediate (16)Personne qui accomplit personneilement, avec la consclence ou ia volonte extgees par la loi, les actes
materlels constitutlfs d’une infraction.
PS:CH
Code penal suisse, (1) art. 7, (3) art. 27 a\. 3, (5) art. 18 ai 3, (9) art. 42 eh. 1 (RS 311.0); (2)(6)(8) CHA BE,
SCTerm, 1997; (4)(12)(14)(16)(GRM) ACH; (7) RSB 321.1 L 150395, art. 235; (10) Cornu, Voc. juridique, 1990,
p. 248; (11)(13)(15) Graven, Infraction penaie punissabie, 1995, p. 282; (DF) d’apres source (10), p. 83 sous
“auteur”
autore (1); autrice (2); autore di un reato (3); autrice di un reato (4); autore di reato (5); autrice di reato (6); autore diretto (7); autrice diretta (8); agente (9); delinquente (10)
Persona che realizza I presupposti oggettivl e soggettivi 6\ un reato. PS: CH: GRM: (9M10)f./m.
(1)(2)(3)(4)(5)(6)(7)(8)(DF) aw. M. Hohl Tattarietti, 2001; Codice penaie svizzero, (9) art. 7 cpv. 3, (10) art. 42 n. 1 (RS 311.0)
offender (1); perpetrator (2)Person who commits a crimlnal act with the mens rea required by the law.
PS:CH
(1) Home Office, Digest 2, Criminal Justice System, 1993, p. 7; (2) Romain, Dict. Legat Terms, part 1, EN-DE, 1989;
(DF) adaptation ofFrench definition

On the subject of Swiss German, Jens Wiese at Blogwiese has just announced that he has reached the end of his topic. At the moment he is rehashing old topics. He says that he often gets queries and they are all words he has already discussed. He still writes a weekly column in a couple of Swiss newspapers.

(Thanks to the ubiquitous Urs Wolffers)

Shareholders/Gesellschafter

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The translation of forms of business association is quite complex and takes so long to discuss that the steam goes out of the boiler before the discussion has got off the ground.

I met some U.S. translators briefly last Friday, but not too briefly for one of them to tell me that all the U.S. lawyers she works for reject the translation of Gesellschafter of a GmbH as shareholder.

This is a good concrete example – without such examples it’s really impossible to discuss why some lawyers don’t like some translations (see earlier entry without examples).

It would be great if people asked their English-speaking lawyers why they don’t like the translation.

So, let’s look at this. Gesellschaft itself is a problem, but at least my favourite translation of GmbH, which is GmbH, is straightforward (until the client complains).

But the word Gesellschafter has to be translated. The nearest equivalents (not translations) of Gesellschafter in English are:

AG: shareholder
GmbH: member
KG: partner
OHG: partner

But look at this:
Aktie in AG: share
Anteil in GmbH: share

So it has become standard to translate every Gesellschafter of a limited company as a shareholder. Of course, it may seem like translatorese in a GmbH, but it seems a good solution to me. For some reason, hardly any Germans seem to have heard of the word members.

The U.S. lawyers who didn’t like shareholder apparently wanted members or partners. Members, OK, but never never never partners in a GmbH: it creates the wrong idea.

It’s been suggested to me that the lawyer familiar with two languages may simply be getting confused, and transferring the existence of two terms for shares (Aktie and Anteil) in German to a wrongly assumed existence of two terms in English.

Severance clause / Salvatorische Klausel

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Here’s a severance clause (severability clause, saving clause) from Mark Anderson, A-Z Guide to Boilerplate and Commercial Clauses:

If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement.

Plenty of other examples can be found online for harvesting elements to translate a German salvatorische Klausel.

The courts won’t always accept the clause, but it might help, for instance, where an employment contract has a clause in restraint of trade governing post-termination work.

I found salvatorische Klausel in the small Langenscheidt-Alpmann dictionary but not otherwise. Maybe that’s why DE>EN translators are always asking what it is.

At all events, the weblog verbraucherrechtliches … is looking at some inadmissible general terms and conditions and has an entry on salvatorische Klauseln.

Some clauses add nothing to the provisions of the Civil Code, but are harmless.
But this:

Anstelle der unwirksamen Bestimmungen gilt eine angemessene zulässige Regelung, die den angestrebten wirtschaftlichen Zweck weitgehend erreichen.

is apparently known as geltungserhaltende Reduktion and is NO GOOD. Consequences here.

Of course, this doesn’t relieve us from translating them into English.

Habeas corpus

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habeas.gif

You may not recognize him, but he’s been looking out for you.
Habeas Corpus has never had a very high profile, but for more than 700 years this quiet hero has stood watch over some basic principles of fairness and human dignity. When the Constitution was written, he was there. Since 1215, in fact, he’s been a humble, but unflagging, champion of justice and due process of law. …
Something happened last year, and now Habeas Corpus is missing.
Some time on the morning of October 17, 2006, Habeas disappeared. Eyewitness accounts say he was last seen in Washington, D.C., walking down the Capitol steps in something of a daze. But where he went from there, or where he is now, is anyone’s guess.
The one thing we know for certain is why he went missing. October 17 was the day that Congress let the president declare Habeas Corpus — and other parts of the U.S. Constitution — null-and-void for certain individuals.

No, I don’t think I’ve seen him either. More from the ACLU here.

(Via Boingboing)

Claimant, plaintiff, pursuer / Kläger

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Parties to civil proceedings in England:
Up to 1999: plaintiff and defendant
(divorce: petitioner and respondent)
A claimant included a person claiming some benefit, for instance unemployment benefit.

From 1999 (Civil Procedure Rules)
claimant and defendant
(divorce: petitioner and respondent)
A claimant for unemployment benefit etc. (as before)

In Scotland: pursuer and defender
(divorce: petitioner and respondent)
Benefit claimant as above

Most English websites mention ‘claimant (plaintiff)’ – after all, it’s only been seven years since the change. A Google search for claimant -plaintiff site:uk produces mainly references to benefit claimants.

Here’s an exception: the claimant user guide of Her Majesty’s Courts Service.

I have previously linked to Michael Quinion on this subject. He writes of legal Latin being ‘swept away’, which seems a bit sweeping, so to speak.

I mention this because I don’t often use the word claimant to translate Kläger(in). My translations don’t just go to England, either. Do people who translate for England and the rest of the UK use claimant? Do translators for the EU and the European Court of Justice? I think maybe only sometimes. And I remember in 2000 or 2001 asking a British publisher client whether I was now to use claimant, and getting the answer ‘When it’s appropriate’, which suggested to me that the problem hadn’t even filtered through.

Comparative Legal Linguistics / Buch

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Professor Heikki E.S. Mattila of the University of Lapland has published a book on comparative legal linguistics that looks interesting and expensive. The amazon.com page lets you look inside and see the full table of contents and an extract. The publisher’s page is fairly long too, so I’ll quote from that here:

Contents
Foreword; Foreword to the Finnish original; Part 1 General Introduction: Legal language and legal linguistics; The concept of legal language; Genres of legal language; Legal linguistics as a discipline; The importance of legal-linguistic knowledge; Structure and content of this book. Part 2 Legal Language as a Language for Special Purposes: Functions of Legal Language: Importance of the theory of communication; Achieving justice; Transmission of legal messages; Strengthening the authority of the law; Strengthening lawyers’ team spirit; Linguistic policy; The cultural task of legal language. Part 3 Characteristics of Legal Language: Precision; Information (over)load; Universality and aloofness; Systemic character; Structure and formalism in legal texts; Frequency of initializations and acronyms; Sentence complexity and diversity of language elements; Archaism and solemnity; Proper use of legal language. Legal Terminology: Legal concepts; Characteristics of legal terminology; Formation of legal terminology. The Major Legal Languages: The Heritage of Legal Latin; The importance of Roman law; History of legal Latin; Latin in modern legal languages; The communication value of legal Latin; Dictionaries of legal Latin. Legal German: History of legal German; Characteristics of legal German; International importance of legal German. Legal French: History of legal French; Characteristics of legal French; International position today. Legal English: The common law system; Development of legal English; Characteristics of legal English; Legal English as a global language. Part 4 Conclusion:Lexical comprehension and research needs;changes in legal-linguistic dominance in the international arena; Terminological interaction between legal languages; Problems of lexical comprehension; The need for jurilinguistic research on legal institutions and concepts; Foreign terms and other expressions; Index.

(Via DORES, which has a new set of references out on publications on language and law)