The Reception of Terminology with Diff The Reception of Terminology with Diff iculties in Thai Civil and Commercial C iculties in Thai Civil and Commercial C

ode: ode: A Comparative Perspective A Comparative Perspective

for Lawyers and Paralegals for Lawyers and Paralegals

byby

Jutharat CompeerapapJutharat CompeerapapChulalongkorn UniversityChulalongkorn University

Language InstituteLanguage Institute

The Reception of Terminology with Diff The Reception of Terminology with Diff iculties in Thai Civil and Commercial C iculties in Thai Civil and Commercial C

ode: ode: A Comparative Perspective A Comparative Perspective

for Lawyers and Paralegals for Lawyers and Paralegals Why is it needed to study “Terminology with diffic Why is it needed to study “Terminology with diffic ulties” of a specific register of law. ulties” of a specific register of law.

The language of a specific register of law, althoug The language of a specific register of law, althoug h,has been taught in Thailand for almost twenty y h,has been taught in Thailand for almost twenty y ears, studies on the nature, development and fram ears, studies on the nature, development and fram

e of “terminology with difficulties” are strikingly n e of “terminology with difficulties” are strikingly n-on existent.-on existent.

““ Terminology with difficulties” is the term with va Terminology with difficulties” is the term with va gue legal concepts, flexible and not static meanin gue legal concepts, flexible and not static meanin

gs. They are terms in gs. They are terms in jus aequum jus aequum which allows dis which allows dis cretion power to interpret the terms for justice. cretion power to interpret the terms for justice.

Translation of Terminology Translation of Terminology with Difficulties:with Difficulties:Sources of Laws and Sources of Laws and Sources of LanguageSources of Language The primary difficulty of legal translation depends on The primary difficulty of legal translation depends on

the affinity of the legal systems and only subsidiary on the affinity of the legal systems and only subsidiary on the affinity of the source language (SL) and target lan the affinity of the source language (SL) and target lan

guage (TL). guage (TL). Legal information or contents of one legal language s Legal information or contents of one legal language s

ystem of a source term signifies a conception of a targ ystem of a source term signifies a conception of a targ et term. The translator needs to establish the content et term. The translator needs to establish the content of the source term and subsequently searches for a te of the source term and subsequently searches for a te rm in the target language with the same or similar co rm in the target language with the same or similar co

ntent. This makes the translator a comparatist who al ntent. This makes the translator a comparatist who al so has to take care of “false friends.” Therefore, trans so has to take care of “false friends.” Therefore, trans

lators of legal information are faced with comparative lators of legal information are faced with comparative legal systems legal systems

Translation of Terminology with Difficu Translation of Terminology with Difficulties:lties:

Sources of Laws and Sources of Langu Sources of Laws and Sources of Langu age (cont.) age (cont.)

SL TL SL TL Thus, in legal translation, it should be fro Thus, in legal translation, it should be fro

- m one legal language (source language S - m one legal language (source language S L) to another legal language (target langua L) to another legal language (target langua - ge TL) of the same legal system.. It result - ge TL) of the same legal system.. It result

s in creating “equivalent terms” between S s in creating “equivalent terms” between S L and TL. L and TL.

If they are from different legal systems, “n If they are from different legal systems, “n ear equivalent”, “phrasologism” or “neolog ear equivalent”, “phrasologism” or “neolog

ism” occur. ism” occur.

Discretion Power and Juristic Method in Civil La Discretion Power and Juristic Method in Civil La w Interpretation w Interpretation

In civil law system countries, judges have wide freedo In civil law system countries, judges have wide freedo m in applying various methods when the “legal term” m in applying various methods when the “legal term” is vague and allow discretion powers to interpret and is vague and allow discretion powers to interpret and

the interpretation is in the subjective manner. This is the interpretation is in the subjective manner. This is when juristic method is applied. when juristic method is applied.

It is the Supreme Court Judgment which can provides It is the Supreme Court Judgment which can provides the interpretation of provisions in question, in this ca the interpretation of provisions in question, in this ca

- se of the term in question. - se of the term in question. - Judicial legal reasoning when judges use legal reaso - Judicial legal reasoning when judges use legal reaso

ning exercising discretionary power to provide legal c ning exercising discretionary power to provide legal c - oncepts, it is based on three criteria their moral cons - oncepts, it is based on three criteria their moral cons

ciousness or good morals and the interpretation of th ciousness or good morals and the interpretation of th e intendment of law and precedents. (Wicha Mahakhu e intendment of law and precedents. (Wicha Mahakhu n, Law Journal) n, Law Journal)

The terms The terms jus aequum jus aequum or ‘law of justi or ‘law of justi ce’: <<in good faith>> ce’: <<in good faith>>

The terms in The terms in jus aequum jus aequum or ‘law of justice’: or ‘law of justice’: allow disc allow disc retionary powers to interpret subjectively the r retionary powers to interpret subjectively the r

ules for administering justice. ules for administering justice. One important term in question is One important term in question is <<in good fa <<in good fa

ith>> ith>> of which contexts are related to of which contexts are related to <<good <<goodmorals>>morals>> and and <<public order>>. <<public order>>.

The essence of the focus term in question, <<i The essence of the focus term in question, <<i n good faith>> is whether a person acts not kn n good faith>> is whether a person acts not kn

owingly in good faith on the facts. Since the pr owingly in good faith on the facts. Since the pr oof is related to the intention of the act which i oof is related to the intention of the act which i

s a subjective, context of law in court cases wo s a subjective, context of law in court cases wo uld help define the term. uld help define the term.

Why is it needed to study <<in good Why is it needed to study <<in good faith>>?faith>>?

The reason that the terms <<in good faith>> be The reason that the terms <<in good faith>> be comes the main emphasis of the study is that the comes the main emphasis of the study is that the

principle of good faith is the General Principle of principle of good faith is the General Principle of Thai Civil and Commercial Law which can be appl Thai Civil and Commercial Law which can be appl

ied to other laws as stated in Section 5 that ever ied to other laws as stated in Section 5 that ever ypersonmust, i n t he exerci se of hi s ri ght s and i n t he per ypersonmust, i n t he exerci se of hi s ri ght s and i n t he per formanceofhi s obl i gat i ons, act i n good f ai t h. formanceofhi s obl i gat i ons, act i n good f ai t h.

-Thetermcontainsunclearlegalconceptsandcannotmakeclearbeforehand(Kasaemsub, Preedee. 1982,GeneralCivilLaw, p.32 33) -Thetermcontainsunclearlegalconceptsandcannotmakeclearbeforehand(Kasaemsub, Preedee. 1982,GeneralCivilLaw, p.32 33)

Related terms <<public order>> and Related terms <<public order>> and <<good morals>><<good morals>>

In rising whether in exercise of one’s right In rising whether in exercise of one’s right s or in the performance of a person’s oblig s or in the performance of a person’s oblig

ations, that particular must be under <<p ations, that particular must be under <<p ublic order>> or << good morals>> or m ublic order>> or << good morals>> or m

oral consciousness of the defendant. oral consciousness of the defendant.

Perception of Lawyers and Parlegals Perception of Lawyers and Parlegals

Withthecompl exi t y of t he st udi ed t erms, percept i on Withthecompl exi t y of t he st udi ed t erms, percept i on ofl awyers and paral egal s becomes di ff erent . ofl awyers and paral egal s becomes di ff erent .

Paralegalswouldfirstlyapprehendthet erm<<i n good f ai t h>>i n t he cont ext s of l Paralegalswouldfirstlyapprehendthet erm<<i n good f ai t h>>i n t he cont ext s of l anguage. anguage.

Consi deri ng f roml i t erary wi t h Thai charact Consi deri ng f roml i t erary wi t h Thai charact ers ers <<<<โดยสุ�จริตโดยสุ�จริต>> or <<>> or <<doi sujritdoi sujrit>>, <<doi>> >>, <<doi>>

refers to <<with>>, <<su>> refers to refers to <<with>>, <<su>> refers to <<good>> and <<jrit>> refers to <<good>> and <<jrit>> refers to <<thoughts>>; therefore, the complex word of <<thoughts>>; therefore, the complex word of <<doi sujrit>> can be perceived as <<with <<doi sujrit>> can be perceived as <<with good thoughts>>.good thoughts>>.

Perspective of Lawyers to <<in good Perspective of Lawyers to <<in good faith>>faith>>

In the parameter of law for the term <<in In the parameter of law for the term <<in good faith>> which is the General Principle good faith>> which is the General Principle of Thai Civil Law, the principle of good faith of Thai Civil Law, the principle of good faith relates to the principle of honesty and relates to the principle of honesty and trustworthiness which allows the notions of trustworthiness which allows the notions of public morals or moral consciousness as one public morals or moral consciousness as one of the factors when the principle of good faith of the factors when the principle of good faith is applied.is applied.

““Moral consciousness” depends on “ordinary Moral consciousness” depends on “ordinary usage” in a certain society which lies under usage” in a certain society which lies under local custom or culture.local custom or culture.

Perception of Paralegals Perception of Paralegals Paralegals with linguistics background Paralegals with linguistics background

and some knowledge of contexts of law and some knowledge of contexts of law would relate contexts of language to th would relate contexts of language to th

e contexts of law. e contexts of law. Language is the tool to reveal the clear Language is the tool to reveal the clear

est concept of its context in terms of la est concept of its context in terms of la nguage approaching to law and at the s nguage approaching to law and at the s

ame time also approaches to language. ame time also approaches to language.