"Civil Procedure Law" of America

Fu Yulin 

[] subject classification of Civil Procedure Law

[keyword] America civil procedure law, civil procedure law translation

[writing] year2004Years

[Abstract]

Preface

In the recent ten years, the promotion of academic theory, promoting judicial reform, legal transplantation promote breadth, civil litigation system America for domestic law known appears to be "make known to every family" to describe. In a variety of paper, to America judicial system as the authority of the corresponding reform of system of our country to become a kind of fashion, is often associated with special times everyone can sing a few fellow model operas. However, the Civil Procedure Law of America translations but can be counted on one's fingers. Besides the one or two simple versions of the Civil Procedure Law of USA the founding of the "critical", the special and systematic introduction of the system of civil procedure America version only three two, but is the length in30Briefly introduced the words below. Since ninety's in jurisprudence and constitutional translations on American judicial system relates to, study of local introduction for America evidence system of the small amount of evidence, and the civil procedure law academic monograph of citation and extremely limited translation, also provides for the system of civil procedure USA some fragment or side for students. However, these local information even accurate (not so), providing readers with is still on the basis of one-sided viewpoint description, and can not know whether the picture. Logical break this information system, be reduced to fragments, interpret out of context theory, the internal mechanism makes it difficult to grasp the America civil litigation system construction and operation, both for the study of comparative law, or for the transplantation of law, is a fatal problem. On a country's legal system of original data indifference and citation, "learning" and the introduction of the system of lively form such a strong contrast, has fully demonstrated the book translated and published the significance, provides a reasonable excuse for some innovation at the same time as the book the difficulty of translation and translators attempt.

This book is the multitude of America textbooks in the. Nearly a million words itself has shown great load of the original. From pleading procedure, the pretrial procedure, trial procedure, the party system, jurisdiction system, litigation cost system, and then to the alternative dispute resolution mechanisms, temporary relief and group litigation...... It covers the main aspects of the rules of civil procedure and details. However, the book is worth far more than to provide technical details of the rules of procedure, but the subtitle of the book -- "principle, practice and context" -- the marked personality works and writing intention. Author Stephen Suben professor of the history of civil procedure law American expertise and to pay special attention to procedure system operation background, the book became very close to our readers. The surface understanding of foreign system though fragmentary, has roughly reached many fields, but for these system principle, origin, development, operation environment, supporting system and so on are lack of information, which makes us for many studies of specific system and use for reference the lost support background and foundation. This book has filled the gap in the very great degree. Like most America text, this book is written by America judges, (a USA professor Is it right? Too comfortable?!) Principles, practices and background American of civil procedure law are displayed in a complete or excerpts of judicial precedent. But in the beginning of the chapter and in case after "the comments and questions of" super. Through these seemingly short "Introduction", we seem to see our old friend Sue the professor is speaking guides his students, slowly through the judicial system American hall, leisurely into a procedure room, occasionally open the window, let the students look at the distant history system formation, and then enter the lab, eyes to watch the students on the case anatomy. In particular, the first chapter of the book I can not read. With the dash of the imagination, appropriate appropriate analogy, the lively and humorous language, explain profound theories in simple language to beginners tells what is law, and civil litigation system in law what is the core position. This is a superb overview, the introduction of any of the book would be tantamount to smear Buddha's head with dung or superfluous. So the translator please sue the professor wrote the preface to Chinese version.

The book's focus on to the reader that the translation based on a series of terms.Because despite the current civil procedure law reference translation works are limited in number, but the translation of the same term has numerous versions. Legal terminology is the carrier of legal system. Terminology translation errors for far-reaching harm, research and comparison of foreign law, existing in some earlier law lesson. In foreign civil procedure law translation of such a late start of the new field, due to the lack of information and the appreciation of the relatively limited, adds to the authenticity of the difficulties, and thus a greater risk of circulate erroneous reports. Book the translator was interested in the study and comparison of the civil procedure law colleagues,Gradually into the field and gradually build a set of relatively credible and available term systemTherefore, in translating the book task, had greedily hope by focusing on the translation of the civil procedure law the elite forces shared translation and proofreading, and through this translation to translation of some commonly used terms relative unity. But for unexplained reasons, not only the hope very much regret to vanish like soap bubbles, and in order to catch up the pre translator delay duration of contract, in part to give different translators. This book by the translation, the first, two or three, seven or eight, ten chapter translated by Fu Yulin; the fourth chapter by Xu Hui translation; fifth, the eleven chapter by Zhou Jing translation; the sixth chapter by Jiang Su translation; the ninth chapter translated by Liao Deyu. The unified proof by Fu Yulin. Although these "was" young translators have a good level of English and the necessary professional background, although the school exhausted, repeated revisions, but due to the different translators in different expressions and term selection, and the school itself is quite shallow, natural inevitable errors.The development of academic research is a cumulative processIn this book, those not mature, inaccurate, and incorrect translation, can only be left for future counterparts, rely on a more rigorous academic attitude, more solid academic ability and more accurate Chinese expression, given. The school system in the preface finally leave contact information, and devoutly expect readers to criticism of error, so that future improvements. Because the school to modify the degree for each chapter of content is not consistent, then in accordance with the responsible principle to explain: the fourth chapter in addition to not translated into ChineseDiscoveryAnd related terminology translation, mainly to the format according to the requirements of the regulation, the content remained intact; the eleventh chapter is the word for word and sentence for sentence proofreading and revision, the schedule is almost as great as re translation; fifth chapters with our system are not relevant, only roughly proofreading.

In this bookThe core and common terms, are pondered, repeated proof, not only take care of consistency to the book inside, also observe that the existing translation works. During the whole translation and proofreading process, in addition toNearly ten Law Dictionary of translation and the translation text or ChineseRelated content compared together, check, selection, improvement, mainly depends on theBlack'S Law Dictionary,The Oxford Companion to Law (by David M.Walker),A Dictionary of Modern Legal Usage (by Bryan A.Garner)English original dictionary etc.In particular, the book provides the advantage of this system background support comprehensive and accurate for these terms, weSome have not yet appeared in term of the creation,Many of the mistranslation was a lot of circulate erroneous reports term is modified bold and valid. Young readers to warn superstition "authority", when you first read the terms of different translation methods in this book in your law dictionary of some popular or famous saw, even if it is currently regarded as the translation of "authority" or "universal", please have patience to read the back of the book, the content may tell you the.We believe that, despite the authoritative dictionary translator, but not necessarily in the translation of each subject terms are absolute authority, more importantly, terminology translation simple face is not a specific system of the concept of context, therefore the authority must study is unable with the civil litigation system of USA for definitions and interpretation the term comparedTherefore, in a large number of references, the original system of civil litigation dictionaries and reference books, and many more before they choose different from your familiar "interpreter". This persuasion on the select few examples, I hope the readers in different translation methods in term of the translator, which can consider the academic background, experience, attitude, and Chinese expressive ability, independent discrimination. Maintain full confidence in the credibility of the book translation, not for book sales, but to a rigorous and careful academic pursuit, to "authority" translation according to the questions and correct, perhaps it is this book to avoid circulate erroneous reports. In order toHere the translated version more, also is the core of the book of the term, and a brief description of the reason:

DoctrineAs the book's subtitle, become one of the most important content, but in the Chinese in search of the connotation and extension of the same words on translation seems to be a futile effort. In addition to the special context, which in this book usually refers to the court (especially USA Supreme Court) formed by the judicial precedents, rules and legal theory, interpretation and development, thus forming the inclusion principle of case law in the sentential reason, has the legal binding force. Because of its comprehensive contents, fuzzy boundaries, meaning of the abstract, with the "principles" or "rules" are not enough to express the full meaning of heavy, and the "doctrine", "doctrine" such words and cannot bear its legal meaning, thus translated as "principle", from the system construction significance, barely can be close to the common law tradition in the case of the progressive development of the law of the trait theory. With the "principle" to translationDoctrineIn this subtitle meaning, but also reflects the translator for the deep principle the authors explore the legal system ("knows its however, and know why") understand and agree.

PleadingAt present domestic common translation is "pleading" or "pleading", American law dictionary only professor he translated "(" Leinster LOM, China University of Political Science and Law Press)PleadingTranslated as "paper". Usage of the terms in this book is very flexible and rich, only using the plural is known as v. (the plaintiff) -- a (the) -- like; in the singular, in most cases only refers to the proposed shape, book for lawsuit against the shape (is translated as "tell the shape" better readers, please below); in a few cases also refers to the defendant proposed shape, but now usually add an attribute (Responsive pleadingThe response of the literature).PleadingSometimes a lawsuit against behavior, then its verb formPleadTo express the same meaning;PleadGenerally refers to the shape making.

DiscoveryAnd the verb formDiscoverUsage in English is more flexible, translated as Chinese need to consider specific context, but the translation is not the same, literally translated as "found" or translated as "evidence". The individual translator is advocating the preservation of the original in the whole translation in english. The school said, such a core vocabulary if not translated into Chinese, otherwise it will greatly affect the readability of the translation, the translated works even lost in some readers, there is no corresponding English background or America system background reader, even English background good readers, in the specific context without the original under the condition of understanding, isolatedDiscovery/discoverConnotation to is much more difficult than the translator. Book in two kinds of interpretation methods"The discovery of evidence"And" found "selected the former, because the habit of expression this translation method can better reflect the connotation and Chinese system. While many translators translated as "reason" or that no translation, mainlyDiscoveryForm of the verbDiscoverThe back is often connected withDiscoverThe specific object and content, if translated as "discovery" would face the dilemma of Chinese grammar. Book in the school system are flexible, the verbDiscoverTranslated as "discovery", in particular the main environment,DiscoveryThe discovery. AndDiscoveryThe corresponding conceptDisclosureNow, the general interpretation "(evidence) disclosure", the book follows the appropriate expression. The related term is the burden of proof(burden of proof), the burden of proof(burden of production)And the burden of persuasion(burden of persuasion). "Proof" is an often change the vocabulary used in our judicial interpretation, burden of proof and sometimes use synonyms, including behavior responsibility and the responsibility two aspects (such as the one who claims the proof), sometimes it only refers to the behavior responsibility (such as the proof limitation), in this book, the burden of proof refers only to the burden of proof, i.e. behavior responsibility.

JurisdictionIn Chinese often translated as the jurisdiction, jurisdiction, jurisdiction. There are differences between these Chinese vocabulary capacity China system, such as the judicial power in our country includes the court, procuratorate, even the public security departments and judicial administrative organs Authority refers to the right; jurisdiction between the court and the court of first instance cases of division of labor; judicial power refers to the exercise of certain court specific the case of the trial and Adjudication power. ButJurisdictionIn the civil justice system in USA meaning is the same, whether translation of jurisdiction, jurisdiction or jurisdiction, is refers to the specific legal and constitutional court has authorized based on the trial of disputes in power, this system is not only to adjust the courts and other state institutions and the settlement of disputes between organization function (in the range of this system in China is a strong administrative color "in charge" system to adjust the scope of authority), also need to adjust the federal and state courts, as well as between the state court and state court trial (because of court of appeal and the court of first instance America functions be quite distinct from each other, so the so-called "jurisdiction" problems do not exist), so in this book whenJurisdictionTo determine the scope of the court to resolve the dispute when translated intoJurisdictionIn a few cases, when it is used as a concept corresponding to the parties to appeal when itJurisdictionOr the judicial power, and whenJurisdictionIn the complex concept in translation has respect for familiar, such asJurisdiction DistrictTranslation for"The judicial district"Etc..

We especially need clarificationTranslation of American jurisdiction of several important concepts in existing versions of the system of the right toWillPersonal jurisdiction/in personam jurisdictionTranslated as "personal jurisdiction" is a serious error, the original clear,Personal jurisdictionAlso known as territorial jurisdictionTerritorial jurisdiction(the original page643), reflects the jurisdiction principle USA "actual control". This book is translated as "the jurisdiction", as "the jurisdiction" (In rem jurisdiction) and subject matter jurisdiction(subject matter jurisdiction)The corresponding concept. But the existing translations generallySubject matter jurisdictionTranslated as "the subject matter jurisdiction", to take account of this translation has been basically established, but also generally reflect the basic connotation of the system, this book will give upSubject matter jurisdictionTranslated as "the subject matter jurisdiction" or the "jurisdiction" litigation purpose. In addition, there are versionsPersonal jurisdictionTranslated as "personal jurisdiction", but "personnel" (Personnel) this concept in the specific connotation in China have been established, and its jurisdiction system in the meaning of inconsistent,PersonnelAnd the terms of thePersonalThe literal meaning is not the same, so the book has not adopted.

The judgment, ruling the judicial behavior expressive vocabularyThe most abundant and complex, in the translation can not be completely one one correspondence between English vocabulary and Chinese vocabulary, because some of the word has a specific meaning, but some polysemy and often flexible interactive use:

(1)JudgmentIn this book refers to judgment (occasionally also for fingering, other than the person of the "judge"), according to the America federal rules of civil procedure54The definition of,JudgmentRefers to appeal decisions and rulings (allOrder), similar to our country in the content of the text of the judgment. AndJudgmentSeveral words related to include:Summary judgmentTranslated as "summary judgment" rather than a simple sentence, as distinct from the civil summary procedure (Simplified proceedings).

(2)DecreeEquity decision in the traditional common law, after the judgment and equitable judgment Become, the term is mainly used for the fingering exercise those issued equity court belongs to the judges to exercise in the traditional power of judgment, ruling or order, legal precedent system in relation to some originated from equitable law (such as when the group litigation), used in some places the"Judgment and decreeThe expression of the translator ", according to the context analysis, the author in the field with no emphasis on difference between two kinds of judgment, just need English expression based on the two together (for example, the judge may think that only useJudgmentTo general judgment, easily lead to the traditional legal system consciousness stronger on the representation of incomplete criticism), so the translation, unless the original usedDecreeTo discuss and emphasize equitable judgment, or are translated into"Sentence", such asConsent decreeTranslation forConsent decree(this sentence meaning is refers to the court to the agreement between both parties "agree", this should be translated as "consent decree" or "in favor of judgment" or "approval decision", but these are not sufficient to indicate the literal translation of this sentence essential feature, the opposite has been widely accepted for the translation of "consent decree" just from the overall expression "according to the agreement between the parties to the court verdict" meaning, so this book uses the existing translation).

(3)DecisionThrough a decision of the court made, including decision, ruling or decision, but more often used to refer to the final decision, the significance and theJudgmentThe same, the difference is, USA civil procedure law forJudgmentThere is a formal requirement, namely must log (EnterIt happen (judgment)JudgmentThe effect of the book (but) in time correction of the individual translator machinery toEnterAll the logging practices, embodied in many placesEnterThe original meaning is "OK").

(4)OpinionDepending on the specific context translationOpinion.OrProposal.As a case, its content includes the conclusionSentence(Judgment), also includesThe decision reason(Holding), reasons for judgment on the ruling according to (including various sources of law and theory) are explained, and the binding force on the future decision. In Schaefer v. heitner case, judge Stevens said his only exist in the Supreme Court (by a majority verdict (pen)Judgment), and not in the majority opinion of the Supreme Court(opinion)The individual, is to emphasize the case conclusion, but do not advocate a universal and binding precedent (the original page737). Two words translation related to"Concurring opinion("Concurring opinion) and"The opposition("Dissent opinion), are the translation of its literal meaning, connotation and existing dictionaries.

(5)VerdictRefers to the jury's verdict. In order to highlight the characteristics of only a factual judgment and the judge's decision phase difference, this book translated into"Referee". Two words related is indicative of the referee(Directed verdict)And despite the jury decisions (Judgments notwithstanding the verdict).

(6)OrderIs used to solve the American court litigation in some minor or incidental problem byMandatory order or decision, it does not deal with the substantive issues, but to make the judicial handling of temporary problems or take certain steps in the process of lawsuit. In Chinese procedure system, and judicial action or documents conform to the characteristics of the included ruling and command, therefore, in this book can be determinedOrderIn theThe specific meanings in specific contexts, sometimes translated as"Rule", sometimes translated as"Command"In general, a judicial action, and no specific restrictions for"Cutting order".

(7)RuleFor the expression of Programmed Behavior of justice, often used to refer to a decision to court for legal issues, sometimes general that the court's decision, so the general according to the specific context Chinese expression of smooth and accurate, is"Rule.OrAdjudication".

InvolveThe system of terminologyIs also very complex. First of all, the parties in different instance name is not the same, most especially in the highest level courts, appeal people is calledThe complainant(Petitioner), the other party is calledThe respondent(Respondent), because the second appeal is not the right of appeal, but must go through the licensing. To a federal appeals court (court of appeal), they are calledAppellant(Appellant) andAppellee(Appellee). Secondly, the basic structure of a procedure isPlaintiff(Plaintiff) andDefendant(Defendant)Between the two opposites, but USA strict judicial finality idea and the lawsuit economy based on considerations, with the problem of the parties merged and object is not only important in the pleading process, but also in the res judicata, request exclusion and issue preclusion, estoppel, collateral estoppel system, are likely to involve this a series of complicated concept of parties. Necessary parties (such asNecessary partiesAn indispensable Party (,)Indispensible parties), and if necessary and indispensable (Necessary and indispensible parties), detailed explanation see the first section of the Eleventh chapter.

In theConsolidation of action(Joinder) system, by a party in litigation (Implead) the third is known as "the action or the third person ("Impleader or third-part), and the third defendants (Third party defendant) concept; because decision will affect the interests of interventional procedure (InterventionThe intervener ()Interventioner); based on common interests in the litigation between the same parties, for their own interests and mutual action or a cross action(interplead)The cross action(Interpleader). In addition, there are several associated with the combination of litigation is the concept of our readers are not familiar with, such as,(In)PrivityRefers to "(a) between the two sides relationship", it refers to those formed blood or contract based on a special identity relationship between them, so that in the foreign exchanges may become mutually have the right people, such as the company law on the stakeholders (StakeholderThe relationship between land), the lessor and the lessee. These people are called "relationship between people". This book is not translated as "(is) interested" or interested parties, because in the American system in general useInterested/have interest inOrIn stake/have stake inTo express "interested (person)".

In America has play a decisive role in civil litigation status isTemporary relief systemTraditionally, lawyer, often before the prosecution and prosecution at the same time, to control the other property, and therefore has jurisdiction. Although this tradition is due process challenge, but the law still thinks generally, the actual control is the prerequisite in civil trial procedure America entity rights have no worries of one of the important conditions with plenty of time to care about the procedural justice (another important condition is the various mechanisms of cases division).Common compulsory temporary relief measuresIs:Pending custody rights(Sequestration), is refers to the property or personal property from its possessor removed authorized by the judicial, usually keep to the court to determine who the property rights;The preservation of property seizure(Attachment), refers to the decision before the property or place in the court under control, as the plaintiff may obtain compensation guarantee. ItSometimes also refers to the detention of the people;Seizure of third people hold the execution debtor's property(Garnishment), in the judicial process, the creditor to the judgment (may) as the judgment debtor obligor or the notification on the third person, require any property will be effected by the master of the judgment debtor to the judgment creditor, the fundamental difference between it and the first two terms is two: it involves a judicial process -- and not related to attachment or transfer -- until the sentence has been before; property in the hands of the third);SeizeOften translated as"Seizure", but it isA popular term, refers to seize a thing or a person's behavior forcibly, suddenly, violently, or on the basis of legal right to the possession of a thing to implement the behavior, this book in individual cases depending on the specific context translation"The transfer of possession".These different compulsory measures is mainly divided by the scope of relief and relief procedure, formed by compulsory behavior and our way of terminology is completely different, in other words, between the America these relief way and we are familiar with the seizure, seizure of property, transfer execution measures are not directly correspond to the (American real "trial separation" system).But in the book before each a "seizure" defined by complicated expression, so in consecutive seizure the same meaning, we only specify at first appeared to be, to highlight the distinctions "arrest", is attached English behind.

The above description, for example. For the specific meaning of carrying the each term in the book, readers will read the book after understanding and identifying more fully.

In opinion. Finally, I wish to remind the students of the whole system of USA readers, in the civil procedure law, fact finding problem is always the whole procedure/The center of gravity; procedure law course design in the whole American in fact, find focus skills are legal training. When we readThis is mainly composed of America appeals judge especially the Supreme Court's written textbooksWhen we don't forget,The division of functions between the civil justice system in USA trial court and court of appeal is to be quite distinct from each other("America rules of civil procedure" refers only to the trial procedural rules, rules of appellate procedure in the legislation and research are relatively independent system), is responsible by the trial judge the facts; and can be submitted to the Supreme Court to solve the problem is a problem of law, so we basically do not see the fact finding process in the trial, and see the judges on Legal Problems of the argument. Even so, we still can be seen from the analysis of appellate judges, court of appeals review the trial judge judgment are an important content is the fact that the trial judge, legal conclusions can find facts and evidence in litigation records, i.e., the trial judge's decision Is it right? By fact based on or derived from the facts. In any case, the formation of final results of a case is the fact, is the end of the facts on the rule of law or the other end, or convince decision to change the rules. A clever lawyer once said: "I can more easily find the legal, but not so easy to find the truth. If I stumble, or make a mistake, it is often because of missing the fact." Yuan Zhuodi9However, a lot of information page) law graduates in China engaged in legal practice feedback continues to show that, the biggest failure they do lawyers and judges when they found the legal issues are, in most cases is not complicated, but they did not know how to find, judgment and recognize the fact, also do not know how the framework these facts into the legal rules. Yes, they learn at school of law is the rule of law, never receivedTo solve the problems associated with the fact that the training. Although I can not conclude that this mode of education is the inevitable result is not a civil law legal system, although I can't prove this defect Is it right? China's long established under the exam oriented Education (including a closed book exam) consequences, but I hope,This version can be in to legal education also has the enlightenment.

In the end this section only the parties themselves just know one sweet day, I want to thank each translator and I share them tight, hard and excitement! Special thanks to two responsibility heart is admirable editor Zhang Yue, Ms. Zhao Ruihong added to the powerful pressure and in my time I almost lost confidence to our understanding, forgiveness and support. For those who have been my problem disturbed friend and mentor, during which helped me friends in different ways, although not one one named, but gratitude is the bottom of my heart forever.


Fu Yulin
2004Years6Month1Day
Final draft from Peking University Yan Bei yuan
Fuyulin@pku.edu.cn

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