東亞繼受歐洲法的翻譯問題

Translationsprobleme bei der Rezeption europäischer Rechte in Ostasien

考察東亞文化圈對歐洲法之繼受，可以確認兩個根本的現象。第一，東亞所繼受者，乃自羅馬時代以降、在遙遠歐洲形成發展的陌生法文化。在引進異域文化的過程中，尤其是為傳遞基本概念、中心思想、價值觀等等，語言文字扮演關鍵性角色。第二，東亞擁有長逾三千年歷史之久的共通漢字文化，中國、臺灣、韓國、日本共同使用漢字。基於共享漢字文化的傳統，日本先驅者在明治時期使用漢字借譯的歐洲法學專門術語，遂能在東亞廣泛地流傳及應用。多數當時借譯的法學專門術語，儘管不盡完全正確，仍能存續至今，散見於現行法典或當代文獻。造成明治時期借譯錯誤叢出的原因，可能很多不一而足，可歸納為以下三點：其一，日本先驅者不具法學專業素養，致未能正確瞭解歐洲高度興盛法學所發展的術語。其二，日本先驅者所翻譯者，多數為新義詞，沒有可以漢字表達的對應概念。由於漢字本有固定意涵，使用漢字借譯無例可循的歐洲法學專門術語，遂使詞源的意義內容與新義詞的意義內容發生達的對應概念。由於漢字本有固定意涵，使用漢字借譯無例可循的歐洲法學專門術語，遂使詞源的意義內容與新義詞的意義內容發生衝突，借譯引發的問題益形嚴重。其三，日本所繼受者，不以某一特定國家的法體系為限，而係同時接收多國的法律。由於自十七世紀以來，歐洲各國發展的法體系各有所異，與各該法律密不可分的概念及術語，自然亦彼此有別。是故混合繼受基礎上建立的新體系，無可避免衍生概念齟齬及體系衝突問題，對法律之適用造成困擾。綜合上述，現存於東亞各國的諸多法律問題，肇因於繼受歐洲法時的錯誤翻譯。東亞的法律人應承認漢字為彼此共有、應予珍存的文化遺產，並攜手合作謀求解決良方。

In case of the reception of European legal systems in East Asia, two fundamental phenomena can be ascertained: Firstly it is about an adaption of the total different juridical culture, which has historically developed in Europe since Roman Age. The culture historical dimension of this phenomenon is probably comparable to the acceptance and prevalence of Buddhism in East Asia. In the process of such cultural transfer the linguistic transmission of fundamental terms, guiding ideas, moral concepts etc. plays a decisive role. The correct translation is thereby of cardinal importance, because we think inevitably with words and can't think therefore accurately without proper words. Secondly there is in East Asia (China, Taiwan, Korea, Japan) a common, since more than three thousand years uninterrupted script culture with Chinese characters. As is well-known, they are not phonographic letters, but semantographic logograms. On the basis of this tradition, the loan translations (calques) of European legal terminology, which Japanese pioneers in Meiji-era have carried out with Chinese characters, can be right prompt diffused and directly used in East Asia. They are found for the most part still in the contemporary statutes and legal literature, although they are not free from errors. The sources of errors and the problems by the Japanese loan translations (calques) are complex and multilayer; they can be summa-rized in the following three categories: Firstly the juristic termini technici derived from the advanced European jurisprudence could not be always correctly recognized, especially because the Japanese pioneers were not previously educated in law. They could not have an education in law by reason that there had been no jurisprudence. By reception of foreign culture, such phenomenon is completely normal and the incipient errors can be conscious and improved in the course of time. Differently than in the other disciplines, the erroneous or dubious legal terminology is laid down in statutes with binding effect, so that they can be corrected only through huge efforts of the legislator. Secondly the numerous loan translations (calques) of Japanese pioneers concern neologisms, i. e. the introduction of new words because of deficient equivalence in the target language. The application of Chinese characters causes however specific problems of translation, because each Chinese character has already its original meanings, so that conflicts arise between etymologic and neologistic conceptual meanings. These problems are insufficiently analyzed as yet. Thirdly Japan has adopted legal system not only from one country, but rather from several countries, in the field of civil law particularly from France and Germany. As the legal system of each European land has developed since 17th century from state to state very differently, the legal concepts and terminology of each land are inseparable connected with own legal system. In consequence of the mixed reception of European laws, the conceptual and systematic problems are almost automatically generated in East Asia when construing and new systemizing the mixed received law. From these considerations can be drawn the following consequences: The jurists in East Asia should be aware of Chinese characters as common cultural heritage and work more closely together in order to find out common solutions of existing problems arisen from the reception of European legal systems.