近代中国刑法语词的塑造——以外国刑法典的翻译为研究对象

The Development of Criminal Law Terminologies in Modern China

本文通过对《法国刑法典》(1810年)与《日本旧刑法》几个中文译本的比较分析,考察中国近代刑法语词的塑造:其基本途径是翻译,原因在于当时日本的法律采取汉文体形式,刑法中存在大量的汉字,法律语词得以直接移植,这也是近代中国法律改革学习日本的关键因素之一。但这种学习抱有过多的功利色彩而缺乏启蒙的意义,当我们在用较为便捷的方式获得一套新的法言法语的同时,也可能因此失去了真正地理解于翻译中流失的思想的机会,乃至接受了日本学者的误读或产生新的误读,并使传统的中国律学丧失了创造性转化的契机。

Through the comparative analysis of Chinese translations of the French Criminal Code (1810) and the Old Japanese Criminal Law, the author explores the development of criminal law terminologies in China in modern times: its basic way was translation. The fact that at that time the Japanese laws, including the criminal law, were written in a language with a lot of Chinese characters and expressions made it possible for China to directly transplant the legal terminologies. This was also one of the key reasons why China took Japan as the model in its legal reform in modern times. However, this kind of reform was more utilitarian than enlightenment in nature. By taking such an expedient approach to acquire a new set of legal terminologies and legal language, China had given up the opportunity to grasp the spirits of such legal terminologies and legal language, which were lost in translation, as well as the opportunity to carry out an innovative transformation of the traditional Chinese jurisprudence.