国内法律文本中shall和must的使用和翻译研究

On Use and Translation of shall and must in Domestic Legal Texts

实定法是实现法治的必要基础,它以相辅相成的权利和义务为核心和实质内容;英文法律文本中用于设定强制性义务的助动词的选用,对权利(权力)的救济和保障至关重要。为解决国内法律文本中shall的滥用和误用问题,自1970年以来,绝大多数英语国家制定了文件对其用法进行规范,形成了两种主要做法:一是以英联邦主要国家为代表,全面禁止使用shall并使用must设定强制性义务;二是以美国为代表,将shall的词义限定为设立强制性义务并予以使用,但是因shall歧义引发的诉讼和不同判决时有发生。我国国内法律官方参考英译本中shall和must的使用还处于主要英语国家2000年之前的滥用和误用状态。为避免和减少涉外法律纠纷和诉累,加强国内外法律和法治文化沟通,推动我国法律的域外适用,在将外国国内法律文本中的shall和must翻译为中文时,需要基于它们在有关外国法中的用法和含义,根据我国的立法技术规范翻译为相关中文术语;在将我国国内法律文本翻译为英文时,应该采取英联邦主要国家的做法。

The positive law as the foundation of the rule of law, is based on the core substance of mutually reinforcing rights and obligations. The choice of auxiliary verbs used to create obligations is crucial to the remedy and guarantee of rights(powers). In order to address the serious abuse and misuse of shall in domestic legal texts, the majority of English-speaking countries have developed documents to regulate the use of shall since 1970, and two main approaches have emerged. The first is represented by the major countries of the British Commonwealth of Nations, which have completely banned the use of shall in their domestic legal texts and used must to create mandatory obligations. The second is represented by the United States, which limits the meaning of shall to the creation of mandatory obligations and uses it;but litigation and inconsistent judgments caused by the ambiguity of shall occur from time to time. However, the use of shall and must in the official referential English version of Chinese laws is still in the stage of abuse and misuse of the English-speaking before 2000. In order to avoid and reduce foreign-related legal disputes and litigation, to strengthen communication of legal cultures between China and other countries, and to enhance the extraterritorial application of Chinese laws, when translating shall and must in foreign domestic legal texts into Chinese, it is necessary to translate them into relevant Chinese terms based on their usage and meaning in the relevant foreign laws and according to Chinese legislative technical norms;when translating Chinese domestic legal texts into English, the Chinese government should adopt the practice of the major countries of the Commonwealth.