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Title: An applied genre analysis of civil judgments : the case of mainland China
Other Titles: Min shi pan jue shu de ying yong ti cai fen xi : yi Zhongguo nei di wei li
民事判決書的應用體裁分析 : 以中國內地為例
Authors: Han, Zhengrui ( 韓征瑞)
Department: Department of English and Communication
Degree: Doctor of Philosophy
Issue Date: 2010
Publisher: City University of Hong Kong
Subjects: Judgments -- China.
Legal composition.
Notes: CityU Call Number: KNQ48.7 .H36 2010
249 leaves 30 cm.
Thesis (Ph.D.)--City University of Hong Kong, 2010.
Includes bibliographical references (leaves 204-210)
Type: thesis
Abstract: This research attempts to analyze empirically judges' writing of civil judgments in Mainland China, where the judges' writing is traditionally considered structured, conventional and free from rhetorical variations. The writing of civil judgements in Mainland China requires that judges strictly adhere to a number of rules and conventions, the contravention of which deleteriously affects the generic integrity of civil judgements and the perceived professionalism of judges' writing. While rules and conventions are fixed, society is ever changing. It is therefore common for judges to manipulate rules and conventions legitimately or illegitimately to solve contemporary situation-specific problems. This research conducts a multidimensional and multi-perspective analysis of Mainland Chinese civil judgments to demonstrate some of these rules and conventions and, more importantly, show how judges manipulate them in specific cases. The research data constitutes a comprehensive medium-sized corpus of civil judgments (100 cases), interviews with ten legal specialists (seven lawyers and three judges), intertextual data of related written laws and news reports, and other law-related documents rendered by provincial courts and authorities. Research findings are divided into three groups based on move analysis, lexico-grammar and discourse coherence. Move analysis in this research identifies the required and optional moves/steps in civil judgments and macro rhetorical patterns. Since civil judgments are publicly accessible and enable laypersons to study litigation practices, there are two groups of target readers: specialists and non-specialists. Specialist readers refer to judges, lawyers, law professors, and other legal professionals. Non-specialist readers refer to laypersons who may lack legal knowledge but are interested to learn about legal affairs. The distinction between the two is important when interpreting the readability and accessibility of civil judgments. The analysis identifies several important findings. For example, Mainland Chinese litigants seldom engage lawyers when undertaking complicated litigation proceedings. More commonly, individual parties seek assistance from relatives and friends, while corporate parties are usually represented in court by non-legal staff. This is explained by a traditional distrust of lawyers in Mainland China, and by the parties' intentions to avoid costly lawyer fees. The lexico-grammatical analysis in the present research investigates the use of numerical expressions and the occurrence of metadiscourse in civil judgments. Numerical expressions are widely used by judges in the moves Parties' Arguments and Judges' Arguments. Some are used to describe a particular time when a specific event occurred, and others report specific sums of money claimed as compensation by the plaintiffs. The analysis reveals that these numerical expressions do not appear in isolation. Temporal expressions in the move Parties' Arguments always correspond closely with more exact ones used in the move Judges' Arguments. The interview and intertextual data verify that this correspondence demonstrates that the primary intention of Mainland Chinese judges' written civil judgments is to report the working of their results in litigation, not to provide a faithful recontextualization of parties' arguments. The occurrence of metadiscourse suggests that Mainland Chinese judges make considerable rhetorical and legal effort when resolving the tension between parties' views and when they interpret the law to build legal bases for litigation. Coherence analysis in this research concentrates on how specialist and non-specialist readers can acquire a coherent reading of Mainland Chinese civil judgments. Non-specialist readers face two levels of reading difficulty: the linguistic level and the discursive level. A civil judgment is the final textual artefact of the specialized litigation practice and employs many legalized terms and expressions to report court proceedings. A preliminary understanding of these terms and expressions is required for a coherent reading of civil judgments. However, familiarity with legalized words and expressions does not guarantee a thorough understanding of the judges' writing in civil judgments. For example, everyday language might carry specialized meanings in a legal field, the connection among specific arguments might be mediated by quoted texts, and the actual litigation practices might be intentionally or unintentionally simplified. Judges who write civil judgments presuppose that their readers will have considerable social and legal knowledge. A reconstruction of this presupposed knowledge is therefore necessary for specialist and non-specialist readers to understand civil judgments at the discursive level, which only specialist readers may achieve. This research has both academic and pedagogic significance. Few empirical studies of Chinese professional discourses exist and there are fewer still of legal discourse. This research makes a preliminary attempt to examine the genre of Chinese civil judgments from an empirical perspective and attempts to understand how judges write rules and conventions and how they manipulate them in specific cases. The research findings suggest that the impression that Chinese civil judgments primarily consist of standardized jargon and conventional syntax is inaccurate. Rather, rules and conventions are principles that are constantly manipulated by experienced judges to solve a number of situation-specific problems. The findings revealed in this research can be utilized to produce several pedagogic tasks suitable for use in legal education and training. Such tasks will help law students critically read civil judgements and raise their awareness of litigation practices embedded in this genre.
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