法律語言之歧義及模糊性 - 政大學術集成

全文

(1)國立政治大學法學院碩士在職專班碩士學位論文. Ambiguous Meaning and Vagueness In the Legal Discourse 政治. 大. 立. 法律語言之歧義及模糊性. ‧. ‧ 國. 學. n. er. io. sit. y. Nat. al. Ch. engchi. i n U. v. 指導教授: 陳惠馨博士研究生: 陳雅齡撰. 中華民國一 O 七年六月.

(2) 謝辭. 撰寫法學碩士論文的這一年是我生活最充實的日子。我原來是英文系與翻譯學背景，決定用英文撰寫是想以英語同時向國內外分享台灣的法律研究。我瞭解當我援用國內的案例之時，即便. 政治大便是翻譯時兩種語言無法互等的本質，儘管如此，我還是想接受立努力精準的以英文翻譯，仍無法呈現原案件百分之百的樣貌，這. ‧ 國. 學. 這要的挑戰。一方面學習法學英文的風格，一方面注意翻譯時的. ‧. 信達雅，這些都是我個人學術生涯非常高難度的挑戰。. sit. y. Nat. 寫作過程先是國際法的許耀明老師，然後是親屬法陳惠馨老. n. al. er. io. 師的悉心帶領，政大法律碩士在職專班開設的每個科目都深深的. i n U. v. 吸引我，兩年半間曾經從不同的觀點投稿國內外的研討會並出版. Ch. engchi. 期刊論文。我從原本無深厚的法律基礎，僅僅是一名法庭特約通譯，到今日初步窺得法學領域的深奧，驚訝於這門學問的美輪美奐，今後願意更勤奮鑽研並努力回饋社會及莘莘學子。惠馨老師對學生的照顧是從事教職的我努力學習的典範，他總是帶給學生溫暖的感覺，指導風格自由奔放又有重點，我幸運的跟著她腳步走，在她身上看到法學在學術、教學及關懷社會的.

(3) 面向。寫作中不斷受到台師大翻譯所前所長廖柏森教授的鼓勵，我學習法律的啟蒙者 – 台南長榮大學李憲榮老師的指點，彰師大翻譯所賴秉彥教授及大同大學謝富惠教授在學術路上的很多指教，以及政大法學院副院長許政賢老師的鼓勵，以及在職專班長張天宇學長分享論文撰寫的心得，及 104 級整班同學的加油打氣，最後這幾個月終於全力衝刺而付諸實現。. 政治大. 這幾年來身兼多職於一身，支撐我的是一種對學術研究的熱情及提. 立. 升社會正義的使命感，我感激我的先生伯仁與愛兒瑞當與瑞元與家人讓. ‧ 國. 學. 我心無旁騖專心於教學與作研究。長時間的進修歲月所有的家人是我. ‧. 重要的精神支柱，我因為有親愛的家人的體諒及幫忙，身兼多職. Nat. io. sit. y. 的我得以順利完成本論文。最後，謹將此論文呈獻給我剛剛往生. al. er. 的父親、疼我愛我的母親、我的兄弟姊妹及我的婆婆，願母親們. n. v i n 健康長壽，謝謝您們對我C的h體諒及自小到U engchi 現在的栽培，願更努力達成您們對我的期望。.

(4) ABSTRACT In this thesis, I present two case studies and address the issue of interpreting ambiguous meaning and vagueness in the law. In a globalized society of dramatic transformations, these ambiguous and vague expressions should be brought up and examined closely so as to establish a linguistic framework for statutory interpretation to be applied by jurists tasked with interpreting such ambiguous words and vague phrases.. 政治大 methods. In the second part, I first define “vagueness” and “ambiguity” in the law, then 立 This study is organized into five parts. In the first part, I state the research purpose and. ‧ 國. 學. exemplify the main textual types of the law, which require precision in the wording to prevent. ‧. difference in legal effects. Next, I investigate the origin and purpose of statutory interpretation,. sit. y. Nat. and lastly review how jurists apply textualism and supplementary methods to interpret. n. al. er. io. meaning. In the third part, I present several linguistic theories which can be applicable to. Ch. i n U. v. determining the meaning of ambiguous or vague terms in a legal context. The fourth part is. engchi. devoted to the interpretation of the key words “recording” and “distribution” as well as translated business measures submitted by both parties in WTO Dispute Settlement Case 363 regarding the importation of audiovisual materials from the USA to China. In the fifth part, I investigate how the key phrase “the best interests of the child” in Article 1055-1 has been interpreted in recent judgements made by the Kaohsiung Juvenile and Family Court, as well as the extent to which the phrase “traditions, culture, and values of different ethnic groups”. i.

(5) has been taken into consideration by the Family Court. The WTO Appellate Body might have gained numerous insights had they considered such a linguistic approach. In litigation cases involving child custody rights, re-examination of the wording of a statutory text from the linguistic viewpoint can enhance one’s understanding of its meaning. The results demonstrate that in addition to traditional interpretive canons devised and introduced from the West in the past century, a linguistic. 政治大. approach provides a valuable perspective for interpreting legal language, helps to ensure that. 立. the wording of a legal discourse meets the requirement of precision in the law, and can be. ‧ 國. 學. fruitfully applied when making revisions of statutory texts in the future.. ‧. Keywords: statutory interpretation, ambiguity; vagueness; textualism; DS 363 of the WTO;. y. Nat. n. al. er. io. sit. the best interests of the child. Ch. engchi. ii. i n U. v.

(6) 摘要本論文中，我經由一件國際法爭端及國內親屬法的條文，探討其所使用字詞包含的語言歧義及模糊性，目的在於豎立一套有利於法學界適用的法律解釋語言學。首先，我敘述我的研究目的和方法，第二部分先定義何謂法律的模糊性與歧義性，接著討論並列舉幾種常見的法律文本，下來回顧法律解釋的起源及目的，以及法學家為了解釋法律使用的文義解釋及其他輔助方法，第三部份提出幾種有助於分析語言歧義與. 政治大. 模糊性的語言學觀點。第四部分探討WTO架構下2007年美國與中國有關進口進口視聽服. 立. 務，雙方對於多邊協議中兩個名詞(recording, distribution) 的解釋，第五部分我從. ‧ 國. 學. 語言學觀點分析中國進口視聽服務案件所涉及兩個普通名詞的歧義性，兼談兩方送交爭. ‧. 端小組有關中國境內法規的英文翻譯之模糊性，第五部份蒐集實務判決結果，探討台灣. Nat. io. sit. y. 民法親屬篇第1055條之1有關ru04離婚時未成年子女監護權「子女最佳利益」的解釋，. n. al. er. 及同條文衡量子女最佳利益考慮因素第七項「不同族群的傳統、文化及價值觀」的措辭問題。. Ch. engchi. i n U. v. WTO上訴機構當初如果考慮這種語言學觀點，可能會得到不同的見解。在涉及未成年監護權的家庭案件中，除了藉助於源自西方國家的法律解釋方法，從語言學觀點檢視相關條文的措詞有助對法律條文的理解，努力達到一般法律文本要求的精確原則，也能對修法及擬定條文解釋的指導方針等有所幫助。關鍵詞: 法律解釋，歧義性，模糊性，文義解釋，DS 363，子女最佳利益. iii.

(7) Table of Contents Abstract. i. 1. Introduction. p.1. 1.1 Purpose of Study. p.1. 1.2 Research Methodology 1.3 Outline of Study. p.3. p.6. 政治大. 2. Interpreting Meaning from the Perspective of Jurisprudence. 立. 2.1.1 Types of Ambiguity. 學. p.8. 2.1.2 Three Cases of Ambiguity. p.9. ‧. ‧ 國. 2.1 Defining Ambiguity and Vagueness in the Legal Discourse. p.12. n. al. p.13. er. io. 2.1.4 Vagueness in the Language of Law. Ch. 2.1.5 Vagueness as an intentional act. p.15. engchi. 2.1.6 Vagueness as a form of negligence 2.1.7 Vagueness as an unpredicted act 2.1.8 Vagueness Doctrine. sit. y. Nat. 2.1.3 Vagueness in Daily Expressions. p.17. p.18. p.21. 2.2 Textual Types in the Legal Discourse 2.2.1 Strict Legal Texts. p.22. 2.2.2 Quasi Legal Texts. p.27. p.22. iv. i n U. v. p.8. p.8.

(8) 2.3 Statutory Interpretation: An Overview 2.4 Textualism as the Primary Canon. p.33. p.39. 2.5 Supplementary Interpretive Methods 2.6 Summary. p.43. p.46. 3. Interpreting Meaning from the Linguistic Perspective 3.1 Some Preliminaries on Linguistics. p.47. p.47. 政治 p.50大. 3.2 Analyzing Adjective-Noun Combinations. 立. 3.4 Chomsky’s Syntactic Phrase Structure Theory. p.63. sit. p.62. er. io. 3.7 Summary. p.60. y. Nat. 3.6 Lyon’s Semantic Field Theory. p.56. ‧. 3.5 Fillmore’s Frame Semantics Theory. p.51. 學. ‧ 國. 3.3 Odgen & Richards’ Semantic Triangle Theory. n. al. i n C 4. WTO Dispute Settlement Case p.65 h e n363 gchi U 4.1 Background and Review of the Case. p.65. 4.2 Interpretation of the Appellate Body. p.71. 4.3 Ambiguity in the Two Disputed Words. p.74. 4.4 Ambiguity in the Translated Trade Measures 4.5 Summary. v. p.76. p.81. 5. Article 105 Section 1 in the Family Chapter of the ROC Civil Code. v. p.82.

(9) 5.1 Background and Revision of the Provisions Relating to “the Best Interests of the Child”. p.82. 5.2 The Ministry of Justice Guidelines for Interpreting “the Best Interests of the Child”. p.87. 5.3. Factors Considered in Determining Child Custody in Practice 5.4 Analysis from the Linguistic Point of View. p.98. 政治大. 5.4.1 The Term “the Best Interests of the Child”. 立. p.88. p.98. Groups”. al. y. sit er. p. 110. n. Appendix. p.107. io. References. p.105. Nat. 6. Conclusion. p.100. ‧. 5.5 Summary. 學. ‧ 國. 5.4.2 The Common Phrase “Traditions, Culture, and Values of Different Ethnic. p. 115. Ch. engchi. vi. i n U. v.

(10) Tables and Figures Table 3.3.1. Comparison of French Law Hypothèque and English Law Mortgage. Table 3.2. Lexical items within the same semantic field. p.53. p.61. Table 4.3.1. The semantic field of “recording” added to the previous chart…p.73. Table 4.4.1. Audiovisual Products Regulation Article 27…p.73. 政 p.77治大. Table 4.4.2. Film Regulation Article 30. 立. p.87. Table 5.3.2. Foreign litigants involved in child custody cases. 學. ‧ 國. Table 5.3.1. Who gets the custodian right. p.88. ‧. Nat. sit. io. al. p.105. er. Table 6.1. Ambiguity and Vagueness in the Law. p.89. y. Table 5.3.3. Descriptive statistics of the factors determining custody. n. Figure 2.1.2.1. Dressed & Eviscerated Chicken stands between two classes of commercial. Ch. e n g c hp.13i. goods and therefore becomes ambiguous. i n U. v. Figure 2.2.1.1 Hierarchy of the ROC law with the Constitution on the top Figure 2.2.1.2. Statutes codified in the ROC Civil Law Figure 2.5.1. Traditional interpretive canons. p.44. Figure 3.3.1. Example of a semantic triangle. p.50. Figure 3.3.2. Near equivalence Figure 3.3.3. Partial equivalence. p.52 p.53. vii. p.26. p.25.

(11) Figure 3.4.1. Sample diagram in Chomsky’s theory of generative grammar: “The man hit the ball. p.54. Figure 3.4.2. Phrasal structure for "the court shall revoke the sentence of probation and sentence the defendant to not less than one third of the original sentence." Figure 3.5.1. Frame relations around the transfer of commercial goods Figure 4.1. WTO Law as a subset of international law. P.57. p.59. p.63. 政治大. Figure 4.1.1. Phrasal structure no.1 for the sentence of “no entity or individual may operate. 立. the importation of finished audiovisual products without being designated. p.76. ‧ 國. 學. Figure 4.1.2. Phrasal structure no.2 for the sentence of “no entity or individual may operate. ‧. Nat. Figure 4.2.1. China’s GATS Schedule. p.76. y. the importation of finished audiovisual products without being designated. io. sit. p.70. n. al. er. Figure 4.3.1 Dressed & Eviscerated Chicken stands between two classes of commercial goods. Ch. e np.76 gchi. and therefore becomes ambiguous. i n U. v. Figure 5.3.1. Child custody judgments by the Kaohsiung Juvenile and Family Court. p.87. Figure 5.3.2. A pie chart look at child custody judgments by the Kaohsiung Juvenile and Family Court. p.88. Figure 5.3.3. Custody judgments in 2017. p.89. Figure 5.3.4. Custody judgments in 2016. p.90. Figure 5.3.5. Custody judgments in 2015. p.90. viii.

(12) Figure 5.3.6. Number of child custody cases involving foreign litigants between 2015 Oct. and 2017 Oct. 1. p.92. Figure 5.3.7. Proportion of child custody cases involving foreign litigants Figure 5.4.2.1. A semantic triangle for the concept “Custom”. p.92. p.98. Figure 5.4.2.2. A semantic triangle for the concept “Value”. p.98. Figure 5.5.1. Vague core meaning of “The Best Interests of the Child” with a restricted. 政治大. extension from the list of factors in Article 1055, Section 1 and the interpreting. 立. guidelines prescribed by the Ministry of Justice. p.102. ‧. ‧ 國. 學. n. er. io. sit. y. Nat. al. Ch. engchi. ix. i n U. v.

(13) 1. Introduction 1.1 Purpose of the Study As a result of globalization, the interaction of people of differing cultural and linguistic backgrounds has become commonplace, especially in the areas of judicial services. It is important that laws are precise, so as to avoid disputes. Mellinkoff states that “law is a profession of words.”1 It is by means of words that judgments are pronounced, statutes are. 政治大. formed, and constitutions are enacted. A vocal critic of legalese, In The Language of the Law. 立. Mellinkoff promotes the use of a plainer legal language, and uses “the language of the law”. ‧ 國. 學. instead of “legal language” to refer to the language used by legal professionals. Another. ‧. important figure in the study of ambiguity leading to misunderstanding in the law is Sanford. y. Nat. io. sit. Schane, who analyzes in depth the issues of ambiguity in the legal contracts signed by both. er. parties, using “the law” in the title of his research paper.2 In the recent years, researchers of. al. n. v i n C h the communicative legal language have started to notice e n g c h i U purpose of the legal documents, the. setting and the participants of the legal creations. In this way, they mostly prefer the term“legal discourse” to highlight the interactive elements during the writing and translation process of legal texts. In Routledge Dictionary of Philosophy, there is such explanation about “legal discourse”:. 1. This is the opening sentence in David Mellinkoff’s monumental work The Language of the Law (Little,. Brown & Co., 1963). 2. Sanford Schane, Language and the Law (Continuum, 2006).. 1.

(14) Legal discourse signifies a strong interplay between law and language, linking. together. law. as. like. language. and. law. as. itself. language…Law-as-discourse requires an understanding of the operation of legal talk in different registers, and gestures towards an intertwining of the social, the legal and the linguistic by focusing on the speaker–hearer situation, locution and action.”. 3. 政治大. A study of legal discourse is very much associated with linguistics, in particular applied. 立. linguistics, which, in turn, to yield valid results, must attend also to the basic concepts of legal. ‧ 國. 學. theory. In terms of above significance for “legal discourse,” I am therefore more opt to use the. ‧. term legal discourse throughout my thesis since it reflects the various relationships between. y. Nat. er. io. in this thesis.. sit. the communicative use of language and the realm of law, which is exactly the target of study. al. n. v i n C h is an interdisciplinary As the study of legal discourse area that includes both legal engchi U. science and linguistics, it is an area in which little research has been carried out. To name a few important previous studies integrating legal science and linguistics, we have Gibbons’s Language and Law, published in 19944; and Golanski’s Linguistics and Law, published in the. 3. 4. Last visited 2017/12/16 https://www.rep.routledge.com/articles/thematic/legal-discourse/v-1/sections/legal-discourse John Gibbons (Ed.), Language and Law (Longman, 1994).. 2.

(15) Albany Law Review Journal in 2002.5 In Taiwan, there are several master’s and doctoral theses found in departments of legal science; among them are Huang Ming-hsiu’s (2007) 6. analysis of the semantics of the Civil Code of the late Qing dynasty, and Hu Pi-chan’s. (2009)7 study on vagueness in the language of the ROC Criminal Code. Up to the present, however, very little research has investigated the ambiguity and vagueness of the law by looking at both international law and the provisions of domestic law from the viewpoint of linguistic theories.. 立. 政治大. In light of the transformations taking place in society and the inherent nature of legal. ‧ 國. 學. language, in this study I explore two different types of legal cases. While reviewing the. ‧. interpretation of two key words (“recording” and “distribution”) by the Appellate Body as. y. Nat. io. sit. well as the translations of business measures submitted by China to the WTO in a trade. er. dispute case, and the interpretation of two vague phrases in Article 1055 Section 1 of Family. al. n. v i n Chapter in the ROC Civil Code,C I propose h e nagsetcofh linguistic i U theories for interpreting statutes. The results are expected to provide insights into the linguistic factors that have a bearing on interrogations, hearings, and trials. 1.2 Research Methods 5. Alani Golanski, Linguistics and Law. Albany Law Review Journal Vol.66, 60-121 (EBSCO Publishing, 2002).. 6 Ming-hsiu Huang, Analysis of the semantics of the provisions of the Civil Code of the late Qing dynasty, (Master thesis of National Chengchi Universiy Graduate School of Law, 2007). 7 Pi-chan Hu, Study of the vagueness of the language of the Criminal Law of the ROC, (Doctoral Dissertation of National Chengchi University Institute of Linguistics, 2009).. 3.

(16) Four kinds of research methods are adopted in this thesis. Firstly, document analysis is applied throughout to such tasks as reviewing traditional interpretive canons, delineating the nature and function of the WTO framework, and summarizing the ultimate decisions made by the Dispute Panel and the Appellate Body from the final report released by the Appellate Body.8 Secondly, case studies are made on the WTO dispute settlement 363 between the USA and China, and on the interpretation of “the best interests of the child” and “tradition, culture,. 政治大. and values of different ethnic groups” in Article 1055 Section 1 of the ROC Civil Code.. 立. Thirdly, in the concluding section, I compare and contrast these two cases in terms of. ‧ 國. 學. ambiguity and vagueness.. ‧. n. er. io. sit. y. Nat. al. 8. Ch. engchi. i n U. v. The Appellate Body of WTO, China-Measures Affecting Trading Rights and Distribution Services For Certain. Publications And Audiovisual Entertainment Products Report of the Appellate Body, December 2009. PDF can be downloaded from WTO Offical Website https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds363_e.htm. 4.

(17) Fourthly, the empirical quantitative method is applied to the analysis of the judges’ interpretation of the term “the best interests of the child” in the family court. I retrieve all the data from the Judicial Yuan’s online database titled Judicial Information Retrieval System – a reliable source for decisions and judgments made by judges in Taiwan from the district level to the High Court. Since previous large-scale empirical studies on family litigation have been carried out on the Taipei District Court (e.g., Liu, Hong-en, 2011)9 and. 政治大. district courts island wide (e.g., Cheng, Yen-ni, 2015),10 I focus on a district court in. 立. Taiwan specializing in family litigation -- the Kaohsiung Juvenile and Family Court. By. ‧ 國. 學. entering the type of case as “evaluating custody and obligations pertaining to a minor. ‧. child,” setting the date range from October 1, 2015 to October 1, 2017, and the search term. y. Nat. er. io. sit. as a combination of “divorce & custody & best interests of the child,” I retrieved 59 relevant cases. I then examined the weighing and reasoning process in each of the. n. al. Ch. engchi. i n U. v. judgments and categorized the final main considerations used in determining the custody rights according to the list of factors stipulated in Article 1055, Section 1 of the ROC Civil. 9. Hong-en Liu, The Practice of "Children 's Best Interests Principle" in Custodian Cases of Children after. Divorce in Taiwan Courts - From the Perspective of Legal and Social Studies (Military law special issue Vol 57 No. 1, 84-106). 劉宏恩，「子女最佳利益原則」在台灣法院離婚後子女監護案件中之實踐—法律與社會研究之觀點, 軍法專刊, 57卷1期，頁84-106 , 2011.年2月。 10. Yen-ni Cheng, An Empirical Study of Paternity Rights of Minor Children after Divorce (Master thesis of. National Taiwan University Graduate School of Law, 2015). 鄭諺霓，離婚後未成年子女親權酌定之實證研究，台大法律系研究所碩士論文，2015年6月。. 5.

(18) Code and the supplementary guidelines released by the Ministry of Justice in 2014, altogether a list of 18 categories (see Appendix 1). As to the background and purpose of the Kaohsiung Juvenile and Family Court, its website states: “In light of the need for a specialized juvenile court separate from the adult system, the Kaohsiung Juvenile and Family Court was established on September 15, 1999… Since juvenile delinquency is. 政治大. largely the product of dysfunctional families, this court consists of two. 立. divisions: the family division and the juvenile division. Based on the. ‧ 國. 學. principle of "one family, one court," the Judicial Yuan decided to. ‧. establish this specialized court to handle cases of juvenile delinquency. y. Nat. er. io. sit. and family disputes in an appropriate, prompt, responsible, and integrated manner… In accordance with the Family Act implemented. n. al. Ch. engchi. i n U. v. on June 1, 2012, the family division originally subordinated to the Kaohsiung District Court and the Kaohsiung Juvenile Court were merged to establish the Kaohsiung Juvenile and Family Court. The purpose of the juvenile and family court is to thoroughly address juvenile delinquency problems and family disputes through the use of a comprehensive approach which includes the following: a specially planned hearing system; judges with related backgrounds and. 6.

(19) specialized training; and assistance from specialists in such fields as social work, psychology, guidance, mediation, and psychiatry.…” In short, by combining all kinds of social welfare resources, the Kaohsiung Juvenile and Family Court functions as a one-stop family service center and has the most specialized judges and relevant resources for dealing with family litigations.11 This is the major reason of my choosing this court as the subject of the empirical study. 1.3 Outline of the Study. 立. 政治大. I begin by stating my research purpose and methods, defining what is vagueness and. ‧ 國. 學. ambiguous meaning in the law. I then briefly discuss the origin of statutory interpretation and. ‧. textualism, a traditional primary cannon applied by jurists and a few supplementary methods.. y. Nat. er. io. sit. Next, I present a set of linguistic theories useful for analyzing vagueness and ambiguity in the law, including Odgen and Richards’ semantic triangle theory,12 Chomsky’s syntactic phrase. n. al. Ch. engchi. i n U. v. structure theory,13 Fillmore’s frame semantics theory,14 and Lyon’s semantic field theory.15 11. 12. Retrieved on 2017/11/07 http://ksy.judicial.gov.tw/chinese/CP.aspx?s=503&n=10413 C. K. Ogden, I. A. Richards, S.Ranulf, & E. Cassirer, The meaning of Meaning: A study of the influence of language upon thought and of the science of symbolism (Harcourt, 1923). 13. Noam Chomsky, Syntactic Structures (Mouton & Co, 1957).. 14. Charles J. Fillmore and Beryl T. Atkins, Frame semantics, in Linguistics in the Morning Calm, ed. by The Linguistic Society of Korea, 111-137 (Hanshin, 1982). Charles J. Fillmore and Beryl T. Atkins. Towards a Frame-based organization of the lexicon: The semantics of RISK and its neighbors, in Frames, Fields, and Contrasts: New Essays in Semantics and Lexical Organization, ed. by Adrienne Lehrer and Eva Kittay, 75-102 (Lawrence Erlbaum, 1992).. 7.

(20) Afterwards, I investigate the WTO dispute case 363 relating to the import of foreign publications and audiovisual materials, focusing on the interpretation of two key terms “recording” and “distribution” by the Appellate Body. For the second case study, I turn to the family chapter of the ROC Civil Code, highlighting the application of interpreting “the best interests of the child” and the factor of “tradition, culture, and values of different ethnic groups” in Article 1055 Section 1 in the court of domestic relations. In the conclusion I argue. 政治大. that the WTO appellate body might have gained a number of useful insights had they. 立. considered such a linguistic approach when making the final ruling. For the judges in the. ‧ 國. 學. family court, this study provides a different sense of the statutory text, which can be helpful to. ‧. judges in applying the law, and to legislators formulating interpreting guidelines in the future.. n. er. io. sit. y. Nat. al. 15. Ch. engchi. i n U. v. John Lyons (ed.), New Horizons in Linguistics (Harmondsworth: Penguin,1970). John Lyons, Semantics (Vols. 1 and 2). (Cambridge: Cambridge University Press, 1977). John Lyons, Language, Meaning and Context (Fontana, 1981).. 8.

(21) 2. Interpreting Meaning from the Perspective of Jurisprudence 2.1 Defining Ambiguity and Vagueness in the Law Ambiguity and vagueness have different implications and are inherent in all human languages. The former one “ambiguity” indicates more than one meaning in a word or phrase or a passage. For instance, “bear” has multiple meanings: “bear” may refer to one kind of animals. It can also suggest “tolerate” or “produce” depending on the context. The latter one. 政治大. “vagueness” mainly indicates uncertainty. Take “tall” an example. A woman who is five feet. 立. and 11 inches are tall in Asia, but not be so tall in Europe. Both ambiguity and vagueness may. ‧ 國. 學. happen to the language of the law as the language used by the legal professionals is devised. ‧. by human beings and is one subset of human language. Lawyers therefore come up with all. y. Nat. io. sit. sorts of strategies to resolve interpretation of vague texts or ambiguous words in the legal. n. al. er. settings. More examples are presented in the following sections. 2.1.1 Types of Ambiguity. Ch. engchi. i n U. v. According to Black’s Law Dictionary, “ambiguity” is “doubtfulness; doubleness of meaning; indistinctness or uncertainty of meaning of an expression used in a written instrument.”16 In the study of linguistics, two types of ambiguity may be seen in our daily language, lexical and structural. Lexical ambiguity is by far the more common. Take for example the word “ball.” This word may refer to the round object used in sports like football,. 16. Retrieved 2017/10/29 from http://thelawdictionary.org/ambiguity/. 9.

(22) volleyball, or basketball or it can be used to refer to a formal dance party. It is therefore ambiguous. We need to rely on the context to decide the proper meaning. Another example of lexical ambiguity is the word “bank,” which may indicate an organization providing financial services, the side of a river, or some other possible meanings. Lexical ambiguity in a sentence may cause ambiguous syntactic meaning as a whole. For example, a newspaper headline such as “Bill Dies in House” is ambiguous since it can refer to a man named “Bill” who dies in a. 政治大. house, or to a legislative bill that did not pass the House of Representatives. A famous. 立. example from Noam Chomsky is “flying planes can be dangerous.” The lexeme “flying” can. ‧ 國. 學. be interpreted as either the gerund form of the verb “fly” or an adjective attribute of the noun. ‧. “plane.”. sit. y. Nat. io. al. er. When more than one meaning can be drawn from the structure of a statement, this is. v. n. termed “structural ambiguity.” This means that a sentence is structurally ambiguous, not. Ch. engchi. i n U. because it contains a single lexeme that has several distinct meanings, but because the syntactic structure of the sentence permits multiple interpretations. Structural ambiguity sometimes occurs when a phrase or sentence has more than one underlying structure, such as the phrases “Tibetan history teacher,” “a student of high moral principles,” “short men and women,” and the sentence “The girl hit the boy with a book.” These examples are said to be structurally ambiguous because each such phrase or sentence can be represented in two. 10.

(23) structurally different ways. As another example, consider the sentence “The chicken is ready to eat,” which could be used to describe either a hungry chicken or a broiled chicken.. 2.1.2 Three Cases of Ambiguity. The following three court cases illustrate the possible results of ambiguous meaning.17 Firstly, in the case of Frigaliment Importing Co. v B.N.S. in the district court of New York in. 政治大. 1960, the key issue was the exact meaning of “chicken” in a business contract. The. 立. Frigaliment Importing Company intended to order chickens and wrote its specifications on. ‧ 國. 學. weight and quality but did not specify “young and tender chicken.” The B.N.S Company. ‧. indeed shipped products with proper specifications but mixed with old and tough chicken. sit. y. Nat. suitable for stewing (“fowl” in the view of B.N.S.) The Frigaliment then sued for damages in. n. al. er. io. the New York District Court. The plaintiff argued that "chicken" means a young chicken,. Ch. i n U. v. suitable for broiling or frying, while the defendant maintained that "chicken" means any bird. engchi. of that genus that meets contract specifications on weight and quality, including what it called "stewing chicken." Dictionaries give both meanings, as well as some others not relevant here. Clearly, the plaintiff was taking "chicken" in a narrower sense. The defendant took a broad sense. Both parties did not achieve the “meeting of minds” in the view of contract law.18. 17. These three cases are also discussed in Sanford Schane’s paper on Ambiguity and Misunderstanding in the. Law. 18. Retrieved 2017/10/20 https://h2o.law.harvard.edu/collages/3760. 11.

(24) The second case involves a business contract signed in 1864. The plaintiff agreed to sell the defendant 125 bales of Surat cotton from India that would come from the ship Peerless. Upon arrival, the defendant refused to pay for the cotton because it came from a different ship than the one agreed upon, although it was also named Peerless. Eventually, the court ruled in favor of the defendant, and the contract was declared null and void.19. The third case was between the Interstate Commerce Commission and Allen E. Kroblin,. 治政大 chickens. One of the ICC’s Inc. in the USA in 1954. It dealt with the transport of eviscerated 立 ‧ 國. 學. roles was to certify trucking companies engaged in interstate commerce and make sure that most goods transported between states were transported by these certified carriers. One. ‧. exemption was for certain non-manufactured agricultural commodities, such as fruits and. sit. y. Nat. io. n. al. er. vegetables, fish, and ordinary livestock. Using these exemption criteria, farmers were able to. i n U. v. hire less costly uncertified carriers for moving agricultural goods between states. In this. Ch. engchi. lawsuit, the ICC insisted that dressed and eviscerated chickens are manufactured products, whereas the Department of Agriculture claimed that it is an agricultural commodity. The court ruled that the phrases “agricultural commodity” and “manufactured product” are ambiguous because the Interstate Commerce Commission did not define the two categories clearly enough. There are four kinds of chicken available on the market: live, dressed (killed and plucked), ready to cook (eviscerated, with feet and head removed), and fully cooked/ready to 19. Retrieved 2017/10/20 http://www.onelbriefs.com/cases/contracts/raffles_wichelhaus.htm. 12.

(25) eat. In this case, the dressed and eviscerated chicken lies in the grey area between agricultural commodities and manufactured products as shown in Figure 2.1.2.1.. Manufactured. Agricultural. Eviscerated. commodities. products. chicken. 政治大 Figure 2.1.2.1. Dressed & 立 Eviscerated Chicken stands between two classes of commercial. ‧ 國. 學. goods and therefore becomes ambiguous.20. ‧. In its final interpretation the court considered the question mainly based on the many. y. Nat. er. io. sit. realities involved, taking into account the general concept and the definition of the term "manufacture," the purpose of regulation, its legislative history, and the fact that the. al. n. v i n C h not truck operators. exemption was intended to benefit farmers, engchi U 2.1.3 Vagueness in Daily Expressions. Human language as a tool of communication frequently involves vagueness. When we say a word is vague, it means the meaning is uncertain in both its denotative (core) meaning and the connotative (extended or implied) meaning. Take for example the. 20. Source: Compiled by the author. 13.

(26) following vague expressions: “many people; early hours; other students in the school; soon.” If precision is necessary, we might define many as 1,000 or 500 to 1,000; early as 5 a.m.; other students as business administration students; and soon as 7 p.m. or Tuesday. On the sentential level, the sentences “A river flows from this city to another city” and “The water is filthy” are vague in that the reader does not know what city it is and what kind of water it is. Politicians are good at forming sentences formed by stringing together a series of vague. 政治大. expressions, such as: My officials are monitoring this situation very closely, and I can. 立. promise that we shall take all appropriate measures to ensure that the situation is resolved in. ‧ 國. 學. a way that is fair to all the parties involved.”21 We might as well challenge its precision by. ‧. asking the following questions: What are appropriate measures? They could be anything or. Nat. n. al. er. io. sit. y. nothing. What does “fair” to all parties mean? There is no concrete idea.. 2.1.4 Vagueness in the Language of Law. Ch. engchi. i n U. v. In the language of law, “vagueness” mainly suggests uncertainty. Black’s Law Dictionary further defines “uncertainty” as “such vagueness, obscurity, or confusion in any written instrument, e. g., a will, as to render it unintelligible to those who are called upon to execute or interpret it, so that no definite meaning can be extracted from it.”22. 21. Willam Hughes and Jonathan Lavery, Critical Thinking: An Introduction to the Basic Skills, 5th ed.. (Broadview Press, 2008). 22. Retrieved 2017/10/29 http://thelawdictionary.org/uncertainty/. 14.

(27) In formulating a law, the meaning of each word, term, and phrase needs to be as precise as possible, in order to achieve a certain legal effect when eventually interpreted and applied by the judiciary to make decisions. However, in practical situations, the language of law may contain obscurity that requires interpretation. For instance, obscurity can result from the usage of certain vague modifiers, or by the use of certain common nouns which are indeterminate in nature. As for the. 政治大. former type, we often find the following expressions in legal documents written in. 立. English: “necessary, properly, less than, not more than, substantial amount, reasonable doubt”;. ‧ 國. 學. in Chinese we have such vague expressions as: shidang (適當), qita (其他) yanzhong (嚴重),. ‧. congzhong (從重), congqing (從輕), biyao (必要), mingxian (明顯), zhongda (重大), heli de. y. Nat. io. sit. (合理的), and shidang de (適當的). As for nouns which are indeterminate and broad in scope,. er. we find a pertinent example in Article 1052 of the ROC Civil Code, which states that a. al. n. v i n “loathsome disease which is notCcurable”( 不治之惡疾) is sufficient grounds for h e n buzhi-zhi-eji gchi U divorce.23 Since the precise meaning of this phrase is indeterminate, its scope of coverage can. 23. Article 1052 of the ROC Civil Code:Where either the husband or the wife meets one of the following. conditions, the other party may petition the court for a juridical decree of divorce: (1) Where he or she has committed bigamy; (2) Where he or she has consensual sexual intercourse with another person; (3) Where he or she abuses the other party as to render common living intolerable; (4) Where he or she abuses the lineal relative of the other party, or his or her lineal relative abuses the other party as to render common living intolerable;. 15.

(28) be very broad, and the opinions of experts such as psychologists or medical doctors may be required to make the final interpretation. Thus, it is important that the judge weigh each case with scrutiny, reaching a certain level of consistency in interpreting these vague expressions.. (5) Where the other party has deserted him or her in bad faith and such desertion still. continues;. (6) Where he or she is intent on murdering the other party; (7) Where he or she has a loathsome disease which is incurable; (8) Where he or she has a serious mental disease which is incurable;. 政治大. (9) Where it has been uncertain for over three years whether he or she is alive or dead; or. 立. (10) Where he or she has been sentenced to more than six months imprisonment for an intentional crime.. ‧ 國. 學. Either the husband or the wife may petition for a juridical decree of divorce upon the occurrence of any gross event other than that set forth in the preceding paragraph that renders it difficult to maintain the marriage, except. ‧. if either the husband or the wife is responsible for the event, only the other party may petition for the divorce. Chinese original of Article 1052 of the ROC Civil Code: 夫妻之一方，有下列情形之一者，他方得向法院請. y. sit. n. al. er. io. 一、重婚。. Nat. 求離婚：. 二、與配偶以外之人合意性交。. Ch. engchi. 三、夫妻之一方對他方為不堪同居之虐待。. i n U. v. 四、夫妻之一方對他方之直系親屬為虐待，或夫妻一方之直系親屬對他方為虐待，致不堪為共同生活。五、夫妻之一方以惡意遺棄他方在繼續狀態中。六、夫妻之一方意圖殺害他方。七、有不治之惡疾。八、有重大不治之精神病。九、生死不明已逾三年。十、因故意犯罪，經判處有期徒刑逾六個月確定。有前項以外之重大事由，難以維持婚姻者，夫妻之一方得請求離婚。但其事由應由夫妻之一方負責者，僅他方得請求離婚。. 16.

(29) 2.1.5 Vagueness as an Intentional Act. In both ordinary and legal contexts, the use of these vague expressions may be intentional or unintentional. An example of intentional vagueness can be seen in a report released by the police: “A female, around 40 years old, short hair, a little fat, slightly dark skin, was found along the river bank today;” the description contains some vagueness due to the indeterminate attributes of the woman. In some other cases, vagueness is intended to have. 治政大 is said to be based on the general a broad frame of reference. For example, in civil law, justice 立 ‧ 國. 學. principles of public policy and morals (gongxu liangsu 公序良俗), as well as good faith (chengshi xinyong 誠實信用). To a certain extent, these phrases are vague in order to have. ‧. broad application.. sit. y. Nat. io. n. al. er. The subjects addressed in international treaties are mostly vague and meant to have a. i n U. v. degree of built-in flexibility, and are formulated accordingly, so as to be applicable in a wide. Ch. engchi. range of circumstances. For example, the United Nations Commission on International Trade Law (UNCITRAL) document is used by most of the member countries in the handling of their commercial arbitrations. Such rules have to refer to a very wide and sometimes unpredictable range of possible applications; to comply with this need; the diction has to be as all-inclusive as possible. Vagueness also results due to the use of technical terms that are unfamiliar to those outsiders of a given profession. For example, in the context of a lawsuit, a layperson would. 17.

(30) not be expected to know the exact meaning of such terms as “admissibility” of evidence or “class action. “When hearing such terms, the layperson would respond in a vague expression. 2.1.6 Vagueness as a Form of Negligence In other cases, “vagueness” can be a form of negligence or an unpredicted act. Both lead to “flaws” in legislation. For example, Article 66 of the Civil Code of Taiwan states: Real property is land and things which are constantly affixed thereto. The products of the real. 政治大. property, if they are not separated therefrom, constitute a part of the real property. 24 Article. 立. 67 states: Personal property is anything except real property mentioned in the preceding. ‧ 國. 學. article.25 These two articles seem to be precise in defining “real property” and “personal. ‧. property.” In a case brought up by the ROC Executive Yuan, the government sector required. Nat. io. sit. y. an interpretation from the Justice as to whether a “light railway” is an affixed form of real. er. property. In Judicial Yuan Interpretation No. 93 of 1961, the meanings of “real property” and. al. n. v i n C hprecise, in that theU Justices of the Constitutional Court “personal property” are made more engchi state that “A convenience track that is adjacent to contiguous plots of land and has some kind of economic purpose is considered to be immovable property, unless it is used for some temporary purpose.”26. 24. Article 66 of the ROC Civil Code: 稱不動產者，謂土地及其定著物。不動產之出產物，尚未分離者，為. 該不動產之部分。 25. Article 67 of the ROC Civil Code: 稱動產者，為前條所稱不動產以外之物。. 26. Retrieved 2017/10/20 http://www.judicial.gov.tw/constitutionalcourt/en/p03_01.asp?expno=93 Judicial. 18.

(31) 2.1.7 Vagueness as an Unpredicted At In the statutory texts, the wording needs to be precise. Take Article 1030 -1 of the ROC Civil Code as an example, which stipulates: Upon dissolution of the statutory marital property regime, the remainder of the property acquired by the husband or wife in marriage, after deducting the debts incurred during the continuance of the marriage. 政治大. relationship, if any, shall be equally distributed to the husband and the. 立. wife, except property listed as follows:. ‧ 國. 學. (1) Property acquired from succession or as a gift. ‧. (2) Solatium. y. Nat. io. sit. The court shall adjust or waive the share of distribution, provided that the. n. al. er. equal distribution referred to in the preceding paragraph is obviously unfair.. Ch. engchi. i n U. v. The right to claim for distribution or the reminder [of the property] referred to in the first paragraph shall be extinguished if it is not exercised within two years from the time where the claimant has known. Interpretation No. 93 in Chinese:輕便軌道除係臨時敷設者外，凡繼續附著於土地而達其一定經濟上之目的者，應認為不動產。. 19.

(32) that there is such a remainder, or if five years have elapsed from the dissolution of the statutory marital property regime.27 Disputes have arisen as to the interpretation of the word “gift.” The husband argues that the house the wife acquires from the husband is a reward for her hard work in taking care of the house chores and is not a “gift.” Take Article 222 of the ROC Criminal Code as another example, which stipulates:. 政治大. A person who commits an offense specified in the preceding article under. 立. one of the following circumstances shall be sentenced to imprisonment. ‧ 國. 學. for not less than seven years:. ‧. 1. An offense committed by two or more persons. y. Nat. io. sit. 2. An offense against a male or a female under the age of fourteen. n. al. er. 3. An offense against a mentally, physically or otherwise handicapped person 27. Ch. engchi. i n U. v. Chinese original of Article 1030 Section1 of the ROC Civil Code: 法定財產制關係消滅時，夫或妻現存之婚. 後財產，扣除婚姻關係存續所負債務後，如有剩餘，其雙方剩餘財產之差額，應平均分配。但下列財產不在此限：一、因繼承或其他無償取得之財產。二、慰撫金。依前項規定，平均分配顯失公平者，法院得調整或免除其分配額。第一項請求權，不得讓與或繼承。但已依契約承諾，或已起訴者，不在此限。第一項剩餘財產差額之分配請求權，自請求權人知有剩餘財產之差額時起，二年間不行使而消滅。自法定財產制關係消滅時起，逾五年者，亦同。. 20.

(33) 4. An offense carried out with the use of a drug 5. An offense including abuse of the victim 6. An offense committed by operating a means of public transportation 7. An offense committed by intruding into a residence or a structure used for residence or a vessel or by hiding inside of it 8. An offense committed with the use of a weapon. 政治大. An attempt to commit an offense prescribed in the preceding paragraph is. 立. 28. 學. ‧ 國. punishable.. Disputes have arisen as to the definition of the word “weapon,” such as. ‧. whether a razor used to shave men’s facial hair is a weapon or not. The two. sit. y. Nat. io. n. al. er. examples above thus show that the wording and interpretation of each. 28. Ch. engchi. 犯前條之罪而有下列情形之一者，處七年以上有期徒刑：. i n U. 一、二人以上共同犯之者。二、對未滿十四歲之男女犯之者。三、對精神、身體障礙或其他心智缺陷之人犯之者。四、以藥劑犯之者。五、對被害人施以凌虐者。六、利用駕駛供公眾或不特定人運輸之交通工具之機會犯之者。七、侵入住宅或有人居住之建築物、船艦或隱匿其內犯之者。八、攜帶兇器犯之者。前項之未遂犯罰之。. 21. v.

(34) component in a statutory text is therefore crucial in terms of legal effects.29 We will explain more pertinent to this example in the later sections.. 2.1.8 Vagueness Doctrine According to the vagueness doctrine, a law can be declared void if, after setting some requirement or punishment, it does not specify what is required or what conduct is punishable.. 29. 政治大. Retrieved on 2017/10/29 http://www.attorneytsai.com/cases_view.php?sn=1287.See the Supreme. 立. Court Criminal Judgement 102 Tai-Sang-Zi No. 4602. 最高法院 102 年度台上字第 4602 號刑事判決。. ‧ 國. 學. Retrieved on 2017/10/29 http://www.attorneytsai.com/cases_view.php?sn=1287。The Chinese original of the judgment states: 刑法第二百二十二條第一項第八款所謂「攜帶兇器而犯之者」，其所稱「兇器」之種. ‧. 類並無限制，凡客觀上對於人之生命、身體或安全構成威脅，具有危險性之兇器均屬之。而其所稱「攜帶」，係指持、執、懷、帶而言，該條款規定加重處罰之目的在於加強保護被害人之生命、身體等安全. y. Nat. io. sit. 法益，故在解釋上祇須行為人於實行強制性交犯罪時，身上攜有或持執兇器為已足，並不以該兇器係行. n. al. er. 為人自他處攜帶至犯罪現場為必要，亦不問行為人取得該兇器之原因為何。上訴人於原審陳稱其持以刮. i n U. v. Ａ女陰毛之刮鬍刀，係○○汽車旅館房間內供應之「Ｔ字型刮鬍刀」，雖與Ａ女所述上訴人係持「一柄. Ch. engchi. 式刮鬍刀」刮其陰毛等語未盡一致。然不論上訴人所持用者係一般常見之「Ｔ字型刮鬍刀」，抑如Ａ女所述「長得像梳子一樣，前面梳頭髮的地方是刀片，後面有柄可以拿之一柄式刮鬍刀」，二者均裝置有銳利之刀片，而該刀片雖隱置在塑膠內，但其最鋒利之刀刃外緣仍有部分顯露在外，否則無法發揮其刮鬍毛之功能，若刻意持以對人之臉部及身體皮膚等處加以劃割攻擊，對人之生命或身體仍具有相當之危害，難謂非屬「兇器」之一種。而該刮鬍刀縱非上訴人自家中攜帶至○○汽車旅館房間，而係自該旅館房間內取得，惟上訴人於實行本件強制性交犯行時既已先行取得而攜持上述刮鬍刀，並用以刮除Ａ女陰毛，自該當於上述條款所稱「攜帶兇器而犯之者」之加重條件。從而，原判決對於上訴人第二次強制性交犯行論以刑法第二百二十二條第一項第八款、第二項之加重強制性交未遂罪，於法尚無不合。. 22.

(35) In Taiwan, the vagueness doctrine was applied in Judicial Yuan Interpretation No. 636 of 2008, which states: … Although the provisions of Article 2, Section 3, regarding the acts of “occupying territory,” “eating and drinking without paying,” and “coercing and causing trouble” should not be difficult for the average person to understand, there are still aspects of these provisions that are. 政治大. insufficiently clear. Therefore, the relevant authorities shall re-examine. 立. and revise these provisions by taking into account factors such as the. ‧ 國. 學. changing patterns of society. Further, the provision of Article 2, Section 3,. ‧. regarding the act of “tyrannizing good and honest people” as well as the. Nat. io. sit. y. provision of Article 2, Section 5, regarding “people who are habitually. er. morally corrupt or who habitually wander around and act like rascals”. n. al. i n C are inconsistent with the principle clarity… h e nofglegal chi U. v. 30 31. 2.2 Textual Types in the Law In discussing statutory interpretation, it is helpful to begin by clarifying the different. 30. Chinese original of Judicial Interpretation No.636: 第二條第三款關於霸佔地盤、白吃白喝與. 要挾滋事行為之規定，雖非受規範者難以理解，惟其適用範圍，仍有未盡明確之處，相關機關應斟酌社會生活型態之變遷等因素檢討修正之。第二條第三款關於欺壓善良之規定，以及第五款關於品行惡劣、遊蕩無賴之規定，與法律明確性原則不符。 31. Retrieved 2017/10/20. http://www.judicial.gov.tw/constitutionalcourt/en/p03_01.asp?expno=63. 23.

(36) textual types in the law. Generally speaking, these textual types, commonly termed “legal texts,” can be divided into four types: (1) statutes, constitutions, international laws and agreements; (2) judgments, rulings, judicial cases, indictments, complaints, and evidence presented in court; (3) contracts, wills, birth certificates, etc.; and (4) company provisions, regulations, and policies. Below I explain and cite examples of statutes, international laws, contracts, and wills as the major legal texts which require more precision in wording than. 政治大. other types of legal creations. To exemplify the types of legal creations which require a lower. 立. level of precision in wording (quasi-legal texts), I cite a judgment and indictment issued by a. ‧. ‧ 國. 學. district office.. 2.2.1 Strict Legal Texts. y. Nat. io. sit. Statute: A written law passed by a legislative body. The statutes of a system get codified. er. (statutory law) as time goes by into a hierarchical arrangement. Statutory law is different from. al. n. v i n C hby elected lawmakers case law in that statutes are written e n g c h i U but case law is written by judges in. response to a specific case before the court. Courts in a common law country can establish laws when no statute exists to govern a case. Civil law countries mainly have statutory law because case law often is not a source of law for them. In the USA, most legal disputes are covered at least in part by statutes, but tort and contract disputes are exceptions, in that they are largely governed by case law. Criminal law, patent law, tax law, property law, and. 24.

(37) bankruptcy law are among the areas of law that are covered first and foremost by statutes.32 As a civil law country, Taiwan has a solid set of statutory laws with the Constitution on top of it. The statutory law of Taiwan can be further divided into two kinds of law -- the law enacted by lawmakers, situated beneath the Constitution; and those regulations, directions, rules, etc. formulated and promulgated by the administrative government sectors, situated at the bottom of the legal pyramid (Figure 2.2.1. and Figure2.2.2.)(see Appendix 2 for more reference).. 立. 政治大. ‧ 國. 學. The Constitution. ‧. Statute. n. al. er. io. sit. y. Nat. Regulations, directions, rules, etc.. Ch. engchi. i n U. v. Figure 2.2.1.1.Hierarchy of the ROC law with the Constitution on the top.33. 32. Retrieved 2017/11/10 https://legal-dictionary.thefreedictionary.com/statute. 33. Source: Compiled by the author.. 25.

(38) 立. 政治大. Figure 2.2.1.2. Statutes codified in the ROC Civil Law34. ‧ 國. 學. International law or agreement: This is a set of rules generally regarded and accepted as. ‧. binding the relations between nations. International law differs from domestic law in that it is. sit. y. Nat. io. al. er. primarily applicable to countries rather than to private citizens. Although it is considered “soft. v. n. law,” the wording of the provisions in it is critical, as it constitutes a framework of. Ch. engchi. i n U. maintaining international relations. Take the draft of the Paris Climate Agreement submitted to delegates in December 2015 as an example, one subsection of which states: “Developed country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets.” Shall, as opposed to should, implies that the agreement is legally binding. The U.S. had insisted throughout the negotiating process that the deal not include any legally binding language that would have required the White House to submit it to the 34. Retrieved on 2017/11/10 from http://law.moj.gov.tw/Eng/LawClass/LawAllPara.aspx?PCode=B0000001. 26.

(39) Senate for approval. Secretary of State John Kerry said of the “shall-should” distinction, "The bottom line is that when I looked at that, I said, ‘We cannot do this and we will not do this. And either it changes or President Obama and the United States will not be able to support this agreement." Then the U.S. persuaded the French hosts to change the word back to should.35. Interpreting international law is both an art and a science. The Vienna Convention on the. 治政大 of international law. However, Law of Treaties (VCLT) has long governed the interpretation 立 ‧ 國. 學. in today's globalized world of increasing complexity and dramatic transformations in international relations, the perspective provided by the VCLT has become too narrow. The. ‧. VCLT might still be considered the primary tool for interpretation of international treaties or. sit. y. Nat. io. n. al. er. agreements, but in some cases, we might need to approach the dispute between different. i n U. v. countries from other perspectives, such as the linguistic viewpoints I propose in this thesis.. Legal Contracts:. 36. Ch. engchi. A contract is a voluntary arrangement between two or more parties that is. enforceable by law as a binding legal agreement. A contract arises when the parties agree that there is an agreement. Formation of a contract generally requires an offer, acceptance,. 35. Retrieved 2017/10/24. http://www.slate.com/blogs/the_slatest/2015/12/14/climate_deal_came_down_to_the_difference_between_shall_ and_should.html 36. Taipei District Court Criminal Judgement 103 Su-Zi No. 1847. 台北地方法院 103 年度訴字第 1847 號刑事. 判決。. 27.

(40) consideration, and a mutual intent to be bound. Each party to a contract must have capacity to enter the agreement. Minors, intoxicated persons, and those under a mental affliction may have insufficient capacity to enter into a contract.37 Take as an example a contract dispute heard by the Taipei District Court, in which the litigants disputed the meaning of the phrase “shall be entitled.” The relevant section of the contract reads:. In the event of any litigation, arbitration, judicial reference or other. 治政大Agreement to enforce legal proceeding involving the parties to this 立 ‧ 國. 學. any provision of this Agreement, to enforce any remedy available upon default under this Agreement, or seeking a declaration of the. ‧. rights of either Party under this Agreement, the prevailing Party shall. sit. y. Nat. io. n. al. er. be entitled to recover from the other such attorney’s fees and costs as. i n U. v. may be reasonably incurred, including the costs of reasonable. Ch. engchi. investigation, preparation and professional or expert consultation incurred by reason of such litigation, judicial reference, or other legal proceeding.38 Wills: A will or testament is a legal document by which a person, the testator, expresses his. 37 38. Retrieved 2017/10/24 https://en.wikipedia.org/wiki/Contract Taipei District Court Criminal Jugement 103 Su-Zi No. 1847. 台北地方法院 103 年度訴字第 1847 號刑事判. 決。 38. Retrieved 2017/10/24 https://en.wikipedia.org/wiki/Will_and_testament. 28.

(41) wishes as to how his property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution.39 Wills left by celebrities tend to attract much publicity, with each relevant party attempting to establish a favorable interpretation of the deceased person’s wishes from the meaning of the key words and passages in the will. For example, in Michael Jackson's will, the entire estate was left to a family trust. It names his mother, Katherine Jackson, as the legal guardian of his three. 政治大. children and beneficiary of the trust. If she were incapacitated or died, the singer Diana Ross. 立. would get custody of his children.40. ‧ 國. 學. 2.2.2 Quasi-Legal Texts. ‧. Indictment: This is a formal charge accusing someone of a serious crime. The form of an. y. Nat. io. sit. indictment can vary in different countries. Criminal and civil indictments have different. er. elements. For a criminal indictment produced by a prosecutor in Taiwan, the facts pertaining. al. n. v i n C hof the indictment (see to the crime take up a major portion e n g c h i U Appendix 3 for reference). So as to. be readily intelligible to the accused, the style is usually plain in comparison to a judgment, which is typically solemn and characterized by a formal register of speech. A typical criminal indictment issued by the prosecutor’s office in Taiwan is as shown below: Hu and Liu held a public wedding ceremony at Qizhenmei Hotel in Zhonghe City of Taipei County (newly named as “Zhonghe District 39. Retrieved 2017/10/24 https://en.wikipedia.org/wiki/Will_and_testament. 40. Retrieved 2017/10/24 http://www.talkleft.com/story/2009/7/1/16587/31716/offtopic/Michael-Jackson-s-Will. 29.

(42) of New Taipei City”, similarly hereinafter) on December 4th 2005, with a number of guests invited to the wedding reception. The two parties failed to file marriage registration, but are lawful spouses in accordance with regulations set forth in the Part governing family in the Civil Code applicable at the time of their wedding. Hu, who knows that he has a wedded spouse, filed marriage registration with. 政治大. the intent of contracting another marriage at the Household. 立. May 20th 2013, and thus committed bigamy.. 41. 學. ‧ 國. Registration Office in Zhongshan District of Taipei City with Hsu on. ‧. For a civil indictment, the claimant is expected to clearly write his (her) claim. Nat. an efficient way (for a basic form see Appendix 3).. al. v i n A judgment is a C court’s regarding the rights and liabilities of h e decision ngchi U n. Judgment:. 42. er. io. sit. y. statement (suzi-shen-ming 訴之聲明)so that the judge can process the case in. parties in a legal action or proceeding. A written judgment mainly consists of holdings, facts, and reasons for the judgment. As a whole, it provides the court's decision and an 41. Adapted from Taipei High Court Criminal Judgement 102 Tai-Sang-Zi No.193 (台灣高等法院 102 台上字第. 193 刑事判決). The Chinese original is as follows: 胡 OO 和劉 OO 於民國 94 年 12 月 4 日，在台北縣中和市（現改制為新北市中和區，下同）餐廳舉行公開結婚儀式並宴請多位賓客，雖未辦理結婚登記，惟依當時民法親屬編之規定，劉 OO 仍為胡 OO 之合法配偶。胡 OO 明知其係有配偶之人，竟基於重婚之犯意，於 102 年 5 月 20 日與許 OO 前往台北市中山區戶政事務所辦理結婚登記（斯時民法親屬編已改採登記婚制度），而重為婚姻。 42. Flores-Torres v. Holder 680 F. Supp. 2d 1099 (2009). 30.

(43) explanation of why it has chosen to make a particular court order. In this globalized world, important judgments or decisions can have an influence outside their country of origin. Taking an important decision in the history of same-sex marriage as an example, in the case of Obergefell v. Hodges, the holding in the judgment states: “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was. 政治大. lawfully licensed and performed out-of-State.” It is believed this decision may have. 立. influenced later amendments of legislation in many other countries.43. ‧ 國. 學. In a globalized society, a significant number of litigants are foreign nationals or. ‧. new immigrants. Thus, the wording of a judgment needs to be precise so that it is easily. y. Nat. io. sit. understood by speakers of different languages. In Taiwan, judgments are known for their. er. style of solemnity and archaic expressions such as shang (尚), zu (足), wei (惟), xi (係),. al. n. v i n yi (伊), xun-fei-ke-cai (洵非可採),Cand double negatives such as gu-fei-wu-jian (固非 h eeven ngchi U 無見 ), shang-you-wei-qia ( 尚有未洽 ), which makes them difficult to understand,. 43. Obergefell v. Hodges was a landmark decision United States Supreme Court case. The Court held that the. recognition and provision of same-sex marriage is a fundamental right. They ruled it is guaranteed by the Fourteenth Amendment to the United States Constitution. On June 26, 2015, Obergefell requires all states to issue a license to marry between all people of the same sex. It requires all states to recognize same-sex marriages performed in other jurisdictions.. 31.

(44) especially for foreign nationals and new immigrants. (see exerpts of both civil and. criminal judgements in Taiwan in Appendix 4). Between November 2016 and August 2017 Taiwan’s judiciary held three conferences on judicial reform. Each conference included the solicitation of opinions from various sectors, subgroup sessions, and a wrap-up session. The fourth sub-group was themed "establishing a participatory, transparent, and friendly judiciary," and focused on making judgments easy to read by. 政治大. adjusting their format and structure. Making legal documents more readable has also. 立. recently become a growing concern in the United States, where a movement spearheaded. ‧ 國. 學. by lawyers is promoting the reduction of legalese in legal writings to make them more. ‧. intelligible to the general public and to indirectly increase legal literacy. Subgroup 4-3,. Nat. io. sit. y. titled “Judicial Transparency,” focused on how to improve the relationship between. er. people and the judiciary, and suggested that this may be achieved by increasing the. al. n. v i n openness in judicial proceedingsC and U release of judicial information, h transparency e n g c h ini the and that such measures as direct court broadcasts and disclosure of indictments should be used to reach this goal. Subgroup 4-4, titled "Creating a People-friendly Judiciary," suggested that judges review the format and structure of their own judgments so as to make them more readable. Subgroup 4-4 also suggested that legal education should be strengthened so that legal concepts become deeply. Generally speaking, strict legal texts have a stricter requirement for precision in wording. 32.

(45) than do quasi-legal documents. Regardless of the type of legal document, when there is any vagueness or ambiguity involved, statutory interpretation might be needed, which is normally carried out by applying one or more of the interpretive canons discussed below.. 2.3 Statutory Interpretation: An Overview. I first look up “statute” on the Internet. It is defined in Wikepedia as : “A statute is a. 政治大. formal written enactment of a legislative authority that governs a state, city or country.. 立. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made. ‧ 國. 學. by legislative bodies; they are distinguished from case law or precedent, which is decided by. ‧. courts, and regulations issued by government agencies.”44 Since statutes are made by human. sit. y. Nat. beings, they are necessarily imperfect. Statutes are imperfect due to various reasons: (1). n. al. er. io. Words change in meaning over time: The word “let” used to mean “prevent” or “hinder,” but. Ch. i n U. v. now means “allow”; and the word “peculiar” is used to mean both specific and unusual. (2). engchi. Unforeseen situations are inevitable, and technological and cultural changes make application of existing laws difficult. For example, is e-mail protected as private information or not? (3) Uncertainties may arise in the course of enactment, such as the need for compromise or catering to special interest groups. Furthermore, interpreting any statutes is never a once-for-all task. The process and results of interpreting statutes are prone to be affected by. 44. Rretrieved on 2018/2/28 https://en.wikipedia.org/wiki/Statute. 33.

(46) the social order and the environment the set of statutes is aiming to protect.. 45. Below we go. over the traditional canons of statutory interpretation as these canons have been applied by the majority of countries in the world.. Even the VCLT was formulated using the principles found in these traditional interpretive canons. To trace the long history of legal science, the theory of interpretation has developed from counsel imparted by divinely inspired oracles, to a conceptual or mechanical. 治政大societal values and policies. The approach, to one of weighing and balancing contemporary 立 ‧ 國. 學. French legal scholar Montesquieu (1689-1755) states that those who hold judicial power do not make the law; for they are “only the mouth that pronounces the words of the law.”46 In. ‧. other words, a judge is only to pronounce the relevant statute according to his inference and. sit. y. Nat. io. n. al. the real situation or any consideration of the litigant.. Ch. engchi. er. deduction; he (or she) is not expected to weigh the purpose of the legislated statutes against. i n U. v. Statutory interpretation first became significant in the common law systems. Three general rules of statutory interpretation that developed over time in the English courts of the common law system are known as the Literal Rule, the Golden Rule, and the Mischief Rule. Under the Literal rule, the words in a statute are limited to their precise meaning. An example of a literal reading resulting in a harsh result is the London and North Eastern Railway v 45. 46. Karl Larnez, Metheodenlehre der Rechtswissenchaft 220 (Wunan, 2000). (translated by Ai-e Chen 陳愛娥) Retrieved 2017/5/6 from https://ouclf.iuscomp.org/articles/montesquieu.shtml.. 34.

(47) Beriman (1946) where a railway worker was killed while doing some “oiling” on a railway line. The judge would not grant Mrs. Berriman compensation for her husband’s death, as the relevant Act only stated that compensation was applied for workers “relaying” or “repairing” the line. Oiling did not come within either of the two categories. 47 Designed to remedy the shortcomings of the literal rule, the Golden rule can be applied narrowly or widely. Under the narrow approach, the court can only choose between the possible meanings of a word. Under. 政治大. the wider approach, the courts can modify the words in order to address a problem. The. 立. Mischief rule is when a court interprets a statute more broadly to deal with unforeseen. ‧ 國. 學. loopholes within the legislation.48. ‧. A look at the Xingan huilan (刑案匯覽), a collection of criminal cases of the Qing. sit. y. Nat. io. n. al. er. dynasty, provides an interesting example of mixing literal principle and golden rule in the. v. Chinese judicial history. According to the criminal code of the Qing dynasty, theft (竊盜) was. Ch. engchi. i n U. considered one of the most serious offenses, so when deciding the penalty for someone found guilty of theft, the magistrate would first consider the criminal’s occupation and status, as well as the actual situations of the victim when the incident occurred.49. 47. For more reference see e-lawresources.co.uk. http://e-lawresources.co.uk/London-and-North-Eastern-Railway-v-Berriman.php 48. For more reference see https://www.inbrief.co.uk/legal-system/statutory-interpretation/. 49. Pengsheng Qiu, Analysis of the Criminal Cases' History of Knowledge, 8 (Institute of History and Philology, Academia Sinica Ninth Research Symposium, 2004). 邱澎生,〈淺析刑案彙覽的知識史〉，中研院歷史語. 35.

(48) There appeared more methodologies of statutory interpretation during subsequent centuries when legal scholars and practitioners gradually found textualism not sufficient for finding the real meaning of the words or statutes. Simply speaking, in textualism the jurist begins with looking up certain words or phrases in the dictionary, and possibly examining the implications of the syntactic structures of the statute whenever possible. Other than textualism, there are the application of historical, systematic, and purposive methods to interpret a. 政治大. disputed statute. All these canons are loosely organized into a collection of rules for. 立. interpreting any vague or ambiguous words or passages occurring in statutory texts -- so. ‧ 國. 學. called “jurist’s interpretation.”50 In addition to the jurist’s interpretation, there are. ‧. authoritative interpretations by legislators, administrative organizations, and the judiciary.. y. Nat. io. sit. When there is an authoritative interpretation, the meaning it provides will be considered. n. al. er. before applying textualism. For example, Article 736 of the ROC Civil Code defines. Ch. engchi. i n U. v. 言研究所法律史研究室 2004 年第九次研讀會，頁 8，2004。Qiu states that in establishing guilt or innocence, in addition to the status and occupation of the accused, it was also necessary to consider whether or not the victim was to some degree responsible for the incident, by asking such questions as: “Did the victim fail to properly evaluate the situation, leading him to trust an untrustworthy person?; e.g., Did the victim willingly hand over the keys to someone whom he should have known was not to be trusted?” (行為成立與否時，不僅考慮犯罪人的身份職業，也考慮被害人是否也該負起一定「責任」（「究由寄託者之昧於審擇、信任非人；信任不當、妄託照管、並將鎖匙交付收執」）。 50. There may be additional interpretive methods in the collection of jurist’s interepetation (e.g.constitutional. intereretation, opposite interpretation, broadened, and narrowed interpretation), but these three methods are considered the most basic ones and worthy of preliminary discussion among interpretive methods.. 36.

(49) “compromise settlement” (和解) as a settlement whereby the parties terminate an existing dispute by making mutual concessions also intended to prevent the occurrence of a future dispute.51Similarly, Article 10 of the Criminal Code of the ROC defines several common terms:. The term “public official” means the following persons: 1. Those who are empowered with a legal function and serve an organization. 治政大engaged in public affairs of the state or a local autonomous body; and those 立 ‧ 國. 學. in accordance with law.. 2. Those who, entrusted by an organ of the state or a local autonomous body,. ‧. are engaged in public affairs within the authority of the entrusting. sit. y. Nat. io. al. er. organization.. v. n. The term “official document” means a document made by a public official in the course of his duty.. Ch. engchi. i n U. The term “serious physical injury” means one of the following: 1. Destruction of or serious damage to one or both eyes. 2. Destruction of or serious damage to one or both ears. 3. Destruction of or serious damage to the organs of speech, taste, or smell. 51. Chinese original of Article 736 of the ROC Civild Code: 稱和解者，謂當事人約定，互相讓步，以終止爭. 執或防止爭執發生之契約。. 37.

(50) 4. Destruction of or serious damage to one or more limbs. 5. Destruction of or serious damage to the power of reproduction. 6. Other serious injury to body or to health that is either impossible or difficult to cure. The term “sexual intercourse” means the following sexual acts that are not based on rightful purposes:. 政治大. 1. Insertion of a reproduction organ into the reproductive organ, anus or. 立. mouth of another person or an act that makes them connect.. ‧ 國. 學. 2. Insertion of a body part or object other than the reproductive organ into. ‧. the reproductive organ or anus of another person or an act to make them. io. sit. y. Nat. connect.. er. The term “electromagnetic recording” means a recording made through the. al. n. v i n C optical, use of electronic, magnetic, similar means. h e n org other chi U. 52. Chinese original of the ROC Criminal Code Article 10:. 38. 52.