Why is it needed to study “Terminology with difficulties” of a specific register of law.

1. The Reception of Terminology with Difficulties in Thai Civil and Commercial Code: A Comparative Perspective for Lawyers and Paralegals byJutharat CompeerapapChulalongkorn UniversityLanguage Institute

2. The Reception of Terminology with Difficulties in Thai Civil and Commercial Code: A Comparative Perspective for Lawyers and Paralegals • Why is it needed to study “Terminology with difficulties” of a specific register of law. • The language of a specific register of law, although,has been taught in Thailand for almost twenty years, studies on the nature, development and frame of “terminology with difficulties” are strikingly non-existent. • “Terminology with difficulties” is the term with vague legal concepts, flexible and not static meanings. They are terms in jus aequum which allows discretion power to interpret the terms for justice.

3. Translation of Terminology with Difficulties:Sources of Laws and Sources of Language • The primary difficulty of legal translation depends on the affinity of the legal systems and only subsidiary on the affinity of the source language (SL) and target language (TL). • Legal information or contents of one legal language system of a source term signifies a conception of a target term. The translator needs to establish the content of the source term and subsequently searches for a term in the target language with the same or similar content. This makes the translator a comparatist who also has to take care of “false friends.” Therefore, translators of legal information are faced with comparative legal systems

4. Translation of Terminology with Difficulties:Sources of Laws and Sources of Language (cont.) • SL TL • Thus, in legal translation, it should be from one legal language (source language - SL) to another legal language (target language -TL) of the same legal system.. It results in creating “equivalent terms” between SL and TL. • If they are from different legal systems, “near equivalent”, “phrasologism” or “neologism” occur.

5. Discretion Power and Juristic Method in Civil Law Interpretation • In civil law system countries, judges have wide freedom in applying various methods when the “legal term” is vague and allow discretion powers to interpret and the interpretation is in the subjective manner. This is when juristic method is applied. • It is the Supreme Court Judgment which can provides the interpretation of provisions in question, in this case - of the term in question. • Judicial legal reasoning - when judges use legal reasoning exercising discretionary power to provide legal concepts, it is based on three criteria - their moral consciousness or good morals and the interpretation of the intendment of law and precedents. (Wicha Mahakhun, Law Journal)

6. The terms jus aequum or ‘law of justice’: <<in good faith>> • The terms in jus aequum or ‘law of justice’: allow discretionary powers to interpret subjectively the rules for administering justice. • One important term in question is <<in good faith>> of which contexts are related to <<good morals>> and <<public order>>. • The essence of the focus term in question, <<in good faith>> is whether a person acts not knowingly in good faith on the facts. Since the proof is related to the intention of the act which is a subjective, context of law in court cases would help define the term.

7. Why is it needed to study <<in good faith>>? • The reason that the terms <<in good faith>> becomes the main emphasis of the study is that the principle of good faith is the General Principle of Thai Civil and Commercial Law which can be applied to other laws as stated in Section 5 that every person must, in the exercise of his rights and in the performance of his obligations, act in good faith. • The term contains unclear legal concepts and cannot make clear beforehand (Kasaemsub, Preedee. 1982,General Civil Law, p.32-33)

8. Related terms <<public order>> and <<good morals>> • In rising whether in exercise of one’s rights or in the performance of a person’s obligations, that particular must be under <<public order>> or << good morals>> or moral consciousness of the defendant.

9. Perception of Lawyers and Parlegals • With the complexity of the studied terms, perception of lawyers and paralegals becomes different. • Paralegals would firstly apprehend the term <<in good faith>> in the contexts of language. • Considering from literary with Thai characters <<โดยสุจริต>> or <<doi sujrit>>, <<doi>> refers to <<with>>, <<su>> refers to <<good>> and <<jrit>> refers to <<thoughts>>; therefore, the complex word of <<doi sujrit>> can be perceived as <<with good thoughts>>.

10. Perspective of Lawyers to <<in good faith>> • In the parameter of law for the term <<in good faith>> which is the General Principle of Thai Civil Law, the principle of good faith relates to the principle of honesty and trustworthiness which allows the notions of public morals or moral consciousness as one of the factors when the principle of good faith is applied. • “Moral consciousness” depends on “ordinary usage” in a certain society which lies under local custom or culture.

11. Perception of Paralegals • Paralegals with linguistics background and some knowledge of contexts of law would relate contexts of language to the contexts of law. • Language is the tool to reveal the clearest concept of its context in terms of language approaching to law and at the same time also approaches to language.