Perhaps no area of the law resists translation as stubbornly as civil procedure.
Substantive legal concepts are pretty similar across jurisdictions. Similar enough, at least, to allow a close paraphrase when no one-to-one equivalence exists. But the terms used in civil procedure are so deeply embedded in the structure of the source legal system that it can be nearly impossible to find equivalents that will make sense to the target legal audience.
(The only equivalent challenge I can think of would be in the translation of terms for specific linguistic phenomena in the source language. For example, a translator translating a text that uses terms for specific Korean speech levels like 하오체 or 해라체 will often have little choice but to transliterate them, perhaps appending some ad hoc explanation.)
So one has to be sympathetic to the plight of a translator facing a text like the Korean Civil Procedure Act (민사소송법).
Still, it is impossible not to be struck by the clear errors of terminology in the KLRI translation of the Civil Procedure Act. For example:
[Suggested alternative translation through first paragraph: SECTION 1 Argument // Article 134 (Necessity of Argument) // (1) The parties must argue their case before the court. However, if the court’s ruling will conclusively resolve a matter, the court shall determine whether or not to hold argument.]
The problem here is the Korean term 변론 (byeollon, “argumentation”). It refers specifically to in-court argument by parties or their counsel. In the legal context, byeollon can generally be translated as “argument,” for example in phrases like 구두변론 (“oral argument”). In specific cases it might also be properly rendered as “hearing” or “trial.”
But here — as in many, many other places online — byeollon is translated as “pleading.”
In legal English, the “pleadings” are the plaintiff’s complaint and the defendant’s answer (or the equivalent terms used in non-US jurisdictions). Pleadings are generally exchanged at the very outset of litigation, long before any arguments are held in court.
You don’t have to take my word for it. The canonical US legal dictionary, Black‘s, defines “pleading” with two closely-related senses: (1) the “formal document” in which a party to litigation “sets forth or responds to allegations, claims, denials or defenses”; (2) the system by which such formal documents are exchanged.
And it isn’t just the US. The Australian Butterworth’s Concise concisely defines “pleadings” as “written or printed statements which alternate between the parties to a dispute and define the issues to be decided in an action.”
So “pleading” is clearly not the right word for the in-court argumentation meant by byeollon. But it gets worse: translating byeollon as “pleading” leads in some cases to exactly the opposite of the intended meaning.
For example, a “무변론판결” (a judgment without byeollon, i.e. without arguments) is closest to the US practice of “judgment on the pleadings.” To translate it as a “judgment without pleadings” would be very misleading indeed, and is likely to leave the legal reader scratching her head.
It’s easy to see how this sort of error arises, and also how it gets propagated through online dictionaries and fora. “Pleading” is one of those many legal words that has an obvious non-legal meaning. Thus, to someone who hasn’t been immersed in the legal language of an English-speaking country, there might seem to be nothing obviously wrong with describing a lawyer’s oral argument as “pleading.”
But if a translation of legal procedural rules has any audience at all, that audience is a legal one. And to any reader with an Anglo-American legal background, a “pleading” can refer only to one of those documents that set out the parties’ initial claims and defenses.
Of course, 변론 is just one word. As with many other legal terms, most of the time, this word’s mistranslation won’t have serious consequences. But little mistakes can add up. And that highlights the importance of a legal translator being conversant not only in the source and target languages, but also specifically in the source and target legal languages.