NGHIÊN cứu đối CHIẾU các CHỨC DANH TRONG hệ THỐNG LUẬT PHÁP TRONG TIẾNG ANH và TIẾNG VIỆT

The study aims at contrasting systems of professional words denoting titles in legal systems of Vietnam and of other countries, mainly the United States.. Although the law system of Viet

Chapter 1: Introduction

1.1 Aims of the study

Whenever a person thinks of law, (s)he will associate it with complication and a sense of hesitation In my opinion, they are quite reasonable to have such stereotypes

The first reason is the language of law, as Tiersma (2000) said, is a “separate language” that differs dramatically from everyday speech He also added that legal language is decidedly peculiar and hard to understand, especially for the perspective of the lay public The oddity of the language is due to many Anglo-Saxon, Latin and Norman French relics Beside archaic vocabulary, legal language is also famous for its lengthy and complex sentences Tiersma (2000) explained that the lengthy sentences are used because they can place all information on

a particular subject into a self-contained unit, so the ambiguity will be reduced

The language of law has many other features, which made it becomes a kind of variety The followings parts will clarify this kind of variety

The second reason lies in the fact that legal systems in different countries operate not the same way The two most common kinds of law are common and civil law According to Wikipedia, the free encyclopedia, common law is often referred to as "judge-made-law" It requires judges to use their discretion in making judgments It is used when no appropriate statute law exists A judges' decision may set a precedent, which must then be followed by all lower courts when the facts of the case are similar (Retrieved from http://en.wikipedia.org/wiki/Lawyer) Civil law has its roots in Roman law, Canon law and the Enlightenment The legal systems in many civil law countries are based around one or several codes of law, which set out the main principles that guide the law The main difference that is usually drawn between the two systems is that common law draws abstract rules from specific cases, whereas civil law starts out with abstract rules, which judges must then apply to the various cases before them

The difference in legal systems is also the main obstacle for foreigner to understand the legal language of the other countries

The study aims at contrasting systems of professional words denoting titles in legal systems of Vietnam and of other countries, mainly the United States From the contrast, the sameness and

differences will be concluded, so I hope it will help Vietnamese learners in general and law students in particular to have proper understanding and use of legal titles

1.2 Methodology

In order to contrast legal titles in American legal system with those in Vietnamese legal system, I will adopt contrastive method suggested by James C (1980) The contrastive method requires two steps:

- Step one: In this step, a full description of legal titles in American and Vietnamese legal system will be made

- Step two: After the descriptive process is the comparison stage At this stage, similarities and differences are inferred

Beside contrastive method, qualitative method is used Data from many sources related to the topic are collected to serve for description and comparison stages

1.3 Scope of the study

Since there are many titles in legal system, the study will choose to compare professional titles

in judicial branch and only some prominent titles are selected It should be noted that the legal system of the United States of America is chosen to compare with those of Vietnamese The main reason explained for the differences of the two legal systems is the legal culture of the two countries and the study only deals with linguistic aspect

1.4 Significance of the study

The study will be of great help for foreign language learners as well as for law students It will help them to have proper understanding of legal titles as they can use a checklist of legal titles

as a reference source

Chapter 2: Theoretical background

2.1 General description of legal language

Language, as Yon Maley (1994) said in his article “The language of law”, is the medium, process and product in the various arenas of the law Although the law system of Vietnam and the United States of America is not the same, the legal languages of both systems, share some characteristics as follows:

Legal language is often full of antiquated, archaic or unnecessary words It is also famous for its definiteness, preciseness and technical words Legal language tends to spell things out without painstaking attention to minute detail In everyday language, in order to reach our communicative purposes, we ordinarily try to leave the obvious unsaid, we take it for granted that people know what we are thinking and understand what we mean In a legal discourse, nothing can be taken for granted, individual significant details must be stated explicitly Besides, the complexity of certain legal concepts demands a corresponding complexity in sentence structure In the legal language, the structure of a sentence can by surprisingly complicated Hardly can we find a simple sentence In stead, we often find sentences with qualifying phrases and dependent clauses

In the next parts, we will examine in more detail the features of legal English and Vietnamese

2.1.1 Characteristics of English legal language

When discussing language of law, Tiersma (2000) held the view that legal language is strange and often hard to understand, especially from the perspective of the lay public He even classified legal language as a separate language Lawyers, as he said, often use long, complex and redundant sentences, conjoined phrases, impersonal instruction and arcane words or phrases The reason for the use of lengthy and complex sentences is explained as due to the desire to place all information on a particular topic into one self-contained unit Tiersma (2000) said this tendency presumably reduces the ambiguity that might result if conditions on

a rule or provision are placed in separate sentences

Tiersma (2000) also added that the language of law can sometimes be informal and versatile

In discussing the language of law, Bhatia K (1993) indicated that legal language encompasses several usefully distinguishable genres depending on communicative purposes, the settings, or contexts in which they are used to classify, the communicative events or activities they are

associated with, the social or professional relationship between the participants bring to the situation in which that particular event is embedded and a number of other factors The result

is that the author classified the language of law into many subtypes, such as textbooks, journals, cases, judgements, contracts, agreements, insurances, jury instructions

When González (1999) wrote about ways of gripping legal language, he also gave out some features of the language that cause problems for learners , i.e grammatical and syntactical difficulties, terminological and phraseological conventions of the field, the differences that hold between the legal systems, for instance, in the case of the English-Spanish language pair Furthermore, students of legal English are exposed to certain technical concepts that they might not yet have come across in their Law course

From discourse analysis perspective, legal text is considered from different levels Llopis María Ángeles Orts (1999) divided legal text into two main different levels: Intra-discourse level and Inter-discourse level

The intra-discourse level of analysis includes the textual level and the discourse level At textual level, as far as lexical terms are concerned, “the text under analysis shows the appearance of typical features, namely technical terms or terms of art, i.e., words specific to the genre” ( Llopis (1999)),

With regard to syntactic features, the author stated that legal text often includes the use of nominalization, passives, conditionals, use of unique determiners, parallel structures, as well

as a high frequency of prepositional phrases in unusual position

The discourse level “includes the strategies to achieve cohesion and coherence in the text” (Llopis (1999)).Coherence is achieved in “the conceptual and formal obscurity, aimed at being understandable to the legal specialist , to offer clarifications about various aspects of the policy and make it unambiguous –confusing and hermetic though it may seem to the layman” (Llopis (1999))

From the inter-discourse level of analysis, the author noted that most legislation has to be understood against a background of related law, mostly common law

Concluding remarks: The language of law is a kind of register, and legal English is a mixture

of many difference antique languages of the Celt, Anglo-Saxon, Dane, French and Latin As a special kind of register, it requires separate systems of vocabulary, structure and terminology which cause considerable challenges for non-professional people

2.1.2 Characteristics of Vietnamese legal language

Beside common features of legal language, Vietnamese laws have its own characteristics The language of law is considered to be the most typical example of scientific style, which is characterized by precision and objectiveness However, in order to reach the preciseness, sometimes the documents are considered to be too complicated and hard for reader to interpret

Since Vietnamese itself is not clear in terms of time and tense, some legal documents in some cases do not indicate time and tense precisely, which causes considerable problems when the law is applied

According to Anh Luu (2006), despite significant improvements, Vietnamese legislation work

is still weak resulting in the legal system being inadequate and unstable Besides, the laws in Vietnam are still inconsistent, so sometimes law terms in different document are not consistent That is the reason why it is required that law terms should be precise and popular (From “M t s v n v k thu t so n th o v n b n qppl”)

There is a tendency that Vietnamese legal language uses short sentences with a logical sequence

For example, the term below is a lengthy sentence and difficult to understand There are many repetitions which can be eliminated Such phrases as “kinh doanh, hàng hoá, d ch v ” are repeated many times, and the term can be shortened The example below is extracted form website http://my.opera.com/mauvanban/blog/index.dml/:

The long form:

" i v i hàng hoá, d ch v kinh doanh có i u ki n, các t ch c ho c cá nhân không

c phép kinh doanh mà kinh doanh, ho c c phép kinh doanh mà trong quá trình kinh doanh không th ng xuyên m b o các i u ki n qui nh cho lo i hàng hoá, d ch v ó, u coi là hành vi kinh doanh trái phép, tu theo m c vi ph m s b x lý hành chính ho c b truy c u trách nhi m hình s theo qui nh c a pháp lu t hi n hành " (Article 15 Decision 36-CP5 January 1995 of the Government)

And the reduced form:

" Vi c kinh doanh nh ng hàng hoá, d ch v có i u ki n khi không c phép ho c không m b o các yêu c u qui nh i v i hàng hoá d ch v ó u b coi là hành vi kinh doanh trái phép và có th b x lý hành chính ho c truy c u trách nhi m hình s tu theo m c

vi ph m "

From 90 words, the term has been reduced to 60 words but the content is unchanged

Vietnamese legal language is often seen as colloquial language, as a result, some documents are redundant The main reason for the redundancy is that compilers’ negligence and they use many synonyms of terms

For example:

" H p ng kinh t là s tho thu n b ng v n b n, tài li u giao d ch gi a các bên ký k t v

vi c th c hi n công vi c s n xu t, trao i hàng hoá, d ch v , nghiên c u, ng d ng ti n b khoa h c k! thu t và các tho thu n khác nh m m c ích kinh doanh v i s quy nh rõ ràng quy n và ngh"a v c a m#i bên xây d ng và th c hi n k ho ch c a mình "

(Article 1 Law on Economic Contract)

If the repetition of terms that have the same meaning is avoided, the article will be shortened, thus, it will make the regulation more precise and easy to understand In the example, the two terms “v n b n” and “tài li u” have the same meaning

Concluding remarks: There are a lot of problems with Vietnamese legal language The reason may be due to the fact that our legal system is still new compared with hundreds of years of countries like England and the United States Our legal language will need more time

to evolve

2.2 Overview of Vietnamese and American legal system

2.2.1 An overview of Vietnamese legal system

According to Vietnam Union of Science and Technology Associations’ website (http://www.vusta.vn/English/law.asp), from early history, Vietnamese feudal administrations were quite aware that in order to reign and administer the country they ought to set out their law The Lý, Tr n and Lê dynasties followed that way, however, only until the Anterior Le and then the Nguy n, was ruling by written law attached so much attention to So far, the

H ng c Code (15th century) has been regarded a great and advanced code of the Vietnamese feudal dynasties

Compared to that of Europe and America, the building up of the law and governing over the country by the law in Vi t Nam were many centuries behind theirs; only when a new State - the Democratic Republic of Vi t Nam - came into existence, was building the new law considered an important task of the State

According to an article introducing legal system in Vietnam on website http://www.thna.com/legalsys.htm of Tran H N & Associates, legal system in Vietnam is based on communist legal theory and French civil law, with major modifications and additions from Marxist-Leninist ideology

There are many similarities to the laws of former socialist countries, especially the former Soviet Union Still, some French influence also remains due to a long colonial period from the

19th into the mid 20th century

From the end of the 80ies the Vietnamese legal system has undergone important changes following the country's economic reform Within only a few years, the National Assembly enacted several laws and codes replacing decrees being the only legal basis for a long period

One important purport of the legislation in Vietnam is to cope with international standards in order to promote international transactions from and into Vietnam

However, Vietnamese law has not covered all fields of life or sometimes there is overlap between the regulations of the laws That is the reason why Vietnamese government is trying hard to perfect Vietnamese legal system

2.2.2 An overview of American legal system

According to Wikipedia - the online dictionary, the law of the United States was originally largely derived from the common law of the system of English law, which was in force at the time of the Revolutionary War However, the supreme law of the land is the United States Constitution and, under the Constitution's Supremacy Clause, laws enacted by Congress and treaties to which the U.S is a part of These form the basis for federal laws under the federal constitution in the United States, circumscribing the boundaries of the jurisdiction of federal law and the laws in the fifty U.S states and territories

In the United States, the law is derived from four sources These four sources are constitutional law, administrative law, statutes, and the common law (which includes case law) The most important source of law is the United States Constitution All other law falls under, and is subordinate to, that document No law may contradict the United States Constitution For example, if Congress passes a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional

Notably, a statute does not disappear automatically merely because it has been found unconstitutional; it must be deleted by a subsequent statute Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional However, under the principle of stare decisis, no sensible lower court will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court

Federal law in the United States originates with the Constitution, which gives Congress the power to enact statutes for certain limited purposes like regulating commerce Nearly all statutes have been codified in the United States Code Many statutes give executive branch agencies the power to create regulations, which are published in the Federal Register and

codified into the Code of Federal Regulations Regulations generally also carry the force of law under the Chevron doctrine Many lawsuits turn on the meaning of a federal statute or regulation, and judicial interpretations of such meaning carry legal force under the principle of stare decisis

The fifty American states are separate sovereigns with their own state constitutions and state governments They retain plenary power to make laws covering anything not preempted by the federal Constitution, federal statutes, or international treaties ratified by the federal Senate

2.3 The structure of Vietnamese and American courts

2.3.1 The structure of Vietnamese courts

According to website http://www.country-data.com/cgi-bin/query/r-14709.html, Vietnamese court can be seen as the diagram below:

Vietnam's judicial bodies are the Supreme People's Court, the local People's Courts at the provincial, district, and city levels, the military tribunals, and the People's Organs of Control

It must be added that there is another name of The People’s Organ’s of Control, i.e Supreme

People’s Procuracy of Vietnam Under special circumstances, such as showcase trials involving breaches of national security, the National Assembly or the Council of State may set

up special tribunals

The Supreme People's Court is the highest tribunal and is charged with the supervision of subordinate courts As a court of first instance, it tries cases involving high treason or other crimes of a serious nature; and as the highest court of appeals, it reviews cases originating with the lower courts Appeals are infrequent, however, because lower courts tend to act as final arbiters

Local people's courts function at each administrative level except at the village level, where members of the village administrative committees serve in a judicial capacity Proceedings of local courts are presided over by “h i th m nhân dân” (people's assessors) The tribunal panels

at the first instance are composed of both judges and people's assessors (usually one judge and two people's assessors)

The Supreme People's Organs of Control function as watchdogs of the state and work independently of all other government agencies, although they are nominally responsible to the National Assembly

A judging council, made up of a judge and one or more people's assessors (lay judges), determines guilt or innocence and also passes sentence on the convicted The relevant people's council appoints people's jurors, who are required to have high moral standards but need not have legal training

2.3.2 The structure of American courts

American courts can be diagrammed as follows, according to website http://usinfo.state.gov/products/pubs/legalotln/index.htm

The court system of the United States is more complex than that of Vietnam The Supreme Court is the highest court of the United States, and the only one specifically created by the Constitution A decision of the Supreme Court cannot be appealed to any other court

Article III of the Constitution states the basis for the federal court system: "The judicial Power

of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

THE FEDERAL COURT SYSTEM

With this guide, the first Congress divided the nation into districts and created federal courts for each district From that beginning has evolved the present structure: the Supreme Court, 13 courts of appeals, 94 district courts, and two courts of special jurisdiction Congress today retains the power to create and abolish federal courts, as well as to determine the number of judges in the federal judiciary system It cannot, however, abolish the Supreme Court

The Supreme Court

of the U.S

Courts of Appeals

12 -

Geographic-based and one for

the Federal Circuit

The U.S Court of Appeals for the Federal Circuit

The Court of Military Appeals

International Trade

The United States Criminal Appeal Court

of Army, Navy, Air Force, Marine Corps, and Coast Guard

The court system of the United States

Federal problems arising from states

The power of the federal courts extends both to civil actions for damages and other redress, and to criminal cases arising under federal law

The Supreme Court has original jurisdiction in only two kinds of cases: those involving foreign dignitaries and those in which a state is a party All other cases reach the Court on appeal from lower courts

COURTS OF APPEALS AND DISTRICT COURTS

The second highest level of the federal judiciary is made up of the courts of appeals, created in

1891 to facilitate the disposition of cases and ease the burden on the Supreme Court Congress has established 12 regional circuit courts of appeal and the U.S Court of Appeals for the Federal Circuit The number of judges sitting on each of these courts varies considerably (from 6 to 28), but most circuits have between 10 and 15 judges

Below the courts of appeals are the district courts The 50 states and U.S territories are divided into 94 districts so that litigants may have a trial within easy reach Each district court has at least two judges, many have several judges, and the most populous districts have more than two dozen Depending on case load, a judge from one district may temporarily sit in another district Congress fixes the boundaries of the districts according to population, size, and volume of work Some of the smaller states constitute a district by themselves, while the larger states, such as New York, California, and Texas, have four districts each

SPECIAL COURTS

In addition to the federal courts of general jurisdiction, it has been necessary from time to time

to set up courts for special purposes These are known as "legislative" courts because they were created by congressional action Judges in these courts, like their peers in other federal courts, are appointed for life terms by the president, with Senate approval

Today, there are two special trial courts that have nationwide jurisdiction over certain types of cases The Court of International Trade addresses cases involving international trade and customs issues The U.S Court of Federal Claims has jurisdiction over most claims for money damages against the United States, disputes over federal contracts, unlawful "takings" of private property by the federal government, and a variety of other claims against the United States

STATE COURTS

In America, each state is free to adopt any organizational scheme it chooses, create as many courts as it wishes, name those courts whatever it pleases, and establish their jurisdiction as it sees fit

The state courts may be divided into four general categories or levels: trial courts of limited jurisdiction, trial courts of general jurisdiction, intermediate appellate courts, and courts of last resort

Chapter 3: Contrasting professional titles in legal systems of the United States and Vietnam

3.1.1 Main titles in Vietnamese judiciary

Although the judiciary of Vietnam consists of two bodies, i.e the People’s Court and the Organ’s of Control, the system of titles is not complex According to “The 2004 Civil Procedures Code”, titles of the People’s Court consist of “chánh án, th$m phán, h i th$m nhân dân, ki m sát viên, lu t s , th ký tòa án” The power and duty of these titles are defined in Vietnamese law like “The 2004 Civil Procedures Code” and “Law on lawyers” We will consider the roles of those titles in the following parts

“chánh án”: According to “The 2004 Civil Procedures Code” , chief justice has the duty to organize the work of resolution of legal procedures, make decisions assigning justices or people’s jurors, court clerks Chief justice also has the power to replace a judge, people’s jurors or court clerk

“th$m phán” has the power to prepare files of cases, make decisions summoning persons participating in trials, participate in hearings trials

“h i th$m nhân dân” have the duty to study files of cases prior to the commencement of a trial They also have the power to propose the chief justice or judge to issue necessary decisions which fall under his or her authority They participate in hearings of cases and vote

on issues

“ki m sát viên” have the responsibility to supervise the compliance of judgements and decisions of the court with law in trials They also participate in civil cases and have the power

of prosecution in criminal cases

“lu t s ”: According to “Law on lawyers”, lawyers can participate in legal proceedings as a representative for the detained, charged or accused person, or the person protecting legitimate rights and interests of the victim, civil plaintiff, civil defendant or the person who has rights and interests in the criminal case A lawyer can participate in legal proceedings as the person representation or protecting legitimate rights and interests of the parties in civil, economic, labor and administrative cases They also can participate in arbitration proceedings, provide legal advices to clients or act as a representative for clients to perform law-related works

“th ký phiên tòa” has the duty to carry out the preparation for necessary professional activities and prepare trial transcripts

3.1.2 Main titles in American judicial branch

The North Carolina Wesleyan College’s website http://faculty.ncwc.edu/toconnor/justitle.htm offers a list of job titles related to the U.S courts However, not all jurisdictions may have these positions, and most of them cannot be obtained by lateral entry simply with a college degree (although some of them can) Here is the list:

Arbitrator, Assistant Administrator, Assistant Prosecutor, Background Investigator, Bailiff, Bondsman, CJ Systems Planner, Court Clerk, Court Reporter, Courthouse Security, Defense Attorney, Deputy Assistant, Diversion Specialist, Expert Witness, Grants Administrator, Investigator, Judicial Assistant, Law Clerk, Lawyer, Legal Research, Manager, Mediation Specialist, Paralegal, Parole Officer, Probation Officer, Process Server, Sentencing Analyst, Victim Restitution

The website www.ncsonline.org offers a lot of jobs that relate to the court Under each title, there are specific positions The number of sub-positions is very large For example, under the title Administrative Office of the Courts Administrators, there are State Court Administrator, Deputy State Court Administrator, Regional Administrator, Legal Counsel, Judicial Conduct,

Disciplinary Board Directors/Coordinators, Analysts Court, Services Information Technology Administration, Finance Public Relations/Information, Administrative, Editor, Human Resources

Since there are a lot of titles related to the court, the paper only mentions main titles and they will be contrasted with those in Vietnamese in terms of semantic field The most basic titles are: chief justice, judge, magistrate, juror, legal counsel, court attorney, attorney, court clerk and prosecutor

The role and duty of these titles are described specifically in websites of North Carolina Wesleyan College and National Center of State Court

“chief justice”: The Chief Justice’s role is to set the agenda for the weekly meetings where the justices review the petitions for certiorari, to decide whether to hear or deny each case Power of the Chief Justice has significant influence over the direction of the court The Chief Justice also writes an annual report about the federal judiciary, which he or she presents to Congress

By virtue of his position, the Chief Justice is the chair of the Judicial Conference and the Federal Judicial Center and oversees the Administrative Office of the U S Courts These organizations monitor different aspects of the federal judiciary The Chief Justice is also honored with a position on the board of the National Gallery of Art, the Smithsonian Institution, and the Hirshorn Museum

Each court in the federal system has a chief judge who, in addition to hearing cases, has administrative responsibilities relating to the operation of the court The chief judge is normally the judge who has served on the court the longest

“Magistrate” is actually a term refer to a kind of judge at district level The role of magistrate

is to do legal research activities at the trial court level The work of magistrate involves considerable interpretation and judgment in the analysis of legal issues in administrative law and the areas mentioned above (S)he performs a variety of judicial duties in judicial system including deciding the merits of cases, hearing and evaluating evidence and witness credibility, analyzing laws and rules, making findings of fact and conclusions of law and

issuing oral or written decisions and orders to resolve cases (S)he also provides administrative direction for the operation of a judicial division including supervisory accountability for division staff, volunteers or interns

“Judge”: Judge’s duty is to perform professional judicial duties in interpreting and applying the local, state and federal laws and manage the activities of the operating of the court (S)he also presides over a variety of hearing including criminal misdemeanor and traffic arraignments, driving and curfew arraignments, criminal non-jury trials, and pre-trial conferences; Review requests for continuances; grant or deny requests

“Counsel”: The duties of a counsel are to provide technical legal advice to managers, supervisors and employees in order to avoid or minimize legal liability, to conduct legal research, interprets laws, rulings, and regulations for clients (S)he also has to prepares legal briefs, develops strategy, arguments, and testimony in preparation for presentation of case

“Attorney”: This position entails reviewing documentation, investigating information in preparation for hearings, conducting hearings, and preparing reports, minutes, reviews and legal memorandum The attorney also has to analyze policies and procedures and draft requested changes to rules and regulations (S)he may have to conduct legal research; draft presentments and committee reports; prosecute matters at disciplinary hearings; appear for oral argument before the Supreme Court and prepare ethics Additional duties will include the preparation of the Annual Report; and assisting with staff support

“Jury” and “Juror”: In the law, a jury is a body of citizens in a common law jurisdiction which decides questions of fact in a legal case The members of a jury are known as jurors

In the US, the term can refer to a grand jury which issues an indictment or a petit jury which is present at a trial In the United States, England and Scotland, defendants in most serious criminal cases have a right to trial by jury, although in practice most criminal actions in the

US are resolved by plea bargain

Juries are also used in many civil cases in the United States, and the United States Constitution explicitly protects the right to a jury in civil as well as criminal cases In criminal cases, the right to a jury trial belongs to the defendant; if the defendant decides he or she is likely to do better without a jury, the prosecution cannot insist on one

The jurors then hear the cases presented by both the defense and prosecution, and in some jurisdictions a summing-up from the judge They then retire as a group to consider a verdict in secret, which they must reach unanimously in US criminal cases On the rare occasions when

no unanimous decision can be reached by the jury, a mistrial is declared, and the case must be retried with a newly constituted jury

“Prosecutor”: The prosecutor’s duty is presenting the case against an individual suspected of breaking the law in a criminal trial However, in the United States, “attorney” is often used in stead of “prosecutor”

“Court clerk”: The clerk maintains authority over financial performance, staffing, budgets, and efficient caseload processing; monitors and performs procedures to ensure compliance with statutory requirements, the needs of the Court, other criminal justice agencies, and the public, consistent with sound management principles In addition to management responsibilities, the clerk often has to assist with direct customer service tasks as needed to provide timely public service

3.2 Contrasting professional titles in legal systems of the United States and Vietnam

From the description process we have made, in the next part, we will contrast the most prominent titles the judiciary of Vietnam and the United State one by one

3.2.1 The position of judge

It can be said that there is great difference between English and Vietnamese in system of terms denoting legal titles in English and Vietnamese

In Vietnamese legal system, for “judge” position, beside the term “th m phán”, there is one synonym, i.e “quan tòa” According to Vietnamese dictionary, “quan tòa” means “a person who hears cases in court”, and “it is a synonym of “th m phán”” Actually, “quan tòa” is often used in the old days, nowadays it has colloquial meaning and often appears in articles or reports, not in legal documents

An example below will show us about the use of the two terms The example is an extract of

an article on Vneconomy, an online newspaper:

“Khi quan tòa m t qu n i ki n

Ngày 25/6, bà Th m phán Judith Bartnoff ã ra b n án cu i cùng i v i v ki n l lùng

nh t su t hai n m qua M và thu hút s chú ý l n c a d lu n: “Ch ti m gi t i Custom Cleaners không vi ph m lu t b o v ng i tiêu dùng c a thành ph Ông Roy Pearson, Th m phán Lu t Hành chính th ô Washington DC g i qu n ti m gi t

i Custom Cleaners nh s a Qu n th t l c Vài ngày sau, ch ti m a qu n ra tr , Pearson nói không ph i qu n c a ông và do ki n (…)”

In the headline, the term “quan tòa” is used, however, in the article, the other word “th m phán” is employed The explanaion for the difference is that, the term in the headline is often used colloquially and it has humorous sense when it is combined with other words “m t

qu n”, thus it has the effect of attracting readers The term “th m phán” is used twice in the content of the article with a serious sense to denote a title in the courts of America

In the language of judicial branch of the United States, we have at least three other words denoting the same position as “th m phán” Although the word “magistrate” is not very common in America, it does exist and it denotes a judge at district level and he only solves less serious cases “Justice” is a synonym of “judge”, and it implies that judge is the one who brings justice to the society The word “jurist” is a hypernym of “judge” According to Websters-online dictionary, it has two meanings, i.e a legal scholar versed in civil law or the law of nations or a public official authorized to decide questions bought before a court of justice

The official title of “magistrate” is "United States Magistrate Judge." A United States Magistrate should be addressed orally and in writing, as "Judge _," to be consistent with the position's judicial role and official title as prescribed by law Although some state courts have a judicial officer called a "magistrate," that title as applied to a United States Magistrate Judge is obsolete To address these judges simply as "Magistrate" is akin to improperly addressing a Lieutenant Colonel as "Lieutenant," or a Bankruptcy Judge as

"Bankruptcy."

According to website http://www.ilsd.uscourts.gov/proudmisc.html, the difference between the two terms “magistrate” and “judge” is that while “district judges are life-tenured judges nominated by the President and confirmed by the Senate, magistrate judges are fixed-term judges appointed by district judges for eight-year renewable terms via a merit selection process”

Within guidelines set by the Congress, the judges in each district court establish the duties and responsibilities of their magistrate judges The legislation permits a magistrate judge, with the consent of the involved parties, to conduct all proceedings in a jury or nonjury civil matter and enter a judgment in the case and to conduct a trial of persons accused of misdemeanors (less serious offenses than felonies) committed within the district, provided the defendants consent There are still many other words that have semantic relations with the two titles “magistrate” and “judge” For people that do not have knowledge of law, they may not fully understand the differences of the meaning of “magistrate, jurist, justice” and “judge” According to the website http://www.websters-online-dictionary.org, the four words have one common meaning, i.e to denote “an official authorized to decide questions bought before a court of justice” However, each word has its own aspects of meaning The term “judge” can replace the two words “magistrate” and “justice” In fact, as we have known, “magistrate” in the America is appointed by district judge and has limited power, only solve less serious criminal and civil cases The word “justice” has many other meanings beside to be the synonym of

“judge” The term “jurist” denotes someone who studies, develops, applies or otherwise deals with the law

We can analyse the four words semantically like this:

In judicial opinion

authority to administer and enforce law, involved with judiciary matters, i.e a justice of the peace

Level of administrative working

Working in specific office

Popular term in the U.S

* In Vietnamese judiciary, the judge who has the highest power in the judiciary is called

“chánh án” and at all levels of courts (People's District Courts and the Supreme Court) the head of the court is also called “chánh án” However, in American judiciary, “chief justice” is only used to denote the head person of the Supreme Court Each court in the federal system has a “chief judge” who, in addition to hearing cases, has administrative responsibilities relating to the operation of the court The chief judge is normally the judge who has served on the court the longest From the contrast, we can see the difference in the way the two system name the head person of each court level

The term “chánh án” has a synonym, which is an old word called “Ch ng Lý” Nowadays, the term is not usually used in legal documents, it is often used in newspaper

For example, the VOA news has an article that contains the term:

“Bom n t i Venezuela, sát h i phó Ch ng Lý Danilo Anderson

Venezuela cho hay m t cu c t n công b ng bom ã sát h i Phó Ch ng Lý Danilo Anderson

c a n c h

Hôm nay, các gi i ch c Venezuela ã nói v i ài Ti ng Nói Hoa K r ng ã xác nh c

ch c ch n là xác ng i cháy en tìm th y trong chi c xe chính là xác c a Phó Ch ng Lý Anderson (…).”

Concluding remarks: The term “judge” in American legal system is equivalent to “th m phán” in Vietnamese In Vietnamese, “th m phán” has one synonym, “quan tòa”, and they have the same meaning in legal language The only difference is that, the former is used officially in legal document while the latter is an old word, and now its semantic meaning has derived and often used in colloquial language In American English, “judge” has three synonyms, “magistrate, jurist” and “justice” Among these words, only “magistrate” causes problem for people to understand It is a judge at district level and has limited power compared with a “judge”

In another words, it can be said that, the synonyms in Vietnamese has semantic difference while those in English differ in functional nature denoted in law

The term “chánh án” has one synonym, “ch ng lý”, which is an old word Due to the difference of the two legal systems, the term “chánh án” in Vietnamese is equivalent to “chief justice” and “chief judge” in the United States

3.2.2 The position of prosecutor

According to Wikipedia online dictionary, “prosecutor” is the chief legal representative of the prosecution in countries The prosecution is the legal party responsible for presenting the case against an individual suspected of breaking the law in a criminal trial

In the United States, the director of offices that are responsible for prosecution of charges may

be known by any of several names depending on the legal jurisdiction (e.g County Attorney, Prosecuting Attorney (in Michigan, Indian, and West Virginia), County Prosecutor, State Attorney, State Prosecutor, Commonwealth’s Attorney (in Virginia and Kentucky), District Attorney, District Attorney General (in Tennessee), City Attorney, City Prosecutor or U.S Attorney) and may be either appointed or elected In order to be appointed prosecutor, nominees must be lawyers

So in America, the term “prosecutor” has one synonym called “attorney”

As we have mentioned in the previous part, in Vietnamese legal system, there is a separate organ to initiate criminal cases and the officer who is responsible for the charges is called

“ki!m sát viên” The term “ki!m sát viên” is sometimes translated as “procurator” and sometimes as “prosecutor”

According to Websters online dictionary, “procurator” is “a person authorized to act for another” However, there are still many documents employing the term “procurator” to denote the person who has the power of prosecution Thus, in my opinion, when we translate the term

“ki!m sát viên” into English, the two words “prosecutor” and “procurator” are acceptable

Concluding remarks: The word “ki!m sát viên” in Vietnamese legal system is equivalent to three words in American legal system, “prosecutor, procurator” and “attorney”

3.2.3 The position of lawyer

In Vietnam, “lu t s ” is a general term to denote people who give legal advice for people, represent and other people in courts However, gradually, there are other terms to denote specific functions of lawyers For example, there is an article named “Ngh lu t s kinh doanh Vi t Nam” on website http://www.nclp.org.vn/News/ykls/2005/06/779.aspx which requires that there should be other terms to call lawyers in Vietnam

According to “T" i!n ti ng Vi t”, the two words “th y cãi” and “tr ng s ” are both obsolete words, they are synonyms of “lu t s ”

In Vietnamese modern society, the former is often used colloquially with ironical meaning For example, the term “th y cãi” is used in the title of the following article to pillory a man who was a lawyer that did bad things

“Hoãn phiên tòa xét x “th y cãi” Lê B o Qu c

Sáng 19/7, TAND t%nh Bình D &ng ã a ra xét x s& th$m v án Lê B o Qu c (nguyên lu t

s V n phòng Lu t s Ba ình, Hà N i) ph m các t i: l'a o chi m o t tài s n; l m d ng