A Contrastive Study Of Chinese And American Court Judgments

Whether in legal practice or jurisprudence, court judgments or case briefs are one of the most important legal genres for the legal profession. In the Common Law system, precedents constitute an essential basis in legal argument. In China, with the country's accession to the WTO, the transparency principles necessitate the study of the court judgments.With the economic globalization and the increasing interaction of legal affairs between countries, the thesis aims to examine contrastively the linguistic characteristics, moves and rhetoric of Chinese and American court judgments, with the aim of specifying the rhetorical preferences that are characteristic of "standard" judgments. This study has an underlying pedagogical motivation in that the results would be of great value and interest to Chinese students of English for Legal Purposes (ELP) and the lawyers practicing foreign legal affairs.-ESP, as a multidisciplinary approach, offers a viable way to enable learners to efficiently acquire a sufficient level of mastery in the communicative forms of language required for their professional or occupational needs. Therefore, ESP is applicable to the analysis of court judgments, a specific genre in legal settings. On the basis of genre theory, the thesis attempts to find out the similarities and differences existing in Chinese and American court judgments. In combination with the literature review related to the genre analysis of court judgments and interviews of professors in law, a qualitative analysis is used to identify the moves and steps of a court judgment. More importantly, the thesis is not just limited to the move analysis; it goes further to the rhetorical analysis and functional analysis. The most significant point is that an analysis of legal cultures is employed to account for the genre, rhetorical and functional differences.Through the study, the thesis gets the following results:a. Moves and steps of a Chinese court judgment are different from those of an American court judgment.b. Moves and steps of a judgment by a court of first instance are different from those of a judgment by a court of second instance.c. Judgments by courts of the same trial level do not necessarily follow exactly the same moves and steps; and some court judgments have embedded or entangled moves and steps.d. In American court judgments, there are two types of legal analysis: obiter dictum and ratio decidendi. Ratio decidendi, having a binding force for the later decision of the same court or inferior courts, is indispensable. Obiter dictum, with a persuasive role but without a binding force, can be optional and usually appears in first singular person in terms of linguistic feature. Obiter dictum can be unanimous, concurring, and dissenting.e. In the 100 Chinese court judgments, 8 of them have judge's postscripts, which are functionally or rhetorically different from obiter dictum or ratio decidendi.f. The proportion of legal analysis in a Chinese court judgment is relatively insufficient than that in an American court judgment.g. The different percentage of legal analysis and different functions of judge's postscripts, obiter dictum or ratio decidendi can be accounted for in the legal culture.The thesis finally holds that genre analysis, in combination with cultural analysis, will provide an interesting area in the discourse analysis of legal genres. Furthermore, the thesis puts forwards some pedagogical implications.