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A Study on the Construction of Case facts in Courtroom Interaction
Luping Zhang, Wen Guan
China University of Political Science and Law, China, People's Republic of
Case Fact Construction (CFC) is one of the major concerns of legal professionals and has attracted the attention of scholars from different fields. The research on CFC from the linguistic perspective remains fairly insufficient. Discourse information processing underlies the use of language, while participants’ processing of information in trials influences the outcome of CFC. How case fact is constructed in Chinese courtroom interactions via discourse information processing is the focus of this study.
On the basis of the Discourse Information Theory (DIT), the Context Model Schema and the concepts of “construal” and “conceptualization”, an analytical framework is set up for the description, analysis and interpretation of the language used by participants in court interactions. This model guides our exploration of the features of discourse information, factors and discourse management strategies that influence the CFC along with the dimensions of information, society and cognition. All the data used in the study is from data collected by the author following the instructions prescribed in the Corpus for the Legal Information Processing System (CLIPS), and the data has been tagged according to the convention for DIT.
Keywords: Case fact construction, discourse information, context model, construal, conceptualization
11:30am - 12:00pm
A Contrastive Viewpoint Analysis of Court Judgments in Mainland China and Hong Kong
Zhejiang University, China, People's Republic of
Court judgment, produced by judges, as a critical reported material in legal processing, presents the holistic circumstances of the case. Multiplicity of viewpoint is the norm in discourse and viewpoint in discourse involves networked configurations (Dancygier and Vandelanotte 2016). Court judgments as texts are not the judge’s own monologue (Cheng and Sin 2008). Instead, court judgment is a mixture of viewpoints, including the viewpoints of litigants, advocates, law draftsmen and judges. This research compares the viewpoints networks in Mainland China and Hong Kong court judgment from the perspective of deixis, modals, evidentials, and epistemic stance to deconstruct the represented speech and thought. The data are respectively collected from the Supreme People’s Court of the People’s Republic of China (http://www.court.gov.cn/wenshu.html) and Hong Kong Court of Final Appeal (https://legalref.judiciary.hk/lrs/common/ju/judgment.jsp?L1=FA&L2=CC&AR=1#A1) since the quality of these court judgments is much more reliable. This paper uncovers the differences and similarities of Mainland China and Hong Kong judges in legal writing for improving the legal writing capacity of judges of both Mainland China and Hong Kong.
12:00pm - 12:30pm
“Game-Complementation” Paradigm of Chinese Face Culture & Legal Language in the Judicial Mediation
Northwest University of Political Science and Law, China, People's Republic of
This paper assumes that all participants in Chinese civil mediations consciously or subconsciously use “face” and its influences to realize their purposes in disputes. Based on this observation and some literature review, the author contends that Chinese “face” which every now and then appears in both personal and institutional dimensions can be projected by legal language to reflect people’s psychological attitudes towards mediation rulings and can play both positive and negative impacts on social justice. Taking these external factors which can affect mediation into consideration, the author assumes that the whole process of mediation is full of conflict, like a game where both verbal and non-verbal strategies can be employed by mediators. The author further applies investigation-analysis and case method to analyzing 3 typical cases in the contemporary Chinese society to examine the author’s assumption.
Aiming at interpreting this phenomenon, the author proposes a “Game-Complementation” paradigm by borrowing “game” from Schelling’s strategy of conflict, meaning through conflict and coordination, participants can understand each other’s expectations. By language and statutes, participants make efforts to gain their grounds and “fight” for rights and interests. Mediators also employ “face” to mediate between the conflicting groups, reach “checks and balances” of the parties, weigh the facts and find the solutions. For “complementation”, it includes mediators’ use of the pragmatic strategies, social norms, ethics and folk customs other than the law or the powerful authority. Under this circumstance, face is employed to “persuade” and influence the parties to acknowledge mediation rulings.
12:30pm - 1:00pm
A critical analysis of legal discourse: the case of sexual violence
Yonsei University, Korea, Republic of (South Korea)
This research analyzes the discourse surrounding the case of Ahn Hee-Jung and critically examines ideologies and unfair power relations embedded in the language of the law. Ahn Hee-Jung is a former politician who is accused of sexually harassing his former aide. His case has become highly debated between people who see it as sexual assault though the unjust use of power and people who sees it as a consented act.
This research takes the method of Critical Discourse Studies and analyzes the argument structure of the discourse regarding the case. The data includes the speech from the victim and the perpetrator, the actual discourse from the courtrooms as reported in the media, and the judge’s sentencing. The analysis adapts an argument structure suggested in Fairclough & Fairclough (2013) for political discourse and suggests a modified structure for legal discourse.
The analysis reveals two main ideologies embedded in the discourse of the case of Ahn Hee-Jung. The first is the argument that the victims must have certain characteristics as a ‘pure and destroyed’ victim. This leads to the argument that they are not the real victim of the crime, thus nullifying the crime, when they do not possess those qualities. The second is the argument that the perpetrators are the real victim of the case, since they possess the aforementioned qualities and the victims do not. This reverses the position between victim and perpetrator and makes it the goal of the court to protect the perpetrator’s rights, not the victims.