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Resolution of Conflict of Interest in Chinese Civil Court Hearings: A Perspective of Discourse Information Theory

Yunfeng Ge (dennisge@126.com)
Foreign Languages College, Shandong Normal University, Jinan, PR China
June, 2013
 
Lecturer
Foreign Languages College
Shandong Normal University, Jinan, PR China
Awarding Institution: Guangdong University of Foreign Studies, PR China
Date of Award: June 2013
 

Abstract

With the rapid development of the economy, China has entered a transition period characteristic of many kinds of conflicts of interest (COI), which, if handled inappropriately, may impede the sustainable growth of the economy and the stability of the society (Sun, 2008). In the Chinese context, the resolution of COI is realized through four major approaches: the political approach, the economical approach, the ethical approach and the legal approach (Wang 2010). Although the legal approach has attracted the attention of many scholars (e.g Zhang 1999, Lu 2003, Zhu 2008, Xia & Shi 2006), the relevant researches have not touched upon the communicative and dynamic features of the legal processes, since they have failed to notice the “interrelationships between language use, on the one hand, and social, economic, political, and even moral forces on the other” (Levi 1990, p. 6). This dissertation presents a discursive study on the resolution of COI in Chinese civil court hearings from the perspective of discourse information processing, addressing such questions as features of discourse information in interest appeal, factors influencing interest negotiation and strategies for reaching agreement.

To accomplish the research objective, an analytical framework was formulated by incorporating the Discourse Information Theory (DIT), Context Model Schema and the concepts of “construal” and “conceptualization” for the description, analysis and interpretation of the language used by participants in Chinese civil court hearings. According to the analytical framework, the different ways of construal of participants of lawsuit , which include specificity, prominence, focusing and perspective (Langacker 2008), provide the basic cognitive ground for participants’ perceptions of the issues in lawsuits. Based on the perceptions, a context model is formed as a result of participants’ construction of the ongoing communicative situation (van Dijk 2008, p. 103), which in turn helps to generate their conceptualizations of interest appeal, interest negotiation and agreement reaching for the resolution of COI. Discourse information, which is the minimal integral meaningful unit used for communication and can be further analyzed into such concepts as information unit, information knot, tree information structure and information flow (Du 2007, 2011, 2012, Chen 2011) (Du 2007), is regarded as the primary medium that helps to resolve COI.

The data in this dissertation are from the CLIPS (Corpus for the Legal Information Processing System), which consists of transcripts of Chinese civil court hearings of more than 300 cases. The data are mainly recordings of observed court proceedings, which were collected with professional digital voice recorders with the permission of the court, and then transcribed. In this study, texts of 36 trials are involved, covering disputes of tort, breach of contract, family relation, partition of real estate, etc.

Data analysis shows that participants in lawsuits mainly resort to three information categories when making interest appeals: subjective information, objective information and explanatory information. Subjective information can help litigants to claim damage compensations, attribute faults and assert unlawful acts. Objective information is employed by litigants to provide basis for their claims or requests, clarify background of litigation, elaborate causes of lawsuit and provide ground for compensations. Explanatory information is used to ensure the reasonableness of litigants’ arguments or requests by helping to make interpretations, elaborate connections and eliminate uncertainties.

Data analysis also reveals the sociological, psychological and discursive factors that influence the process of interest negotiation in court hearings. Of the sociological factors, settings, identities and relations of participants can influence the distribution of discourse information and the production of the final discourse. Such psychological factors as participants’ intentions and goals, information sharing status and ways of construal can affect the acceptability of their testimony and, by modifying their goals of litigation, can make preparations for the resolution of COI. By controlling the activation and integration of discourse spaces and creating discourse expectations, discursive factors help reveal litigants’ positions and attitudes, define issues in lawsuits, and promote the efficient negotiation of interest.

It is found that participants in lawsuits tend to adopt different discourse management strategies to promote agreement between them, among which information management, cognitive management and linguistic management are most frequently used. Information management mainly involves manipulation of information flow and engagement of information transference; cognitive management is realized through integration of discourse information, assimilation of goals of opposing litigants and reconciliation of their ways of construal. Linguistic management mainly concerns referential management, thematic management and rhetorical management.

The following example illustrates how agreement is reached between opposing parties as the judge’s questioning reinforces the shared information about four important facts of the case: the time of the plaintiff’s injury, the cause of the injury, the legal relation between the opposing parties, and the daily wage paid to the defendant.



01[法官]:原告是何时受伤的?
02[原告]:2009年4月9日。
03[法官]:原告什么原因受的伤?
04[原告]:受被告雇佣卸木材,在卸到第九车时从车上摔下来导致腰部受伤。
05[法官]:原告所述是否属实?
06[被告]:属实。
07 [法官]:原告与被告是什么关系?
08 [原告]:雇佣关系,被告雇佣我卸木材。
09 [被告]:对。
10 [法官]:原告工资支付方式?
11[原告]:被告每天支付原告50元。
12[法官]:原告所述是否属实?
13[被告]:属实。 [J]: When was the plaintiff injured?
[P]: On April 9th, 2009.
[J]: What caused your injury?

[P]: I was hired by the defendant to unload wood for him, and injured my waist by falling down from the 9th truck.
[J]: Is what the plaintiff said true?
[D]: Yes.
[J]: What is the relation between the plaintiff and the defendant?
[P]: Employment relation. The defendant hired me to unload wood.
[D]: Yes.
[J]: Plaintiff, how were you paid?
[P]: The defendant paid me 50 yuan a day.
[J]: Is what the plaintiff said true?
[D]: Yes.

These facts help to form the communicative context model, which is a subjective construct based on participants’ interpretation and definition of the surrounding environment (van Dijk 2006: 163) and indispensible to the resolution of the COI between the opposing parties. The two WN units (WN1 and WN2) establish the temporal setting of the context model. The omission of the confirmation by the defendant indicates that the temporal setting is regarded as indisputable and shared information between the two parties.

The following two turns are about the cause of the plaintiff’s injury. The WY2 unit offered by the plaintiff contains two information elements: the legal relation between the two parties (“I was hired by the defendant”) and the process of the injury (“injured my waist by falling down from the 9th truck”). While the legal relation appears as given information, the process of the injury, which is the new information, is the focus of the WY2 unit. Therefore, the judge’s questioning in 05 obviously points to the process of the plaintiff’s injury, which, after being confirmed by the defendant in 06, turns its information category from a to c. The change of the information sharing status indicates that the opposing parties have reached an agreement on the cause of the plaintiff’s injury.

The plaintiff’s answer in 04 triggers the judge’s questioning of another important factor of the context model—the legal relation between the opposing parties. With unit WF2 and WF3, the plaintiff reaffirms the employment relation and explains the specific job he was engaged in (“The defendant hired me to unload wood”). The confirmation by the defendant in 09 adds to the shared information between the two parties. It also indicates that they have built a consensus on the legitimacy of the labor contract formed by the plaintiff’s actual performance, namely, the unloading of the wood. Similarly, from 10 to 13, agreement is reached between the two parties about the defendant’s daily wage, which can help to set up a compensation standard for the plaintiff’s injury.

It can be seen that the judge plays a significant role in the consensus building process between the opposing parties. It is the judge who initiates the questions, elicits the responses and attitudes of the participants, and terminates the topics after they reach the “c” status of information sharing. The judge’s active participation in the trial process contributes to the efficient resolution of COI.

The major contribution of the study lies in addressing the legal issue of resolution of COI from the perspective of DIT. The study can help participants in lawsuits gain a better understanding of COI and thus promote its efficient resolution in Chinese civil court hearings. It is hoped that the study may provide useful forensic linguistics references to the judicial practice and thus contribute to China’s judicial reform.


Funding
This work was supported by Shandong Province Social Science Project (Grant No. 13CWXJ23) and Scientific Research and Innovation Team of Guangdong University of Foreign Studies (Forensic Linguistics, TD1201).


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