There are at least two legislative bases for issuing summons in Chinese criminal law: the Security Administration Punishment Act (SAPA) and the Criminal Procedure Law of China (Hualing 1997, 140-141). Article 34(1) of the Security Administration Punishment Act (SAPA) authorizes police to issue a summons for interrogation (Chinese - chuanhuan) to a person suspected of having committed an offence under the regulations (ibid., 140).

Article 50 of the Criminal Procedure Law (CPL), which appears in the section titled "Coercive Measures," may also be invoked for the issuance of summonses (CL and CPL 1984, 125). The CPL underwent amendment in 1996 (Hualing 1997, 129). References herein will be to the new numbering of sections followed by the old numbering in parentheses. Article 50 (Art. 38) states:

The people's courts, the people's procuratorates and the public security organs, according to the circumstances of the case, may summon a defendant for detention, allow him to obtain a guarantor and await trial out of custody, or allow him to live at home under surveillance (CL and CPL 1984, 125-126).

According to Albert H.Y.Chen, a Hong Kong Supreme Court solicitor and senior lecturer in Law at the University of Hong Kong, following "coercive measures," a "summons for detention" (Chinese - juchuan) is issued to "physically compel" a suspect who has failed to voluntarily comply with a summons (1993, 155). This is corroborated below.

Article 92 of the CPL (Art. 63) deals with "summons for interrogation" (Chinese - chuanhuan) and states:

A criminal suspect who need not be arrested or detained may be summoned to a designated place in the city or county where the criminal suspect stays for interrogation, or he may be interrogated at his residence. However, the interrogators shall produce their papers issued by a People's Procuratorate or a public security organ (Brown 1997, 382).

The Chinese term for subpoena is chuanpiao, a term that is not used in the two sections mentioned above. This, however, is the term used on the examples of court issued summons that are discussed below (Australia 1993, 177).

In a telephone interview with the Research Directorate, a Senior Fellow with the Open Society Institute and former Professor of Law from China stated that the Public Security Bureau (PSB), People's Courts and Procuratorate are the bodies having jurisdiction to issue criminal summons (10 Dec. 1998). This information was corroborated during a telephone interview with the Research Directorate by a Professor who specializes in Chinese criminal law at the University of Washington (14 Dec. 1998).

Specific information concerning the format and appearance of summons documents is scarce among the sources consulted by the Research Directorate. The Country Information Service of the Department of Immigration and Multicultural Affairs in Canberra, Australia has produced "A Guide to PRC Documentation (GPRCD)" (1993), which includes examples of documents submitted in support of refugee claims in Australia. The GPRCD is available in Regional Documentation Centres and assesses the probable authenticity of numerous documents, including summonses that are alleged to have been issued by the Public Security Bureau and judicial authorities including the courts and Procuratorate. For the purposes of convenience, the relevant pages are attached.

With respect to summons documents alleged to have been issued by the Public Security Bureau, documents B1 (pp. 22-3) and B2 (pp. 24-5) make reference to Article 38 of the CPL (now Article 50). Documents B4 (pp. 27-8), B5 (pp. 29-30) and B6 (pp. 31-32) refer to Article 63 of the CPL (now Article 92). The author's analysis of the (in)authenticity of these examples is found on pages 93-94.

The examples of court summonses in the GPRCD use the term chuanpiao, which has been translated as subpoena. The court summonses do not make reference to specific statutory provisions either in terms of the authority for the summons or with respect to the law allegedly violated. Document A1 is a pro forma sample (pp. 98-9) provided by the Ministry of Justice that, as of 1993, had been in use throughout the People's Republic of China since 1980 (177).

There is only one example of a summons issued by the Procuratorate in the GPRCD, document D1 (pp. 166-8). The author follows the translation in referring to the document as a subpoena, although the Chinese term appearing at the top is chuanhuan, which has been translated elsewhere as "summons for interrogation" (see above). At the bottom of the document it is stated that failure to comply with the subpoena will result in a summons for detention (juchuan). The comments of the author of the GPRCD regarding the examples of judicial documents appear on pages 177-8.

During the telephone interview with the Research Directorate, the Senior Fellow of the Open Society Institute stated that the vast majority of summonses would emanate from the PSB (10 Dec. 1998). He further stated that the PSB has used a standard printed form for summonses since 1995, which would be completed by hand (ibid.).

The Senior Fellow of the Open Society Institute also stated that summonses would be almost universally issued to the individual, rather than to a household registration or family member. However, notification of family members is required within 24 hours of an individual's arrest or detention in accordance with Articles 64 and 71 (Art. 43 and 50) of the CPL (Chen 1993, 156). Articles 64 and 71 do not specify whether written or verbal notice is required (CL and CPL 1984, 128, 130); however, the terms used for summons do not appear in the provisions, so it is unlikely that even a written notice would be mistaken for a summons.

The consequences of failure to comply with a summons vary: As seen in the discussion of the sample Procuratorate summons above, failure to comply with the Procuratorate subpoena (chuanpiao) would result in the issuance of a summons for detention (juchuan) (Australia 1993, 177, 178). This is also true of the "summons for interrogation" (chuanhuan) issued under Article 34(1) of the SAPA (Hualing 1997, 140). According to information obtained during the telephone interviews with the Senior Fellow of the Open Society Institute (10 Dec. 1998) and Professor of Law at the University of Washington (14 Dec. 1998), because the summons for detention (juchuan) is one of the "Coercive Measures" there is no legislative basis for challenging its validity.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Response.

References

Australia. 1993. Country Information Service, Department of Immigration and Multicultural Affairs, Canberra. "A Guide to PRC Documentation" (GPRCD).