商业秘密司法鉴定之实践检讨_邓恒.pdf

Abstract: Due to “technical facts” or “special issues” involved, the trade secret cases cannot be the merited reason for judicial expertise, and the conclusion of judicial expertise cannot become some kind of “proven bias” or “dependency”. Incorporating the legal nature and the specific application rules of evidence into the consideration scope of the necessity of judicial expertise is the best choice taking both substance and procedure into account. In judicial practice, the object of judicial expertise shall be restricted to the “check sample” provided by the disputed parties; the conclusion of judicial expertise shall be restricted to whether the “check sample” has infl uenced the “secrecy” of the trade secret involved in the case, and the judgment of identity or substantial identity of the information of the disputed parties. Judicial expertise of trade secret is a judgment behavior, there cannot be retrieval behavior, and the current judicial expertise methods of trade secrets need to be standardized, otherwise it’s hard to escape from the destiny where novelty judgment is carried out in the name of judicial expertise of “secrecy” of trade secret, which is bound to affect the fairness and effi ciency of justice and should be paid attention to by all circles. Key Words: trade secret; judicial expertise; civil litigation