營業秘密法與刑事訴訟法之交錯──以證據與偵查為中心

The Cross Between Trade Secret Act and Criminal Procedure Code: Centered on Evidence and Prosecutorial Investigation

營業秘密法涉及不少數位證據爭議，惟現行法制不僅欠缺驗真程序，亦缺乏完整的傳聞規範。又雖營業秘密法已新增偵查保密令之制度，惟關於為何法制中有必要授予檢察官限制言論自由的概括權限、甚至進一步增訂此種類型妨害司法罪，法理上並非無疑。在憲法保障言論自由權之架構下，由檢察官逕行限制言論自由，應有違正當法律程序。

The Trade Secret Act involves some disputes of digital evidence, however, the current legal system lacks not only rules of authentication but complete hearsay jurisprudence. Although the Trade Secret Act has already added the Prosecutorial Secret Order System, why is it necessary to generally authorize the public prosecutor to restrict the freedom of speech as well as to create the accompanying offense of obstruction of the Prosecutorial Secret Order remains questionable in theory. Under the framework of the constitutional protection of the right of free speech, permitting the public prosecutor to restrict the right of free speech without warrant violates the concept of due process.