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共识性的民主立法可以强化公众在立法中的利益表达,化解权力结构的刚性,扩大法律的可接受性,因此它也是生成立法正当性的重要途径。我国近年来的刑事立法实践,立法推动者高度重视直接来源于大众的民意支持,并以此作为立法正当性的重要支撑,却对由更高层次的民意代表机构制定法律是更为坚实的证成合法性的框架基础有所忽视。经验材料由此呈现出“一种民主观念,两种共识实践及效果”的现象,这给我们提供了观察和审视立法者的某种政治考量策略的管道。在现代政治体制下,大众的直接共识作为补充性的制度安排,虽然可以赋予立法活动一定的正当性,但正当立法程序才是立法正当性的最基础来源。
Consensus democratic legislation can reinforce public expression of interests in legislation, resolve the rigidity of power structure and expand the acceptability of law. Therefore, it is also an important way to generate the legitimacy of legislation. In recent years, our criminal legislation practice and the promoters of legislation have attached great importance to popular support directly from the general public, which is an important support for the legitimacy of the legislation. However, it is a more solid proof that laws are to be formulated by higher-level public opinion agencies The basis of the legitimacy of the framework has been neglected. The experience material thus presents a phenomenon of “one kind of democratic concept, two kinds of consensus practice and effect,” which provides us with a conduit for observing and examining certain political considerations of legislators. In the modern political system, the direct consensus of the public as a supplementary institutional arrangement, although it can give some legitimacy to legislative activities, but due legislative process is the most basic source of legislative legitimacy.