关键词： 发回重审, 审级利益, 程序利益, 法律父爱主义, 诉讼契约

Abstract: In accordance with the current provisions of the Civil Procedure Law,if the case has not been heard substantially,the higher court shall order the lower court a retrial.The original intention of sending a case back for retrial is to protect the trial-level interests of the parties.The absolute protection of the trial-level interests of the parties in the legislation is essentially a kind of legal paternalism,the procedure interests of the parties is ignored here.The retrial has faced the risk of alienation to be the excuse of the denial of justice and avoiding of trial period because of the lack of constraints.The reconstruction of sending back for retrial system should be guided by the theory of the balance between the trial-level interests and the procedure interests,and respect the procedure option rights of the parties,that is to say,recognize the validity of the litigation contract between the parties,so as to curb the arbitrary and malicious factor of judicial power,ultimately,to maximize the interests of the parties.

Key words: sending back for retrial, trial-level interests, procedure interests, legal paternalism, litigation contract