Facts
K., in his capacity as Chairman of the Board of Directors of X. AG (later converted to Y. AG), prepared the payroll and deducted employee contributions to the Old Age and Survivors' Insurance (AHV) from the gross salary during the period from November 1983 to June 1984, without fully transferring these to the responsible compensation fund, although he had liquid funds of CHF 45,552.-- available. The Cantonal Court of the Canton of Schwyz subsequently convicted K. in the second instance for misappropriation of employee contributions pursuant to Art. 87 AHVG in conjunction with Art. 25 EOG and Art. 70 IVG to a fine of CHF 500.--.
Considerations
The Federal Supreme Court explains in its reasoning that, according to the case law of the Federal Supreme Court, a punishment under Art. 87 para. 3 AHVG does not require an express reference to the punishability of non-payment after the expiration of the reminder period. The decisive factor is that the employer possessed the necessary funds or a corresponding substrate at the time of the wage payment to be able to transfer the employee contributions to the compensation fund.
The Federal Supreme Court changes its previous case law and states that a misappropriation of employee contributions only exists if the employer…