Facts
L., born in 1946, was employed at insurance company X. and was insured for occupational pension benefits with the pension fund of the insurance group X. On October 29, 1997, he terminated his employment with insurance company X. effective the end of February 1998 and requested the lump-sum payment of his vested benefits, stating that he would be taking up self-employment. On January 27, 1998, the pension fund transferred the lump-sum payment of CHF 251,147.65 to L.'s account.
By partial judgment of March 28, 2001, the Cantonal Court of Appenzell Ausserrhoden dissolved the marriage between L. and M. that was concluded on March 18, 1988, and determined that the withdrawal benefits accrued during the marriage were to be divided equally. With regard to the question of whether M. was entitled to appropriate compensation under Art. 124 CC for the lump-sum payment made by the pension fund to L. on January 27, 1998, the proceedings were stayed until the Administrative Court of Appenzell Ausserrhoden had issued a legally binding decision on the legality of the lump-sum payment.
The Administrative Court of Appenzell Ausserrhoden ordered the pension fund by decision of August 27, 2003 to pay the amount of CHF 120,278.85 plus interest to M.'s pension fund. In its reasoning, it stated that the pension fund was unable to prove that M. had consented to the lump-sum payment; the lump-sum payment was therefore invalid and would be treated as if M. had not been withdrawn from the 2nd pillar.
By letter dated February 16, 2004, the pension fund demanded that L. repay the amount of CHF 131,878.85, as this was part of the withdrawal benefit that had been paid out to him in cash. The payment was not made.
On July 9, 2004, the pension fund filed a lawsuit with the Insurance Court of the Canton of St. Gallen, requesting that L. be ordered to pay it the amount of CHF 251,147.65 plus interest, or alternatively the amount of CHF 131,878.85 plus default interest from March 8, 2004. Upholding the claim, the cantonal court ordered L. to pay the pension fund the amount of CHF 251,147.65 plus interest at 5% from February 16, 2004 on CHF 131,878.85 and interest at 5% from July 9, 2004 on CHF 251,147.65.
Considerations
The Federal Supreme Court states that the reimbursement of a paid withdrawal benefit falls within the jurisdiction of the courts pursuant to Art. 73 BVG and that an administrative court appeal is admissible.
Prior to the entry into force of Art. 35a BVG on January 1, 2005, the reimbursement of benefits wrongly provided from occupational pensions was assessed according to the pension fund regulations and subsidiarily according to Art. 62 et seq. CO.
The mere lack of the requirements pursuant to Art. 5 para. 1…