Liability of Board Members for Contribution Debts in the Transfer of Assets and Liabilities of a General Partnership to a Corporation

Facts

The Compensation Fund of the Canton of St. Gallen sued the board members Urs [N.], Josef [Z.], and Emil D. of the successor company N. + [Z. AG] for damages in the amount of approximately 121,000 Swiss francs for outstanding contributions of the predecessor company N. + Z. General Partnership and N. + Z. AG. The cantonal insurance court partially awarded damages to the Compensation Fund, namely 15,500 Swiss francs from Urs [N.] and Josef [Z.] as former partners of the general partnership. The Compensation Fund filed an administrative court appeal against these decisions.

Considerations

The Federal Supreme Court decided the following: - The board members of N. + [Z. AG] cannot be held liable for the damage from the contribution debts of the predecessor company N. + Z. General Partnership. The public-law employer status and the associated obligations cannot be transferred to a new company. - However, the contribution debts of N. + [Z. AG] have been transferred as part of the business takeover. The Compensation Fund has rightly asserted these claims in the bankruptcy of the AG. The Compensation Fund has therefore suffered damage in the amount of the contribution debts of the AG that were not covered in the bankruptcy. - Urs [N.] and Josef [Z.] as former partners of the general partnership are generally liable for…