Facts
Adolf H., born in 1933, was employed as the purchasing manager at Machinery Factory X AG since March 1, 1973. From 1975 onwards, he was a member of the insurance fund of the employee welfare foundation (Foundation) of his employer. The employment relationship was terminated at the end of March 1985 due to misappropriation to the detriment of the employer in the amount of at least CHF 250,000. At that time, the vested pension benefits of the beneficiary towards the Foundation were calculated to be CHF 34,021.15. However, the Foundation refused to transfer the vested pension benefits to Adolf H.'s new pension fund, as the former employer claimed entitlement to the vested pension benefits. The employer assigned its claim for damages against Adolf H. to the Foundation and requested offsetting against the vested pension benefits. Adolf H. subsequently sued the Foundation for payment of the vested pension benefits to his new pension fund. The Insurance Court of the Canton of Thurgau granted the claim. The Foundation filed an administrative court appeal with the request to dismiss the claim.Considerations
The Federal Supreme Court dismissed the administrative court appeal. It stated that the claim for vested pension benefits in the mandatory area under Art. 27 para. 2 BVG and in the over- and pre-mandatory area under Art. 331a para. 1 CO as well as Art. 6 of the Foundation's regulations had arisen. It was irrelevant whether the employer had transferred the contributions unlawfully, as the obligation to pay wages and thus the obligation to contribute had…