Decision of the compensation fund against the employer for damage compensation under Art. 52 OASIA

Facts

The company M. SA and its director [P.] were declared bankrupt on July 19, 1991. Alleging to have suffered in these two bankruptcies a loss equal to the amount of the joint AHV/AC contributions from August/October 1990 to March 1991, Fund X. (hereinafter: the Fund) notified [P.], on September 3 and 21, 1992, two decisions on damage compensation based on Art. 52 OASIA and Art. 81 OASIO. The debt collection office ordered a garnishment of P.'s salary following these decisions. [P.] then requested the cantonal supervisory authority to cancel the garnishment and the two debt collection proceedings of the Fund, arguing that they were in violation of Art. 206 DEBA.

Considerations

In accordance with Art. 206 DEBA, debt collection proceedings against the bankrupt party lapse by operation of law, and no new debt collection proceedings can be initiated during the bankruptcy liquidation with regard to claims prior to the declaration of bankruptcy. However, debt collection proceedings can be exercised during the bankruptcy liquidation when they aim to enforce a claim that arose after the declaration of bankruptcy.

In this case, the Court considered that the claim for damage compensation under Art. 52 OASIA is distinct from the claim for payment of contributions. This claim for damage compensation arose after the opening…