ABF Capital Co., Ltd. and one other (Law Firm Rate, Attorneys O Jong-soo et al., Counsel for the plaintiff-appellant)

Jeonbuk Ginseng (Law Firm Dongin, Attorneys Kim national fever et al., Counsel for the plaintiff-appellant)

May 9, 2014

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The defendant shall pay 8% per annum to the plaintiff Gavi Capital Co., Ltd. 5,00,000,000 and 20% per annum from January 11, 2013 to the service date of the application for modification of the purport of the claim of this case and the cause of the claim of this case, and 4,26,50,43 won per annum from the next day to the day of complete payment, and 8% per annum from the next day to the service date of the application for modification of the purpose of the claim of this case and the cause of the claim of this case from March 28, 2014 to the day of complete payment, and 20% per annum from the next day to the day of complete payment.

1. Basic facts

A. Status of the parties

The Plaintiffs are credit-specialized financial companies, and the Defendant is the item cooperatives under the Agricultural Cooperatives Act. The third party (hereinafter referred to as “third party floor”) and the third party ridge (hereinafter referred to as “third party ridge”) are the subsidiaries of Yangcheonyang Co., Ltd. (trade name after the modification: Jin Co., Ltd.; hereinafter referred to as “Tyang”), which are established with the purpose of purchasing the third party’s seal and red ginseng from the Defendant, and entrusting the Defendant with the processing of the purchased human and red ginseng, and selling the processed human and red ginseng products to the dried.

B. As to the Plaintiff Gavi Capital Co., Ltd.

1) On February 24, 2012, the 3rd floor and the Defendant, the Plaintiff Co., Ltd., Ltd., concluded a contract to purchase human and red ginseng within the limit of KRW 4.5 billion (hereinafter “instant sales contract for raw material”).

2) The third floor and the Defendant, the Plaintiff, and the Gavi Capital entrusted the Defendant with the processing of human and red ginseng purchased in accordance with the First Raw Materials Sales Contract for the same day, and the Defendant concluded a contract under which they directly supply them to Nacheonyang by processing it as a ppuri finished product, a raw material ginseng product, etc. (hereinafter “red red ginseng product”) (hereinafter “instant first processing consignment contract”).

According to Article 3 of the first processing consignment agreement of this case, the defendant shall obtain approval of shipment from the third party floor, and pursuant to the sales contract of the first product of this case, he shall deliver red ginseng products directly to the third party to the third party in accordance with the first product sales contract of this case. When the third party's approval of shipment of this case is made, he shall attach documents proving that he obtained prior approval from the plaintiff AF Capital, along with the deposit certificate of the purchase price of red ginseng products paid by the third party.

3) On February 24, 2012, Plaintiff 1, Nonparty 1, Nonparty 5, and Nonparty 6, who were officers and employees of Yangyang and Yangyang, jointly and severally guaranteed the loan of KRW 5 billion from the said Plaintiff on the pretext of funds necessary for the business of manufacturing and selling red ginseng products with human and red ginseng purchased from the Defendant (hereinafter “instant business”). Nonparty 1, Nonparty 5, and Nonparty 6 jointly and severally guaranteed the principal and interest of the loan of the said Plaintiff on the third floor under the instant loan contract.

According to Article 7 of the First Loan Contract of this case, a third party's floor shall manage revenues and expenditures related to the business of this case, and shall open a fund management account in the name of the National Federation of Fisheries Cooperatives in order to manage the deposit and withdrawal of loans to repay loans under the above loan contract, and the third party's floor shall deposit all revenues related to the above business, such as the total amount of loans under the above loan contract, and the sales amount of red ginseng products, received from an institution that guarantees the purchase of red ginseng products pursuant to the first loan contract of this case, into the above fund management account. In the event the sales amount of red ginseng products is paid in any account other than the above account or without the above plaintiff's permission, it shall be deemed that the obligation to purchase red ginseng products is not fulfilled. The payment of all funds deposited into the fund management account, such as loans under the above loan contract of this case and revenues from the sale of red ginseng products, etc. shall be collected from the above loan related to the above loan contract of this case, expenses related to the purchase of red ginseng and the loan of this case, and other expenses related to the above business.

A loan of KRW 4,514,380,885 out of the total amount of KRW 5 billion deposited in the fund management account opened in the name of a third party according to the above loan agreement was withdrawn under the pretext of the purchase price of artificial and red ginseng raw materials, royalties, red ginseng processing fees, legal advice expenses, and expenses for establishing the floor.

4) On February 24, 2012, the third party 1, the joint and several surety under the loan 1 of this case, Non-party 5, Non-party 6 and Non-party 8, the joint and several surety under the loan 1 of this case, entered into a purchase contract for red ginseng products (hereinafter “the purchase contract for red ginseng products of this case”).

본문내 포함된 표 제3조(매매대상 홍삼제품) 삼마루가 2012. 2. 24. 피고 및 원고 아이비케이캐피탈과 체결한 홍삼제품 가공 위탁계약에 따라 피고가 제조하여 천지양에게 직접 납품 예정인 뿌리삼 완제품 및 원료삼 반제품 제4조(매입가격) ① 본 계약에 따라 천지양이 매입할 책임을 부담하는 매매대상 홍삼제품의 매입가격은 다음과 같다. 가. 뿌리삼 완제품 1kg당 179,650원(부가세 별도) 나. 완료삼 반제품 1kg당 116,300원(부가세 별도) ② 제1항의 매입가격은 삼마루가 부담하는 총 사업비용을 해당 공급물량으로 나누어 산정한 단가를 적용하며, 홍삼 수매가를 포함한 비용 증감시 제1항의 매입가격도 자동으로 반영되어 증감한다. 여기서 총 사업비용이라 함은 대출계약서에 따른 대출원금 및 이에 대한 1차 매입보장 약정이율 연 10%의 이자, 가공비 기타 부대비용을 포함한 금액을 말한다. ③ 천지양은 제7조에 따른 피고의 2차적 매입이 실행될 것으로 예상되는 경우 삼마루가 이 사건 제1사업을 영위하는데 필요한 제반 비용 및 삼마루와 위 원고 사이에 약정된 대출원리금 상환(대출원금 및 이에 대한 2차 매입보장 약정이율 연 8%의 이자)을 보장할 수 있도록 삼마루와 천지양이 협의하여 천지양의 홍삼제품 매입가격을 조절해야 한다. 제5조(매입스케쥴) ① 본 계약에 따른 매매대상 홍삼제품의 매입스케쥴은 다음과 같다. 단, 제4조 제2항 내지 제4항에 따라 매입가격이 증감되는 경우에는 대출계약서에서 약정된 대출원리금 및 제 수수료가 유지될 수 있는 매입금액으로만 매입가격 변동이 가능하다. (단위: 100만 원) 구분 13. 3. 13. 4. 13. 5. 13. 6. 13. 7. 13. 8. 13. 9. 최소매입물량 8.3.% 8.3% 8.3% 8.3% 8.3% 8.3% 8.3% 최소매입금액 459 454 452 448 445 442 437 구분 13. 10. 13. 11. 13. 12. 14. 1. 14. 2. 계 최소매입물량 8.3% 8.3% 8.3% 8.3% 8.7% 100% 최소매입금액 434 430 427 424 420 5,272 ② 천지양은 같은 조 제1항 기재 매입스케쥴상 각 기간별 최소 매입물량 및 매입금액의 100%를 각 해당 월의 대출실행일까지 매입할 의무가 있다. 이 때 천지양이 매입스케쥴에 따라 매입해야 할 각 기간별 최소 매입금액은 제4조 제2항에 따른 1차 매입보장 약정이율을 반영한 금액이다. ③ 천지양은 위 매입스케쥴상의 최소 매입금액에 해당 월에 지급되어야 할 가공비 등을 더한 금액으로 매입하여야 하며, 최소 매입금액으로 매입되는 경우에는 최우선으로 대출원리금의 상환에 충당하여야 한다. ④ 삼마루는 삼마루 또는 연대보증인의 부도나 이자납입의 연체 등으로 인하여 삼마루가 위 원고로부터 기한의 이익을 상실하였음을 통보받는 경우에도, 제2항 및 제3항에 따라 천지양에게 잔여 물량을 일시에 매입하고 매매대금 전액을 즉시 지급할 것을 청구할 수 있다. 제7조(피고의 2차적 매입의무) ① 피고는 천지양이 제4조 내지 제6조의 일정 및 방법에 따른 홍삼제품 매입의무를 이행하지 못할 경우 본 계약에 따라 2차적으로 이를 매입할 의무가 있다. ② 피고는 천지양이 제5조에서 정한 매입스케쥴상의 각 기간별 매입물량을 매입하지 못하거나 각 기간별 최소매입금액 이상을 매입하지 못할 경우 그로부터 7일 이내에 매입이 이루어지지 못한 해당 기간의 최소매입금액 상당의 물량에 대해 2차적 매입의무를 이행하여야 한다. 이때 피고가 2차적 매입의무를 부담하는 각 기간별 최소매입금액은 제4조 제3항에 따른 2차 매입보장 약정이율 연 8%를 반영한 금액으로 하며, 원금상환에 따른 이자감소분은 차감한다. ③ 피고는 천지양이 제5조 제4항에 의한 잔여 물량의 일시 매입청구를 이행하지 못한 경우에는 삼마루의 청구일로부터 7일 이내에 잔여 물량의 전부를 2차적 매입보장 의무에 따라 매입하여야 한다.

C. As to the Plaintiff Kit Capital Co., Ltd.

1) On March 20, 2012, a contract was concluded to purchase human and red ginseng within the limit of KRW 4.5 billion (hereinafter “contract to sell the second raw material of this case”) with the third floor of a third party and the Defendant’s (hereinafter “Plaintiff Dog Capital”) that had been secured by the Defendant from the Defendant through a farmer or auction (hereinafter “contract to sell the second raw material of this case”).

2) The ridge and the Defendant, and the Plaintiff Dog Capital, on the same day, entrusted the Defendant with the processing of human and red ginseng purchased in accordance with the instant contract for the secondary raw material sales, and the Defendant entered into a contract under which the Defendant processed it as red ginseng products and directly supplies it to cheon (hereinafter “instant contract for the second processing”).

Article 3 of the 2nd processing consignment agreement of this case provides the same content as Article 3 of the 1st processing consignment agreement of this case, except that the 1st processing consignment agreement of this case was altered into the 3rd floor, the 2nd processing consignment agreement of this case, and the 1st processing consignment agreement of this case.

3) On March 20, 2012, the 3rd floor and the 2nd floor of Plaintiff Kti Capital entered into a loan agreement with the said Plaintiff for the purpose of financing necessary for manufacturing and selling red ginseng products with human and red ginseng purchased from the Defendant (hereinafter “instant second loan agreement”). The joint guarantor under the instant second loan agreement is the joint guarantor under the instant first loan agreement.

The contents of the instant loan loan contract and the instant loan contract are different between Plaintiff Dok Capital and Plaintiff Dok Capital, and the borrower is identical except for loans that are deposited in the fund management account opened in the name of 3rd party in accordance with the instant loan contract. Of KRW 5 billion of the loans deposited in the fund management account opened in the name of 4,468,109,160 among KRW 5 billion of the loans deposited in the fund management account opened in the name of 4,468,109,160 was withdrawn in the name of the purchase price of human and red ginseng raw materials at the request of

4) On March 20, 2012, the third party 1, the joint and several surety under the loan contract of this case, the non-party 1, the non-party 5, the non-party 6, and the non-party 1, the non-party 6, who are the joint and several surety under the loan contract of this case, entered into a purchase contract for red ginseng products (hereinafter “the contract for the purchase of red ginseng products of this case”). The content is the same, except for the part below in comparison with the contract for the sale and purchase of the first product of this case, and the third party 1 product of this case, the non-party 1 and the non-party 6, the non-party 1, the non-party 1, the non-party 6

본문내 포함된 표 제3조(매매대상 홍삼제품) 삼마루이호가 2012. 3. 20. 피고 및 원고 케이티캐피탈과 체결한 홍삼제품 가공 위탁계약에 따라 피고가 제조하여 천지양에게 직접 납품 예정인 뿌리삼 완제품 및 원료삼 반제품 제4조(매입가격) ① 본 계약에 따라 천지양이 매입할 책임을 부담하는 매매대상 홍삼제품의 매입가격은 다음과 같다. 가. 뿌리삼 완제품 1kg당 181,020원(부가세 별도) 나. 완료삼 반제품 1kg당 115,570원(부가세 별도) 제5조(매입스케쥴) ① 본 계약에 따른 매매대상 홍삼제품의 매입스케쥴은 다음과 같다. 단, 제4조 제2항 내지 제4항에 따라 매입가격이 증감되는 경우에는 대출계약서에서 약정된 대출원리금 및 제 수수료가 유지될 수 있는 매입금액으로만 매입가격 변동이 가능하다. (단위: 100만 원) 구분 13. 4. 13. 5. 13. 6. 13. 7. 13. 8. 13. 9. 13. 10. 최소매입물량 8.3.% 8.3% 8.3% 8.3% 8.3% 8.3% 8.3% 최소매입금액 458 456 451 448 445 441 438 구분 13. 11. 13. 12. 14. 1. 14. 2. 14. 3. 계 최소매입물량 8.3% 8.3% 8.3% 8.3% 8.7% 100% 최소매입금액 434 430 427 423 420 5,271

D. Application for the rehabilitation of tent and the plaintiffs' request for the purchase of red ginseng products against the defendant

1) On January 3, 2013, 2013, Yangyang filed an application for corporate rehabilitation with Seoul Central District Court 2013 Gohap 4, and this Court rendered a decision to prohibit compulsory execution, provisional seizure, provisional disposition, or provisional disposition by rehabilitation creditors and rehabilitation secured creditors, or auction procedure for the exercise of security rights until the decision on the application for commencement of rehabilitation procedures on January 10, 2013 is made.

2) On January 4, 2013, Plaintiff Gavi Capital lost the Defendant’s benefit under the loan contract of this case and, in the event that the principal and interest of interest of red ginseng products have not been repaid, the Defendant had to perform the obligation to purchase red ginseng products pursuant to the contract of the first product sales. Plaintiff Gavi Capital requested the Defendant to perform the obligation to purchase red ginseng products around the 11th day of the same month and around the 22th day of the same month.

3) On February 18, 2013, Plaintiff Kit Capital filed a claim against the Defendant for the fulfillment of the obligation to purchase red ginseng products pursuant to the instant contract on the ground that the ridge and tent, which the Defendant would have lost the benefit of time under the instant loan contract, and that the tent failed to perform the obligation to purchase red ginseng products.

E. The provisions of the Agricultural Cooperatives Act relating to the instant case are as follows. Since the provisions amended by Act No. 10522 on March 31, 2011 of the said Act came into force on March 2, 2012 (Article 1 of the Addenda of Act No. 10522), the former provisions are applicable with respect to the Plaintiff’s ID Capital, and the latter provisions are applicable with respect to the Plaintiff’s ID Capital, respectively.

(1) The purpose of this Act is to improve the economic, social, and cultural status of farmers based on an independent cooperative organization of farmers. The purpose of Article 1 (Purpose) included in the main sentence is to improve the quality of life of farmers by strengthening agricultural competitiveness, and to contribute to the balanced development of the national economy. (1) Regional agricultural cooperatives may carry out all or part of the following projects in order to achieve the objectives of paragraph (1).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 13 (including branch numbers) and the purport of whole pleadings

2. The parties' assertion

A. The plaintiffs

Pursuant to Articles 5(4) and 7(3) of the above Contracts for the Sale of Red Ginseng Products, a joint and several surety of each of the instant loans contract, and Yangyang, a primary purchaser of red ginseng products under each of the instant contracts, has the obligation to purchase all of the red ginseng products from the 3rd and ridges (hereinafter collectively referred to as the “third floor, etc.”) under Article 5(4) and 5(3) of the above Contracts for the Sale of Goods. The amount that the Defendant is obliged to pay as the purchase price for red ginseng products to the 3rd and 4rd et al. is the obligation of the Defendant to pay 5 billion won and 5 billion won interest, which are the principal principal and 40 billion won, and the damages for late payment from the 206th anniversary of the date following the above contracts for the Sale of Red Ginseng Products. The Defendant’s obligation to pay 30 billion won to the Defendant for 40 billion won to the 36th anniversary of the above loan contract and 40.7 billion won interest payment damages from the 6.

The Plaintiffs are creditors who have loaned KRW 5 billion to the ridge, etc. according to each of the instant loan agreements, and the third ridge, etc. are subsidiaries of Gyeyangyang, which applied for corporate rehabilitation, and there is no asset in which each of the above loans is repaid. Therefore, Plaintiff Gavi Capital exercises the claim for loans to the ridge, and Plaintiff Gavi Capital exercises the claim for the purchase price of red ginseng products against the Defendant, such as the ridge, in subrogation of the ridge, which was made in order to preserve their respective claims for loans to Plaintiff Gavi Capital as to the ridge, the third ridge, etc., and thus, the Defendant is obliged to pay the purchase

B. Defendant

In each product sales contract of this case, the Defendant was obligated to purchase red ginseng products on the floor, etc. of the Defendant’s ridge, etc., and the Defendant was required to purchase red ginseng products in a case where red ginseng products are not purchased, thereby ensuring the Defendant’s repayment of each loan obligation against the Plaintiffs, such as the floor, etc. on which the purchase price was made. As such, the agreement that the Defendant is obligated to pay the guaranteed obligation is null and void as it is in violation of Articles 57(2) and 112 of the Agricultural Cooperatives Act, which are mandatory provisions, and is null and void in that it goes beyond the Defendant’s legal capacity or legal capacity under Article 111 of the same Act. Even if the Defendant was obligated to purchase red ginseng products, the sales contract for red ginseng products was not concluded between the Defendant and the ridge, etc., and the purchase price was not finalized. Accordingly, the Defendant’s claim on this premise is without merit.

3. Determination

A. As to whether the defendant's obligation to purchase red ginseng products is guaranteed obligation

In full view of the facts acknowledged earlier and the overall purport of the pleadings, it is reasonable to view that the Defendant, in fact, had the Defendant bear the obligation to purchase red ginseng products under the product sales contract of this case, that the Defendant guaranteed each of the loans to the Plaintiffs, such as the ridge, etc. under each of the loan contracts of this case.

1) On February 24, 2012, both the first raw material and product sales contract of this case, first processing consignment and first lending contract of this case were concluded on March 20, 2012. All of the second raw material and product sales contract of this case, second processing consignment and second lending contract of this case were concluded on March 20, 2012, and each processing consignment contract of this case is subject to human and red ginseng purchased on the basis of each raw material sales contract of this case. The above processing consignment contract of this case covers three floors, etc., and the defendant must deliver red ginseng products made pursuant to each of the above processing consignment contract of this case to Yangyangyang in accordance with each of the above processing consignment contract of this case. The defendant must obtain prior approval from the plaintiffs, the creditor of each of the above lending contracts of this case, and Nonparty 1, the joint guarantor of the above lending contract, etc., are parties to each of the above products sales contract of this case. In full view of the above lending contract of this case, it is reasonable to conclude that both the first raw material and product sales contract of this case, first processing consignment agreement of this case, and the two consignment agreement.

2) Therefore, the terms and conditions of each of the instant contracts should be comprehensively examined, rather than individually examining the contents of each of the instant contracts, and the contents of each of the instant contracts should be examined. On such premise, in order to operate a business where three floors, etc. used to process and sell red ginseng products manufactured from the Defendant to Nayangyang, it can be seen that the Plaintiffs received loans from the Plaintiffs pursuant to each of the instant loan contracts, and the three floors, etc. received from the Defendant and repaid loans to the Plaintiffs with the purchase price of red ginseng products received from the Defendant. In other words, in the instant sales contract for each of the instant products, the first obligation to purchase red ginseng products was imposed on Nayangyang and the second obligation to purchase red ginseng products was imposed on the Defendant in preparation for cases in which Nayangyang may not purchase red ginseng products. The purpose of imposing the secondary obligation to purchase red ginseng products is to ensure that the Plaintiffs received the purchase price of red ginseng products from the Defendant, which is a joint surety or the principal and interest of each of the instant contracts, and thus, the Plaintiffs were not able to pay the principal and interest of each of the instant loans.

3) The purpose of securing the repayment of the principal and interest of interest of the Plaintiffs, such as floors, etc. which are considered as the purchase price of red ginseng products, is to ensure the payment of the purchase price of red ginseng products in each of the instant contract. As seen earlier, it is also confirmed that the Plaintiffs can manage the payment of the purchase price of red ginseng products only in each of the funds management accounts made in the name of a third party floor, etc. in each of the instant loan contracts, and the Plaintiffs can receive the principal and interest of the funds deposited in each of the above accounts. In each of the instant processing entrustment contracts, it is also confirmed that the Plaintiffs should confirm that the purchase price of red ginseng products was deposited in each of the above funds management accounts, and that the floors, etc., upon prior approval, can deliver red ginseng products to Gyeyang through the Defendant.

4) Furthermore, as to the purchase price of red ginseng products as stipulated in each of the contract to sell the products of this case, health expenses, ① although Article 4(1) provides that the purchase price of red ginseng products shall be stated in Article 4(2), the unit price shall be calculated by dividing the total business expenses calculated by adding loans under each of the loan contracts of this case, interest thereon, etc. into the relevant supply quantity. Accordingly, the purchase price of red ginseng products shall be calculated based on the principal and interest of each of the above loan contracts of this case (in the case of purchase of green ginseng products, interest rate of 10% per annum). ② Under Article 4(3), the purchase price may be adjusted if the Defendant is liable for secondary purchase of red ginseng products. In this case, the purchase price of red ginseng products of this case shall be guaranteed to the Defendant to pay the principal and interest of the loan under each of the above loan contracts of this case (in the case of purchase of red ginseng products, interest rate of 8% per annum shall be applied), ③ although Article 5 also provides that the purchase price of red ginseng products of this case shall be paid to each of this case.

B. As to whether the Defendant’s obligation to bear the guaranteed obligation is invalid

According to Articles 57 and 112 of the Agricultural Cooperatives Act, the defendant, an item cooperative, may borrow funds only from the State, public organizations, the National Federation, or the Nonghyup Bank (the provisions prior to the amendment on March 31, 201 can borrow funds only from the State, public organizations, or the National Federation). The above provisions constitute mandatory provisions (see Supreme Court Decisions 86Da133, Jun. 24, 1986; 70Da1450, Aug. 31, 1970; 71Da935, Jul. 29, 197; 71Da935, Jul. 29, 197). Therefore, the defendant's guarantee of the principal and interest of each of the loans of this case against the plaintiff, such as the ridge, by bearing the obligation to trade red ginseng products in accordance with each of the contracts of this case, constitutes a violation of Articles 57 and 112 of the Agricultural Cooperatives Act, which are mandatory provisions and thus are invalid.

In addition, the legal capacity of a legal entity is limited by the law that served as the foundation for the establishment of a legal entity and the purpose of its articles of incorporation, and the act within its purpose is not limited to the purpose specified in the law or the articles of incorporation itself, but to carry out the purpose directly and indirectly (see Supreme Court Decision 86Meu1384, Jan. 19, 198). The Agricultural Cooperatives Act, which served as the foundation for the establishment of the defendant, lists the business that the defendant can carry out in Article 111, and comprehensively takes account of subparagraphs 2 and 9 of Article 111, the defendant can carry on the business of processing and selling human and red ginseng, which is an agricultural product, and any incidental business related thereto. However, as seen above, the burden of invalid guaranteed liability in violation of Articles 57 and 112, which are mandatory law, is included in the scope of incidental business permitted under the above provision. Therefore, it is invalid in that the defendant's obligation to actually take the loan of the plaintiff, etc. out of the scope of the principal and interest of the loan of this case.

As long as the Defendant’s act of bearing the obligation to sell and sell red ginseng products in accordance with each of the instant sales contracts is null and void as it goes against the mandatory law and goes beyond the Defendant’s legal capacity, it does not affect the Defendant’s decision-making on the validity of the Defendant’s act of bearing the obligation to sell and sell red ginseng products, as alleged by the Plaintiffs, whether the Defendant went through internal decision-making process, such as the resolution of the board of directors, on the premise that the Defendant bears the obligation to sell and sell red ginseng products, and whether there was a transaction practice with the financial institution like the Plaintiffs on the premise that

4. Conclusion

Therefore, the plaintiffs' claims in this case premised on the defendant's obligation to purchase red ginseng products from the ridge, etc. and pay the purchase price to the ridge, etc. are dismissed in entirety without any justifiable reason. It is so decided as per Disposition.

Judges Ahn Ho-ho (Presiding Judge)

1) The definitions of terms used in this Act are as follows: 1. The term "cooperative" means a local union and a product cooperative; 3. The term "product cooperative" means a cooperative by item or by type of business established under this Act: