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It is an offense precisely because it can only be performed by the public official or by the public functions employee.
The negligent behavior consists in granting or guaranteeing, for oneself or for third parties, cash or another benefit, even of a non-pecuniary nature, taking advantage of its role. This behavior can manifest itself in two different ways: imposition and concussion.
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The imposition is considered as a relative mental constraint, ie it includes the planning of an unlawful damage to the injured party, who can still choose to accept the request or suffer (in case) the damage caused to fear.
The concussion on the contrary is manifested by acts of arrogance of the private subject not explicitly connected to the relative psychological pressure (references, secrecy, figurative expressions) able to operate on the justification of the subject developing a status of mental submission.
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In this situation, the jurisprudential doctrine has recently elaborated the formula of "environmental persuasion" that occurs when the private person is persuaded to commit the gesture, rather than by a corroborated persuasive attitude of the public subject, by the belief that he has to adapt a widespread practice, that is the certainty that that concession or guarantee are the only means to have a real action of the administrative bodies.
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The concussion is certainly part of the unlawful intervention of the injured party since its conduct is decisive for the purpose of the representation of the concrete case, in fact in the hypothesis in which the grant or the guarantee does not take place would not occur.
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The experiment, however, is recognized when the public body commits actions aimed at imposing or stimulating someone to grant or guarantee, but does not actually perform the grant or guarantee. The development of the passive subject from the Code to today.
The taxable person based on the initial orientation of the Code consisted only of public administration bodies; at this moment rather, in the wake of the principles of the constitution that highlight the centrality of the individual in the normative system, it is considered as the passive subject also the concussion, forced in its right to autonomy and freedom and damaged in the completeness of its assets.
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Pre-sale and fraud with aggravating circumstances.
Fraud with aggravating circumstances occurs when the requirement or function of the public official contributes on a level complementary to the definition of the tenacity of the taxable person, who is persuaded by deception or cheating to an activity that he considers due.
The concussion is rather identifiable whenever the immoderate use of the requisites or duties of the public official is a decisive motive in an exclusive manner, so much so as to push the taxable person to the illegitimate concession that he knows does not owe.
Concussion and own corruption.
The difference between the two institutions, which can not always be easily identifiable, lies in the prevailing jurisprudential doctrine in the "metus publicae potestatis". If the grant or guarantee is given by the private entity, since it is in a state of submission caused by the torture of the public entity, there is a concussion.
On the contrary, if the two parties autonomously operate for a common success, a case of corruption occurs.
In the concussione the passive subject tries to avert a risk (certat de damno vitando), where corruption is oriented to enjoy a benefit (certat de lucro captando).
Misappropriation and improper corruption - Embezzlement and environmental corruption. Corruption at the environmental level occurs when a subject is sure that specific attitudes, such as the granting of what is not due, derive from a well-established public custom that they all use and for this reason even if not legitimate, " normal "; it is evident that, in order to have the illicit, it is always necessary that the private subject be persuaded by an attitude of the public official. In national law, the offense is governed by article 317 of the Penal Code which states:
"The public agent or the person in charge of a public function who, taking advantage of his role and his faculties, imposes or pushes someone to grant or illegally guaranteeing cash or other benefits to oneself or others, is sanctioned with imprisonment from four to twelve years ".